COURT FILE NO.: 11-90000464
DATE: 20120615
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
PAUL MORI
Applicant
Brian Puddington, for the Crown
Thomas Kirby for the Defendant
HEARD: May 22, 2012
ALLEN J. (Orally)
R E A S O N S F O R J U D G M E N T
OVERVIEW
[1] The defendant Paul Mori brings an Application under s. 24(2) of the Charter seeking to have excluded from evidence various quantities of several types of drugs and cash seized from his person and his vehicle on March 9, 2010. Mr. Mori submits he was arbitrarily detained in breach of his rights under s. 9 of the Charter and the drugs and proceeds were obtained by an unlawful search and seizure in violation of his rights under s. 8 of the Charter.
[2] The defence on consent of the Crown re-elected to proceed by judge alone. The matter proceeded as a blended voir dire. The Crown’s evidence on the voir dire is the evidence it would adduce at trial. The defence called no evidence.
[3] On March 9, 2010, police officers from the Cambridge detachment of the Kitchener-Waterloo Regional Police Services arrested Mr. Mori in Toronto. Mr. Mori was charged with possession for the purpose of trafficking heroin, cocaine, MDMA and methamphetamines contrary to s. 5(2) of the Controlled Drugs and Substances Act and with possession of proceeds obtained from crime contrary to s. 354 of the Criminal Code.
[4] At the end of trial, the Crown conceded the nature of the MDMA was uncertain and did not wish to proceed on that charge. I dismissed the charge on the indictment related to the MDMA. The defence concedes the nature of the other drugs and that if the Crown succeeded to show possession, the quantities of each drug are consistent with possession for the purpose of trafficking.
[5] The main issue before the court is whether the information the police obtained from a confidential informant and from the ensuing investigation by the Cambridge police provided reasonable and probable grounds to arrest and detain Mr. Mori and to search his person and vehicle and seize the drugs and cash.
LEGAL PRINCIPLES
Reasonable and Probable Grounds
[6] Section 9 of the Charter protects a person’s right against being arbitrarily detained or imprisoned.
[7] Police must have reasonable and probable grounds to arrest. There must be not only a subjective basis for the belief there are reasonable and probable grounds, but there must also be an objective basis for the belief. A reasonable person standing in the shoes of the officer must believe there are reasonable and probable grounds to detain the person [R. v. Storrey, 1990 125 (SCC), [1990] S.C.J. No. 12, (S.C.C)].
[8] The principles guiding the police power to detain are well known. Courts have defined the police power of investigative detention. In exercising that authority police must have “reasonable grounds to suspect” a person is involved in criminal activity. A police officer may briefly detain a person for investigative purposes where, in the totality of the circumstances, the officer has reasonable grounds to suspect a clear connection between the individual to be detained and a recently committed or unfolding criminal offence. In detaining a person, a mere "hunch" about a connection to crime is not sufficient [R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.)]. On the dangers of operating on the basis of a hunch, the Ontario Court of Appeal had this to say:
A “hunch” based entirely on intuition gained by experience cannot suffice, no matter how accurate that “hunch” might prove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as a detainee’s sex, colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on mere speculation. A guess which proves accurate becomes in hindsight a “hunch”.
[9] A reasonable detention is founded on a constellation of discernible facts that give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation [R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)]. The court must assess the reasonableness of the decision to detain in the context of all the circumstances, particularly with attention to the extent to which the interference with individual liberty is necessary to the performance of the officer's duties; the liberty interfered with; and the nature and extent of that interference. [R. v. Mann, supra].
[10] Failure to meet this test may result in the evidence seized being excluded.
[11] Section 8 of the Charter provides protection from unreasonable search and seizure.
[12] The police conducted a warrantless search of Mr. Mori’s person and vehicle. The Charter protects an individual’s reasonable expectation of privacy. A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable. Absent a warrant a police search or seizure is presumed to be unreasonable. [R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 (S.C.C.), at p. 278].
[13] It is the Crown’s burden to prove a warrantless search was reasonable. Provided the arrest is lawful, the police may conduct a search incident to an arrest on a number of grounds: to guarantee the safety of the police and the public; to prevent the escape of a suspect; to obtain evidence against a suspect; to prevent the destruction of evidence. The search must be related to the purpose of the arrest. [Cloutier v. Langlois (1990), 1990 122 (SCC), 53 C.C.C. (3d) 257 (S.C.C.) and R. v. Belnavis (1997), 1997 320 (SCC), 118 C.C.C. (3d) 405 (S.C.C.)].
[14] If the court concludes the search did not satisfy the legal requirements, there must be a finding the search and seizure was unlawful and conducted in violation of the accused’s right to be secure from unreasonable search or seizure. This too could result in the evidence seized not being admitted at trial.
Confidential Informants
[15] There are special rules to govern circumstances where to establish reasonable and probable grounds, the police rely on information obtained from a confidential informant. The law recognizes informer privilege as an absolute right. It is critical that the identity and any potentially identifying information be guarded from disclosure. This rule is aimed at the safety of the confidential informant and recognizes the crucial role informants play in police investigations. The police and Crown have a positive obligation to protect the identity of a confidential informant R. v. Leipert, 1997 367 (S.C.C.), [1997] 1 S.C.R. 281 (S.C.C.)]. There must however be sufficient information so that the reliability of the informant and the information provided can be assessed.
[16] The Supreme Court of Canada in R. v. Debot identified three indicators of reliability, namely: whether the information provided by the informant is credible, compelling and corroborated. That is, the court has to determine where there is a warrantless search, whether the information from the confidential source relied upon by the police in predicting the commission of an offence was compelling, whether the source was credible and whether the police corroborated the information through investigation. It is the Crown’s burden to prove these criteria have been satisfied [R. v. Debot, 52 C.C.C (3d), at p.195, (S.C.C.)].
[17] In considering the source’s credibility, factors such as whether they have a criminal record or not; the reputation of the source as a confidential informant; whether the informant had any criminal charges outstanding; and whether the police made a promise or inducement to the informant to obtain the information. The compelling nature of the information lays in the specificity of the information, in details about persons involved, locations, times and descriptions of vehicles. The corroboration factor is viewed in terms of the extent to which the police were able to verify the information through surveillance.
[18] A greater degree of corroboration is required where the credibility of the information was not firmly established. In other words, weaknesses with respect to any of the three factors can be compensated by strength in the other factors. The factors are not separate tests. Rather the standard of reasonableness must be considered in the totality of the circumstances [R. v. Debot, supra, p. 195]. There must be a balancing of the three tests.
THE EVIDENCE
The Surveillance Team and the Confidential Informant
[19] A team of six police officers with the Waterloo Regional Police Services were assigned to investigate a drug dealer in Cambridge, Ontario. The members of the team were Det. Sgt. John Van Breda, D.C. Lisa Rivers, D.C. Marcynuk, D.C. Jason McGarr and D.C. Ron Grift. D.C. McGarr was the confidential informant handler. He received information from the informant about a heroin trafficker residing and operating in Cambridge.
[20] The informant provided the following information in December 2009:
• the name of the dealer, Brett Cutajar;
• his address, 1350 Michael Crescent, Cambridge;
• his telephone number;
• that he was selling heroin; and
• a description of his backend drug supplier as “a Chinese guy” located in Toronto.
That information was passed to D.C. Rivers in January 2010 and she initiated the investigation into Brett Cutajar.
[21] D.C. McGarr testified he had a face-to-face meeting with the informant some time on March 9, 2010 after he started his shift at 7:00 a.m. and before a 9:00 a.m. court attendance. The information obtained from the informant confirmed the information previously provided, but described the backend supplier as an “Asian male” rather than a “Chinese male”. According to D.C. McGarr, the informant also provided the additional information that today (March 9th ) Mr. Cutajar would be going to Toronto in Mr. Whiteside’s Hyundai to meet the Asian guy to buy heroin at St. Joseph’s Hospital.
[22] D.C. McGarr testified that on March 9th at about 12:00 p.m., after the court attendance, he passed this information to the surveillance team. He indicated he gave Det. Sgt. Van Breda this information when he (Det. Sgt. Van Breda) was in a position to talk. It is not clear from D.C. McGarr’s evidence when he provided the information to Sgt. Van Breda or if Det. Sgt. Van Breda received that information. That is, on being questioned about what information formed the basis of the take down decision, Det. Sgt. Van Breda did not mention the very specific March 9th information D.C. McGarr supposedly radioed to the team. Moreover, none of the other officers mentioned receiving this information. I will discuss the implications of this more fully below.
Surveillance Leading Up To Arrest
January 19, 2010
[23] With D.C. Rivers as the lead investigator and Sgt. Van Breda the supervising officer, the target team began conducting surveillance on January 19, 2010 at the Cambridge residence of Mr. Cutajar. He and his residence became targets of the investigation.
[24] In the morning, as D.C. Rivers drove by the target residence, she observed what she called a drug transaction between Mr. Cutajar and a male in a black Hyundai parked in front of the target residence. D.C. Rivers testified Mr. Cutajar exited his residence and walked up to the driver’s side window of the Hyundai. She said she was driving by at a distance of about three car lengths from the Hyundai when she saw the driver put his left hand out the driver’s side window. She then observed Mr. Cutajar take something from the driver and put a dime bag of a white powdered substance into the driver’s hand. A police computer search revealed the driver of the Hyundai to be Nathaniel Whiteside, who also became a target of the investigation.
[25] D.C. Rivers said she could not see what Mr. Whiteside passed to Mr. Cutajar. She testified she had a better view of the baggy of white powder passed by Mr. Cutajar to Mr. Whiteside.
[26] Det. Sgt. Van Breda decided a search warrant should be obtained for Mr. Cutajar’s residence. At about 12:00 p.m., D.C. Rivers returned to the police station to prepare the warrant. Det. Sgt. Van Breda asked her to rejoin the surveillance of the target address. So at about 5 p.m., she returned and observed Mr. Cutajar exit his residence and leave on his bicycle.
[27] D.C. McGarr testified he was attempting to arrange over the phone with Mr. Cutajar an undercover purchase of heroin. At 3:50 p.m., D.C. McGarr made telephone contact with Mr. Cutajar, made arrangements to buy heroin and arranged a time and location for the transaction. D.C. McGarr testified that as he sat in a taxi at the designated location, he saw someone he identified from a police computer search as Mr. Cutajar drive by on a bicycle without stopping. D.C. McGarr called Mr. Cutajar at 5:15 p.m. Mr. Cutajar told D.C. McGarr he did not know him and had changed his mind about selling him the drugs. The idea of an undercover purchase was abandoned.
[28] The plan to obtain a search warrant for the target address was also abandoned at the end of January 19th and never revived. Det. Sgt. Van Breda testified he decided not to arrest Mr. Cutajar despite the informant’s information, the transaction D.C. Rivers observed and Mr. Cutajar’s offer to sell heroin to D.C. McGarr, which constitutes trafficking under the Code. In Det. Sgt. Van Breda’s view he did not find this gave reasonable and probable grounds to pursue a search warrant or an arrest of Mr. Cutajar.
February 18 and February 19, 2010
[29] The target team’s next involvement with the surveillance of Mr. Cutajar was one month later on February 18, and 19, 2010. The objective on those days was to conduct surveillance on Mr. Cutajar to establish grounds to arrest him for drug trafficking. The team did not observe any drug trafficking activities. The officers just observed Mr. Whiteside drive Mr. Cutajar to a building and then dropped him back at his residence.
March 4 and March 8, 2010
[30] On March 4th, by coincidence, the surveillance team was meeting in a parking lot and Mr. Whiteside drove by in his black Hyundai. The team observed Mr. Whiteside drive to another location and pick up Mr. Cutajar. At about 1:15 p.m., the officers began to pursue the Hyundai eastbound on highway 401 to Sunnyside Ave. near St. Joseph’s Hospital in Toronto.
[31] Mr. Cutajar got out of the Hyundai and walked north on Sunnyside Ave. He entered a side street and the officers lost sight of him. Less than ten minutes later, he was seen running quickly and jumping into the Hyundai. He was not observed to be carrying anything. The Hyundai pulled into a grocery parking lot and then into a gas station. Once the Hyundai pulled out of the gas station, the team lost sight of the vehicle. Surveillance ended that day at 2:40 p.m.
[32] The investigation was not advanced in a significant way on March 8th. There was only an observation of Mr. Whiteside driving around with no sighting of Mr. Cutajar. Some members of the team met that day in a parking lot in Cambridge with an officer from Toronto’s drug squad, Officer Angela Khant. Det. Sgt. Van Breda testified that the Cambridge police were seeking information from the Toronto drug squad about Mr. Cutajar and an Asian heroin supplier operating in Toronto. There is evidence Mr. Cutajar had previously lived in Toronto. As an idea to facilitate coordination between the two police services, Officer Khant suggested the Cambridge police prepare an operational plan she could present to her superiors. However, it seems that nothing came of that suggestion.
The Arrest
March 9, 2010
[33] At about 9:30 a.m. on March 9th, officers set out to watch Mr. Whiteside’s house. At 1:20 p.m. Mr. Whiteside picked up Mr. Cutajar at a mall in Brampton and proceeded eastbound on highway 401 to Toronto. Eventually, all five unmarked surveillance team vehicles were in pursuit.
[34] At about 1:50 p.m., D.C. Rivers and D.C. McGarr arrived at the scene and observed Mr. Whiteside pull the Hyundai up to the curbside near St. Joseph’s Hospital. Mr. Whiteside remained in his vehicle. Mr. Cutajar got out of the Hyundai, walked one block up Sunnyside Ave. to Pearson Ave., and entered the front passenger side of a silver Toyota SUV. At about 1:59 p.m., D.C. McGarr drove by the silver Toyota and radioed that he saw Mr. Cutajar enter the silver Toyota but said when he drove by the vehicle he did not see anyone else in the vehicle. He said he did not know whether anyone else had observed the driver or had described him as Chinese or Asia.
[35] Det. Sgt. Van Breda was parked such that he could not see this activity. Based on D.C. McGarr’s radio call Det. Sgt. Van Breda immediately called for a takedown.
[36] Det. Sgt. Van Breda was asked what informed his decision to call for the takedown at that point. He pointed to the following:
• the January 19th information from D.C. McGarr that Mr. Cutajar trafficked in heroin;
• that his supplier was an Asian male in Toronto;
• that Mr. Cutajar was going to Toronto to purchase heroin;
• that Mr. Cutajar was seen (by D.C. Rivers) doing a hand-to-hand transaction at his residence with Mr. Whiteside;
• the information from March 4th that the surveillance team followed Mr. Whiteside and Mr. Cutajar to St. Joseph’s Hospital;
• the information from the informant that this would be the location Mr. Cutajar would meet an individual to traffic drugs; and
• that the team followed Mr. Whiteside and Mr. Cutajar to the location on March 9th and Mr.
Cutajar was observed walking up to and entering vehicle there.
[37] That information led Det. Sgt. Van Breda to believe Mr. Cutajar was meeting an individual to traffic drugs. Notably, Det. Sgt. Van Breda did not refer to what I would think was a critical radio call from D.C. McGarr at 12:00 p.m. He did not refer to the information that specified that March 9th was the day the drug deal would take place.
[38] D.C. Hawkins and Det. Sgt. Van Breda drove over to the silver Toyota and boxed it in. They exited their vehicles at about 2:00 p.m. and approached the driver’s side window with their service revolvers drawn. D.C. Hawkins shouted “Police! Everyone’s under arrest!” He asked Mr. Mori to show his hands. Mr. Mori cooperated and D.C. Hawkins took him to the ground and cuffed him.
[39] There is some discrepancy in the evidence about whether any officer observed the driver of the silver Toyota.
[40] As noted earlier, D.C. McGarr testified he saw Mr. Cutajar enter the Toyota but did not see anyone else in the vehicle. Except for the rather curious evidence of Det. Sgt. Van Breda, there is no evidence any of the officers before the arrest saw the driver, much less observed that he was an Asian male.
[41] The concern here is that Det. Sgt. Van Breda testified in chief at trial that he had no information that the driver was Asian but on cross-examination contradictory evidence was adduced. Defence counsel presented Det. Sgt. Van Breda with the transcript of his evidence at the preliminary inquiry where he testified that D.C. McGarr had radioed that the driver was “Oriental”. Det. Sgt. Van Breda refused to acknowledge the inconsistency between his preliminary inquiry evidence and D.C. McGarr’s trial evidence and the inconsistency within his own evidence. His attempt to explain this was not at all comprehensible to me.
[42] Ultimately the conflict in the evidence does not amount to much from a fact finding standpoint since the Crown conceded the defence’s position that no officer saw the driver of the Toyota. I point to this matter because as will become clear later in my reasons, I see the conflict as raising a credibility problem for Det. Sgt. Van Breda. Further, the failure to observe the driver before the arrest is an important fact in the reasonable and probable grounds analysis.
[43] D.C. Hawkins patted Mr. Mori down for officer safety and felt a soft bulge in his jacket. He then searched him and found two large baggies containing smaller baggies of white powder, one containing 22 smaller baggies and the other, nine smaller baggies. It was later determined to be in total seven grams of heroin.
[44] D.C. McGarr approached the passenger’s side of the silver Toyota with D.C. Rivers and arrested and cuffed Mr. Cutajar. Mr. Whiteside was also arrested. Det. Sgt. Moxam of the Toronto police then took physical custody of the three suspects.
[45] At 2:22 p.m., D.C. Rivers assisted D.C. Hawkins to search the silver Toyota. She testified she began this search about two minutes after Sgt. Moxam took custody of the three suspects. On the rear floor of the vehicle she found a soft black brief case. She opened the brief case and found two modified pop cans and two modified pop bottles each with hidden glass compartments containing baggies of drugs. She also found three plastic pill bottles containing pills. The drugs were later determined to be crack cocaine, powder cocaine, methamphetamines, oxycontin and MDMA pills. The three suspects were taken to a Toronto police station.
ANALYSIS
Reasonable and Probable Grounds
[46] The lawfulness of a search depends on the lawfulness of the arrest. To be lawful an arrest must be reasonable. In considering the reasonableness of a warrantless search, where reliance has been placed on information obtained from a confidential informant, regard must be had to the nature of the confidential informant and the quality of the information provided. The court must consider the reliability of the information purporting to forecast the commission of a crime. Informing this inquiry is the credibility of the source, the compelling nature of the information and the extent to which the information was corroborated by the police before the arrest.
[47] It is the Crown that bears the burden to prove that the warrantless search was reasonable. For reasons that follow, I find on the totality of the evidence, the Crown has failed to prove reasonable and probable grounds to arrest Mr. Mori.
Credibility
[48] I start with the credibility of the informant. There is no question nothing was known about the informant. While ever mindful of the critical importance of protecting from disclosure the informant’s identity and any identifying information, the police are required to have sufficient information that would tend to show the source was reliable. We do not know whether at the time the information was provided the informant for instance: was a registered informant; had a criminal record in particular for offences going to trust and honesty; had a reputation, good or bad, or previous experience as an informant; had criminal charges outstanding; or had been influenced by an inducement or a promise in exchange for the information.
[49] Without information of this type it is difficult if not impossible to assess the reliability of a confidential informant. But this does not end the inquiry. Weakness in any of the three factors can be compensated by strengths in the others.
Was the Information Compelling?
[50] I find the information provided by the informant was not sufficiently compelling as to compensate for the informant’s lack of credibility. Again, the only information provided was Mr. Cutajar’s name, address and telephone number and that Mr. Cutajar trafficked heroin in Cambridge and he purchased heroin from a Chinese male supplier in Toronto. I find the informant’s information lacked the detail that could have moved it out of the realm of mere gossip or rumour to information more useful to an investigation. Also of importance is that the source of the informant’s information was unknown.
[51] Beyond the Chinese or Asian male description, the police had nothing else on the supplier. The name of the supplier was unknown. There were no details as to his approximate age, height or other descriptors. The supplier was described as either Asian or Chinese. Defence counsel made much of those descriptors being used interchangeably by the informant and D.C. McGarr when in fact as it turned out Mr. Mori is Japanese. Perhaps, the informant’s imprecise description is a result of the informant’s lack of direct or first-hand knowledge of the supplier. This of course goes to the reliability of the information. There is simply no evidence about the source of the informant’s information.
[52] There are no details as to whether the supplier drove a vehicle when supplying drugs and a description of the vehicle which could assist in identifying him. Since I find no evidence that Det. Sgt. Van Breda and the other officers received the March 9th informant information from D.C. McGarr, there were no details as to a particular date, time or a precise location in Toronto where a heroin transaction would occur. Below in my discussion on corroboration I will more fully deal with my concerns about the March 9th information.
[53] While each case is decided on its own particular facts, decisions in cases with similar facts are instructive. The Court of Appeal held an informer’s information was not compelling where the only information the police had was that the accused was a trafficker and that he would come into possession of drugs on a particular day at a specified but undisclosed time. The source of the drugs was not identified and the location and time of the transaction not specified. The court held the police lacked reasonable and probable grounds to arrest the accused and search his vehicle [R. v. Zammit, 1993 3424 (ON CA), [1993] O.J. No. 881, at para. 25, (Ont. C.A.)].
[54] Overall, in the circumstances I find the information provided by the informant was not sufficiently compelling to compensate for the complete lack of evidence establishing the reliability of the informant.
Corroboration
[55] The police collected some information through their surveillance activities in January, February and March 2010.
[56] They confirmed Mr. Cutajar’s identity, his residential address, and his telephone number. Although accurate that information does not assist with predicting a criminal offence. The surveillance also disclosed that Mr. Cutajar had a driver, Mr. Whiteside, who regularly drove Mr. Cutajar around in his Hyundai.
[57] D.C. McGarr gave evidence about potentially very corroborative information. This is the evidence D.C. McGarr gave about the information he allegedly obtained from the confidential informant on the morning of March 9th ― that today (March 9th ) Mr. Cutajar would be going to Toronto in Mr. Whiteside’s Hyundai to meet the Asian guy to buy heroin at St. Joseph’s Hospital. I have some difficulty with this evidence for the following reasons.
[58] On March 9th, the team was on the road at about 9:30 a.m. following Mr. Whiteside’s Hyundai. D.C. McGarr alleges it was between 7:00 a.m. and 9:00 a.m. on that morning that he received the information about the drug deal to take place in Toronto that day. Yet D.C. McGarr says he waited until after 12:00 p.m. to pass that critical information to the team. He did not provide a viable explanation for the delay.
[59] What I find problematic is that at the time D.C. McGarr purportedly radioed that information, the other members of the team were pursuing Mr. Whiteside’s vehicle on the highway. Yet none of the officers, on being questioned about the information they had before the arrest, said that they received this information from D.C. McGarr over the radio. One would expect the timing of such a radio call while they were in pursuit would be memorable. More importantly, Det. Sgt. Van Breda who ordered the take down did not mention in his reasons for the take down order that he had received that information over the radio just two hours before his order.
[60] Again, since I do not accept Det. Sgt. Van Breda had the information D.C. McGarr received on March 9th, there was no information that actually foretold the particular day and that confirmed the location the drug transaction would take place. I do not see the observation of Mr. Cutajar and Mr. Whiteside near St. Joseph’s Hospital on March 4th as confirmatory that a drug transaction would take place on March 9th near St. Joseph’s Hospital since no drug activity was seen. It would then appear to have been a coincidence that the team found Mr. Whiteside and Mr. Cutajar on their way to St. Joseph’s Hospital in Toronto on March 9th.
[61] This I find casts doubt on the potentially most corroborative information. It is hard to imagine the information was sent and not received, or if received, that information so specific given over the radio shortly before the arrest would not be on the top of Det. Sgt. Van Breda’s list of reasons for making his order. In any event, I do not accept that the information D.C. McGarr allegedly received on March 9th formed part of the grounds for Mr. Mori’s arrest.
[62] Outside that evidence from D.C. McGarr, I also do not find sufficiently corroborative the other evidence purporting to establish Mr. Cutajar as heroin dealer who purchased heroin in Toronto from an Asian supplier.
[63] There is the evidence of Mr. Cutajar’s hand-to-hand transaction with Mr. Whiteside in front of Mr. Cutajar’s residence, the attempted undercover deal by D.C. McGarr, and the sighting of Mr. Cutajar with Mr. Whiteside on March 4th in Toronto near St. Joseph’s Hospital. The evidence purporting to establish that those three events involved Mr. Cutajar in drug dealing I do not find to be very persuasive.
[64] D.C. Rivers saw the alleged hand-to-hand transfer of a small white baggy of white powder and no exchange of money from three car lengths away. D.C. McGarr admitted when he called Mr. Cutajar’s phone number he could not be certain it was Mr. Cutajar who answered and offered to sell him heroin. On March 4th, the police lost sight of Mr. Cutajar near St. Joseph’s Hospital and did not observe a drug transaction. Those events to my mind do not reasonably predict the commission of the crime the police were investigating.
[65] But there has to be a limit on the extent to which the police can be expected to corroborate the informer’s information. R. v. Debot, supra, held however that where the details provided are limited and the credibility of the informant cannot be assessed, the possibility for innocent coincidence increases.
It should not, however be necessary for the police to confirm each detail in an informer’s tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.
On the other hand, the level of verification required may be higher where the police rely on an informer whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater.
[R. v. Debot, supra, p.195]
[66] I find before arriving on the scene, the police lacked information sufficient to corroborate the informant’s tip that Mr. Cutajar was going to engage in a heroin trafficking transaction with an Asian male in Toronto.
[67] Between the team’s arrival at the scene and the arrest, I believe there was an opportunity for the police to gather corroborative information. The officers saw a silver Toyota parked on Pearson Ave. There is no evidence they ran the license plate number to determine the owner. Such an investigation, which is routine in police work, might have given the police more information before the arrest. None of the officers saw who, or if anyone, was in the driver’s seat of the silver Toyota. D.C. McGarr drove by the vehicle moments before the takedown order but did not see the driver. He did not say why he did not see the driver. As I found, this is why I did not find credible Sgt. Det. Van Breda’s evidence that he had information from D.C. McGarr that he had observed an Asian driver.
[68] I do not profess to have the investigative skills of an experienced police officer. But I think it not unreasonable to question why, with a description of the supplier and uncertainty about the informant’s reliability, an officer disguised in plain clothes could not take some time to get close enough before the arrest to observe the driver and possibly even what might have been occurring in the vehicle.
[69] The takedown was ordered almost immediately upon the team arriving at the scene. There is nothing in the evidence that suggests a cause for urgency for the arrest to be done immediately. If Det. Sgt. Van Breda had D.C. McGarr’s March 9th informant information that might have lent some degree of urgency to the situation.
[70] But as it stands, I find the police acted too hastily in making the arrest. They operated on a hunch that an Asian male in possession of drugs would be in the driver’s seat. Courts have made it clear that an unlawful arrest and detention cannot be justified in hindsight based on bare suspicions that turned out to be accurate.
Conclusion
[71] I find the police lacked objective grounds to arrest and detain Mr. Mori based on the information they had when they arrived at the scene. They may have had the subjective belief they had sufficient reason, but that is not enough. Looking at the decision to detain Mr. Mori in the context of all the circumstances, I find there was no constellation of discernible facts that gave the police reasonable cause to suspect that the Mr. Mori was criminally implicated in trafficking heroin.
[72] The information provided by the confidential informant was not reliable. When weighed in the totality of the circumstances, the information was insufficient to reasonably predict the crime of drug trafficking by Mr. Mori. On a balancing of the three tests in R. v. Debot, supra, I find the evidence on a whole was not compelling enough or sufficiently corroborated by police surveillance to compensate for the complete lack of evidence of the informant’s credibility.
[73] The Crown has not met its burden to establish the three tests have been satisfied. It has failed to show the police had reasonable and probable grounds to arrest and detain Mr. Mori.
[74] The search of Mr. Mori’s vehicle and person and the seizure of the drugs and proceeds were therefore not lawful as having followed from an unlawful arrest. The drugs and proceeds were therefore seized in violation of Mr. Mori’s right under s. 8 of the Charter to protection from unreasonable search and seizure. The evidence must therefore be excluded.
The Section 24(2) of the Charter Analysis
[75] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of Charter rights if the admission of the evidence would bring the administration of justice into disrepute. The court must balance the effect that admitting the evidence would have on society's confidence in the justice system.
[76] The Supreme Court of Canada in R. v. Grant set out three inquiries the Application Court must consider in determining whether to exclude evidence: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on the Charter-protected interests of the accused; and (c) society's interest in the adjudication of the case on its merits [R. v. Grant, 2009 SCC 32, 2009 S.C.C. 32, [2009] 2 S.C.R. 353 (S.C.C.)] .
[77] The seriousness of the breach falls along a spectrum: "The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law." On one end of the spectrum are violations that are inadvertent or minor in nature, and on the other end are violations that demonstrate a reckless and deliberate disregard of Charter rights [R. v. Grant, supra, paras. 72 and 74].
[78] The court may be required to dissociate itself from conduct characterized by willful or flagrant disregard of the Charter by those very persons charged with upholding the right in question. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. [R. v. Grant, supra, para. 75].
[79] On the first inquiry, I find the breach of Mr. Mori’s rights under s. 9 and s. 8 fall more on the reckless end of the spectrum. I do not think the police conduct can be explained as mere inadvertence. Mr. Mori was arbitrarily detained and arrested because of careless or inadequate police work, because of an inadequate investigation. It might have been prudent for the Cambridge police to have conducted a more thorough investigation of Mr. Mori and Mr. Cutajar, perhaps, as had actually been contemplated, with the assistance of the Toronto drug squad.
[80] The officers drew their guns on the driver of a vehicle without any knowledge of the driver or any attempt to confirm their suspicions before they did so. There was no urgency to conduct an arrest at the moment they did, so they might have ran a license plate search on the vehicle or approached the vehicle to observe the driver. Without more information the police acted on mere suspicion.
[81] What unfortunately happened as a result of the weak investigation is that the police attempted to justify their actions by fabricating evidence at trial. Det. Sgt. Van Breda attempted to mislead the court about having information before the arrest that the driver of the Toyota was an Asian male. This was a critical area of the evidence which if accepted might in some way have influenced my decision. The same holds true for D.C. McGarr’s evidence that he passed on to the surveillance team, information from the confidential informant about the drug deal occurring on March 9th. This was an even more critical area of the evidence, the potentially most corroborative evidence, that if accepted might in all likelihood have resulted in a different outcome.
[82] On the first inquiry, I find the court must dissociate itself from the police conduct.
[83] On the second inquiry, I find that while the impact of the violations on Mr. Mori’s rights may not be the most severe, the impact of the actions of the police should not be underestimated.
[84] The search of Mr. Mori’s person was not intrusive or demeaning. The search of his vehicle, unlike the search of a home, is not an interference with a very private sphere of life. For what it is worth in looking at the impact of the breach, the arrest with police guns drawn happened on a bright clear day in a busy area of Toronto in clear view of the public, not in obscure isolation.
[85] Although the impact on Mr. Mori’s rights was not on the serious end of the spectrum, I find on the second inquiry the court should dissociate itself from the police conduct.
[86] On the third inquiry, the court considers such factors as the reliability of the evidence and the importance of the evidence to the Crown’s case. This inquiry balances the public interest in seeing a determination on its merits against the public interest in a justice system that is beyond reproach [R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34, paras. 33 and 34, (S.C.C.)].
[87] R. v. Harrison involves police stopping a vehicle on a highway and finding a large quantity of cocaine, 35 kilograms, in two cardboard boxes. The police found a much smaller but not an insignificant quantity of a variety of drugs on Mr. Mori’s person and in his vehicle. The court in R. v. Harrison found the cocaine obtained as a consequence of Charter violations to be highly reliable. The same is true of the drugs in the case before me. There is no dispute about the quantity and nature of drugs seized and that they provide conclusive evidence of knowledge and possession of the drugs. Evidence of that type cannot therefore be regarded as operating unfairly in the court's search for the truth at trial. [R. v. Harrison, at paras. 81 and 82].
[88] The amount and variety of drugs the police seized from Mr. Mori cannot be disregarded as inconsequential. The media is replete with stories about the plague of ever increasing varieties of highly addictive drugs flooding the streets. Incidents abound of the crime and social decay that result to families and entire communities where drug activity is prevalent. There is clearly a public interest in this type of crime being tried and punished. This interest however has to be weighed against whether, in view of the Charter breaches, admitting the drugs into evidence would bring the administration of justice into disrepute.
[89] The seriousness of the offence cuts both ways. Clearly, serious consequences to our justice system can result from a failure to prosecute a serious crime because critical evidence had been excluded. But what must also be considered is the longer term effect on the justice system of prosecuting a crime where the evidence was procured through serious violations of an accused's rights. This sentiment was expresses by the court in R. v. Harrison:
In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. [R. v. Harrison, supra, at para. 84]
[90] While the seriousness of the offence must be considered, it must not take on disproportionate significance [R. v. Harrison, supra, paras. 34 and 84]. The court must balance the public concern over the type of crime against the nature of infringements of Mr. Mori’s s. 8 and s. 9 rights. It is not simply a quantitative evaluation of whether the majority of the factors favour exclusion. A qualitative analysis must be done balancing the effect that admitting the evidence would have on the long-term repute of the administration of justice [R. v. Harrison, supra, at para. 36].
[91] I found the nature of the state conduct in relation to Mr. Mori to be on the more serious end of the spectrum. The court should dissociate itself from police conduct arising from a flawed and deficient investigation that led to police to act on a hunch. I found the impact of the breaches on Mr. Mori, while not on the most extreme end of the spectrum, in the circumstances of the arrest would have had a sufficiently profound effect that the court should distance itself from the state conduct.
[92] There is no question about the seriousness of drug offences and about the social value of prosecuting this type of crime on its merits. However, I am of the view in this case that the nature of the police conduct and the violations to Mr. Mori’s rights justify the conclusion that the long-term interest of the administration of justice would not be served by admitting the evidence. However, my decision should not be taken as condoning Mr. Mori’s conduct. He had in his possession a significant quantity of the very types of drugs that threaten and blight our communities. Drugs offences are serious. This places all the more obligation on the police to conduct themselves within the constraints of the law in going after drug offenders.
[93] In the result, the reckless actions of the police that underlie the violations tip the balance in favour of exclusion.
DISPOSITION
[94] The Application is granted.
[95] The court orders that the heroin, cocaine, and the methamphetamines and the proceeds seized are excluded as evidence against Mr. Mori.
Allen J.
Released: June 15, 2012