Court of Appeal for Ontario

Date: 2024-09-04 Docket: COA-23-CR-1398

Before: Huscroft, George and Copeland JJ.A.

Between: His Majesty the King, Respondent And: Temaal Buffong, Appellant

Counsel: Aidan Seymour-Butler, for the appellant Molly Flanagan, for the respondent

Heard: August 29, 2024

On appeal from the conviction entered on November 15, 2022, and the sentence imposed on April 13, 2023, by Justice Chantal M. Brochu of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his conviction and seeks leave to appeal sentence for offences arising out of his possession of a loaded handgun. After hearing submissions from the appellant, we dismissed the appeal with reasons to follow. These are our reasons.

[2] With respect to the conviction appeal, the appellant raised three grounds of appeal.

[3] First, the appellant argued there was not reasonable suspicion to justify an investigative detention because there was no information about the credibility of the confidential informant who provided information to the police. As a result, the appellant argued that the detention violated his rights under s. 9 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[4] The appellant’s argument relies on the factors from R. v. Debot (1986), [1989] 2 S.C.R. 1140, used by the courts to objectively scrutinize the confidential informant tips relied on by police – whether a tip is compelling, credible, and corroborated. The Debot factors were developed in the context of the reasonable and probable grounds standard for a search warrant or arrest. The Supreme Court has recognized that the Debot factors may be helpful in objectively assessing whether the reasonable suspicion standard is met in cases where a tip from a confidential informant forms part of the basis for an intrusion on an individual’s liberty; however, the factors are applied more leniently because reasonable suspicion is a lower standard than reasonable and probable grounds: R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at para. 53. The ultimate standard against which an investigative detention is judged is whether the totality of the circumstances provides reasonable grounds to suspect that the person is involved in the type of criminal activity under investigation: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 34; and R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 25-35.

[5] Even in the context of the reasonable and probable grounds standard, weakness in one of the Debot factors can be compensated for by strength of the other factors: Debot, at p. 1168. A judge considering the validity of an investigative detention must consider whether the totality of the circumstances rises to the level of reasonable suspicion.

[6] In this case, we see no error in the trial judge’s conclusion that the totality of the circumstances provided reasonable suspicion for an investigative detention of the appellant to investigate a firearms offence. When the information in the confidential informant tip is considered along with the police observations at the bus station, the totality of the circumstances was sufficiently compelling and corroborated to meet the reasonable suspicion standard.

[7] Second, the appellant argued that even if there was a valid investigative detention, the trial judge erred in failing to find a breach of his s. 8 Charter rights from the police pat-down search and subsequent opening of his satchel after the pat-down search of the satchel disclosed an object that felt like a handgun. To be clear, the appellant challenged only the search of the satchel, not the pat-down search of his body.

[8] We reject this submission. The appellant was wearing the satchel at the time of the investigative detention. The offences for which the police had reasonable suspicion to ground the investigative detention were firearms offences. There can be no question there were grounds for an officer safety search as discussed in Mann at para. 43.

[9] In deciding this appeal, it is not necessary to consider the outer limits of what can be searched as part of a safety search incident to an investigative detention, which is necessarily a contextual exercise. In this case, the officers were entitled to conduct a pat-down search of the satchel as part of the pat-down search of the appellant because he was wearing it on his person at the time of the investigative detention. Although the officers had the appellant remove the satchel in order to carry out the pat-down search on his physical person, this does not change the fact that, as an item he was wearing, it was within the scope of the officer safety pat-down search.

[10] Third, the appellant argued that the trial judge erred in her s. 24(2) analysis in relation to the s. 10(b) Charter breach she found by considering discoverability at the first branch of the analysis pursuant to R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[11] Although the trial judge erred in considering discoverability under the first branch of the Grant analysis, there is no question that discoverability was a proper consideration under the second branch of the Grant analysis: R. v. O’Brien, 2023 ONCA 197, 166 O.R. (3d) 114, at para. 28. We acknowledge that the trial judge did not have the benefit of this court’s decision in R. v. O’Brien.

[12] In this case, even if one were to conclude that the s. 10(b) breach was a serious breach under the first branch of the Grant analysis, the second and third branches favoured admitting the seized firearm and ammunition. We see no basis to disturb the trial judge’s conclusion that admission of the seized firearm and ammunition into evidence would not bring the administration of justice into disrepute.

[13] With respect to sentence, the appellant argued that the trial judge erred in relying on the confidential informant tip to find that he possessed the firearm for use in crime. We agree that this was an error. The confidential informant tip was admitted at trial only in relation to proving grounds for the investigative detention as it related to the Charter issues. It was hearsay and not of a nature to be admissible to prove an aggravating factor, even on the relaxed admissibility standard on sentencing. However, we are not persuaded that this error impacted the sentence imposed. The trial judge imposed a sentence at the low end of the range for the offences the appellant was convicted of, which involved possession of a loaded handgun in a public place – a bus station – with intention to travel with it.

[14] The conviction appeal is dismissed. We grant leave to appeal sentence but dismiss the sentence appeal.

“Grant Huscroft J.A.”

“J. George J.A.”

“J. Copeland J.A.”