Court Information
Ontario Court of Justice
Date: 2014-03-05
Court File No.: Sudbury
Parties
Between:
Her Majesty the Queen
— AND —
Rayon Williams and Stephanie Craig
Before the Court
Justice: Richard A. Humphrey
Heard: March 3, 2014
Reasons for Charter Application Released: March 5, 2014
Counsel
- Denys Bradley — counsel for the Federal Crown
- Roberta Bald — counsel for the Provincial Crown
- Glenn Sandberg — counsel for the accused Rayon Williams
- Jacob Gauthier — counsel for the accused Stephanie Craig
HUMPHREY J.:
Introduction
[1] The applicant, Rayon Williams stands charged with possession of cocaine for the purpose of trafficking, possession of Oxycodone for the purpose of trafficking, possession of the proceeds of crime not exceeding $5,000.00 and 2 counts of driving while suspended. The events giving rise to these charges are alleged to have occurred on the 2nd day of January 2014.
[2] The accused Stephanie Craig stands charged with 3 counts of possession of drugs for the purpose of trafficking, one count of possession of the proceeds of crime not exceeding $5,000.00 and two counts of breach of probation.
[3] At the outset of the proceeding Ms. Bald on behalf of the Provincial Crown asked that the two counts of driving under suspension be withdrawn as against Mr. Williams. The court acceded to that request.
[4] Following the hearing of evidence, the Federal Crown submitted that there was no evidence to support a conviction on any of the charges relative to Ms. Craig. Accordingly, all charges against her were dismissed.
[5] The Federal Crown also acknowledged that the charge of possession of heroin for the purpose of trafficking alleged against Mr. Williams was not supported by the evidence, and that the jeopardy Mr. Williams was facing with regard to that drug was limited to simple possession.
[6] The events giving rise to the charges remaining to be dealt with are alleged to have occurred on the second day of January 2014.
Charter Application
[7] The applicant seeks the exclusion of evidence pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms. His request for the exclusion of evidence is founded upon his assertion that his section 8 and section 9 Charter rights were breached.
[8] Section 8 of the Canadian Charter of Rights and Freedoms reads:
- Everyone has the right to be secure against unreasonable search or seizure.
[9] Section 9 of the Canadian Charter of Rights and Freedoms reads:
- Everyone has the right not to be arbitrarily detained or imprisoned.
THE FACTS
Evidence of Staff Sgt Allan Asunmaa
[10] Staff Sgt Asunmaa has been an officer with the Greater Sudbury Police Service for some 30 years, having held position of Staff Sgt. for the past 12 years.
[11] It was his testimony that in his capacity with the Criminal Investigation Division, he has had occasion to deal with confidential informants close to 100 times. Of these dealings, he estimated that 75% of them provided information relating to drug activities. Regarding the investigation before this court, he said that he shared his information with Constable Jefferson and had done so, probably 50 to 100 times.
[12] On January 2, 2014 he received a telephone call from a confidential informant at a time of day which he did not wish to disclose, by reason of the potential that it would help to identify the informant. He recorded the substance of the conversation in his notes and estimated it to be of 3 to 5 minutes duration. He recorded the conversation in his notebook. It was his evidence that his notes were made shortly after the conversation and that there were no additions to or deletions from them.
[13] The confidential informant was a "numbered informant" and had provided information to this officer in the past regarding drug trafficking involving both cocaine and oxycodone. The information previously given by the informant had resulted in four Controlled Drugs and Substances Act search warrants being obtained, the result of which there were charges laid convictions registered and seizures of evidence consistent with the information given. In addition, the informant had provided information approximately eight times that proved to be true and accurate, resulting in street arrests for drug offences concerning which accused persons were arrested and convicted. The officer stated that the informant was familiar with the drug culture in Sudbury and had knowledge of the pricing, distribution and packaging of cocaine as well as the pricing and distribution of oxycodone. The informant had admitted to the consumption of the illegal substances and at the time of the conversation did not appear to be under the influence of drugs or alcohol. Staff Sgt Asunmaa said that the informant had never given false or misleading information in the past and had no record for obstructing police, obstructing justice, public mischief, perjury or fraud. It was his evidence that if the informant had a record for any of the affirmation offences, that person's information would not be used. He acknowledged that the informant's motivation in coming forward was monetary reward and or consideration regarding pending charges. The informant was told that if this information was incorrect or inaccurate, he or she would not be used as an informant again. The confidential informant advised Staff Sgt Asunmaa that the source of this information was personal and firsthand. It was his information that the informant had dealt with the individuals before the court "firsthand." By use of the term "firsthand" he clarified that he or she had seen a transaction occur and seen the cocaine. The source of the information was not directed by Staff Sgt Asunmaa to do anything on his behalf, and he promised to keep the identity of the informant confidential.
[14] Just after 4:00 p.m. on January 2, 2014 Staff Sgt. Asunmaa spoke with Constable Jefferson by telephone. He estimated the duration of the telephone call to be 2 to 3 minutes. He told Constable Jefferson that he had received information from a confidential reliable source advising that a black male from the Toronto area in his early 20s, was in possession of a large quantity cocaine and was driving a black four-door Mazda car. The male was dealing from his vehicle. The car was parked at the rear lot of 5 Fairview Avenue off of Lloyd Street in the City of Greater Sudbury. The male had a large quantity of cocaine in the Mazda. He told Constable Jefferson at that time that the informant was a past proven source. At that time he did not give Constable Jefferson information as to the source of the informant's information or give him specific qualifications of the informant. He stated that all information he had, had come through the one source only and that he expected Constable Jefferson to act upon the information he had given him and attend at 5 Fairview Avenue. He had no further involvement with the investigation after that.
[15] In cross-examination, Staff Sgt Asunmaa agreed that he was not provided with further particulars descriptive of the suspect, or of the motor vehicle nor did he ask. He acknowledged that further particulars of the suspect the car and 5 Fairview Avenue would have been helpful. He himself did nothing to corroborate the information given to him from the informant, and merely passed the information on Constable Jefferson. He agreed that the information he had would be insufficient to obtain a search warrant of a residence. He did not tell Constable Jefferson about the motivation of the informant in having come forward. While it would have been helpful, no details were provided by the informant concerning the nature of the packaging of the drug or its location in the car. He did not recall asking for any detail from the informant concerning the black male. He acknowledged that the information he had regarding the reliability of the informant, as detailed in his examination in chief, and that had been related to Mr. Bradley, had not been imparted to Constable Jefferson. He had a clear memory that he did tell Constable Jefferson that the informant had first-hand, personal knowledge in having seen the male in possession of a large quantity cocaine in the Mazda. He acknowledged that corroboration of information is important, and said that he told Constable Jefferson to go to the area immediately for that purpose. It was his intention that a black male in a black four-door Mazda at that address be arrested despite the absence of further particulars. He was not aware of the details of the actual arrest.
[16] In re-examination, he testified that anonymous tips are treated differently than information from past proven informants and that with regard to anonymous tips, much more corroboration is needed. The arrest was within one hour to three quarters of an hour from him having been given the information. It was his evidence that the term "past proven" means that the person's evidence has been corroborated through arrests and is reliable.
Evidence of Constable James Jefferson
[17] Constable Jefferson testified that he has been a member of the Greater Sudbury Police Service since August 2008 and has been assigned to the drug unit for the past 2 years 3 months. His duties with the drug unit consisted of conducting drug investigations, writing "informations to obtain" for Controlled Drugs and Substances Act search warrants, the execution of search warrants, dealing with confidential informants, handling their information and making it useful for drug enforcement purposes. As of the date of this occurrence, he had been involved in approximately 40 investigations resulting in seizures of cocaine and had prepared 15 to 20 search warrants involving cocaine. He estimated that he had been involved with the execution of 20 to 30 Controlled Drugs and Substances Act search warrants for cocaine. He estimated that he had been involved in the seizure of cocaine in amounts ranging from small percentage of 1 gram to kilograms approximately 40 times. He has arrested users of cocaine upwards of 40 times. He has debriefed users of cocaine 60 or 70 times. He has arrested persons trafficking in cocaine over 10 and less than 20 times and arrested persons involved in possession of cocaine for the purpose of trafficking approximately 20 times. His evidence was that he debriefed people trafficking in cocaine some 20 to 60 times and he was involved in an undercover project known as "Nickel" in early 2013, which lasted for 5 or 6 months.
[18] He was asked questions regarding his experience with Oxycodone prior to January 2, 2014. He estimated that he was involved with cases involving Oxycodone between 20 and 40 times and had prepared under 10 search warrants for Oxycodone. He had executed search warrants for Oxycodone in a range of 10 to 20 times and seized Oxycodone personally in the range of 20 times. The quantum of Oxycodone seized ranged from half of one tablet to 600 tablets. He has arrested several users of Oxycodone and debriefed them. He has arrested and charged persons with possession for the purposes of trafficking in Oxycodone.
[19] He has personally dealt with confidential informants on approximately 40 times, some on multiple occasions. These persons had given information regarding trafficking in cocaine and Oxycodone. He said that the term "past proven confidential informant" refers to a person who has provided information the past, which has led to an arrest for a criminal or for a drug charge or the seizure of drugs and weapons, as well as the arrest of wanted parties. If the confidential informant is a first time source he or she is treated more carefully and cautiously. Attempts are made by the police to corroborate as much information as they can because the person does not have the proven status of reliability. He has arrested over 10 persons for cocaine trafficking based on confidential informant information received directly by him as well as cocaine traffickers based on confidential informant information received from other officers. He estimated he has arrested persons based on confidential informant information imparted to him by Staff Sgt Asunmaa over 20 times. He said that the term "past and proven" means that the information given by the informant has been deemed to be credible. Arrests are often made on the basis of confidential informant information given to him by another officer. His testimony was that the quality of the confidential informant information received from Staff Sgt Asunmaa in the past has been very accurate and stated that Staff Sgt Asunmaa is very good at what he does in that regard.
[20] On January 2, 2014 he was working day shift. At 4:00 p.m., he received a phone call from Staff Sgt Asunmaa which he estimated to be approximately 30 seconds to a minute in duration.
[21] He prepared notes concerning his conversation with Staff Sgt Asunmaa and notes regarding the investigation of the accused Rayon Williams. He was told that information had been received from a past proven reliable confidential informant that a black male would be driving a black Mazda car, that the male would be at the address of 5 Fairview Avenue in the City of Greater Sudbury in the rear lot and that he was in possession of cocaine for the purpose of trafficking. He was told the cocaine was located in the black man's motor vehicle. Staff Sgt Asunmaa further advised that if the individual was located, there were reasonable and probable grounds to arrest him for the purpose of trafficking in cocaine. As a consequence of what he was told, Constable Jefferson in turn immediately relayed this same information to Constable Larochelle over the phone at about 4:01 p.m. He then attended the area of 5 Fairview Avenue to determine if the vehicle was in fact there. His testimony was that he was familiar with the address and that it is close to the downtown core, where there is a high degree of drug activity. This area is proximate to Tim Horton's, Sudbury Transit, and the liquor store. The 5 Fairview address is 100 to150 feet east of these downtown establishments and is also a highly frequented area for drug users and traffickers. He stated that the police have conducted investigations in the past, specific to 5 Fairview Avenue. He described the Fairview address as being off Lloyd Street, parallel to Elm Street and having several upper and lower units. It has doors to the outside and is similar to a motel. It has a rear lot the west side of the unit.
[22] Constable Larochelle attended at the Fairview address at 4:14 p.m. and advised Constable Jefferson that no vehicle matching the description sought was present. He maintained a visual on the site while Constable Jefferson remained in the area awaiting the results of Constable Larochelle's observations. Constable Jefferson had arrived shortly after 4:14 p.m. Detective Constable Koop and Detective Constable Rinaldi also attended the area to maintain surveillance. All were in unmarked cruisers.
[23] At 4:50 p.m. Constable Larochelle radioed and advised that a black male wearing a red parka in a black Mazda had arrived at the parking lot and had entered an upper unit at 5 Fairview Avenue where he remained for approximately 1 minute. He then exited the apartment returned to the driver's side of the vehicle and departed from that location. He also advised that there was a female in the passenger side of the vehicle as well. He felt that the short duration between the receipt of information and the observance of the vehicle was significant, as well as the facts that the vehicle was a black Mazda, driven by a black male in the rear lot of 5 Fairview Avenue. This evidence was which was consistent with the information given by the confidential informant.
[24] Constable Jefferson testified that the short duration of the attendance by the accused into one of the units at the address in question was significant and was consistent with his experience as a drug investigator of a prearranged drug transaction. The quick attendance at the unit and the leaving of the scene was also of significance, as it showed a pattern of drug activity. He stated that he believed he made the decision to effect the arrest but that all the officers knew that they were looking for a safe place to conduct it. Constable Jefferson stated that he felt he had reasonable and probable grounds to arrest the accused for possession of cocaine for the purpose of trafficking based upon the totality of the circumstances described in his evidence.
[25] At 4:53 p.m. the vehicle in question was boxed in at the TD bank parking lot by the officers and the accused was removed from the car and handcuffed by Constable Koop. He was advised that he was under arrest. No guns were drawn and the accused was not grounded. The door of the vehicle was opened and the accused was guided out. His person was searched by Constable Jefferson incident to arrest. Located in his left jeans pocket was a loose bundle of Canadian currency as well as a white locked iPhone in his jacket pocket. These items were seized and given to the Constable Larochelle who acted as the exhibit officer. Tendered and identified as exhibit 3 was a photograph of the large bundle of currency taken from the accused, as well as exhibit 4, being the white iPhone. The vehicle was searched incident to arrest and three more cell phones were located in the glove box and one cell phone on the console as well as a quantity of cash discovered among clothing in the trunk of the car. Tendered identified as exhibit 5, was a photograph of the two bundles of money located in the trunk of the car. The accused was unhappy about being arrested, but did not resist. The officer was asked if there was anything unusual about the detention of the accused, and he responded that it was a standard arrest.
[26] In cross-examination, Constable Jefferson stated that while he had omitted to use the words "past proven" and "rear lot of 5 Fairview" in his notes, he had a good recollection of that having been told to him by Staff Sgt Asunmaa. The officer was cross-examined at length by counsel for the accused regarding the lack of particulars in the information that had been given to him concerning the suspect. The import of this cross-examination was to attempt to establish the paucity of detail regarding the person or the vehicle sufficient to establish reasonable and probable grounds to affect the arrest. He candidly agreed that much more detailed information would have been of assistance, and that none was requested from Staff Sgt Asunmaa. He agreed that he was content to look for a black male driving a black Mazda at certain address being 5 Fairview Avenue in the City of Greater Sudbury in a certain timeframe. He said that the vehicle had to be at that location in order form the grounds for arrest. He also agreed that he was not given any of the detail regarding the past experience of the confidential informant in giving reliable information, other than that the person was "past proven." He was content to rely on that information about the informant being assessed and being under their purview of the "handler," which in this case was the responsibility of Staff Sgt Asunmaa. The officer was not able to identify exhibit 6 being a scarf that counsel agreed was in the possession of the accused at the time he was brought to the jail or exhibit 7 being a toque. He was shown exhibit 8 being a red jacket, which he said appeared to resemble the jacket worn by the accused, Mr. Williams. No request was made by him of Staff Sgt Asunmaa to further corroborate the information Staff Sgt Asunmaa had provided. The officer indicated that he had authored informations to obtain search warrants in the past and that the information he had in this case was not sufficient for that purpose. He himself took no steps to corroborate the information, but did state that it was the totality of the information that he had, which he relied upon for reasonable and probable grounds.
[27] In re-examination, Constable Jefferson stated that the threshold for a search warrant into a residence is greater than that of affecting and arrest at the street level. He clarified that the phrase "dealing drugs out of the car," meant to him that drugs would be in a car and the person dealing them would have to get out of the vehicle to meet purchasers for the purpose of completing the drug transaction.
Evidence of Constable Marc Larochelle
[28] Constable Larochelle has been a member of the Greater Sudbury Police Service since March 2008. He has been involved with the Drug Unit since January 2012 on a full-time basis.
[29] On January 2, 2014, he was working the afternoon shift from 4:00 p.m. to 2:00 a.m. Shortly after starting his shift at 4:00 p.m. he received a phone call from Constable Jefferson. He was informed by Constable Jefferson that Staff Sgt Asunmaa had received information from a past proven confidential informant. The information was to the effect that a black male, driving a black Mazda was in possession of a quantity of cocaine and was at the municipal address of 5 Fairview Avenue in the City of Greater Sudbury. Acting on this information he got in his vehicle and went to 5 Fairview Avenue arriving at 4:14 p.m. where he commenced surveillance. Upon his arrival, no black individual or black Mazda was located.
[30] He maintained surveillance and at 4:50 p.m. a black four-door Mazda pulled into the lot behind 5 Fairview. He observed a black male wearing a red jacket exit the vehicle and then enter the back entrance of the residence at 5 Fairview. The male was approximately 5'10" to 6' tall. At 4:51 p.m. the same male exited the building and got into the driver seat of the black Mazda and departed with a female on the passenger side. He advised Constables Jefferson, Rinaldi and Koop of his observations over the drug channel and mobile surveillance was then initiated. The suspect was followed to the TD Bank parking lot at the corner of Elm and Durham Streets where the arrest was affected. At the time of the arrest Constables Jefferson, Rinaldo and Koop were also present.
[31] Constable Larochelle was not involved in the physical arrest, which was conducted by Constables Jefferson and Koop, but was involved in the search of the vehicle. He stated that in his opinion the vehicle was black. He identified the two accused persons before the court as being the occupants of the vehicle. Upon searching the vehicle, he located a Bushnell binocular case in the center console in the area of the cup holders in the front seat. He was in charge of the exhibits located at the time. Located within that Bushnell case was a quantity of cocaine, crack cocaine, heroin and Oxycodone pills as well as a digital scale. In the trunk of the accused's vehicle among personal clothing were found two bundles of Canadian currency in a total sum of $9,770.00. Constable Larochelle identified exhibit 5 as being the currency seized from the trunk of the vehicle. Constable Jefferson searched the accused and located on his person was the sum of $1,675.00 and a white cell phone with a locked passcode. Photo exhibits were identified by the officer and tendered depicting the items he seized. They were as follows:
| Exhibit | Description |
|---|---|
| Exhibit 9 | A tied off grocery bag containing 34.74 g of cocaine |
| Exhibit 10 | A tied off plastic bag containing 3.91g of crack cocaine |
| Exhibit 11 | A tied off plastic bag containing 2.80 g of what he believed at the time was cocaine, but was later analyzed and proven to be heroine |
| Exhibit 12 | A tied off plastic bag containing 140-40 mg tablets of Oxycodone |
| Exhibit 13 | A tied off plastic sandwich bag containing 31.43 g of crack cocaine |
| Exhibit 14 | A functional Green Dragon digital scale with observed with residue |
[32] Constable Larochelle summarized that at the time of the arrest, he believed that the seizure of drugs was comprised of 37.54 g of cocaine, 35.34 g of crack cocaine, 140 – 40 mg pills of Oxycodone and a total of $11,445.00 in Canadian currency.
[33] In cross-examination Constable Larochelle stated that he had no direct involvement with the informant and did not know who the informant was. His information came from Constable Jefferson and there was no description of the man or the vehicle involved other than the fact that the person was black and the motor vehicle was a black Mazda. While he had been told that the informant was a past proven confidential informant, he agreed that he had no details of the track record of the informant, or how it came to be that Constable Jefferson believed that the individual was a past proven confidential informant, other than information given to Constable Jefferson by someone else. He took the information about the informant as being "past proven" at face value. He said he was looking for a black male driving a black Mazda at a specific address. He agreed that there was no black man and in a black Mazda when he first arrived at the scene and that his observations to that effect were some 50 minutes later. His evidence was that on the totality of circumstances, he believed that the accused was the person they were looking for.
ANALYSIS
Legal Framework for Warrantless Arrest
[34] The applicant was arrested without a warrant on January 2, 2014. The authority of a peace officer to make an arrest without a warrant is governed by section 495 of the Criminal Code. The relevant subsections read:
A peace officer may arrest without a warrant:
a) A person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
b) A person whom he finds committing a criminal offence.
[35] An arrest, that does not conform with section 495 and that is not authorized by any other statute will be unlawful.
[36] The arresting officer must possess, both subjectively and objectively, reasonable grounds to make the arrest. The officer is not required, however, to establish a prima facie case before making the arrest.
[37] In the case of R. v. Storrey, [1990] 1 SCR 241, at paragraph 17, Mr. Justice Cory wrote:
…….And arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.
[38] The standard requires something more than mere suspicion, but is lower than the civil standard of "proof on the balance of probabilities".
The Debot Test for Confidential Informant Information
[39] In the case at bar, the actions of the police in arresting the accused were based upon information from a confidential informant. As such, the test to be applied is that as was articulated by Justice Wilson on behalf of the Supreme Court, in the case of R v. Debot, [1998] 2 SCR 1140, at page 53, where he wrote:
In my view, there are at least 3 concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First was the information predicting the commission of a criminal offence compelling? Second where that information was based on a "tip" from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making a decision to conduct the search? I do not suggest that each of these factors is a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weakness in one area may, to some extent be compensated by strengths in the other two.
[40] The approach to be taken in assessing the reliability of the information given by the informant is to look at the totality of the circumstances, including the degree of detail disclosed, the informer's source of knowledge, and the past reliability of the informer.
Search and Seizure Framework
[41] A warrantless search is prima facie unreasonable. In such cases, the Crown has the onus showing the search to be reasonable, on the "balance of probabilities".
[42] Searches and seizures may be authorized by law or incident to arrest.
[43] For a search and seizure to the authorized by law:
a) There must be a specific statute that authorizes the search;
b) The search must be carried out in accordance with the procedure that the law provides;
c) The search must not exceed the scope of the authority to search.
[44] Searches incident to arrest at common law:
a) Must be truly incident to arrest purposes as protecting the police, discovering evidence, or protecting evidence;
b) do not require reasonable and probable grounds
c) Must have a subjective reasons related to the arrest;
d) The reason for the search must be objectively reasonable.
[45] The right to search "incident to arrest" is derived from the lawful arrest or detention. It follows, therefore, that if the arrest is unlawful, the search incident to arrest would be unlawful.
Application to the Facts
The Grounds for Arrest
[46] The evidence in support of the grounds for the arrest is that on January 2, 2014, Staff Sgt. Asunmaa of the Greater Sudbury Police Service received information from a past proven and reliable confidential informant that a black male from Toronto, in his early 20s, driving a black four-door Mazda car, was in possession of a large quantity of cocaine, which was inside the vehicle and that this person was dealing cocaine from the vehicle. The informant indicated that the car was parked at the rear parking lot of 5 Fairview Avenue off Lloyd Street in the City of Greater Sudbury. The officer confirmed that the information was first hand and that the confidential informant had seen the black male in possession of a large amount of cocaine.
[47] This information was imparted to members of the drug enforcement unit of the Greater Sudbury Police Service that same day.
[48] As a result of the information received, police conducted surveillance in the area Fairview Avenue. At approximately 4:50 PM, police observed a black Mazda 3 attend the municipal address of 5 Fairview Avenue. A black male exited the driver's side of the vehicle and walked into the apartment building. After a short stay the black male was seen returning to the vehicle. Surveillance was continued and at 4:53 PM, a traffic stop was conducted. The driver of the vehicle was arrested and was identified as Rayon Williams, born 2 September 1989. It was determined that his driver's licence was under suspension. A passenger in the vehicle was identified as Stephanie Craig, born April 13, 1988. She too was arrested.
[49] The accused was searched incident to arrest. Police located on his person the sum of $1,675.00 in Canadian currency and two cellular telephones. Police then searched the vehicle incident to arrest and located a further sum of Canadian currency in the sum of $9,777.00, four cellular telephones, a functional digital scale, 72.80 grams of cocaine, 140-40 milligram oxycodone tablets and a quantity of heroin.
The Applicant's Challenge
[50] The applicant challenges the lawfulness of the arrest. In particular, he argues the police relied exclusively on information provided to them by the confidential informant, which information was devoid of detail and could not be and was not, corroborated in any material way other than for the evidence of an "unidentified black male with no descriptors, together with a generic description of a vehicle."
Comparison to R v. Daley
[51] Counsel for Mr. Williams referred the court to a recent decision of Justice. Malloy of the Superior Court of Justice cited as R v. Daley, Benons, and Griffith, [2014] ONSC 1079, hereinafter referred to as the "Toronto case." His submission was that that decision is persuasive by reason of its similarity upon the facts to the case at bar. In that decision Justice Malloy ruled that the arrest was unlawful and that by reason thereof, the evidence should be excluded.
[52] The facts of the case were that a Detective Brons received a telephone call from another Toronto police officer, with whom he had no prior knowledge or working relationship with. That other officer told Detective Brons that he had received information from a confidential informant that a black Infinity motor vehicle with several black male occupants would be coming into the Donlands and Lawrence area of Toronto that day and that there was a large amount of cocaine in the car. Detective Brons testified that the police received a lot of anonymous tips and it would be "very rare" for them to act on them without corroboration. However, he testified in chief that he decided to act on this particular tip because he considered it "compellable" and "detailed," and from a source that had been "reliable in the past." Police then set up surveillance in the area of Donlands and Lawrence. They then observed a black Infinity enter a shopping Plaza parking lot and park in front of the drugstore. There were three men in the car, none of whom got out. Nobody approached the car. After 10 minutes, the car left the drugstore parking lot, drove one block north, and paused for 15 to 20 seconds in front of the entrance to a condominium building. Again, no one got out of the vehicle and no one approached it. The vehicle then returned to the drugstore parking lot and a high risk takedown occurred with the occupants being removed from the vehicle at gunpoint.
[53] Detective Brons was the only officer who testified concerning the circumstances of the grounds for the arrest. In her decision Justice Malloy determined that there was an absence of reasonable and probable grounds to make the arrest, and that the Crown had not discharged its burden. She found that the facts did not support the considerations necessary in a case depending entirely on information from a confidential informant as set out in R v. Debot, [1989] 2 S.C.R. 1140 at 1166. In finding that the evidence was not compelling, she pointed out that the precise location of where the car would be attending was not provided apart from it being in an area of the intersection of two busy Toronto streets. She also found that there was no indication of where the car was coming from or what it would be doing in the neighborhood mentioned. There was also no indication of how the confidential source obtained the information. It could have been firsthand or nothing more than rumour.
[54] With regard to the issue of credibility the detective knew nothing of the particulars of the confidential source and acknowledged having no knowledge about whether or not informant was an official registered confidential informant. Justice Malloy questioned the officer's testimony that he had been told by the "handler" that the confidential source had proven reliable in the past. She concluded that the reliability and credibility of the confidential source was unknown.
[55] On the issue of corroboration. She stated that there was none. She then went on to exclude the evidence under Section 24(2) of the Charter.
Distinguishing R v. Daley
[56] While it is acknowledged that there are some similarities between the Toronto case and the case at bar there are a number of significant details that set the two cases apart in terms of the applicability of the R v. Debot ( supra ) analysis. In the instant case, the court heard from three police officers, one of whom, unlike the Toronto case, had direct contact with the informant.
[57] The evidence of Staff Sgt. Asunmaa clearly established that the informant had firsthand personal knowledge of the information given, which included the precise address where the black Mazda car driven by a black man was expected to be in the City of Greater Sudbury, as well as the approximate time that it was expected to be there and the fact that the individual was dealing drugs out of the motor vehicle. While undoubtedly more particulars might have been provided by the informant, this court concludes that the information given by the informant was compelling.
[58] In the case at bar Staff Sgt. Asunmaa testified as to his knowledge of the informant, which included reliable past proven information concerning other investigations, and the fact that the informant's record did not include offences which would give rise for concern regarding his or her veracity. That evidence clearly established that the source of the information given to the police was credible.
[59] Regarding the issue of corroboration, the court heard evidence of surveillance that established that, indeed that a black Mazda car being driven by a black male did attend at a precise location being the parking lot of 5 Fairview Ave in the City of Greater Sudbury in close proximity to the time given. The evidence of Constable Jefferson was to the effect, that in his experience as a drug enforcement officer, the accused's entry into the building for a very brief period of time, as reported to him by Constable Larochelle, was consistent with a prearranged drug transaction being operated out of a motor vehicle as described by the informant. Thus, this court concludes that there was some corroboration of the information given by the informant.
Conclusion on Reasonable and Probable Grounds
[60] In determining whether or not, an arresting officer has reasonable and probable grounds to affect an arrest the court is required to determine the issue as set out in R. v. Storrey, [1990] S.C.R. 241, from both a subjective and objective point of view, and as would a reasonable person placed in the position of the arresting officer. Given the constellation of facts in this case, this court is satisfied that the arrest of the accused was based on factors beyond that of mere suspicion, and that the test aforementioned has been met. The officer's involved in this matter acted in good faith and were not cavalier arbitrary or capricious in the matter in which they conducted themselves. This court determines that the arrest of the accused Rayon Williams was lawful.
[61] Given that at the outset counsel agreed that the lawfulness of the arrest of the accused was the sole triable issue determinative of the accused's guilt or innocence, it is not necessary for this Court to deal further with the issues of the searches incident to arrest or the applicability of subsection 24(2) of the Charter.
VERDICT
[62] Accordingly a finding of guilt shall be registered as against Rayon Williams on all counts remaining, save and except that the finding of guilt with regard to the charge of possession of heroin for the purpose of trafficking is determined to be that of simple possession only and there shall be a finding of guilt to the possession of proceeds of crime exceeding $5,000.00 to conform with the evidence.
The court is indebted to counsel for their able argument during the conduct of this matter.
Released: March 5, 2014
Signed: Justice Richard A. Humphrey