COURT OF APPEAL FOR ONTARIO DATE: 20230710 DOCKET: C69459

van Rensburg, Copeland and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

Kadeem Whitfield Appellant

Counsel: Jessica Zita, for the appellant Sarah Shaikh, for the respondent

Heard: June 9, 2023

On appeal from the conviction entered by Justice Louise A. Botham of the Ontario Court of Justice on February 18, 2021.

REASONS FOR DECISION

A. OVERVIEW

[1] The appellant was convicted of possessing fentanyl for the purpose of trafficking. At the time of his arrest, the police believed that they were actually arresting another individual whom they had been investigating for drug trafficking. The police also relied upon observations they made from a covert hallway camera they had installed, without a warrant, in an apartment building.

[2] At trial, the appellant argued that the police did not have grounds to arrest him because they were mistaken about his identity. The trial judge disagreed. She found that the police had reasonable grounds to arrest the appellant and their mistaken belief about who he was did not detract from those grounds.

[3] The Crown conceded that the observations made from the warrantless installation of the covert hallway camera were unlawfully obtained and that the arrest of the appellant flowed from that breach. As a result, the trial judge found that the arrest and search had violated the appellant’s rights protected by ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. However, after applying the framework for the analysis of s. 24(2) of the Charter set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the trial judge admitted the fentanyl that was located as a result of the search. This resulted in the appellant’s conviction.

[4] On appeal, the appellant renews his argument that the police lacked reasonable grounds to arrest him, given that they were mistaken about his identity. He also argues that the trial judge erred in her s. 24(2) analysis, that the fentanyl should not have been admitted into evidence, and that he should have been acquitted at trial.

[5] For the reasons that follow, we do not accept the grounds of appeal advanced by the appellant and would dismiss the appeal.

B. BACKGROUND

(1) The investigation

[6] In the course of a larger drug investigation commenced in early 2019, police identified an individual suspected of drug trafficking, described as a Black male, six feet tall, in his mid-20s to early 30s, with a short black afro and a short black beard. After further investigation, police were satisfied that the male who had become a target of the investigation was an individual named Kawayne Edwards.

[7] The police identified two addresses associated with Edwards, one of them being apartment 310 at 8 Lee Centre Drive in Scarborough. They also identified two rented Hyundai Sonata motor vehicles associated with Edwards.

[8] On May 8, 2019, with the consent of building management, police installed a covert camera on the third floor of 8 Lee Centre Drive. Camera footage showed the male believed to be Edwards using a key to enter and leave apartment 310 on several occasions between May 8 and June 13, 2019. On one occasion, the individual believed to be Edwards entered apartment 310 empty-handed and left nine minutes later with a grey plastic shopping bag and a red box under his arm. He got into a car for one minute with another individual who was also a target of the investigation. He then left the car with the grey shopping bag but without the red box.

[9] The camera footage from this time period also revealed multiple persons entering apartment 310 at all hours of the day and night. These individuals were carrying satchels, backpacks and duffel bags that were transferred to other individuals. Individuals were also seen going in with a bag and leaving without one.

[10] As a result of these observations, police formed the opinion that apartment 310 was being used as a drug stash house. On June 13, 2019, police obtained a warrant to search two locations, including apartment 310-8 Lee Centre Drive, believing that drugs and drug paraphernalia would be found at those locations.

(2) The appellant’s arrest

[11] On June 14, 2019, prior to executing the search warrant, police viewed the live surveillance feed through the covert camera installed on the third floor of 8 Lee Centre Drive and observed the male believed to be Edwards use a key to enter and lock apartment 310. The police noted that the male matched the description of Edwards. Police had observed this individual enter apartment 310, with a key, on previous occasions. In addition, one of the Hyundai Sonata motor vehicles associated with Edwards was parked in the building’s underground parking lot. When this individual left apartment 310 approximately 25 minutes later, police made the decision to arrest him if he entered the Hyundai Sonata that was parked underground.

[12] The individual did in fact get into the Hyundai Sonata, which prompted the police to arrest him as he was attempting to drive out of the parking lot. He was searched incident to arrest and found to be in possession of 49.17 grams of fentanyl. However, the person arrested was subsequently identified as the appellant rather than Edwards. Edwards was arrested later that day at the other location identified in the search warrant.

C. THE TRIAL

[13] The appellant argued that there were insufficient grounds for the police to arrest him because they believed, incorrectly, that he was Edwards. The appellant also argued that simply entering and leaving a suspected stash house is not sufficient grounds to make an arrest.

[14] The Crown’s position was that there were sufficient grounds to arrest the appellant since it was reasonable for the police to believe that the appellant was the same person they saw entering and leaving apartment 310 on prior occasions. In the alternative, the Crown also argued that police had grounds to arrest any person who had control over the apartment, which was a location they believed was being used for drug trafficking.

[15] The appellant also alleged, and the Crown conceded, certain breaches of the appellant’s Charter rights. The first was the warrantless installation of a covert camera on the third floor of 8 Lee Centre Drive. When the police installed the covert camera, they believed that the consent of building management was sufficient for the installation of such cameras, relying on Code J.’s decision in R. v. Brewster, 2016 ONSC 8038, 142 W.C.B. (2d) 637, aff’d in part, 2019 ONCA 942, 151 O.R. (3d) 244. On appeal, this court determined that the installation of covert cameras in an apartment building requires prior judicial authorization: R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, leave to appeal refused, [2020] S.C.C.A. No. 38. Since no prior judicial authorization was sought or obtained in this case, the Crown conceded that the camera had been unlawfully installed, that observations from the camera could not be relied upon as a basis for arresting the appellant, and that the arrest and search of the appellant was therefore also unlawful. The Crown also conceded that the police failure to file a Report to Justice in a timely manner violated the appellant’s rights under s. 8 of the Charter. However, the Crown took the position that the fentanyl should be admitted despite these Charter breaches, pursuant to s. 24(2) of the Charter, since its admission would not bring the administration of justice into disrepute.

[16] The trial judge found that the police misapprehension as to the appellant’s identity did not detract from the reasonableness of their decision to arrest him. The police reasonably believed that the subject apartment was being used as a stash house for drugs. The male arrested had a key to the apartment and was thus in a position to exercise control over it. The fact that it was the appellant and not Edwards who was arrested did not, in itself, make the arrest unlawful.

[17] The trial judge went on to find that the covert camera had been unlawfully installed and that the observations from the camera should be excised from the grounds for arrest. Since the decision to arrest the appellant was based on the observations from the camera, excision of those observations inevitably meant that the arrest and search had violated the appellant’s Charter rights and were unlawful.

[18] The trial judge went on to consider, pursuant to the three Grant factors, whether the acknowledged breaches of the appellant’s Charter rights should result in the exclusion of the fentanyl. The trial judge noted that the ultimate issue is whether, having considered these three factors, the long-term reputation of the criminal justice system would be better served through the admission or exclusion of the evidence.

[19] In this case, although the police actions are now understood to have been unlawful, they were not so understood at the time the covert camera was installed. Thus, the police could not be said to have acted negligently, or in ignorance of their constitutional obligations. The trial judge indicated that had she found impropriety, or even inattention to constitutional standards in the police conduct, that would have been enough to tip the scales in favour of exclusion, given what she regarded as the severe impact on the appellant’s privacy interests. However, in the absence of any such impropriety, the exclusion of the evidence would have a long-term negative impact on the reputation of the administration of justice. Accordingly, she admitted the evidence and convicted the appellant.

D. DISCUSSION

[20] As noted above, the appellant raises two grounds of appeal: (i) the police’s mistaken belief as to the appellant’s identity rendered his arrest and subsequent search unlawful; and (ii) the acknowledged breaches of the appellant’s Charter rights should have led to the exclusion of the evidence under s. 24(2) of the Charter.

(1) The police mistake regarding the appellant’s identity did not, in itself, render the arrest unlawful

[21] The police were not required to be correct about the identity of the appellant before they formed grounds to arrest. Under s. 495 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, a warrantless arrest is lawful if the arresting officer believes, on reasonable grounds, that the suspect has committed an indictable offence. The standard of “reasonable grounds” focuses on the officer’s state of mind and the reasonableness of the officer’s belief, rather than the actual state of affairs. Reasonable grounds can be “based on a reasonable belief that certain facts exist even if it turns out that the belief is mistaken”: R. v. St. Clair, 2021 ONCA 895, 408 C.C.C. (3d) 117, at para. 26, leave to appeal to S.C.C. refused, 40270 (November 24, 2022); see also R. v. Robinson, 2016 ONCA 402, 336 C.C.C. (3d) 22, at para. 40.

[22] Here, the trial judge concluded that the officers’ mistaken belief did not detract from their grounds to arrest. In our view, there is no basis to interfere with this conclusion. At the time the police made the decision, they reasonably believed that the appellant was in possession of drugs, based on all the information they knew at that time. This information included substantial evidence that apartment 310 was a stash house; the appellant accessed apartment 310 with a key and locked the unit; the appellant was inside the stash house for approximately 25 minutes; he then used a car in the underground garage that was linked to Edwards, a target in the investigation.

[23] The appellant argues that the trial judge erred in finding his arrest to be lawful in light of the Supreme Court of Canada’s decision in R. v. Burke, 2009 SCC 57, [2009] 3 S.C.R. 566. In Burke, the police had a warrant to arrest a particular individual but in fact arrested his brother. The trial judge found the arrest to be unreasonable, and this conclusion was ultimately upheld by the Supreme Court.

[24] Yet the facts in Burke are quite different from those in this case. In Burke, the person arrested was simply riding his bicycle when he was arrested. Moreover, he informed the arresting police officer that he was not the individual they were looking for. The trial judge found the evidence of the officer to be inconsistent and contradictory, and found that the police had acted in bad faith in making the arrest.

[25] In contrast, in this case the appellant was seen entering and leaving what was reasonably believed to be a drug stash house, using a key. Further, the trial judge found that the police officers acted in good faith, and that they had an objectively reasonable belief that the person they observed entering and then leaving apartment 310 was in possession of drugs.

[26] We therefore find that there is no basis to interfere with the trial judge’s conclusion that the police officers’ mistaken belief as to the appellant’s identity did not, in itself, detract from the grounds for arrest. Accordingly, we would dismiss this ground of appeal.

(2) There is no basis to interfere with the trial judge’s s. 24(2) analysis

[27] Absent an error in principle, palpable and overriding factual error or an unreasonable determination, a trial judge’s decision to admit evidence under s. 24(2) of the Charter is entitled to deference on appeal: see e.g., R. v. Buchanan, 2020 ONCA 245, 150 O.R. (3d) 209, at para. 21, citing Grant, at para. 86. We see no such error in the trial judge’s s. 24(2) analysis in this case.

[28] The appellant argues that the trial judge erred in finding that the police acted in good faith, since they could have sought legal advice before installing the covert camera in 8 Lee Centre Drive. Yet the trial judge’s finding of good faith was firmly grounded in the evidence, namely, her further finding that the police conducted the investigation in accordance with what they genuinely understood to be the relevant legal requirements at that time. Further support for her finding is provided by the fact that the police did in fact obtain judicial authorization to install a covert camera at a different location, because property management at that location did not consent to the installation of the camera.

[29] We also note that there are numerous other cases where police have been found to be acting in good faith where they follow the law as they reasonably understood it at the time, even though that understanding is later shown to be mistaken. For example, in R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, the police obtained subscriber information pertaining to a cell phone seized from the accused without judicial authorization. The investigation was conducted prior to the release of the Supreme Court of Canada’s decision in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, which held that prior judicial authorization was in fact necessary to obtain such information. As a result, in Boutros, the subscriber information had been unlawfully obtained. Nevertheless, the trial judge found that the police had acted in good faith based on the law as they understood it at that time, and the evidence obtained should not be excluded under s. 24(2). That finding was upheld on appeal, with Doherty J.A. concluding that the s. 8 breaches did not support exclusion of the evidence since “[t]he officer who requested the information… acted in good faith and on a reasonable view of the law as it stood.” See also Spencer, at para. 77 and Yu, at para. 145 for similar statements of law.

[30] In the circumstances, it was open to the trial judge to find that the police acted in good faith when they installed covert cameras without prior judicial authorization. We see no basis to interfere with that finding.

[31] The appellant also argues that the trial judge erred in failing to consider the cumulative impact of the Charter breaches. Yet, a fair reading of her reasons suggests otherwise. The trial judge recognized that because the covert camera had been unlawfully installed, the subsequent arrest and search were also unlawful. As noted above, the trial judge went on to find that, because of the “severe impact” on the appellant’s privacy interests, she would have excluded the evidence had she found impropriety or even inattention to constitutional standards on the part of the police. But because there was no such police impropriety, combined with society’s interest in having cases adjudicated on their merits, the trial judge found that the exclusion of the evidence would have had a long-term negative impact on the reputation of the administration of justice. This was a finding she was entitled to make based on the evidence.

[32] Finally, we note that the Crown conceded a further Charter breach, namely, the late filing of a Report to Justice. But this late filing had no causal connection with the decision to arrest and search the appellant. Nor did the trial judge find that this late filing reflected bad faith on the part of the police.

[33] In sum, the trial judge considered the proper Grant factors, and her ultimate determination on s. 24(2) is entitled to considerable deference. In any event, we see no error in the trial judge’s weighing of the three Grant factors. We therefore dismiss this ground of appeal.

E. DISPOSITION

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

"K. van Rensburg J.A."

"J. Copeland J.A."

"P.J. Monahan J.A."