COURT FILE NO.: CR11900002180000
DATE: 20130322
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOHAMED ABDUL-HAMID and CHRISTOPHER ITALIANO
Applicant/Accused
K. Benzakien and S. Virk, for the Crown
R. MacDonald, for the Applicant Mohamed Abdul-Hamid
J. Christie, for Christopher Italiano
b. P. O’marra j.
reasons for ruling
TUESDAY, JANUARY 22, 2013
REASONS FOR RULING
O'MARRA, J. (Orally):
So I am prepared this morning to give an oral ruling on the Charter application brought on behalf of Mr. Abdul-Hamid.
THE APPLICATIONS
On November 19th, 2008, Mr. Abdul-Hamid was stopped by members of the Toronto Police Service as he drove his vehicle. He was arrested at gun point and a kilo of cocaine was found in a shoebox lying on the rear passenger floor. He now applies, pursuant to ss. 8 and 9 and 24(2) of the Charter to exclude the cocaine as evidence on his trial.
The position of the applicant is, in essence, as follows:
The arrest was not authorized by law, since the police did not have reasonable and probable grounds.
More specifically, Detective Asselin did not have reasonable grounds when he directed other officers to arrest the applicant in a "high risk" take down.
The seizure of the box containing the cocaine was not incident to arrest.
OVERVIEW
Shortly after noon, on November 19th, 2008, plain clothes members of the Toronto Police Service set up surveillance on a residence at 36 Celt Avenue.
At 1:30 p.m., they observed Christopher Italiano, who is a co-accused on this indictment. Mr. Christopher Italiano was observed to arrive at that residence in a vehicle and to go into the residence.
At 1:35 p.m., Mr. Italiano came back out of the residence carrying a distinctive looking shoebox. He got into his vehicle and drove away.
At 1:49 p.m., Mr. Italiano stopped his vehicle curbside at an intersection on St. Clair Avenue and at that time Mr. Abdul-Hamid entered Mr. Italiano's vehicle by the passenger door.
At 1:51 p.m., Mr. Abdul-Hamid left Mr. Italiano's vehicle carrying the distinctive shoebox and entered a separate vehicle and drove away.
At 2:00 p.m., Mr. Abdul-Hamid, who I will hereafter refer to as the applicant, was stopped by police and arrested at gun point. The shoebox containing the kilo of cocaine was found on the floor in the rear passenger area.
THE EVIDENCE
The information that led members of Toronto Police Service to set up surveillance on 36 Celt Avenue is important on these applications.
Michele Santonato
Sergeant Mancuso of the Toronto Police Service has had some years of experience working in regard to drug investigations and as well the handling of confidential informants. Sergeant Mancuso had received information from two confidential informants. He had worked with those sources in the past. Confidential informant number one, he had spoken to by telephone. He knew him by name. He knew his approximate age, the ethnic community of his origin and the neighbourhood that he lived in. He also knew whether or not that confidential informant had a record. He further had information as to the motivation of that confidential informant. He had had multiple prior contacts and that informant was carded and issued a number by Toronto Police Service. The information received from confidential informant number one had never been acted on, in the sense of leading to searches or arrests. Sergeant Mancuso described the information received from confidential informant number one as mainly intelligence type information.
Confidential informant number one provided information to Sergeant Mancuso in regard to Michele Santonato. The information was as follows, and I'm just summarizing the officer's evidence:
That Michele Santonato was a large-scale drug dealer, specifically in cocaine. That Mr. Santonato was violent and paranoid and kept a firearm. The informant did not know where the drugs were kept but advised Officer Mancuso that Mr. Santonato was involved in drug dealing on a multi-kilo level. That information that Officer Mancuso had was also conveyed to Detective Asselin.
Confidential informant number two was known to Officer Mancuso. The officer knew some of the background of that person, whether he had a record and he had information as to the motivation of confidential informant number two. Number two was also a carded informant. Information from confidential informant number two had on prior occasions resulted in seizures or arrests. I will return to that issue when I consider the issue of credibility in terms of information supplied by the confidential informants. Sergeant Mancuso said that the seizures and arrests that had been based, at least in part, on information from confidential informant number two had taken place before the arrest of Mr. Abdul-Hamid.
The information from confidential informant number two, with whom Sergeant Mancuso had more history than with number one, was as follows:
That Michele Santonato was, and these are my words to summarize his evidence, Michele Santonato was a large-scale cocaine dealer. He dealt within the Italian community in the St. Clair area. He dealt on a multi-kilo level. And of some significance is that Sergeant Mancuso had spoken to confidential informant number two by phone very recently, very shortly before the events of November 19th, 2008. That information was passed onto Officer Asselin by Sergeant Mancuso. Officer Asselin, and I will refer in more detail to this later, indicated that if the information from confidential informant number two was based solely on "word on the street", that it would not be compelling.
Sergeant Mancuso had more of a history with informant number two than with number one. He described the information from both informants as very general. For instance, it was very general as to quantity and location, although both informants, number one and two, referred to drugs on a kilo level. Sergeant Mancuso said that the information was more than gossip, but not specific in details. He said it was "word on the street" and that was the reason that the police did not go to a search warrant in regard to information provided by these two informants. Sergeant Mancuso confirmed that neither informant number one or number two provided information as to where the drugs were held, or information about specific transactions, or that one or either of them had had direct dealings with Mr. Santonato. Sergeant Mancuso could not recall if he had asked either or both of the informants how they knew their information. The officer did not think that the informants knew each other, but he also made clear that, for obvious reasons, he could not ask one informant if they knew the other. While it may be self-evident, that makes sense bearing in mind the critical importance of the protection of confidential informants. So the officer did not ask if they knew each other and in his evidence, he could not have asked. He did say that the two informants were from different cultural backgrounds and he did not think they had interacted. And in fact, on this application, the information is that there are two informants from different cultural backgrounds and there is no evidence that they colluded or shared information.
In terms of Michele Santonato, there was also evidence from Sergeant Asselin. He testified that before surveillance was set up at 36 Celt, Sergeant Mancuso had information that Michele Santonato was a kilo level drug dealer in cocaine. Sergeant Asselin was not aware of the source of Sergeant Mancuso's information. His evidence was that Sergeant Mancuso's information was that Mr. Santonato was currently dealing in cocaine, in the sense that the information was fresh. Sergeant Asselin was sure that was conveyed to him by Sergeant Mancuso, but he was not sure of the exact words. And the essence of Detective Asselin's evidence in that regard is that his understanding was that Mr. Santonato was continuing to deal cocaine at a kilo level. Before heading out for the surveillance that day, Detective Asselin had heard a description of Michele Santonato from Sergeant Mancuso. Further, in the evidence of Officer Asselin, he knew that Michele Santonato was of interest to Officer Mancuso and that Officer Mancuso had worked on him in the past, meaning worked on Mr. Santonato. Officer Asselin thought that the name and information of Michele Santonato had come up from an informant and that he was probably told that by Sergeant Mancuso. Detective Asselin did not know how recent or fresh Officer Mancuso's information on Santonato was, but Officer Asselin expected that since Sergeant Mancuso suggested that they conduct surveillance at 36 Celt, that there may well be drugs present at the scene. Officer Asselin himself had not done any prior work in regard to Mr. Santonato, and when I say work done by either Officers Mancuso or Asselin I'm referring to background checks that are available to police officers. Officer Asselin went on to indicate that he felt that if the information regarding Santonato was based solely on word on the street, it was not compelling. Officer Asselin did not know the source of the information provided by the confidential informants. Detective Asselin indicated that if he were doing a search warrant based on information from a confidential informant, he would want to make inquiries as to the following issues:
How often had the confidential informant been consulted?
How often had the informant been proven reliable in the past?
And questions as to the source of the information.
Evidence Linking Michele Santonato to 36 Celt
Officer Mancuso indicated in his testimony that as of November 19th, 2008 he already knew who Mr. Santonato was. His evidence was that he may have done a check and then later in his evidence he actually said that he "ran Michele Santonato", which I took to be running a check on background for that person. In any event, Officer Mancuso obtained an address of 36 Celt that he linked to Michele Santonato. Officer Mancuso made clear that he did not receive information about linking Michele Santonato to 36 Celt from an informant. It was Officer Mancuso's own backup work. Further information that Officer Mancuso had regarding Mr. Santonato was that the officer knew that Mr. Santonato had a Dodge pickup. He also had a photograph of Michele Santonato. When the plain clothes officers are on the surveillance detail on this particular day, at 12:27, Michele Santonato was observed to come out of the house with an unknown male. At 12:32, Mr. Santonato was observed to re-enter the house by the front door. Officer Mancuso testified that he did not consider that they had sufficient information at that stage to be applying for a search warrant in regard to 36 Celt. Detective Asselin indicated that based on information he received from Officer Mancuso, he believed that Michele Santonato lived at 36 Celt.
Christopher Italiano
Officer Mancuso testified that again in the course of the surveillance on the 19th of November 2008, at approximately 1:30 p.m. the officers were in touch with each other by live radio that was not recorded but allowed the officers to stay in touch with each other. You had various plain clothes officers in unmarked vehicles watching 36 Celt. At 1:30 p.m. information from other officers at the scene indicated that a green minivan pulled into the driveway. This was observed by, amongst others, Officer Asselin. Officer Asselin actually identified the person who got out of the green minivan as Mr. Italiano. This would be consistent with Officer Asselin having received some prior information about Mr. Italiano, presumably from Officer Mancuso. Officer Mancuso indicated that sometime prior to this date, a year or so before, there had been a Crime Stoppers tip received in regard to Christopher Italiano. It referred to Mr. Italiano being involved in drug trafficking. Officer Mancuso agreed that in terms of a Crime Stoppers tip, there is no way of assessing or analyzing the motivation of the person providing the tip. Officer Mancuso said that since receiving that Crime Stoppers tip in the normal course, sometime before this, he had made efforts to follow-up on that tip. He did not recall as of November 19th, 2008 whether or not Mr. Italiano had a record or had ever been charged. Officer Mancuso did say that, at the time, as of that date, he had a paper file on Mr. Italiano and he indicated that he has since learned more about Mr. Italiano. And he, I think properly and fairly, conceded that it is somewhat difficult to keep clear, to differentiate what he knew as of November 19th, 2008 about Mr. Italiano and what he has learned since. Officer Mancuso thinks that he had information that Mr. Italiano was involved in the drug trade and it related to powder or cocaine. In cross-examination, he conceded that he had not mentioned that at the preliminary hearing. Also in cross-examination, Officer Mancuso indicated that his recollection of the Crime Stopper tip that had been sometime before November 19th, 2008, linked Mr. Italiano to drugs but not specifically to cocaine. Officer Mancuso indicated he was surprised to see Mr. Italiano at the scene. And again, the officers are in live contact with each other by police radio.
At 1:35 p.m. Officer Mancuso indicated that he had received information, and I believe Officer Asselin also testified to this, that Mr. Italiano was observed to come out of 36 Celt carrying a parcel, which appeared to be a red and white shoebox with stripes. Officer Asselin referred to Mr. Italiano having a memorable name. Mr. Italiano was observed to drive away. The police who were on scene, having observed this, which would include Officers Asselin and Mancuso, concluded that someone inside 36 Celt had given a box to Mr. Italiano. Now, they did not see that happen. They were not in the house. It was a reasonable inference that the police were entitled to draw, that Mr. Italiano left the house with a box that he had not had when he went in. Officer Mancuso went on to indicate, and this is still regarding Mr. Italiano, that as of the time they observed Mr. Italiano driving away from 36 Celt with the box that appears to have been retrieved by Mr. Italiano within that residence, you have two sources, two confidential informants in regard to Michael Santonato, having been involved in the cocaine trade at a multi-kilo level. The police had information that Mr. Italiano, based on a Crime Stoppers tip, with all its evident limitations, was also involved in the drug trade and he is now observed carrying a parcel. Understandably, the suspicion of the police was aroused by the combination of these factors. Officer Asselin indicated that the combination of these factors, the information they had before they set up surveillance and what they had observed to that stage, was that it was "getting interesting" but there was no basis yet, based on the evidence of the officers, no basis and indeed no rush to arrest anyone. Officer Asselin directed, as the senior officer on site, that Mr. Italiano would be followed.
Mr. Italiano was followed to the intersection of St. Clair and Christie. Officer Mancuso described in-chief some of the driving done by Mr. Italiano as being suspicious, in the sense of appearing to be counter-surveillance. Officer Asselin did not agree with that and Officer Asselin, as I recall, his evidence was that he did not particularly view the driving by Mr. Italiano as being in a counter-surveillance or suspicious manner. In any event, in my view, based on all the evidence, that was not a significant factor to the police, but the officers did disagree on that aspect.
At 1:49 p.m., Mr. Italiano stopped his vehicle curbside at that intersection and an unknown male, and unknown to any of the police at the time and who we now know is Mr. Abdul-Hamid, got into the passenger's side of Mr. Italiano's vehicle. Mr. Abdul-Hamid, and I'm referring to him now as the Applicant, got out of the vehicle a couple of moments later and it appeared that he was now carrying the distinctive shoebox. And again this information is being shared over the radio amongst the officers. The applicant was observed to get into a Ford Explorer and drive away. The police have described what they observed as a classic middle-man role for Mr. Italiano and as I recall it, Officer Mancuso referred to Mr. Italiano as the "mule". He has seen that pattern in other cases. Officer Mancuso was of the view that in the totality of circumstances there were now likely grounds to arrest Mr. Abdul-Hamid, whose name was not known at the time, in regard to possession of cocaine. I should also add, going back to the issue of the driving by Mr. Italiano from 36 Celt to the location where the applicant got into his vehicle, in cross-examination, Officer Mancuso backed off of the suggestion of counter-surveillance driving by Mr. Italiano.
Further in regard to Mr. Italiano, there was of course further evidence from Officer Asselin. At 1:30 p.m., back at 36 Celt, he observed a green minivan pull into the driveway with Mr. Italiano. Mr. Italiano appeared to be on a cellphone and Officer Asselin's evidence was that Mr. Italiano had been pointed out to him or discussed by Officer Mancuso on prior occasions. Officer Asselin indicated that someone in the drug squad had said that Mr. Italiano was a person of interest. He did not know the whole story. Officer Asselin said he had seen Mr. Italiano a few times before and he actually recalled the vehicle that Mr. Italiano was driving, the green minivan. The information that Officer Asselin had regarding Mr. Italiano preceding this date related to Mr. Italiano being connected to drugs and not other offences. He did not recall much about Mr. Italiano, other than the fact that he, meaning Mr. Italiano, lived and worked in 13 Division in Toronto. Carrying on with Officer Asselin's evidence, he observed Mr. Italiano back out of 36 Celt at approximately 1:35 p.m., which meant that he was in the house for about five minutes and that he was carrying a red, white and blue shoebox. The decision was made, and Officer Asselin directed, that Mr. Italiano be followed. Officer Asselin indicated that based on information he had received from Officer Mancuso that Michele Santonato was a kilo level coke dealer, that "the shoebox was a perfect fit" for a drug transaction. But, he said, the police were still short of grounds to arrest Mr. Italiano at that time.
Officer Asselin indicated he has seen kilos of cocaine in shoeboxes in other cases and this is one reflection of several that were heard about the extensive experience of Officer Asselin dealing with drug investigations. Officer Asselin indicated that he wanted to see where Mr. Italiano was going with the box and see if he passed it off to anyone else and he felt that if that happened, that would clearly indicate to him, based on his experience, that drug trafficking had occurred.
In regard to Italiano, Officer Asselin indicated that he had some prior information. He was unclear whether it was direct or indirect. Mr. Italiano had been pointed out to him previously by a fellow member of the drug squad, Officer Mancuso. His recollection was that Mr. Italiano was a person of interest in a drug case. The information was very general, could be anything drug related. Officer Asselin did not know, based on what he had heard about Mr. Italiano, the level or type of drug that Mr. Italiano was reputed to be involved in. Officer Asselin agreed that he had no reason to believe that Mr. Italiano lived at 36 Celt, but he believed that Officer Mancuso would have alerted him otherwise. Officer Mancuso pointed out Italiano to him when they arrived and observed him. Officer Asselin indicated that he believed that Mr. Italiano lived elsewhere. So what Officer Asselin has before his eyes is observing Mr. Italiano arrive at a place where information has been conveyed to him that Michele Santonato resided and that Mr. Santonato was a dealer in cocaine at a kilo level. Officer Asselin saw Mr. Italiano emerge with a box from the residence. Officer Asselin, as the senior officer on scene, still did not feel there were grounds to arrest Mr. Italiano at that stage. There were many questions asked, quite properly, by Mr. MacDonald in regard to the Crime Stoppers tip and as well Mr. Christie, who, with some leave of the court and the Crown, participated to some extent in this application, while it does not relate to his client. There were a lot of questions asked about the Crime Stoppers tip regarding Mr. Italiano. Clearly that tip, with all the frailties and weaknesses that a Crime Stoppers tip has, in isolation, was not enough to arrest or search Mr. Italiano and that is not what happened here. But it was a basis to continue surveillance on Mr. Italiano and to see where he went and what happened to the shoebox.
Detective Glen Asselin
He had testified that he had 10 to 12 years in drug investigations. He had been involved in surveillance details before, many times. These surveillance details, as in this case, involved the use of police radio to communicate in real time with each other. His evidence was, at the time, that these interchanges of communications among the officers at the scene was not recorded. On this particular day, Officer Mancuso was designated as the central note taker. Officer Asselin indicated that he had dealt with confidential informants in the past, that he had done a lot of undercover work and surveillance and had been in cases that involved the use of informants. He had witnessed, in his evidence, hundreds of drug transactions. In terms of his own confidential informants, Officer Asselin indicated that some led to arrests and charges, but not all of them worked out. Not every tip he received becomes an arrest or leads to a search warrant or a detention.
When they went to 36 Celt, Officer Asselin indicated there was no specific investigative plan, other than to conduct surveillance, based on information received in regard to Mr. Santonato and evidence that linked Mr. Santonato to 36 Celt. All members of the surveillance team were in various unmarked vehicles and again, as I've said earlier, they stayed in touch by police radio. Officer Asselin indicated that there was no anticipation, when they went to 36 Celt, and indeed for a little while when they sat there watching, there was no anticipation that they would be arresting anybody or searching anybody and indeed, Officer Asselin thought there would be time to discuss how things would unfold when they got to the scene. It ended up there was a rush of events that did not permit much time for the officers to talk about a bigger plan. Officer Asselin testified that he and other officers arrived on scene at 36 Celt to begin the surveillance shortly after noon that day.
You have, and these are very important observations and times, according to the evidence of Officer Asselin, at 1:30, Mr. Italiano is observed to arrive at the residence, get out of his vehicle and walk into 36 Celt. Thirty-six Celt, based on information received, was linked to Mr. Santonato and indeed Mr. Santonato was observed going into that residence that day, earlier.
At 1:35 p.m., Mr. Italiano comes out of 36 Celt carrying the shoebox and enters his vehicle and drives away.
At 1:49, Mr. Italiano's vehicle stops at the intersection of St. Clair and Christie and an unknown male, who we now know was the applicant, gets into Mr. Italiano's car by the passenger's side.
At 1:51, the applicant, the unknown male at the time, gets out of the vehicle carrying the shoebox and gets into another vehilcle.
Based on those observations, Officer Asselin indicated that, based on those observations plus his experience in drug investigations, evidence about Mr. Michele Santonato being involved in the coke trade at a kilo level, evidence that Mr. Santonato was not only linked to 36 Celt, he had been observed to be there that day, Mr. Italiano going in without the box, coming out with the box, the box could reasonably and comfortably hold a kilo of cocaine, based on all of those factors, Officer Asselin believed that a drug deal had occurred. But again, the decision was not made to arrest Mr. Italiano. It is of interest to point out that those factors do not include the Crime Stoppers tip in regard to Mr. Italiano, as a factor for Officer Asselin. Based on Officer Asselin's experience, he felt the scenario, up to the point where Mr. Italiano leaves the residence carrying the shoebox, gets into his vehicle and drives away, that it fit the pattern of a runner for Mr. Santonato. So based on his experience, Officer Asselin viewed Mr. Italiano as, quite possibly, a runner for drugs from Mr. Santonato. And then you have the evidence that follows, of Mr. Italiano stopping his vehicle at an intersection curbside, the applicant gets into Mr. Italiano's vehicle, and then gets out carrying the shoebox and into his own vehicle. Based on his experience, Officer Asselin said he did not need to see money actually pass on such a transaction and indeed, he said you would usually not see that. It did not shock him to not see money pass. Based on his experience, if the shoebox contained a kilo of cocaine it would be valued at in excess of $25,000.00. This would not be a street level transaction. And he believed, in all the circumstances and this involves inference drawing by him, that money had passed or would pass at some stage in regard to this, that this was a commercial transaction. He then felt, based on all of those circumstances, including the applicant getting in and out of the car, and now with the box and into a separate vehicle, that there were grounds to arrest the unknown male, who we now know as the applicant.
Officer Asselin indicated that the identities of Santonato and Italiano were known but they could not risk losing sight of the unknown male at the time, plus a significant quantity of drugs that he believed to be in the possession of the unknown male, who we now know was Mr. Abdul-Hamid. Officer Asselin was making operational decisions as the lead officer, including the decision to arrest the applicant, based on the accumulated grounds. After the applicant was arrested, the drugs were recovered, Officer Asselin observed what he described as a compressed brick of cocaine in the shoebox and it was within, I believe, a plastic Longos shopping bag. Officer Asselin was asked, in regard to the location and the time of day, where the vehicle driven by Mr. Italiano stops and the applicant gets into the vehicle and then gets out with the shoebox. This was a busy intersection in daylight hours. Based on his experience, Officer Asselin indicated that most high-end drug traffic is done in daytime and in busy places and in fact contrary to what a layperson might think, it is actually more difficult for police to surveil such a meeting and a transaction. Officer Asselin indicated he did not expect, when they went out to 36 Celt shortly after noon, he did not expect to see a kilo level drug transaction unfold before their eyes so quickly. He indicated there was no time for follow-up. There were many questions, understandably, put by Mr. MacDonald, as to what he suggested were failures of Officer Asselin to follow-up, to seek further information, to check sources and Officer Asselin indicated that the events unfolded so quickly from 1:30 until 2:00 p.m. that there was simply no time to make further inquiries and the accumulated effect of the information of things they had observed and information they had, in particular regarding Mr. Santonato, led him to feel that there were grounds to arrest the applicant and that they could not risk the applicant, who was unknown at the time, getting away with what they believed was the significant quantity of cocaine. The target of the surveillance at the outset was Mr. Santonato, based on information relayed from Officer Mancuso to Detective Asselin. Officer Asselin indicated that if Officer Mancuso had had sufficient information before they went to get a search warrant, that they would have sought one, but they were not in a position to do so.
Mr. Abdul-Hamid
Officer Mancuso was of the view, based on information the police had before they went to 36 Celt as well as what they observed, that there were reasonable and probable grounds to arrest Mr. Abdul-Hamid, who was unknown at the time, based on the following factors: the information that Michele Santonato was a kilo level coke dealer; that Michele Santonato had been observed at the residence, 36 Celt, that day; Mr. Italiano was observed to arrive on scene in a vehicle; Officer Mancuso did refer to the fact that he had a Crime Stoppers tip regarding Mr. Italiano, but again he acknowledged the frailties of that type of information viewed in isolation. But there was also the information of course of what was actually observed by the police: they observed Mr. Italiano go into 36 Celt; he comes out with the parcel that Officer Mancuso indicated that the shoebox appeared capable of holding two or three kilos; Mr. Italiano was observed to drive away; he stops curbside at Christie and St. Clair where the unknown person gets into Mr. Italiano's car; the unknown, who is now the applicant, gets out and into his own vehicle and drives away. Officer Mancuso testified it was not his call to make the arrest, but he felt that there were clearly reasonable and probable grounds to arrest that unknown person who got in and out of Mr. Italiano's car with the box. Officer Asselin did authorize and direct that the applicant be arrested, who was unknown at the time, and the view was that Mr. Santonato and Mr. Italiano could be dealt with later. All of this information, it is important to bear in mind is information, as I understood the evidence as, being shared live, over the radios, among the officers.
When Mr. Abdul-Hamid was arrested, Officer Mancuso conducted a search of the vehicle. This was after the gunpoint arrest. Officer Mancuso found, on the rear passenger floor, the shoebox and inside was a plastic Longos bag. He could smell what he described, the chemical odour of cocaine and then observed what he believed to be a kilo of cocaine in gray packaging with blue duct tape and its weight was approximately one kilo. He also testified that he searched the passenger and front area of the vehicle, the console, the glove department, under the seats and the ashtray, as well as the door pockets. The only item of interest that was recovered was the box containing the cocaine. Officer Mancuso testified he did not see anyone else in Mr. Abdul-Hamid's car. There were no weapons recovered and that when Mr. Abdul-Hamid was under arrest and held there was no continuing threat to the police. Officer Mancuso's evidence was that the search was conducted incident to arrest. He did not feel a search warrant was required. He agreed there was no danger that the box would be lost if time was taken to get a search warrant. And I feel it necessary to some extent to repeat the information that particularly Officers Asselin and Mancuso had and what they shared with other officers. It is necessary to repeat, but also to bear in mind that the officers were part of an investigative team conducting surveillance, keeping in contact by live radio. These officers are not silos. They share information.
And Officer Asselin, who made the decision and directed that Mr. Abdul-Hamid be arrested, indicated that the grounds were again: that information that Michele Santonato was at 36 Celt; that information through Officer Mancuso that Santonato was a kilo level dealer in cocaine; Mr. Santonato had been observed going into the residence that day; Mr. Italiano arrives in his vehicle; Mr. Italiano leaves within minutes with a shoebox that could hold a kilo of cocaine; Mr. Italiano was followed; an unknown male gets in and out with the box. Officer Asselin described that, what I am calling the hand-off to Mr. Abdul-Hamid as an "odd meeting", taking the shoebox that had apparently had emerged from Celt Avenue with Mr. Italiano into his own vehicle. Officer Asselin believed that Mr. Italiano was the runner and that Mr. Abdul-Hamid, unknown at the time, was the recipient. Based on his experience, Officer Asselin indicated that this looked like one of the more obvious drug deals. It is interesting to note and of some significance that Officer Asselin did not rely upon and indeed he should not have relied upon the Crime Stoppers tip in regard to Mr. Italiano as being a factor in the decision to arrest Mr. Abdul-Hamid.
ANALYSIS
Grounds to Arrest
The Criminal Code of Canada and case law indicate that an arresting officer must subjectively have reasonable and probable grounds, but those grounds must also be justified from an objective point of view. A reasonable person, placed in the position of the officer must be able to conclude there were reasonable and probable grounds for the arrest. Reference, R. v. Storrey, 1990 Can LII 125 S.C.C. paras. 15 and 16. Reasonable grounds can be equated to reasonable probability. They do not require that the police have a prima facie case before they effect an arrest and there are two decisions I would refer here, R. v. Debot 1989 Can LII 13 S.C.C. para. 47, and R. v. Storrey, supra.
Information that would not meet the reasonableness standard on an application for a search warrant may still meet that standard in the context of an arrest.
The dynamics at play in an arrest situation are very different from those on an application for a search warrant. The decision to arrest often must be made quickly in volatile and changing situations. Judicial reflection is not a luxury the officers can afford. The police officer must often make a decision based on available information, which is often less than exact or complete. The law does not expect the same kind of inquiry of police as to whether to arrest someone that it demands of a justice faced with an application for a search warrant. Reference R. v. Golub, 1997 Can LII 6316 ONCA para. 18.
There must be a constellation of objectively discernible facts amounting to reasonable and probable grounds for there to be a lawful arrest without warrant. Reference, R. v. Hall 1995 Can LII 647 ONCA para. 31.
The flow of investigative detention, arrest and search may be a dynamic process. A s. 8 analysis ought not to be reduced to an over-analytical parsing of events into static moments without practical regard to the overall picture. Reference, R. v. Amofa 2011 ONCA 368, [2011] O.J. No. 2095 ONCA para. 19.
The totality of the circumstances relied upon by the arresting officer formed the basis for the objective assessment. It would be an error of law to assess each fact or observation in isolation. The objective assessment will include dynamics within which the officer acted and his or her experience. Because a trained officer is entitled to draw inferences and make deductions based on experience, a reviewing court must take these factors into account. Reference, R. v. Hanson, [2009] O.J. No. 4152 ONSC paras. 58 and 59.
Further in Hanson, Justice Garton indicated, "The test for reasonableness does not require that the matter be viewed from the perspective of the reasonable layperson but rather from the standpoint of the reasonable person 'standing in the shoes of the police officer'." And in Hanson, Justice Garton refers, with approval, to the British Columbia Court of Appeal decision in R. v. Tran, [2007] BCCA 491 para. 12. "The reasonable person must be deemed to have the same level of experience as the police officer whose actions are being scrutinized."
The cumulative effect of the factual elements may provide the objective support for the officer's subjective belief he had reasonable and probable grounds to arrest. The whole is greater than the sum of the individual parts. R. v. Nolet, 2010 SCC 24, [2010] 1 SCR 851 para. 48.
The Supreme Court of Canada in Debot, that I have referred to earlier, clearly indicates and there are other precedents that an officer may form grounds to arrest based on information from other sources and indeed they routinely do. This would be information from other officers, as well as observations made by the arresting officer themselves.
As I made reference to earlier, officers on an investigative team are not silos restricted to acting only on what they personally observed or information they received. This is particularly so in the case of the surveillance team on a particular site in separate vehicles but in ongoing communication by live radio communication.
Grounds to Arrest Based on Informant Tips
The Supreme Court of Canada decision in Debot refers to what has been summarized as the three C's in terms of analyzing the appropriate credit or value or weight to be given to information from an informant. The questions the court must consider are as follows:
Was the information compelling?
Was it credible?
Has it been corroborated or confirmed in some way?
That is my paraphrase or summary of that case, that very important case dealing with this issue.
In Debot, the Supreme Court clearly indicated that each factor does not form a separate test. The totality of circumstances must meet the standard of reasonableness. Weakness in one area may, to some extent, be compensated by strengths in the other two. Information from one informant may, depending on the circumstances, confirm information from another informant. And for that proposition I would refer to three decisions: R. v. Jorge, [2010] ONSC 3332, a judgment of Justice Hambly of the Superior Court of Ontario para. 33; R. v. Saunders, a judgment of the Newfoundland and Labrador Supreme Court, cited 2003 NLCA 63, [2003] NJ No. 309 para. 15; R. v. Floyd, [2012] ONCJ 417, judgment of the Ontario Court of Justice, Justice Paciocco, para. 76.
In this case, the case before me, looking at the information from the two confidential informants related to Michele Santonato, the court must consider the three C's, compelling, credible, corroborated. Those are the issues. Also, the court must consider the totality of the circumstances and that the weakness in one area may, to some extent, be compensated by strengths in the other two. Confidential informant number one refers to Mr. Santonato, this is information Officer Mancuso relates to the court, that he has received information from number one that Mr. Santonato is a large-scale coke dealer; that he is violent and paranoid; keeps a gun; the informant does not know where the drugs are kept; also, that Mr. Santonato deals in cocaine on the kilo level. Confidential informant number two's information is that Mr. Santonato is a large-scale coke dealer; that he deals in the Italian community, St. Clair area; and that the information from confidential informant number two is recent in the sense of not long before the events of November 19, 2008 and also informant number two indicates that Mr. Santonato is a dealer in cocaine at a kilo level. Significantly, Officer Mancuso said that the information provided by informant number two had resulted previously in seizures or arrests. In my view, that constitutes some indication of credibility. Both informants, bearing in mind the different backgrounds or information Officer Mancuso related to the two informants, both informants refer to Mr. Santonato as a large-scale coke dealer. There is an element of corroboration in that regard. Both refer to Mr. Santonato as being a dealer in coke on a kilo level. That is an aspect or an indication of confirmation or corroboration. There is no indication that the information from either informant was compelling. Now, one significant way in which confidential informant information can be verified or given appropriate weight is further investigation. In this case, based on the information they had about Mr. Santonato, when I say "they", the police team, not the silo, so the team that worked together, headed by Officer Asselin, based on the information they had about Mr. Santonato, they did what they should do. They went out to conduct surveillance. The police do not require reasonable grounds to conduct surveillance. There is no suggestion in this case that there was a perimeter search that would have required any higher grounds to conduct surveillance than what the police did. And what did the police see when the set up surveillance on 36 Celt, which was linked to Mr. Santonato, where they saw Mr. Santonato that day and where there was information that he was a coke dealer on a kilo level? The surveillance observed firsthand by the police is that Mr. Italiano arrives, parks in the driveway, goes into the house, emerges in a couple of moments carrying the distinctive shoebox, gets into his vehicle, drives away, stops his car curbside, the unknown male who we now know is the applicant gets into the passenger's side and gets out with the box. That series of events that is observed by the police, that culminates in the handoff, "handoff" is my phrase, it is not used by the officers and I do not believe it was used by counsel, but I would say a reasonable inference is that there was a handoff to the applicant in the unusual circumstances that looked like a classic delivery by a middleman, meaning Mr. Italiano, to a recipient, is a further aspect of corroboration or confirmation of Mr. Santonato as a dealer. It should be remembered that the evidence of Officer Mancuso is that the two informants were two separate people, that they are from two ethnic backgrounds. Is it possible that they were both relying on the same source? Yes, it is. It is a bit of a circular argument in terms of confirmation, but the fact that both confidential informants refer to Mr. Santonato as a large-scale coke dealer at a kilo level can on one view be viewed as consistent, confirmatory or corroborated, but also leaves open, I accept that counsel had posited counsel for the applicant understandably has said, well, maybe they had the same source; maybe it is just flat-out word on the street. All of that is possible, but in my view, having heard the evidence and reviewed it carefully, while there is a complete lack of a compelling nature to the information from the two confidential informants, there is an aspect of credibility based on prior seizures and arrests based on the information from informant number two and there are elements of corroboration based on the consistency of the information provided by number one and number two and importantly, there is surveillance conducted by the police from which they drew inferences, particularly based on the experience of Officer Mancuso and more importantly, Officer Asselin, that this looked like a classic case of a drug deal. Could other inferences be drawn? Yes. But that is not the test here. These were reasonable inferences for the investigators to make.
The information from the two confidential informants alone or the two confidential informants together but without everything else, would not be a lawful basis to arrest Mr. Santonato and that is not what is before me here. While the confidential informant information regarding Mr. Santonato is not compelling, it has elements of credibility and corroboration. There is surveillance of Mr. Italiano which was a reasonable step for the officers to make from which they drew conclusions and they did not act in terms of arresting anyone until they saw the handoff to the applicant.
In my view, having reviewed all of the evidence carefully, the confidential informant information, as corroborated to some extent by the surveillance, adds a layer to what was observed by the police and provides a basis for reasonable and probable grounds to arrest the applicant and I find that they had those grounds.
Before leaving this, I wish to make clear that I am well aware that the fact that the police in fact found cocaine cannot be used in any way as confirming information from these informants and that is not what I have done. I am not relying in any way on the fact that cocaine was recovered. But what the court is entitled to consider and indeed must consider, in my view, is the surveillance conducted by the police that day; what they observed on top of the information they had about Mr. Santonato. So I find that there were reasonable and probable grounds to arrest the applicant.
Search, Incident to Arrest
One of the leading cases in regard to this issue is R. v. Caslake, 1998 Can LII 838 SCC and I will be referring to paras. 13, 14, 15, 19 and 20. Search, incident to arrest requires neither a warrant nor independent reasonable and probable grounds. It is a right to search that arises from the fact of an arrest. If an arrest is later found to be invalid, the search will also be invalid. There are important limits to this search, incident to arrest:
It does not impose a duty to search.
The search must be for a valid objective in the ends of criminal justice, such as the discovery of an object that may be a threat to the police, the suspect or the public or something that might facilitate an escape or something, an object that could act as evidence against the suspect. The purpose of the search must not be unrelated to the objectives of the proper administration of justice.
The search must not be conducted in an abusive fashion.
If these three conditions are met and the arrest is lawful, the search will be authorized by law.
Motor vehicles are legitimate objects of search, incident to arrest as they attract no heightened expectation of privacy that would justify an exemption from the usual common-law principles. The search must be truly incidental to the arrest. The police must be attempting to achieve some valid purpose connected to the arrest. It depends on what the police are looking for and why. The only requirement is that there be some reasonable basis for doing what the police did. The police have considerable leeway in circumstances of an arrest which they do not have in other situations. "Truly incidental to arrest" means if justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the suspect is arrested. The limits on search, incident to arrest are no different for motor vehicles than for any other place. The right to search a vehicle, incident to arrest and the scope of the search will depend on a number of factors, including the basis for the arrest, the location of the car in relation to the place of arrest and other relevant circumstances. In this case, Mr. Abdul-Hamid was arrested, I have found, based on lawful authority. I find he did have a degree of expectation of privacy in the vehicle, but the police also had a power to search that vehicle, incident to arrest. In this case, the police were not on a fishing expedition. They were looking for a very distinctive shoebox that had been very recently passed to the applicant. The item was observed and recovered on the floor in the rear passenger area. Officer Mancuso's evidence was that the box was not covered. This search was to achieve a valid purpose related to the arrest and provides evidence of the offence for which Mr. Abdul-Hamid was arrested.
In the result, the applications pursuant to s. 8 and 9 of the Charter, by the applicant, are dismissed and the drugs seized will be evidence at trial.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Gerri Findlay, certify that this document is a true and accurate transcription of the recording of R. v. Abdul-Hamid and Italiano in the Superior Court of Justice held at 361 University Avenue, Toronto, Ontario taken from Recording(s) No. 4899-7-3-20130122-102117 which has been certified in Form 1 by Debbie Basciano.
*This certification does not apply to the Reasons for Ruling, which was judicially edited.
March 4, 2013 Gerri Findlay - Certified Court Reporter
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Exam. Cr- Re-
WITNESS: in-Ch. exam. exam.
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
Transcript Ordered: ....................January 22, 2013
Transcript Completed: ..................March 4, 2013
Ordering Party Notified: ...............March 4, 2013
SUPERIOR COURT OF JUSTICE
361 University Avenue
HER MAJESTY THE QUEEN
v.
MOHAMED ABDUL-HAMID
-and-
CHRISTOPHER ITALIANO
REASONS FOR RULING
THE HONOURABLE MISTER JUSTICE B. O'MARRA
on January 22, 2013, at TORONTO, Ontario
APPEARANCES:
K. Benzakien
(a) Counsel for the Crown
S. Virk
Counsel for the Crown
R. MacDonald
Counsel for Mohamed Abdul-Hamid
J. Christie
Counsel for Christopher Italiano
B. P. O’Marra J.
Released: March 22, 2013
COURT FILE NO.: CR11900002180000
DATE: 20130322
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOHAMED ABDUL-HAMID and CHRISTOPHER ITALIANO
Applicant/Accused
REASONS FOR RULING
B. P. O’Marra J.
Released: March 22, 2013