COURT FILE NO.: 11/9/564
DATE: 20130920
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DARREN BARRINGTON BURNETT
Applicant/Defendant
Christine Josic, for the Crown
Paul Aubin, for the Defendant
HEARD: June 3 - 5 and 7, 2013
SPIES J.
RULING ON DEFENCE APPLICATION TO EXCLUDE EVIDENCE
Overview
[1] Darren Burnett is charged with having cocaine in his possession for the purpose of trafficking. He is also charged with having $250 Cdn. and $200 U.S. in his possession as proceeds from the commission of an indictable offence. At the outset of the trial he brought an application to exclude the evidence on the basis that his arrest was unlawful in that the police did not have reasonable and probable grounds to arrest him; violating his section 9 Charter rights and that as a result the searches of his person and the vehicle he was driving, both without a warrant, were illegal and infringed his section 8 Charter rights. The evidence seized from Mr. Burnett and the vehicle he was driving includes a cell phone that the Crown alleges establishes that he was in contact with the undercover officer (“UC”) for the purpose of selling crack cocaine and a quantity of crack cocaine found hidden inside the vehicle, weighing 25.16 grams.
[2] On June 10, 2013, I dismissed the application with written reasons to follow. These are my reasons.
The Issues
[3] Counsel agree on the governing law. It is the application of that law to the facts of this case that is in issue. There is no dispute that the Crown bears the onus of proving that both the arrest and the searches were lawful. The main issue concerning the lawfulness of the arrest in this case results from the fact that the Crown was unable to call the UC, D.C. Park, the member of the Toronto Drug Squad (“TDS”) who acted in an undercover capacity in this investigation, as a witness on the voir dire, as he is on extended medical leave. Mr. Aubin submitted that this is fatal for the Crown on the basis that it was really this UC who formed the grounds to arrest Mr. Burnett. He argued that it was information from this officer that Detective Grekos, the officer in charge, relied on in making the decision to call for the arrest of Mr. Burnett. Although he did not challenge Det. Grekos’ subjective belief that Mr. Burnett had committed an offence, he argued that the objective reasonableness of this belief could not be tested without the UC testifying. This contention was vigorously contested by Ms. Josic who submitted that Det. Grekos had ample grounds to arrest Mr. Burnett not only from the information received from the UC but also from other observations he made during the surveillance of Mr. Burnett and information received from other officers on the team who did testify.
[4] There was no suggestion that the Crown was deliberately not calling the UC nor was there any suggestion that the Defence was trying to take advantage of the situation in that the Defence Charter application was filed before Mr. Aubin became aware that the UC was unavailable to testify.
[5] If the arrest of Mr. Burnett was lawful, there is no issue that the search of Mr. Burnett’s person was lawful as a search incident to arrest. Mr. Aubin, however, argued that the search of the vehicle was unlawful in any event on the basis that the police had no reasonable expectation of finding evidence in the vehicle.
[6] Finally, if there was a breach of Mr. Burnett’s s. 8 and/or s. 9 Charter rights, I must consider whether or not the evidence seized should be excluded pursuant to s. 24(2) of the Charter?
Has the Crown established that Mr. Burnett’s arrest was lawful and not in breach of his s. 9 Charter rights?
The Facts
(a) The Chronology of Events Leading to the Arrest of Mr. Burnett
[7] Although I heard from all of the officers, with the exception of the UC, I will focus this summary of the evidence primarily on the information passed on to Det. Grekos over the police radio by other officers in addition to what he personally observed as he was the Officer in Charge of this investigation and is the one who made the decision to arrest Mr. Burnett.
[8] In dealing with an early objection from Mr. Aubin, I ruled that I would hear what information Det. Grekos and the officers received from the UC, but that information would not be admitted for its truth but rather as information provided to Det. Grekos which was relevant to his state of mind and informed his decisions as to the course of the investigation and his ultimate decision to have Mr. Burnett arrested. There is no dispute that Det. Grekos was not present for any of the interactions between the UC and the defendant.
[9] Det. Grekos had received information from a combination of sources including a confidential source as to the name of a possible target. He then did some computer checks and obtained the following information: name Darren Burnett, aka “Smiley,” date of birth January 7, 1983, and a description; male black, six feet tall, 180 pounds and photograph of this person from the Police Data Bank. In addition the officer was able to determine a phone number for the target of 416-320-6468 and an address of 28 Stillwater Crescent in Toronto. Although it was not clear from the evidence I presume it was based on this information that the UC made his initial contact with the target.
[10] Detective Grekos was informed by the UC that he had had a conversation with the target as to the location of the meeting; a Country Style Donuts at Finch Avenue West and Milvan Drive and that this location along with the amount of drugs and the type of drugs (crack cocaine) had been agreed upon. He issued $240 in police buy money to the UC so that the UC could buy the cocaine from the target.
[11] A briefing sheet was prepared containing the information the police had with respect to Darren Burnett, in addition to the following statement: “UC contacted T1 and arranged to purchase a quantity of cocaine in the area of Milvan Drive and Finch Avenue West. T1 and any other targets to be arrested upon completion of the deal.”
[12] The briefing sheet was issued to each of the officers who were to be part of the surveillance team at a briefing that took place on the evening of April 28, 2010, led by Det. Grekos and D.C. Swart who was to be the road boss of the team. Det. Grekos issued police buy money to the UC. The plan was that the UC would meet the target at the agreed upon location and purchase crack cocaine. The target would then be arrested.
[13] The UC, Det. Grekos, D.C. Swart and P.C. Tracey travelled to the location prearranged by the UC with the target. Everyone was in plainclothes and in a separate unmarked police vehicle. P.C. Tracey was detailed to be the officer that operated the officer protection kit, which allowed him to hear what the UC was saying. He then relayed information from the UC to the rest of the team over the police radio. The officers, save for the UC, were on a separate drug channel and could communicate as a team directly between one another.
[14] Detective Grekos and the other officers on the team arrived at the Country Style Donuts before the UC and they set up in various locations in the area in order to conduct surveillance. They had been informed by P.C. Tracey both on route and after arriving about several unsuccessful attempts by the UC to make telephone contact with the target. The UC arrived at the Country Style Donuts at 7:10 p.m. and eventually P.C. Tracey reported that contact was made and that on one call the target informed the UC that he was only two lights away and then on another call he asked where the UC was parked.
[15] Although Det. Grekos was not able to observe this, at 7:33 p.m. D.C. Swart reported over the police radio that he observed a green vehicle, Acura TL, Ontario marker BFRP922 pull into the lot of the Country Style Donuts and park on the west side of a red truck facing south. The red truck was between the green vehicle and the undercover vehicle. At 7:36 p.m. P.C. Tracey reported over the radio that he had observed that the male was out of the driver’s seat of his vehicle, had walked around the rear of the truck to the UC’s vehicle to the driver’s side window. P.C. Tracey heard that they had a conversation for not even a minute but could not remember what was said. At 7:38 p.m. P.C. Tracey testified that he received information from the UC and reported over the radio to the team that the target was away from the undercover vehicle and going back to the green Acura and that the target was going to get product from his vehicle. At this point no drug transaction had occurred with the UC.
[16] When Det. Grekos testified, he recalled that P.C. Tracey said simply that the target was going to get product or drugs. He believed that the target was going to get the drugs from someone else or a stash house. This issue becomes important to the search of the vehicle. Since the information came to P.C. Tracey directly from the UC, I find that his recollection is the accurate one of what the UC reported to him and what he then reported over the radio.
[17] P.C. Tracey observed the male get back into the green vehicle at 7:38 p.m. and leave the Country Style Donuts. The team, with the exception of the UC, followed the target with mobile surveillance. The target headed east on Finch Avenue West and then southbound on Jayzel Drive. Det. Grekos instructed P.C. Tracey to call the UC and direct that he call the target back to see what was going on. P.C. Tracey reported that the UC did so but that his call went into voicemail.
[18] At 7:39 p.m. D.C. Swart reported over the radio that the vehicle stopped on the west side of Jayzel in a southbound position and activated its four-way flashers. D.C. Swart observed an unknown male get into the front passenger seat of the vehicle. D.C. Swart reported over the radio a description of the unknown white male and that he had observed a hand to hand transaction between the male and the driver. No other officer saw this transaction.
[19] D.C. Swart testified on the voir dire about what he had observed. He said that he was able to see into the vehicle as he drove by it very slowly; about 20 km/hour, as the front window was down on the driver’s side. He saw the white male handing the target a quantity of cash in exchange for a small package. The money was folded so he could not see the colour, the denomination or the amount.
[20] D.C. Swart said he could not describe the package but that based on his experience on the street drug team, in terms of size it was equivalent to a half-ball to a ball; 1/16 of an ounce of cocaine, which could be concealed in the driver’s hand. In cross-examination D.C. Swart admitted that he couldn’t say if the thing in the target’s hand was a package or an object. The transaction took all of five seconds if that. D.C. Swart testified that in his experience drug transactions are usually terminated very quickly; the price and weight of a transaction is determined before the meeting and the actual exchange is quick. The fact the transaction is brief is to avoid detection and the user usually wants to get his fix right away. The unknown male exited the vehicle at 7:40 p.m. and the green Acura continued southbound on Jayzel and turned west on Lindylou Road.
[21] At 7:40 p.m. Det. Grekos testified that he observed the green Acura stop on the north side of Lindylou and a second male entered the front passenger seat of the vehicle. Det. Grekos did not see where this male came from. Within seconds of this male entering the vehicle, he observed the driver of the green vehicle hand something over with his right hand to the right hand of the unknown male and then he saw a “fist bump” between the two men. He did not see anything given back to the driver. Detective Grekos had a clear and unobstructed view of the inside of the vehicle from about 20 to 25 feet away but he was not able to give any details of what was exchanged. He testified that based on his personal observations and experience as a surveillance officer and an undercover officer, he believed that what he saw was a drug transaction. No other officer saw this transaction.
[22] At 7:41 p.m. Det. Grekos radioed to the other officers that he had observed another hand to hand transaction and that the unknown black male had exited the vehicle and walked into a low-rise apartment building. Detective Grekos explained how he did not have sufficient officers in order to direct that that male be investigated.
[23] Although it is not clear at what point in time, Det. Grekos testified that he could see the facial features of the driver and that the driver of the green Acura looked very similar to the photograph and description that he had of the target.
[24] After the second male exited the green vehicle the vehicle continued travelling westbound on Lindylou and it was obvious to Det. Grekos that the target was not returning to the UC given the direction he was travelling. As a result at 7:42 p.m. Det. Grekos requested that uniformed officers attend in a marked scout car to arrest the target for trafficking cocaine.
[25] P.C. Hamlet was the officer who arrested Mr. Burnett. Once he had stopped the vehicle Mr. Burnett was driving he approached the driver’s side, opened the driver’s door and requested that the driver exit the vehicle. As he did so the officer grabbed the driver’s arm and arrested him for trafficking in cocaine. Detective Grekos was present by this time but as far as P.C. Hamlet recalled he was the only Drug Squad officer there. Rights to counsel were given and there is no issue about that.
[26] P.C. Gwilliam was P.C. Hamlet’s escort and he approached the passenger side of the vehicle and assisted in handcuffing Mr. Burnett. He identified him with a photo on an Ontario driver’s licence. P.C. Gwilliam did a pat down search of Mr. Burnett before he put him in the back of his police car. He did not seize anything illegal.
(b) Det. Grekos’ Decision to Arrest Mr. Burnett
[27] Det. Grekos testified that he decided to arrest the target for trafficking cocaine by offer to the UC. He testified that there were two offers, one to the UC before the meeting at the Country Style Donuts and the second at the meeting.
[28] When asked in cross-examination if the grounds Det. Grekos relied upon in deciding to arrest Mr. Burnett was the information that he received from the UC, he answered that was correct. He also admitted that Mr. Burnett was arrested for one offence; trafficking by offer to the UC and that he did not arrest Mr. Burnett for his interaction with the black male; a reference to the hand to hand transaction Det. Grekos testified that he observed.
[29] Det. Grekos also testified that notwithstanding the initial conversation the UC had over the telephone with the target before the briefing, he first believed he had grounds to arrest the target once the target told the UC he would come back with the product while they were still in the parking lot of the Country Style Donuts. He testified that he did not arrest Mr. Burnett at this time since no drug transaction had taken place with the UC. When asked what changed, resulting in his decision to arrest Mr. Burnett, Det. Grekos said that initially he did not intend to arrest the target until he sold drugs to the UC. Once it was clear he was not going to return to the UC, Det. Grekos decided to effect the arrest.
[30] After Det. Grekos testified, an audio of the instructions and request Det. Grekos made for a scout car to stop the defendant was introduced into evidence. On that audio Det. Grekos is heard to say that the “driver is wanted for trafficking cocaine”.
(c) Experience of Det. Grekos and D.C. Swart
[31] Det. Grekos gave details about his experience and why he believed that what he saw was a hand to hand drug transaction. He testified that based on his personal observations and experience as a surveillance officer and an undercover officer, he believed that what he saw was a drug transaction. Det. Grekos has been a police officer for 23 years and had been on the TDS for about 13 years by the time of these events. He has worked in the capacity of both an undercover officer (for nine years) and as a surveillance officer. He has been involved in thousands of drug investigations. Det. Grekos estimated that he had been involved in over 300 drug transactions as an undercover officer dealing in all sorts of drugs including cocaine and crack cocaine. He has also had extensive training and experience as a surveillance officer through the Toronto Police Service, the Ontario Police College and the Drug Squad. He is taught to look for and make the best observations humanly possible and be as accurate as possible as to what he observes.
[32] D.C. Swart was also a very experienced drug office by the time of this arrest. He had been with the TDS for 13 years and had worked as an undercover officer for four years while on the street team. D.C. Swart said that he had been involved in easily 100 drug transactions up to 2010. As an undercover officer he knew the transactions were very quick and that this was extremely common. He had purchased all manner of drugs including cocaine (which represented 60% of what he had purchased) as an undercover officer over a period of three years. On average he would buy two to three times a week.
(d) Views of D.C. Swart as to Reasonable and Probable Grounds to Arrest
[33] Although D.C. Swart did not communicate his views to Det. Grekos at the time, he testified that he had reasonable and probable grounds to believe that the defendant was trafficking a drug which he believed to be cocaine. He based this on the fact that the target had had communications within a radius of one block with three people; the conversation he had had with the UC and his own observations and those of Det. Grekos as to two separate drug deals being made. D.C. Swart testified that he would have ordered the arrest of the target but did not because Det. Grekos was the officer in charge.
The Law
[34] Section 495(1)(a) of the Criminal Code provides legislative authority for a police officer to arrest a person without a warrant if the officer, on reasonable grounds, believes the person has committed an indictable offence. Reasonable grounds have both a subjective and objective component. As Cory J. wrote in R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.):
… an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds, must in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case before making the arrest. (at para. 17)
[35] As already stated, Mr. Aubin did not take issue with Det. Grekos’ evidence that he subjectively believed that Mr. Burnett had been trafficking in cocaine. His position was that the objective reasonableness of this belief could not be tested without the UC testifying.
[36] In R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (Ont. C.A.), the court stated that in considering the lawfulness of an arrest, “[t]he totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It would constitute an error in law to assess each fact or observation in isolation. An objective assessment will include the dynamics within which the police officer acted, and his or her experience: see R. v. Golub,” (at para. 4 citations omitted, emphasis added).
[37] In R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), a case involving the requirements for an investigative detention, which is equally applicable to the case at bar, Doherty J.A. referred to Storrey and stated that the requirement that the facts must meet an objectively discernible standard:
…serves to avoid indiscriminate and discriminatory exercises of the police power. A “hunch” based entirely on intuition gained by experience cannot suffice, no matter how accurate that “hunch” might prove to be. Such subjectively based assessment can too easily mask discriminatory conduct based on such irrelevant factors as the 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”. (at para. 61)
[38] As a matter of law, in considering the objective standard, the “reasonable person” is presumed to be “standing in the shoes of” Det. Grekos; see R. v. Johnson, [2006] O.J. No. 2182 (ONCA) at para. 7 and in particular is “presumed to have the knowledge and experience in this case in illicit drug matters, of a knowledgeable and experienced police officer.” see R. v. Juan 2007 BCCA 351, [2007], B.C.J. No. 1402 at para. 19 (B.C.C.A.). Furthermore, as the Court of Appeal stated in R. v. Bush, 2010 ONCA 554: “a trained police officer is entitled to draw inferences and make deductions drawing on experience. …The trial judge was entitled to take into consideration that experience and training in assessing whether he objectively had reasonable and probable grounds…. In addition, in determining whether reasonable and probable grounds exist, the officer is entitled to rely on hearsay.” [at para. 61, citations omitted]
Analysis
[39] There is no dispute that Officers Hamlet and Gwilliam did not know anything about the investigation; they were instructed to arrest Mr. Burnett by Det. Grekos. As stated by the Supreme Court of Canada in Debot v. The Queen, [1989], 2 S.C.R. 1140, they were entitled to assume that Det. Grekos had reasonable and probable grounds to make that request (at para. 50).
[40] Pursuant to section 2(1) of the Controlled Drugs and Substances Act, the definition of trafficking includes selling a controlled substance. Pursuant to section 2(1)(c), offering to do anything that is described as trafficking, which would include offering to sell a controlled substance, is considered trafficking. There is, therefore, no issue with the fact that Det. Grekos testified that he concluded Mr. Burnett was arrestable for trafficking by offer and yet communicated that he was to be arrested for trafficking cocaine. It is the same offence.
[41] Mr. Aubin submitted that the grounds for arrest were in fact formed by the UC and that Det. Grekos relied exclusively upon the conclusory hearsay assertion by the UC that there was an offer made to traffic cocaine when he requested a uniformed scout car to arrest Mr. Burnett. Although Mr. Aubin concedes that the police can rely on hearsay information to carry out an arrest, he argues that hearsay evidence cannot prove that reasonable and probable grounds actually existed. In this case he submitted that the sole witness on whether reasonable and probable grounds actually existed is the UC who did not testify. It is his position that as a result the failure of the Crown to call the UC is fatal in that the alleged grounds for arrest are unproven and there is no basis upon which the Court can assess the veracity of the alleged grounds.
[42] I do not accept the submission that for the purpose of determining the lawfulness of Mr. Burnett’s arrest that I must consider whether or not the UC formed reasonable and probable grounds for the arrest. There is no dispute that Det. Grekos was the officer who made the decision to arrest Mr. Burnett. He is therefore the police officer who must have reasonable and probable grounds in support of his decision to request that Mr. Burnett, be arrested.
[43] Mr. Aubin did not suggest that Det. Grekos was not truthful in his evidence or that he did not subjectively believe that he had reasonable and probable grounds to arrest Mr. Burnett. I have no difficulty in accepting the evidence of Det. Grekos that he subjectively believed that he had reasonable and probable grounds to arrest the target. The issue is whether or not, in the absence of evidence from the UC, the Crown can establish the objective reasonableness of that subjective belief. Accordingly in my view I must determine whether or not the totality of the circumstances relied upon by Det. Grekos in ordering the arrest of the target is justifiable from an objective point of view.
[44] Neither counsel provided any authority that deals directly with this issue. Presumably it rarely arises as typically the Crown will call all of the officers involved in an investigation and arrest. Ms. Josic conceded in argument that if Det. Grekos had in fact relied exclusively on information from the UC in deciding to arrest Mr. Burnett, that the Court would need to hear from the UC. She submitted, however, that in this case Det. Grekos relied on much more than the information from the UC before he decided to order the arrest of Mr. Burnett.
[45] Mr. Aubin relied on the decision of R. v. Brown, 2012 ONCA 225 where (at paragraph 14) Justice Doherty explained the importance of the objective component of reasonable and probable grounds :
In our view, however, there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer's belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter demand that the belief be "reasonable", meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. Without this objective component, the scope of police powers would be defined entirely by the police officer’s perception of the relevant circumstances. The individual’s constitutional right to be left alone by the state cannot depend exclusively on the officer’s subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer’s belief, but the need to impose discernable [sic] objectively measurable limits on police powers.
[46] In Brown Justice Doherty found that despite the arresting officer’s subjective belief that he had reasonable and probable grounds to arrest the appellant the totality of the circumstances did not provide a basis upon which that belief could be said to be objectively reasonable. The facts in that case however, were quite different than the case at bar. All the arresting officer saw was the appellant fully extend his right arm with a closed fist towards a second person who did not extend his or her hand towards the appellant or reciprocate in any way to this gesture. The second person turned around abruptly and walk north at a fast pace and the arresting officer noticed the appellant walk away with his right hand remaining closed and by his side. Of significance was the fact that another officer who was in a better position to see this conduct did not see anything that was suspicious and admitted that if he had seen these movements he would not have arrested the appellant. The arresting officer also did not particularize how it was that his prior experience led to the conclusion that he had seen a hand to hand transaction.
[47] Mr. Aubin argued by analogy that if it were enough for the Crown to call the officer who made the decision to arrest in circumstances where that officer relied exclusively on information obtained from another officer that could lead to perverse results. For example in Brown, had the officer who observed the hand to hand transaction simply told another officer who arrested the appellant that he had made this observation and had the Crown called only the arresting officer, the court would never be able to determine the objective reasonableness of the observations actually made by the first officer. In this case Mr. Aubin argued that the Court cannot rely exclusively on the UC’s subjective perception and submitted that perhaps the alleged offer to traffic did not objectively exist, or perhaps an offer was obtained illegally through entrapment. In either scenario, he submitted, no arrest would be lawful on the requisite objective standard.
[48] I do not accept Mr. Aubin’s submission that Det. Grekos relied exclusively on what the UC told him before and at the briefing and what he learned from the UC during surveillance in deciding to arrest Mr. Burnett. I appreciate, as I have already said, that in cross-examination Det. Grekos admitted that he relied upon the information that he received from the UC in deciding to arrest Mr. Burnett. He also admitted that Mr. Burnett was arrested for one offence; trafficking by offer to the UC and that he did not arrest Mr. Burnett for his interaction with the black male; a reference to the hand to hand transaction Det. Grekos testified that he observed.
[49] However, Det. Grekos did not say that he did not rely upon the hand to hand transaction that he observed or the hand to hand transaction that D.C. Swart reported he observed in deciding to arrest Mr. Burnett. In fact, Det. Grekos stated that based on his training and experience as a member of the TDS, which experience is significant, and based on the entirety of the events leading up to that point including: the fact that UC had arranged to meet the target to purchase crack cocaine, the UC had been told the target was going to get crack cocaine; Det. Grekos presumed that this was going to be from a secondary location or stash house, the target was then seen with one unknown male and then a minute or two later with a second unknown male, Det. Grekos believed that what he saw was a hand to hand drug transaction. On this basis Det. Grekos concluded that the target was involved in drug trafficking. This evidence was not challenged in cross-examination. Clearly all of this other information and the conclusion that Det. Grekos had come to was in his mind when he made the decision to order the arrest of the target.
[50] Mr. Aubin submitted that even if Det. Grekos relied on these alleged hand to hand transactions, they are only his and D.C. Swart’s subjective assumptions that they witnessed drug transactions. No drugs were seen during the alleged transactions. No individuals involved in the alleged transactions were identified or apprehended, and the officers admitted that they cannot say they were, in fact, drug transactions. He argues that this evidence cannot provide objective justification and thus lawful grounds for arrest, even if relied upon. In support of this submission Mr. Aubin referred again to the words of Justice Doherty in Brown at para. 14, which I have already set out. This passage, however, makes it clear that one looks at the totality of the circumstances known to the arresting officer. Doherty J.A. does not suggest that the arresting officer must have proof that the target is actually trafficking in drugs. As stated in Storrey at para. 17, the police are not required to establish a prima facie case before making the arrest.
[51] Although not referred to by counsel, there are many cases where the court has held that based on the observations of an experienced drug officer the officer had reasonable and probable grounds to arrest someone without a warrant. For example in R. v. Hanson, [2009] O.J. No. 4152 (SCJ), a decision of Garton J., which was referred to by Doherty J.A. in Brown, at para. 17, Justice Garton found that an officer’s observations were enough to satisfy the subjective and objective test for arrest. The officer observed a man making a flicking motion on the palm of his hand with his index finger as though he were moving “little articles” and also observed two other males who stood nearby observing the man’s palm.
[52] In coming to this conclusion that the arrest was reasonable, at para. 55, Garton J. considered R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 18 where the court pointed out that information that would not meet the reasonableness standard on an application for a search warrant may still meet the standard in the context of an arrest because of volatile and rapidly changing situations. The totality of the circumstances considered by Garton J. included: the extensive experience of the officer, the actions of the person observed, that the officer only had one or two seconds to make his observations, that the person observed clearly had something in the palm of his hand that he was moving, that the other two males appeared to be looking at what the person was holding, that the officer had seen a similar flicking motion hundreds of times in connection with the purchase and sale of crack cocaine, and that the three males were not standing entirely out in the open.
[53] I have already set out what it was that Det. Grekos observed and the conclusion that he came to that he had seen a hand to hand transaction. He did not see anything in the palm of the target’s hand and so he could not say for certain what was exchanged. However, he did see what he described as a very quick meeting between the target and an unknown male, the driver, the target hand something over with his right hand to the right hand of the unknown male and then he saw a “fist bump” between the two men. He did not see anything given back to the target. He testified that based on his personal observations and experience as a surveillance officer and an undercover officer, he believed that what he saw was a drug transaction; a hand to hand transaction. He had only a minute or so to make these observations and come to a conclusion as to what he saw. No other officer saw this transaction.
[54] Det. Grekos’ conclusion was also based on the events to that point which included information from D.C. Swart, also an experienced drug officer, that he had observed a hand to hand transaction. Based on the radio information Det. Grekos knew that this was a very quick meeting between the target and an unknown male. Although D.C. Swart did not tell Det. Grekos this at the time, he observed an exchange of a quantity of cash from the unknown male to the target in exchange for a small package.
[55] In my view, on an objective assessment, taking into account the totality of the circumstances, even if one were to ignore the information coming from the UC, Det. Grekos had reasonable and probable grounds to order the arrest of the target; Mr. Burnett, for trafficking in cocaine, based on the two hand to hand transactions he and D.C. Swart observed, particularly as they were only a minute or two apart. It was not necessary in all of the circumstances that either he or D.C. Swart actually see the drugs. Unlike the facts in Brown, my conclusion is supported by the fact that D.C. Swart independently came to the conclusion that he had reasonable and probable grounds to arrest the target essentially based on the same information.
[56] Although this is sufficient to dismiss the s. 9 Charter application, there is a further argument that I wish to address. Mr. Aubin submitted that I cannot assume that the information from the UC was reliable just because he is a police officer and at the time was a member of the drug team. Ms. Josic argued the contrary and submitted that I consider the factors one would consider in the case of a tip from a confidential informant, which would be hearsay evidence as the informant would not be expected to testify.
[57] I agree with the submission of Ms. Josic. Although she did not ask Det. Grekos about the UC and whether or not he considered him to be a reliable officer, the onus on the Crown on this voir dire is a balance of probabilities and it is clear from the evidence that the UC was a member of the TDS and that the officers, including Det. Grekos, were relying on the information that he provided to them at the time as inherently reliable. The information was specific and compelling. They had no reason to discount the information received. I also find it is material that unlike perhaps a hand to hand transaction, which often depends significantly on the details of what is observed and the experience of the officer making the observations, the facts communicated by the UC in this case are unlikely to have been misinterpreted by him. He simply reported to Det. Grekos that an agreement had been made with the target to meet at a particular location at a specific time to buy a quantity of cocaine.
[58] It is significant in this case that this information was also corroborated by the fact that after the UC arrived at the Country Style Donuts, someone who to Det. Grekos appeared to look similar to the target, approached the UC’s vehicle and had a conversation with him. The fact this conversation was likely drug related is corroborated by the actions of the target after leaving the parking lot and the observations of D.C. Swart and Det. Grekos of two hand to hand transactions. There was no possibility of an “innocent coincidence” once the target arrived at the time and place the UC had advised had been agreed upon and then engaged with a conversation with the UC.
[59] In my view, in light of this corroboration, Det. Grekos could have, from an objective point of view, relied on this information from the UC in forming his reasonable and probable grounds to arrest the target. In these types of drug investigations officers work as a team as they did in this case. Not every officer will be in a position to see what the other sees and they rely on their radio communications of what each officer sees to make decisions as to how to proceed and as in this case when to arrest. At the time they make these decisions the officers must and do rely on the accuracy of what others report they have observed over the radio. There is no time to meet and discuss the observations of each officer in detail and determine if there could be innocent explanations for the conduct.
[60] For these reasons I find that the Crown has proven that Det. Grekos had reasonable and probable grounds on both a subjective and objective basis to order the arrest of the target; Mr. Burnett. The Defence s. 9 Charter application is dismissed.
Has the Crown established that the search of the vehicle Mr. Burnett was driving was lawful and not in breach of his s. 8 Charter rights?
The Facts – the search of the vehicle
[61] Detective Grekos testified that when he ordered the uniformed officers to arrest Mr. Burnett he also asked them to search the vehicle. When asked why, he responded that it’s standard practice to search incident to arrest when someone is arrested in a vehicle and that the purpose of the search is to locate any evidence; in this case of drug trafficking or weapons. In re-examination Det. Grekos said that in any arrest of a person in a vehicle it is standard practice to search the general area of the vehicle where that person was located for the purpose of locating any evidence or weapons. He analogized it to searching a person as there is always a concern for unknown weapons and evidence. In this case the purpose of the search was to look for evidence of drug trafficking.
[62] The arresting officers only searched Mr. Burnett’s person and that search, as a pat down search, is conceded to have been a reasonable and lawful search incident to arrest if the arrest was lawful which is what I have determined. The vehicle Mr. Burnett was driving was searched by D.C. Swart and P.C. Tracey.
[63] D.C. Swart understood that Mr. Burnett was arrested for trafficking in cocaine, which is what Det. Grekos had communicated over the radio and believed his vehicle had been used in the commission of the crime. According to D.C. Swart, no one directed him to search the vehicle and he did not direct anyone to do so. D.C. Swart testified that P.C. Tracey helped him and searched the driver’s side of the vehicle. He didn’t have to give P.C. Tracey any direction as he knew what to do. They work as a team like “clockwork” and know what needs to be done.
[64] In cross-examination D.C. Swart said that he did not recall Det. Grekos directing him to search the car but he might have done so. For him it is routine when doing a vehicle stop and he believed that he took it upon himself to search the vehicle. According to D.C. Swart it is common practice when a person is arrested in a vehicle to search the immediate area for evidence; in a case like this for drugs and drug paraphernalia. He said that based on his experience as a UC, it is common practice for a drug dealer not to have drugs on his person but they may be concealed in the vehicle or near the vehicle.
[65] As soon as D.C. Swart opened the passenger front door he saw a cell phone and wallet on the centre console in plain view under the emergency brake. He seized both. A quantity of cash was in the wallet in U.S. and Canadian currency. He believed it to be related to drug transactions. The denominations in the wallet made him believe the money was proceeds of crime. He turned the money over to an exhibits officer.
[66] P.C. Tracey also testified that he understood the reason for the arrest was trafficking cocaine and that the target had done so with the UC and two other targets. He then said because no product was provided to the UC that he did not traffic to the UC. He did, however, believe that the target was in possession of cocaine. He had been told by the UC that the target was going back to get product from his car and he had heard from the observations of D.C. Swart and Det. Grekos that the target had trafficked twice.
[67] P.C. Tracey said that no one directed him to search the vehicle. He did so because the target had been arrested “out of a vehicle” and he saw it as his right to search the vehicle as an incident to arrest. He did not consider that he needed authority from a senior officer to do so. In cross-examination P.C. Tracey testified that if a target is arrested out of a vehicle he does not ever remember being directed to search the vehicle by a detective. He did not recall receiving instructions from Det. Grekos to search the vehicle and did not think that he did so in this case but could not be 100% certain that he did not.
[68] P.C. Tracey described his search of the driver’s side of the vehicle. He noticed a loose panel under the steering column where the column meets the body of the vehicle, which came off with a little tug easily. He saw the tip of a black fabric that looked like a sock. He pulled it out and it was a knotted black sock. Inside the sock was a clear plastic Ziploc and inside that was a sandwich bag with small and large chunks of what P.C. Tracey believed to be crack cocaine. This is all that he seized from the vehicle.
The Law
[69] There is no police power to automatically search a vehicle as a matter of course incidental to arrest, nor can police lawfully search incidental to arrest without reasonably believing there is evidence present of the offence for which the accused is being arrested. As the Supreme Court of Canada stated in R. v. Caslake, [1998] 1 S.C.R. 51 at paras. 22 and 25:
Requiring that the search be truly incidental to arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested….
…[The police]….do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable.
Analysis
[70] The issue to be considered is whether or not the Crown has proven on a balance of probabilities that the officers who decided to search the vehicle did so lawfully, incident to the arrest of Mr. Burnett for trafficking cocaine, in the particular circumstances of this case.
[71] Mr. Aubin argued that there is an irreconcilable contradiction in the evidence of P.C. Tracey and Det. Grekos regarding hearsay information allegedly conveyed to them by the UC regarding what the target intended to do when he went back to his vehicle. I do not accept that submission. As I have already stated, I have concluded that P.C. Tracey’s testimony is accurate. This is not a reflection on the credibility of Det. Grekos as he received the information from P.C. Tracey who was in direct communication with the UC and in my view honestly recalls it differently.
[72] Mr. Aubin also argued that there is an evidentiary ambiguity regarding why the vehicle was searched incident to arrest and in particular whether or not the search was ordered by Det. Grekos. He submitted that if Det. Grekos did, in fact, order the search of the vehicle incident to arrest, he had no lawful basis for doing it because he had decided to arrest Mr. Burnett for trafficking by offer. The offence is the offer itself and he argued that there is no evidence of the offence to be found pursuant to a search incident to arrest.
[73] I have two difficulties with this submission. First of all, in my view Mr. Aubin takes too narrow a view of the scope of a search for evidence in this case. Clearly where an offer to traffic is made by someone travelling in a vehicle, there must be a reasonable prospect of the person making the offer having some evidence in his vehicle corroborating the offer; in this case not only the possibility of the presence of cocaine but also the cell phone, albeit the one linked to the UC was in Mr. Burnett’s pocket and not the car. In any event the search is not limited to evidence of an offer but evidence which will assist the Crown in proving that an offer to sell cocaine was made. In the circumstances it was reasonable for Det. Grekos to believe that there was evidence of the offence in the vehicle.
[74] In any event, I have concluded that if Det. Grekos ordered D.C. Swart and P.C. Tracey to search the vehicle that is not why they did so. Neither recalled his direction to search and both were clear that they decided on their own to search the vehicle based on their understanding that the target had been arrested for trafficking cocaine while he had been driving the vehicle. Accordingly I have concluded that I should consider whether or not the search was reasonable given the information that they had. There is no dispute that Mr. Burnett was in fact arrested for trafficking in cocaine. Based on the evidence I find that both D.C. Swart and P.C. Tracey reasonably believed that they had a reasonable prospect of finding drugs in the vehicle or some other evidence related to the charge. Although P.C. Tracey had no explanation for why the target drove away immediately and never returned to the UC, in light of the information he received from D.C. Swart and Det. Grekos observing hand to hand transactions, since the target was arrested while he was in his vehicle, immediately after these transactions, there was a reasonable prospect that evidence of trafficking would be found in the vehicle.
[75] For these reasons, in my view the decision made by D.C. Swart and P.C. Tracey to search the vehicle Mr. Burnett had been driving to look for evidence of trafficking in cocaine was lawfully a search incident to arrest as there was a reasonable prospect in all of the circumstances of finding evidence of the commission of the offence in the vehicle.
If there was a breach of Mr. Burnett’s s. 8 and/or s. 9 Charter rights, should the evidence be excluded pursuant to s. 24(2) of the Charter?
[76] Having found that Mr. Burnett’s Charter rights were not breached, a section 24(2) analysis is not necessary. However, in the event that I am incorrect, I will still consider whether or not I would have excluded any of the evidence had I found that Mr. Burnett had not been lawfully arrested or if the search of the vehicle was unlawful. In doing so I am guided by the decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, which sets out the factors I would have to consider and balance in order to make such a determination; namely whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone deviation from the rule of law, the impact of the breach on Mr. Burnett and finally the reliability of the evidence.
[77] Clearly if Mr. Burnett was unlawfully arrested and searched, that would be a serious breach of his Charter rights. As Cory J. stated in Storrey:
Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed the offence …before they could arrest him. Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest. (at para. 14)
[78] The seriousness of the breach weighs towards exclusion, however, given my conclusion, which was not contested by the Defence, that Det. Grekos subjectively believed that he had observed a hand to hand drug transaction and that Mr. Burnett was trafficking in cocaine, that would leave possible error on whether or not the officer had sufficient grounds, objectively viewed, to direct the arrest of Mr. Burnett for trafficking in cocaine. I would not find in this case that Det. Grekos deliberately acted beyond the scope of his authority and ordered the arrest of Mr. Burnett because he only suspected that he had drugs on him. This was never suggested to him in cross-examination. Had I found this, that of course would be a serious and flagrant breach of the Charter favouring exclusion of the evidence. However, on the evidence I am satisfied that this was not a case of deliberate police misconduct. If my conclusion on the lawfulness of the arrest is incorrect, at most this was a case of a good faith error by an officer that in my view could be considered a close call; not a flagrant violation. This would render the infringement somewhat less serious but nevertheless, an unlawful arrest is a serious breach.
[79] In terms of the impact of any breach on Mr. Burnett, if the arrest was not lawful, then the impact would be great although there was no suggestion of any abusive conduct by the police at the time he was arrested. A breach would certainly have been profoundly intrusive. In the same vein, as Doherty J.A. stated in Brown at para. 25, “arrest is a serious intrusion on the personal autonomy of the person arrested.”
[80] The officers who searched the vehicle had a good faith basis to believe that they would find evidence of trafficking in cocaine in the vehicle. However, if that search was not lawful, even though the vehicle did not belong to Mr. Burnett, he had a reasonable if modest expectation of privacy. The intrusion would not be egregious but would nonetheless be of moderate significance, see R. v. John, [2012] O.J. No. 3930 (SCJ) at para. 24.
[81] Finally, considering the third Grant factor, this is reliable evidence and the Crown’s case depends upon it. Without this evidence the Crown has no case. This is a strong factor favouring inclusion of the evidence. This, however, has the potential to “cut both ways” in that the reasons for both exclusion and admission of the evidence are heightened when the stakes are high: Grant at para. 84.
[82] At this stage of the analysis I would be required to weigh the various factors, understanding that there is no overarching rule governing how the balance should be struck: Grant, supra at para. 86. In the event the arrest and the search of the vehicle was not lawful, in balancing all of the factors as required by Grant, I would likely conclude that the admission of the evidence would, viewed in the long term, bring the administration of justice into disrepute. An unlawful arrest is a serious breach notwithstanding the good faith of the officers and resulted in a significant impact on Mr. Burnett’s liberty. A reasonable person, informed of the relevant circumstances and familiar with Charter values, would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute.
Disposition
[83] For these reasons, the Defence application seeking to exclude the evidence found during the search of Mr. Burnett and the search of the vehicle he was driving is dismissed.
SPIES J.
Released: September 20, 2013
COURT FILE NO.: 11/9/564
DATE: 20130920
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
DARREN BARRINGTON BURNETT
Defendant
RULING ON DEFENCE APPLICATION
TO EXCLUDE EVIDENCE
SPIES J.
Released: September 20, 2013