Court of Appeal for Ontario

Date: 20230602 Docket: C69758

Before: MacPherson, Pepall and van Rensburg JJ.A.

Between:

His Majesty the King Respondent

and

Ian Reid Appellant

Counsel: Alexander Ostroff, for the appellant Rebecca De Filippis, for the respondent

Heard: May 30, 2023

On appeal from the conviction entered on June 25, 2021 by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant, Ian Reid, appeals his convictions for possession of a loaded restricted firearm, possession of a restricted firearm knowing he was not the holder of a license, possession of a prohibited device, carrying a concealed firearm, and being the occupant of a motor vehicle knowing it contained a restricted firearm. He received a global sentence of three years imprisonment less 14 days credit for pre-sentence custody. The appellant appeals the convictions.

[2] In July 2018, police received information from two registered confidential sources (“CIs”) that the appellant was in possession of a firearm. The police conducted surveillance on two days to confirm the appellant’s association with two locations identified by the CIs. Relying on the CI information, the police applied for and obtained telewarrants to search an apartment and a car associated with the appellant. No arrest warrant was sought.

[3] The next day the appellant, while under surveillance, was seen entering his car near one of the buildings associated with him. Two officers issued commands telling the appellant to exit the vehicle. A struggle ensued. Four police officers—Detective Constables Wauchope, Haffejee, McKenzie, and Taylor—stopped and handcuffed him.

[4] D.C. McKenzie observed a sock in the appellant’s waistband and, after seizing and searching the sock, found a Glock handgun with ammunition. The police then made a warrantless arrest. Later in the day, the police charged the appellant with several firearm related offences.

[5] At the trial, the appellant alleged Charter ss. 7 and 9 violations. Most of the Charter application turned on the evidence in respect of the arrest of the appellant from the four officers who were on site at the time. Each of the officers testified that they relied on the information from the CIs as set out in the ITOs for the search warrants and each officer testified that D.C. McKenzie found the firearm in the appellant’s waistband. The Crown provided a redacted version of the information to obtain (“ITO”) and, on the Crown’s application the redacted information was reviewed by the court and a judicial summary provided under Step Six of R. v. Garofoli, [1990] 2 S.C.R. 1421.

[6] On the blended Charter application and trial, the appellant testified that the police were not uniformed, used unreasonable force, and planted the gun on him.

[7] The trial judge found no ss. 7 and 9 Charter violations. The detention of the appellant was not arbitrary and the police did not concoct their evidence. The trial judge dismissed the Charter application and on the trial proper concluded that his possession of the handgun had been proven beyond a reasonable doubt.

[8] The appellant advances three grounds of appeal.

[9] First, the appellant asserts that the trial judge reversed the burden of proof on the Charter application. He says that the trial judge failed to see that the appellant was in effect advancing an overlapping Charter ss. 8 and 9 argument which, because of s. 8 jurisprudence, placed the burden of proof on the Crown.

[10] We do not accept this submission. The appellant’s Charter application was not a combined Charter ss. 8 and 9 challenge. It was a Charter ss. 7 and 9 challenge where the onus remained with the appellant. In any event, the evidence in support of the police detention of the appellant (s. 9) and the subsequent search (s. 8) was obvious and overwhelming.

[11] Second, the appellant contends that the trial judge’s reasons on the Charter application were insufficient, especially with respect to the subjective belief of the police that they had reasonable grounds to arrest him.

[12] We are not persuaded by this submission. In R. v. Storrey, [1990] 1 S.C.R. 240, at pp. 250-51, the Supreme Court of Canada enunciated a two-part test for determining whether the police had reasonable and probable grounds for making a warrantless arrest: (a) whether the arresting officer(s) subjectively believed the person arrested was committing, had committed, or was about to commit a criminal offence; and (b) whether the grounds were justifiable from an objective point of view, that is whether objectively a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest.

[13] The trial judge provided explicit reasons consistent with this test:

Both confidential informants were part of the same community as the accused and had been remunerated in the past for their information.

The ITO records that the information was provided by the confidential informants within 30 days of the issuance of the warrant. Having seen the exact date, I am satisfied it is of sufficient recency to have been relied upon by the police when forming their grounds for arrest.

Having reviewed the information contained in the warrant, the bulk of which was contained in the unredacted ITO, I am of the view that the police had more than reasonable and probable grounds to arrest the accused. The information placed a gun in the accused’s possession. The police had surveilled the accused and knew him to live at 3266 Weston Road and were also aware of the vehicle that he was driving. The information in the warrant provided a basis, both subjective and objective, that the accused was in possession of a firearm. In the ITO, CI #1 provided information that could lead the police to reasonably believe that the accused had a motive to carry the gun and would be in possession of it when arrested.

[14] In our view, it is impossible to attach the phrase “insufficient reasons” to the trial judge’s reasons relating to the accused’s Charter arguments at his trial.

[15] In a related argument dealing with the standard for reasonable and probable grounds, the Crown acknowledged that there is no lower standard for the reasonable and probable grounds required to arrest and to obtain a search warrant; the standards are simply different. We agree with the Crown that the trial judge did not apply any lower standard.

[16] Third, in respect of the conclusion that he was in possession of the handgun, the appellant challenges a specific passage in the trial judge’s reasons:

Finally, I accept McKenzie’s account, witnessed by Haffejee, that he found the gun in Mr. Reid’s waistband. Again, I reject Mr. Reid’s assertion that it was somehow planted on him by the officers. Haffejee saw the gun and confirmed McKenzie’s testimony on this point. Neither Wauchope nor Taylor saw McKenzie seize the gun but that does not detract from this version of events. Indeed, if there had been a planned planting of the gun, it is noteworthy that two officers conceded that they were told of the discovery of the firearm after the event - something that weighs against police concoction. [Emphasis added.]

[17] The appellant asserts that the trial judge erred in this passage by using the lack of evidence by two police officers as a makeweight for the credibility of the other two police officers.

[18] We disagree. All the trial judge was doing here was accurately recording the evidence of the four police officers and making the obvious point that it would count against a concoction argument: see R. v. Sivasubramanian, 2021 ONCA 61, at para. 12.

[19] For these reasons, the appeal is dismissed.

“J.C. MacPherson J.A.”

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”