Ontario Court of Justice

Date: 2024 08 13 Court File No.: Toronto 998-23-10002014

Between:

HIS MAJESTY THE KING

— AND —

MARK THOMPSON

Before: Justice Christine Mainville

Heard on: June 17, 18, 19, 20, 21, and July 10, 2024 Reasons for Judgment released on: August 13, 2024

Counsel: Chris Kalantzis.................................................................................... counsel for the Crown Alana Page..................................................................................... counsel for the accused

Mainville J.:

[1] Mr. Thompson is charged with possession of several Schedule 1 substances and one Schedule 3 substance for the purpose of trafficking, under the Controlled Drugs and Substances Act (CDSA). He is also charged with being in possession of the proceeds of crime under $5,000. These drugs and cash were located on him after the police arrested him and searched him incident to arrest.

[2] Mr. Thompson challenges the police’s grounds for his warrantless arrest and the resulting search. Without the requisite grounds, Mr. Thompson’s arrest and search would be in violation of his s. 9 right against arbitrary detention and his s. 8 right not to be subjected to unreasonable searches and seizures, under the Charter.

[3] Mr. Thompson’s arrest and search were conducted in part based on information obtained by the police from a confidential informant (CI). Following the sixth step referenced in R. v. Garofoli, [1990] 2 S.C.R. 1421, I produced a judicial summary of those parts of the CI tip that cannot be disclosed to the defence or the public, given the risk that they would tend to identify the informant. I also ruled that this summary was sufficient to enable the defence to bring its Charter challenge. Pursuant to this procedure, I am entitled to consider the information that was not disclosed publicly, to the extent of course that it factored into the grounds for arrest: R. v. Crevier, 2015 ONCA 619, at para. 71.

[4] The Crown called two witnesses on the Charter voir dire, the supervising officer who ordered the arrest, Officer Contant, and the arresting officer (who was also the CI handler), Officer Gill.

[5] For the reasons that follow, I find that there was a breach of both section 8 and 9 of the Charter and that the items seized from Mr. Thompson pursuant to the search incident to his arrest should be excluded from evidence under s. 24(2) of the Charter.

Factual Summary of the Investigation

[6] The totality of the investigation in this matter took place on March 13, 2023. Following a team briefing led by Officer Gill that relayed aspects of the CI tip, the investigative team set out to conduct surveillance on their target, Mr. Thompson.

[7] They deployed to three addresses mentioned by the CI with a plan that they would arrest the target should they locate him and should they observe any drug trafficking activity.

[8] Officer Contant was the team lead. He first deployed to one of the addresses on Church Street where he would have observed someone who was a potential match for their target. Hours later, Officer Gill observed a person who was also a possible match on CCTV footage from just earlier that same day, at the second address on Asquith Avenue. They did not observe any drug trafficking activity.

[9] The surveillance team then moved to the Asquith location, where they ultimately arrested Mr. Thompson as he was departing that location.

Evidence of Grounds for Arrest

[10] Although Officer Gill was the arresting officer on scene, Officer Contant testified that he made the decision to arrest Mr. Thompson. As the supervising officer, he gave his team the direction to proceed with the “takedown” and arrest, which Officer Gill executed alongside other officers.

[11] The parties agree that Officer Contant’s grounds to arrest the accused should be the focus of this analysis.

[12] Prior to the Garofoli Step Six hearing, the Crown was under the misimpression that the entirety of the CI tip formed part of the grounds for arrest, given that Officer Gill – the source’s handler – was the arresting officer. This turned out to be inaccurate given that Officer Contant made the decision to arrest Mr. Thompson, and he was unaware of several aspects of the tip.

[13] Indeed, Officer Contant testified that he was informed of the CI tip at the team briefing led by Officer Gill on March 13, 2023, the date of the accused’s arrest.

[14] Based on that briefing, Officer Contant testified that he was informed of the following:

• The target’s nickname or street name, Juicy Black. (The officer also knew that Juicy Black was believed to be Mark Thompson.)
• A description of Juicy Black’s clothing as set out in para. 8(f) of the sealed document setting out the complete CI tip (filed as Exhibit 3, which cannot be made public but which is available to me).
• In general terms, that Juicy Black was in possession of drugs and that he trafficked drugs.
• The types and quantities of drugs involved. However, his testimony made clear that he only had partial information from the tip in this regard. His information was that Juicy Black dealt in car fentanyl; he did not have information regarding any other types of drugs.
• The three addresses associated with Juicy Black’s alleged drug trafficking, and the fact that Juicy Black was known to primarily frequent 389 Church Street to sell drugs.
• That he kept the drugs possibly in a backpack of some sort. (To be fair, Officer Contant’s notes of the briefing state more definitively that the target “keeps all of his drugs with him in a backpack that he carries”).

[15] Officer Contant confirmed that this represented the totality of the information he received about the tip. While he stated that he had more than one conversation with Officer Gill about the tip, that does not align with his initial response, nor was it Officer Gill’s evidence. There would also have been limited opportunity for further conversations, given that the entirety of the investigation including the arrest occurred within a matter of hours on a single day. Officer Contant also later agreed that he learned all the CI information that same day, at the team briefing which lasted a total of 17 minutes.

[16] In any event, it was made clear in his evidence that he had no information about how Juicy Black got around or went between addresses, about his modus operandi, or about any specific incidents of sale of drugs, including about whether the CI bought drugs from Juicy Black directly. Indeed, he confirmed that he did not have any specifics about Mark Thompson selling drugs, nor was he told whether the CI provided information about any specific incidents of drug trafficking. He was simply told that Juicy Black was actively selling drugs.

[17] When asked by the Crown if he had any information that the target was selling drugs at the time of the investigation, Officer Contant said yes. However, and without any further details regarding this information, he agreed that this response was not about selling drugs on that particular date, but rather that the information in general terms was that Juicy Black was actively selling drugs. He did not know the CI’s basis for stating as much.

[18] Officer Contant confirmed that he did not know the date on which Officer Gill received the tip, but also indicated he did know specifics about how recent the tip was. The precise information from the tip on that point was not canvassed with the witness, and without getting into the details that cannot be made public on the issue, I note a reference in Officer Contant’s notes that the tip was received in the winter of 2022/2023. In any event, he confirmed that he had no information regarding how recent any sale of drugs was. In fact, he received no information regarding the basis for the CI’s belief that Juicy Black sold drugs. He agreed that he did not know whether the CI’s belief was based on hearsay or rumour, or whether it was firsthand information.

[19] It is clear not only from Officer Contant’s evidence but also from Officer Gill’s evidence that Officer Contant did not have the entirety of the tip found in Exhibit 3, nor did he have the bulk of the details contained in the tip. This aligns with Officer Gill’s evidence of what he relayed about the CI tip at the team briefing.

[20] The briefing sheet is succinct. It includes a picture of the target (T1), the name and date of birth of the accused, the three addresses that the target was “known to frequent” (389 Church, 40 Asquith, and 220 Oak), and the following “Information Summary”:

• T1 is believed to be in possession of scheduled I (sic) substances.
• T1 is believed to be trafficking these substances at the aforementioned addresses.
• T1 is believed to keep all of his drug products in his possession in a back pack.
• T1 is known to primarily frequent 389 Church Street.
• T1 has been actively trafficking drugs since initial information was received in the winter of 2022/2023.

[21] This information aligns with the nature of the information Officer Contant testified to knowing about the tip.

[22] Following the briefing, the team began surveillance at the three addresses referenced by the CI.

[23] Officer Contant testified that at 5 pm, he was driving by himself on Church Street when he observed a Black male that could have been Mark Thompson “loitering” outside 389 Church Street, “a common occurrence in that area” (for people to be hanging out).

[24] The male was observed to be wearing a baseball cap, a black coat with a hood, and shiny black Air Jordan runners (like plastic around the shoe). He was also wearing a black and white backpack, with black and white all over. The male was observed for approximately 2 to 8 seconds as Officer Contant was driving by. The male was no longer there by the time Officer Contant turned around and drove back in front of the building at 5:02 pm. He agreed that the male was by himself and there was no drug trafficking activity observed.

[25] While Officer Contant believed this could be their target, he was most unsure of this, testifying that he “didn’t think at this time that it was that significant”. This would explain why he did not relay this information to the entire team, despite initially testifying in direct examination that he communicated the information to his team even though he was unable to positively identify the man, in case the others came across him later. When confronted with the fact that this information was not in fact relayed to the team on the radio “Tac” channel they used to communicate, he stated that he called Officers Huong and Gill separately about it instead.

[26] Officer Contant testified that he later received a still CCTV image from Officer Gill depicting a male entering 40 Asquith. Officer Gill testified that he retrieved this image from CCTV footage that he reviewed from the Toronto Community Housing Corporation (TCHC)’s central office. He reviewed this footage around 8:45 pm and it depicted the male entering the building just prior, at 8:34 pm. The information would therefore have been relayed to Officer Contant sometime thereafter.

[27] Upon seeing the image, Officer Contant was confident that it was the same person he had seen earlier. He could not however state that it was Mark Thompson.

[28] Officer Contant described the still image as depicting a Black male with a hood up, sporting a black backpack, checkered black and white, and wearing yellow Air Jordans with shiny plastic. He noted that he had not earlier noticed the yellow as he was driving past. The image also depicts that the male is wearing a black and grey jacket, a black cap, and blue jeans.

[29] At 9:03 pm, the team was notified that a positive ID was made of T1 entering 40 Asquith.

[30] At 9:04 pm, Officer Contant made the call for all team members to move to 40 Asquith to cover all exits of the building. He asked two uniformed officers to attend at that time. Officer Contant asked over the Tac channel whether the CCTV depicted how the person got to 40 Asquith. Officer Gill was unable to ascertain that. Officer Gill then voiced over the Tac channel a description of what he saw on the still image.

[31] At 9:06 pm, Officer Contant instructed his team over the Tac channel to do a takedown and arrest the person. He clarified that if the person was just walking, they would try to get him right around there; if he got into a cab, they would call the officers up but will “just see what happens”. This suggests that Officer Contant knew that the target travelled by cab, as per the tip, but confirms that no cab was in the picture when the decision was made to arrest.

[32] The team subsequently discussed whether the male was still in the building, which could not be confirmed as there had been no further sightings of him and there was more than one entrance.

[33] Around 11:15 pm, the team referenced a taxi and discussed how to approach the takedown if the male got in the taxi. The Tac communications reveal that they have no confirmation that the person Officer Gill saw on the CCTV still at 8:34 pm was Mark Thompson, as they state “if it is him”. Officer Contant testified that it was most likely him, that he believed it was, but that he had no confirmation up to that point.

[34] At 11:17 pm, Officer Nanton observed a male that was possibly T1, he could not see for sure. The male was just seen in the area but was not seen exiting 40 Asquith. He was possibly with a female. Officer Nanton then stated that he definitely saw a bag, and that he is “gonna go with it”. Officer Gill then reiterated the description of the distinctive black and white backpack seen on the still entering 40 Asquith 2.5 to 3 hours earlier, and Officer Nanton stated “this is going to be our T1”.

[35] Officer Contant agreed that he made the decision to arrest the accused when he was believed to be inside the building at 40 Asquith. He testified that the surveillance led to his decision to arrest based on the following grounds: (1) The locations where the target was believed to have been seen; (2) The confirmation of Mark Thompson being located entering 40 Asquith, wearing the clothing as described in the tip; (3) What he saw earlier in the day of the person, at 389 Church; and (4) The information received about what the target may be in possession of, that being car fentanyl.

[36] He believed that the surveillance corroborated those aspects of the CI tip he knew about and believed the tip to be credible. The tip referred to Juicy Black, and Officer Contant knew from a prior investigation who Juicy Black was.

Applicable Law

[37] The police may arrest without a warrant where they have reasonable and probable grounds to believe that a person committed (or is about to commit) an indictable offence. The reasonable and probable grounds standard includes subjective and objective elements. Under the subjective element, the officer must genuinely believe, on the requisite standard, that the person is implicated in the criminal offence under investigation. The objective component of the test requires that the officer’s belief be objectively reasonable in light of the information in his or her possession at the time of the arrest.

[38] When the police rely on information from a confidential source, consideration must be given to whether the information is compelling, credible and/or corroborated by other aspects of the police investigation. These are not discrete categories and are not to be treated as silos. Weaknesses in one area may be offset by strengths in another: R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Charles, 2024 SKCA 8.

[39] Information may also be confirmed and corroborated without necessarily providing evidence of the criminality alleged by the confidential source: see R. v. Caissey, 2007 ABCA 380, at paras. 12-25, aff’d 2008 SCC 65; R. v. Rocha, 2012 ONCA 707, at paras. 21-24.

[40] The Charter voir dire was blended with the trial. While the accused bears the ultimate burden on the Charter application, given that this was a warrantless search, the Crown bears the onus of establishing that the arrest and resulting search incident to arrest were lawful on a balance of probabilities.

Findings of Fact

[41] A key consideration on this application relates to whether observations were made of the target or potential target at two separate locations referenced by the CI: 389 Church and 40 Asquith.

[42] Indeed, and while not determinative, without this link between the two addresses, I fail to see how the police could reasonably have had the necessary grounds to arrest.

[43] At the briefing, it was agreed that the three target addresses would be surveilled, and if the target Juicy Black – a.k.a. Mark Thompson – was located, the team would conduct surveillance on his activities. If observations were made of him drug trafficking, an arrest would be made – at Officer Contant’s direction.

[44] Officer Contant inferred from the fact that they would not simply arrest the target upon him being located that the CI’s handler, Officer Gill, did not have grounds to arrest the target unless there was evidence of drug trafficking. Officer Gill agreed that he did not have grounds to arrest at that point in time.

[45] Officer Contant had much more limited information than Officer Gill and had very little information to enable him to state that the tip was compelling and credible – as further addressed below. However, this could be supplemented by the corroboration he gained from surveillance, of those aspects of the tip he knew about.

[46] The significance of the subsequent observations largely turns on a potential identification of Mark Thompson at two separate addresses referenced by the CI, and him carrying a backpack at those locations.

[47] Indeed, Officer Contant made the decision to arrest without any other information relating to Mr. Thompson’s alleged modus operandi, and without other indicators of suspicious activity. There were no additional observations of note beyond the person having potentially been located at those two addresses: he was not seen with anyone of note, he was not observed taking a taxi, he was not observed getting in and out of a vehicle or some other location in a manner suggestive of drug trafficking, nor could he be said to have been engaged in any other form of suspicious activity.

[48] If Mark Thompson was indeed the person observed at 5 pm by Officer Contant, he was seen for a few seconds standing outside 389 Church by himself, where hanging out is not an uncommon occurrence. At 40 Asquith, he was merely seen entering the building. The officers had no information about where Mr. Thompson resided. Officer Gill conducted some checks ahead of the surveillance but could not recall what if anything he learned from them. He acknowledged it was possible the checks revealed that the target was residing at one of the target addresses – all residential high-rise buildings.

[49] While the description of the male that would have been seen at 5 pm was said by Officer Contant to match the one seen at 40 Asquith a few hours later, there is in my assessment very little of note in those descriptions that align with the CI’s description of Juicy Black.

[50] In terms of the backpack, the CI only mentioned that Juicy Black carried one. The information that was exchanged between Officer Gill and the other officers during the surveillance was that the backpack was believed to be black. Officer Gill agreed that the distinctive black and white backpack did not align with the description provided by the CI. He clarified in re-examination that from what he recalled, the source was not sure about the colour or style of the backpack. In any event, the CI made no mention of any distinctive aspect of the backpack, like the one observed by the police.

[51] Similarly, and while I cannot make certain details public regarding the description offered by the CI, key elements mentioned by the CI relating to Juicy Black’s clothing form no part of the officers’ observations on March 13, 2023. Conversely, notable aspects of the clothing that the police observed being worn by the target do not feature in the CI’s tip.

[52] The remaining descriptors, such as a Black male of a certain height and weight, are vague.

[53] I therefore turn to the purported observations of Mr. Thompson at the two locations, as that would corroborate the CI in some significant way.

[54] To address this point, I must first explain how the officers prepared their notes in this matter.

[55] Officer Contant, as the supervisor, assigned Officer Gill to be the central notetaker. It was Officer Gill’s job to jot down what everyone was relaying to him in real time, to ensure accuracy.

[56] Upon completion of the surveillance, the team conducted a debriefing where the central notes were reviewed to ensure they were accurate. All members of the team are thereby made aware of everyone else’s observations at that time. Once “all agree” on how the surveillance went down, individual team members complete their own personal notes. Officer Gill indicated that the central notes are meant to be used as a guideline for each officer’s notes.

[57] This might not be such a problematic process if, as testified to by Officer Contant, all observations made during the surveillance are communicated to the entire team via their Tac channel. In such a case, all members of the team are presumed to already be aware of what others on the team observed, having heard it “live”. If in fact the central notes align with the comments made on the Tac channel, there is no risk of collusion or unintentional influence of others’ memories by accounting for matters which some may not have been aware of. There is also no risk that information from some officers will be added to the account of the surveillance after the fact, in an effort to buttress the grounds for arrest, despite no mention of that information having previously been made.

[58] In this case, however, the central notes did not properly reflect the communications recorded in real time on the Tac channel. In fact, they provided a misleading picture of what transpired.

[59] Indeed, the central notetaker, Officer Gill, acknowledged that the report could read as Officer Contant confirming at 8:45 pm a match between the male in the still CCTV photo and the person he observed earlier, whereas this may have occurred only at the debriefing post-arrest. He acknowledged this could be misleading and explained that it may have been the result of him trying to set out the information chronologically.

[60] The notes do relay, in chronological order, Officer Contant’s 5 pm observations and Officer Gill’s 8:45 pm observations on the CCTV, including the CCTV image of the target. They then read, under 8:45 pm, as though Officer Contant at that time “advised the crew that [the male on the CCTV footage] is the same male observed earlier out front of 389 Church Street.”

[61] And yet, the Tac channel recording does not have Officer Contant relaying his 5 pm observations, nor later relaying that the still picture obtained around 8:45 pm matched these observations. In fact, the recordings make no mention of the 5 pm observations whatsoever. Only the central notes make mention of this fact, and Officer Contant then wrote his notes based on this misleading central report – as acknowledged by Officer Gill.

[62] This was not merely a misguided attempt at clarity or exhaustiveness by the notetaker. Based on the evidence, the very purpose of the debriefing is for the entire team to review the notes to confirm their accuracy. This means that the entire team signed off on these notes. It could not be lost on all of them that the notes would read as though this was the chronology of the information known to the team – and anyone directing an arrest – in real time.

[63] Indeed, there can be little doubt that that is how the notes should be read: it is how all parties in these proceedings understood the notes, until the Tac recordings were disclosed mid-trial and Officer Gill took the stand.

[64] I find that the purpose was to mislead the reader as to the grounds for arrest, as the notes in fact ultimately did.

[65] For instance, the central notes suggest that the police knew, prior to arrest and to any decision made to arrest, that the person their target was with was a known drug user. In fact, Officer Gill testified that they did not know who the person was until she was arrested. No information had been communicated about her prior to the arrest. Officer Gill confirmed in testimony that this may have been information obtained during the debriefing and agreed that on the Tac recording, Officer Nanton’s only mention of a female is when he indicates that the male might possibly be with a female.

[66] Officer Gill also testified – based on the notes – that at 11:15 pm, Officer Nanton relayed his observation of a male, possibly matching the description of the target, entering the rear door of a Beck taxi with a female. He added that this led to a takedown plan being formulated to effect an arrest. The takedown occurred at 11:24 pm.

[67] The Tac channel communications show that the plan to arrest the male seen entering 40 Asquith, upon his exit from the building, had been made by 9:15 pm. The male that Officer Gill had observed on CCTV had not yet exited the building and therefore no observation of him entering a taxi had been made by the time the decision was made to arrest him. The taxi did not feature in the grounds for arrest – contrary to what the central notes would have led the reader to believe.

[68] The central notes’ 5 pm entry relaying Officer Contant’s description of his observations at that time also indicate that the male was observed to be wearing “shiny black and yellow ‘air Jordan’ running shoes”. In fact, Officer Contant was clear that he did not notice any yellow or other colour on the shoes at that time. This suggests that the note was influenced by the later debriefing or observations. In any event, it clearly does not reflect any descriptor provided in real time and is also misleading. It serves to buttress the apparent match between the observations made at 5 pm and those made around 8:45 pm.

[69] The above findings are informed by other credibility concerns regarding Officer Gill.

[70] For instance, the Tac recordings were not disclosed until mid-trial, despite having been specifically requested by defence counsel during the intake phase. The Crown was at that time notified by the police that such recordings did not exist, and this was relayed to the defence. Officer Gill testified that he was not sure whether the Tac channel was recorded, and that he conveyed this uncertainty to the Crown. He testified he would not have said definitively that it was not recorded, not knowing whether it was or not. In fact, it is agreed that the Crown was informed that these communications were not recorded.

[71] Officer Gill also testified that in response to the Crown’s request for disclosure, he asked a “vague question” to the fellow team members who happened to be present at the time, about whether they knew if the Tac was recorded. This informed his response to the Crown and demonstrates some level of carelessness with respect to accuracy and the police’s disclosure obligations. The response was misleading and not firmly grounded.

[72] This aligns with the way the central notes were drafted and how they portrayed events.

[73] This carelessness is also reflected in Officer Gill’s account of the CI tip, filed as Exhibit 3. Some boilerplate language was taken from an ITO-template and was not revised for accuracy. This led to some confusion at the hearing and a misleading picture being put forward of how and when he received information about the tip.

[74] I have some resulting concerns about the accuracy of the tip, as it is reflected in Exhibit 3. The information contained in that exhibit is quite lengthy and detailed, and yet it was drafted by Officer Gill based on less than one page of handwritten notes of his, contained in a smaller than 10x11 notebook. Certainly, the more compelling aspects of the tip are of no import as they were not known to Officer Contant in any event, but the above issues do inform what findings I can make regarding the March 13, 2023 surveillance, in particular as it relates to the match between the 5 pm and 8:45 pm observations.

[75] Officer Contant testified that he did not have the opportunity to take a picture of his observations at 5 pm. He only jotted down his observations on paper post-arrest, and after the debriefing. As stated above, the description of his observations were nowhere to be found on the Tac channel recording. Officer Contant testified that they were relayed to the central notetaker who then relayed them at the debriefing. There is no real time account of what he observed at 5 pm.

[76] Officer Gill testified that it was possible that Officer Contant called him during the surveillance, for the purpose of recording in the central notes the description of the male he observed. He stated that he thought Officer Gill didn’t simply voice it over the Tac channel because he was quite unsure about a possible match. If there was no level of certainty that the person observed was Mark Thompson, it is unclear why that needed to be recorded in the central notes, especially if the rest of the team would not be informed of what to be on the lookout for, to establish a possible match.

[77] Upon being recalled to the stand, Officer Contant testified that it was important to give his description of what he observed at 5 pm to the entire crew and said he did so using the Tac channel. He then agreed that the descriptor was not on the Tac channel recording and indicated that he had instead called Officer Huong as the road boss first, then Officer Gill to discuss his observations. He explained that he did not have this discussion on the Tac given that he could not have a lengthy conversation on the Tac.

[78] Yet, even after his discussion with Officer Gill, the information was not relayed to the rest of the team. Officer Contant explained that he did not think it was significant at that time – despite his earlier assertion to the contrary. He agreed that the central notes indicating that he advised “the crew” of his observations at 8:45 were incorrect as he did not advise the crew of this over the Tac channel, whether at that time or any other time.

[79] Did Officer Contant see the still CCTV picture of the male at 40 Asquith prior to arrest, which would have enabled him to establish a match with the person he would have seen at 389 Church? He testified that he did but does not recall how.

[80] Officer Gill testified that Officer Contant was not with him watching the CCTV footage. Officer Contant could not recall exactly, but he was reasonably sure he received the image by email or text and looked at it on his cell phone. Officer Gill indicated that he recalled putting a description of what the photo depicted over the air (which is confirmed by the Tac recording), but he did not recall sending the photo. When asked why he took a screenshot at all, Officer Gill indicated it was to put it into the notes afterwards, to better paint a picture of what it is he saw. This suggests that the picture was not taken to send it to the team or to Officer Contant in real time. It supports the fact that that wasn’t done at that time.

[81] Officer Contant wrote in his notes that he confirmed at 8:45 that the photo matched the person he saw at 389 Church Street earlier, but he believed that this timing may be incorrect. Indeed, it is apparent that that time comes from the central notes, which Officer Gill acknowledged were misleading on the point. Officer Gill testified that he recalled that this was in fact “likely” mentioned by Officer Contant at the debriefing, post-arrest.

[82] This makes sense in light of the absence of any description over the Tac channel of the 5 pm observations, the lack of any recall or record of how the still picture would have been sent or shown to Officer Contant, and the fact that the central notes state that the information was relayed to the “crew”, which suggests there was no one-on-one call or meeting between Officers Contant and Gill on those two separate occasions (at 5 pm and after 8:45 pm). If Officer Contant did see the picture around 8:45, why wasn’t the match then relayed to the entire team?

[83] I find that Officer Contant made the comment about his 5 pm observation and it matching the male depicted in the still only at the debriefing upon seeing the still picture. This means that the team did not have any information about the same person, potentially their target, having been observed at the two addresses mentioned by the CI.

[84] While it is only Officer Contant’s grounds that matter, given the above issues, I am unable to find that there was in fact a connection made between 389 Church Street and 40 Asquith, prior to his decision made to arrest the male. I am in fact unable to conclude that the 5 pm observations are bona fide ones. In other words, I do not have sufficiently firm evidence to accept that the target was first seen at 389 Church Street, prior to the observations made at 40 Asquith. There is no mention of these observations at all on the recordings or otherwise documented, other than in the central notes which contains an inaccurate description of what Officer Contant in fact testified to seeing. The inaccurate description of the shoes in the central notes in fact corresponds to what was later observed on the CCTV still.

[85] If the 5 pm observations were in fact made by Officer Contant, I am satisfied that no link was made between that observation and the person later located at 40 Asquith, until after the arrest.

[86] And if my findings are incorrect, they reflect the problem with the way this information was recorded by the police in this case. There is no ability to accurately discern what was known or communicated when.

[87] I cannot, in the circumstances, find that a link to 389 Church Street was made, in particular given Officer Gill’s evidence that the match likely wasn’t identified until the debrief post-arrest.

Analysis

[88] As stated above, when an arrest is made based on CI information, the information must be assessed to determine the extent to which it is compelling, credible and corroborated – to determine whether the CI tip is reliable: Debot, at para. 53.

[89] The Crown submitted that what Officer Contant knew about the tip was compelling. He was informed that Juicy Black actively trafficked drugs and did so since the tip was initially received in the winter of 2022-2023, which aspect of the tip spoke to the belief that he would be doing so at the time of the investigation. He had car fentanyl, all in his backpack, and he primarily used 389 Church Street to conduct his drug trafficking activities. Officer Contant also knew of two other addresses used by Juicy Black to traffic drugs.

[90] The complete tip, as set out in Exhibit 3 and known to Officer Gill, was compelling. However, Officer Contant only had vague and general information about the tip. He did not have any details regarding Juicy Black’s modus operandi, aside from the addresses he used and the fact that he kept the drugs in his backpack. And he had no clear and specific information regarding the recency of the information.

[91] In and of itself, that information was not particularly compelling. It certainly required corroboration, as Officer Contant initially set out to obtain.

[92] The Crown also argued that the CI was credible based on the information known to Officer Contant. He knew that the CI had been carded prior to March 13, 2023, and had been cautioned regarding providing false information. He also knew that information provided by the CI had previously led to arrests and seizures. He had prior knowledge of who the source was.

[93] However, Officer Contant had no information about the source of the CI’s information. He did not know whether it was based on firsthand knowledge or not.

[94] As noted by Martin J.A. in R. v. Debot (1986), 54 C.R. (3d) 120 (Ont. C.A.) (Debot (ONCA)) at p. 219, and later adopted by Wilson J. on appeal, “Highly relevant to whether information supplied by an informer constitutes reasonable grounds” are considerations involving whether “the informer's ‘tip’ contains sufficient detail to ensure it is based on more than mere rumour or gossip” and “whether the informer discloses his or her source or means of knowledge”. Bald conclusory statements cannot support the veracity of CI information: Debot (SCC), at pp. 1168-69; Rocha, at para. 26.

[95] Officer Contant also did not know whether the CI was immersed in the drug subculture. Nor did he know whether the CI had a record or any outstanding charges. He had no information about whether the source had been wrong in the past. He had no knowledge of whether the CI was advised that they were not immune from prosecution. He did not know what the source’s motivation was, or any information about motivation at all. He also acknowledged that the fact that the source was carded does not mean that they are credible.

[96] Officer Contant indicated that the handler would know about the source’s reliability, and Officer Gill gave him information about the reliability of the source. Yet he had very few details on the topic, aside from the above and knowing how many times the source had provided information in the past that had led to seizures or arrests. He confirmed that he did not have any specifics about those other instances such as dates and times.

[97] Again, Exhibit 3 contains a great deal of information regarding the CI’s credibility. But the bulk of the information needed to assess the CI’s credibility and reliability was not known to Officer Contant.

[98] Finally, the Crown argued the aspects of the tip known to Officer Contant were corroborated by the surveillance. This includes the target’s description, the backpack, and observing the male at two of the three targeted addresses, all in one evening.

[99] Based on the findings of fact set out above, I am unable to accept that the target was in fact seen at 389 Church Street before then being located at 40 Asquith. Without this link to the primary address that was said to be used by Juicy Black for his drug activity, limited details from the surveillance aligned with the information that Officer Contant had about the tip.

[100] The surveillance only confirmed fairly generic aspects of the target’s description (save arguably for one element of clothing, in respect of which there were nevertheless discrepancies); it corroborated that the target carried a backpack (the CI did not convey a description of the backpack so there was nothing about the distinctiveness of the one observed that confirmed the tip); and it corroborated the target’s link to 40 Asquith, one of the residential buildings where he possibly resided.

[101] This is leaving aside the fact that the police had only confirmed that a “likeness” of the target was seen entering 40 Asquith when the decision was made to arrest. There was no confirmation that the person was in fact Mark Thompson. Officer Gill indeed testified that neither he nor other members of the team positively identified the male as their target based on the CCTV footage, explaining that the camera is not always the best quality, so it is difficult to tell for certain without being physically present.

[102] In any event, this amounts to an arrest upon locating a suspect at a location provided by a CI, based otherwise exclusively on the grounds contained in the CI tip. Yet it is clear that the officers did not have grounds to arrest when they began their surveillance.

[103] The corroborated aspects of the tip do little to supplement the weaknesses identified above relating to the tip being compelling and credible.

[104] Confirmation of innocuous, general information is only of limited value. Information that could be easily gathered by anyone familiar with the target of the investigation provides no confirmation that the target has been engaged in the criminal activities alleged: see Debot, at pp. 218-219; R. v. Zammit (1993), 13 O.R. (3d) 76 (C.A.), at p. 117.

[105] Certainly, there is no need to observe drug trafficking activity, and indeed no need to corroborate criminal activity at all. But here, there was barely confirmation of it being the right person. When the person was located at one of the targeted addresses – and not the primary one – they were not observed to be doing anything other than carrying a backpack upon entering the building. The person was out of sight and apparently inside the building for over two and a half hours.

[106] Of note, the Crown did not contend that the information from the CI tip, as redacted, would be sufficient to meet the Debot test that it must meet. Yet there is very little of the redacted information that Officer Contant ultimately relied on – largely the description of the male’s clothing. And there was much information from the tip that was not redacted, and that enhance the Debot “three Cs”, that he did not have.

[107] There was significant information in the tip that the police could have sought to corroborate but did not.

[108] The accused’s arrest was premature. The grounds were wholly insufficient from an objective standpoint. The arrest and resulting search incident to arrest were therefore unlawful, and in breach of the accused’s s. 8 and s. 9 Charter rights.

Exclusion of evidence under section 24(2)

[109] As a remedy for the identified Charter violations, the defence seeks the exclusion of the evidence seized from Mr. Thompson upon his arrest, pursuant to s. 24(2) of the Charter.

[110] The crux of the analysis is whether the admission of the evidence would bring the administration of justice into disrepute, having regard to all the circumstances. This is measured by evaluating and balancing three factors, known as the “Grant factors” pursuant to R. v. Grant, 2009 SCC 32.

[111] The required Grant analysis was recently explained by the Supreme Court as follows in R. v. McColman, 2023 SCC 8, at paras. 53 and ff.:

Section 24(2) requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial if it is established that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. The s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: Grant, at para. 68.

Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns: Grant, at para. 70. In Grant, this Court explained that the s. 24(2) analysis engages three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. Courts are tasked with balancing the assessments under each of these lines of inquiry, but as recognized in Grant, “[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision”: para. 140.

(1) Seriousness of the Charter-infringing conduct

[112] As explained in McColman, at paras. 57-58:

The first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law. As this Court stated in Grant, at para. 72, this line of inquiry “requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct”. Or as this Court phrased it in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22: “Did [the police conduct] involve misconduct from which the court should be concerned to dissociate itself?”

In evaluating the gravity of the state conduct at issue, a court must “situate that conduct on a scale of culpability”: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43. As Justice Doherty observed in R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, “the graver the state’s misconduct the stronger the need to preserve the long‑term repute of the administration of justice by disassociating the court’s processes from that misconduct”: para. 23. To properly situate state conduct on the “scale of culpability”, courts must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct: Grant, at para. 75. Were the police compelled to act quickly in order to prevent the disappearance of evidence? Did the police act in good faith? Could the police have obtained the evidence without a Charter violation? Only by adopting a holistic analysis can a court properly situate state conduct on the scale of culpability.

[113] The breach in this case is certainly serious. The police rushed to arrest, rather than take the time to properly investigate. No new or uncertain law is engaged. Arresting and searching individuals is one of the core functions that police officers regularly engage in. It is also one of the most impactful for individuals.

[114] To detain and arrest a person, and proceed to a warrantless search and seizure, in the clear absence of the necessary grounds to do so – or, said differently, without sufficient reason – is a marked deviation from the rule of law. If police officers were permitted to arrest people willy-nilly, on a hunch or without due investigation, the administration of justice would fall into disrepute. Of note, no oversight of many such arrests could be had. For instance, if the person arrested in this case ended up not being the target, or if he had not been carrying any contraband, the courts would have never gotten wind of the arrest. No review of it could have occurred.

[115] Similarly, if the defence had simply relied on the misleading central notes of the surveillance, and the Tac recordings had never been disclosed, they would have assumed that there were no Charter violations, and that the Crown’s case was very strong. This could have again led to there being no scrutiny of the police conduct, and indeed could have induced another accused to plead guilty.

[116] The courts should disassociate itself from such conduct.

[117] It cannot be said that the police in this case were compelled to act quickly. They could have continued their surveillance or resumed it on another date. They could have abided by the original plan to arrest only once evidence of drug trafficking activity was observed – or any truly suspicious activity or once additional grounds to believe that the target was engaged in drug trafficking were observed.

[118] Instead, the plan was set aside once they believed the target to have been located.

[119] Officer Contant is not an inexperienced police officer. And the surrounding circumstances referenced above, relating to the debriefing and the way in which the central notes were misleading – and yet endorsed by the entire surveillance team – are concerning and exacerbate the seriousness of the state conduct. I cannot find that this case falls on the good faith side of the spectrum.

[120] I am especially concerned given the evidence that this approach to central notetaking is what is done in the usual course. It is a procedure rife with risks. One result of this approach in this case is that the parties did not know who was responsible for the decision to arrest or what grounds were known to the police and what had been considered or not prior to the decision being made to arrest. In fact, the central notes of the surveillance were entirely misleading, despite having been vetted by the entire team. I can only find that this was intentional.

[121] The Crown argues that the discoverability of the evidence should significantly impact the 24(2) analysis in this case. It argues that if the police did not have sufficient grounds to arrest Mr. Thompson, it certainly had sufficient grounds to investigatively detain him, such that he could have been searched incident to detention. The drugs he carried on his person would thereby have been located in any event. It also argues that even if Officer Contant did not have the requisite grounds, Officer Gill did, given that he had the entirety of the CI tip. I have some reservations on this latter point given the findings made above relating to the limited corroboration of the tip that was gained through the surveillance. The fact is that the arrest in this case was clearly premature, whomever had ordered it.

[122] The discoverability of evidence played a central role in the s. 24(2) analysis prior to Grant. While discoverability may still play a useful role in the analysis, it is not determinative. As set out in R. v. Cote, 2011 SCC 46, at para. 70:

A finding of discoverability should not be seen as necessarily leading to admission of evidence. Nor should courts engage in speculation. As stated in Grant, where it cannot be determined with any confidence whether evidence would have been discovered in the absence of the Charter breach, discoverability will have no impact on the s. 24(2) inquiry. I will describe how, in appropriate cases, discoverability may be relevant to the first two branches of the Grant analysis.

[123] As it relates to the first branch, the Court explained at para. 71 that the fact “that the police exhibited good faith and/or had a legitimate reason for not seeking prior judicial authorization of the search will likely lessen the seriousness of the Charter-infringing state conduct.” On the other hand, the seriousness of the conduct will be aggravated where the police officers could have conducted the search legally but failed to turn their minds to doing so: “a casual attitude towards, or a deliberate flouting of, Charter rights will generally aggravate the seriousness of the Charter-infringing state conduct.”

[124] The police in this case did not have a legitimate reason for not proceeding lawfully. They exhibited a casual attitude towards the accused’s Charter rights – not only with respect to his arrest, I should add, but also as it relates to disclosure. The fact that the evidence might have therefore been lawfully discoverable weighs little in the balance on this first branch of the test. The conduct is serious and weighs in favour of exclusion.

(2) Impact on the protected interests

[125] The Supreme Court in McColman explained at para. 66 that:

The second line of inquiry is aimed at the concern that admitting evidence obtained in violation of the Charter may send a message to the public that Charter rights are of little actual avail to the citizen. Courts must evaluate the extent to which the breach “actually undermined the interests protected by the right infringed”: Grant, at para. 76. Like the first line of inquiry, the second line envisions a sliding scale of conduct, with “fleeting and technical” breaches at one end of the scale and “profoundly intrusive” breaches at the other: para. 76.

[126] The impact of the violation in this case was clearly significant. The breach led to Mr. Thompson’s premature arrest and a search of his bag and person. It occasioned a significant deprivation of liberty for the accused.

[127] The Crown again relies on the discoverability of the evidence to minimize the impact of the breach on Mr. Thompson. The effect of discoverability on the second branch of the Grant test was explained as follows in Cote, at paras. 72-73:

If the search could not have occurred legally, it is considerably more intrusive of the individual’s reasonable expectation of privacy. On the other hand, the fact that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search will tend to lessen the impact of the illegal search on the accused’s privacy and dignity interests protected by the Charter.

This is not to say, however, that in such circumstances there is no infringement of an accused’s privacy interests. … The intrusiveness of such an unauthorized search will be assessed according to the level of privacy that could have reasonably been expected in the given set of circumstances. The greater the expectation of privacy, the more intrusive the unauthorized search will have been.

[128] In that case, the Court found at para. 86 that “Even though the searches could have been conducted lawfully, this fact would not have changed the conclusion that the second branch of the Grant analysis militated in favour of exclusion, in light of the numerous other factors highlighting the serious impact on the appellant’s privacy and dignity interests.”

[129] I similarly do not attach great weight in this case to the fact that the evidence might have been discoverable. If the police had resorted to its powers of investigative detention, it is not a given that this would have led to a search of the backpack, given the limited powers of search upon such a detention that do not extend to the discovery of evidence: R. v. Mann, 2004 SCC 52.

[130] Further, the accused testified to the particular impact this case had on him as a result of his belief that guns had been drawn out during the takedown. Certainly, this would not have occurred had he merely been intercepted pursuant to the powers of investigative detention.

[131] It is true that the objective evidence did not bear out that at least two guns were pointed directly at Mr. Thompson during his arrest, as he testified to. Nevertheless, it is clear from his testimony that the arrest itself had a significant impact on him. He remembered a gun in his face. The timing of this could have been misremembered and indeed was likely misperceived, based on seeing one of the officers with her hand on the gun, though not pointing it at him, once he was on the ground. This could have made an impression on him, the details of which were not accurately remembered.

[132] Indeed, the accused did not have an opportunity to view the video evidence to refresh his memory of events that had taken place a long time prior. He readily acknowledged, upon seeing the video evidence, that his recollection was flawed. I nevertheless accept that he was in shock and that the manner of his arrest greatly impacted him.

[133] I therefore find that the violations had a significant impact on the accused.

(3) Impact on the administration of justice

[134] On the last prong of the Grant test, the Court in McColman, at paras. 69-70, stated:

The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence: Grant, at para. 79. In each case, “it is the long-term repute of the administration of justice that must be assessed”: Harrison, at para. 36.

Under this third line of inquiry, courts should consider factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence, although this Court has recognized that the final factor can cut both ways: Grant, at paras. 81 and 83-84. While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach: para. 84.

[135] The evidence gathered in this case through the search incident to arrest is real evidence and thus very reliable and probative of guilt. It included over half a kilo of Schedule 1 substances, including 5 ounces of fentanyl. It is crucial to the Crown’s case.

[136] These drugs are very potent and harmful drugs. They are destructive and indeed are ravaging our community. This is a very pressing problem and one that society has a significant interest in addressing, including through the prosecution of crimes such as this. Mr. Thompson is no doubt charged with very serious offences, and society has a vital interest in combatting the proliferation of these illicit substances.

[137] No doubt, the admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process. However, in my view, it could also damage the long-term repute of the justice system, in particular given how little investigation was conducted prior to acting on partial and non-compelling information received from a CI handler, with limited information about the informer’s credibility, and without having properly corroborated the tip.

[138] The third line of inquiry therefore pulls in favour of inclusion of the evidence, but moderately so.

Final balancing

[139] In R. v. McGuffie, 2016 ONCA 365 at para. 63, Justice Doherty wrote that “[i]f the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”. See also R. v. Le, 2019 SCC 34, at para. 142.

[140] In my view, that is the case here such that the evidence must be excluded.

[141] The Supreme Court recently acknowledged in Tim, at para. 85, that “[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct’ (Paterson, at para. 44; see also Harrison, at paras. 24-25).”

[142] The violations in this case were clear and were of well-established rules. They had a significant impact on the accused’s liberty interest. I have no evidence that they were systemic but they were deliberate.

[143] I therefore exclude the evidence seized from Mr. Thompson upon his arrest.

Released: August 13, 2024 Signed: Justice Mainville