ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 3893/12

DATE: 2013-06-17

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Respondent

– and –

Anthony Powell

Applicant/Accused

Darren Anger, for the Respondent

Ronald Charlebois, for the
Applicant/Accused

HEARD: May 24, 2013

THE HONOURABLE JUSTICE J. R. HENDERSON

D E C I S I O N O N A P P L I C A T I O N

[1] While he was driving his motor vehicle on October 26, 2011, the applicant/accused, Anthony Powell, was stopped by police officers and arrested. Thereafter, a search of the vehicle revealed a quantity of crack cocaine. The accused now stands charged with possession of cocaine for the purpose of trafficking contrary to s. 5(3)(a) of the Controlled Drugs and Substances Act.

[2] The accused brings this application for a declaration that his arrest constitutes an arbitrary detention, and that the subsequent search of his person and his vehicle was unreasonable, contrary to s. 9 and s. 8 respectively of the Canadian Charter of Rights and Freedoms (“the Charter”).

[3] Further, if this court finds that there was an infringement of the Charter rights of the accused, the accused submits that the evidence obtained as a result of the search should be excluded from the trial of this charge pursuant to s. 24(2) of the Charter.

THE FACTS

[4] In December 2010 and January 2011 members of the Niagara Regional Police Service (“NRPS”) received information from two separate confidential informants (“C.I. #1” and “C.I. #2”) that a black male who resided at 4793 Montrose Road, Niagara Falls, Ontario, was dealing in crack cocaine. The NRPS officers believed that the black male in question was the accused, Anthony Powell.

[5] Between December 2010 and October 26, 2011, only minimal surveillance of the accused was conducted by NRPS officers, and the accused was at no time observed dealing in drugs or meeting persons for short periods of time.

[6] On October 26, 2011, NRPS Officer McCready took up surveillance of the accused at his residence. Officer McCready observed the accused leave his residence on Montrose Road in Niagara Falls driving a pickup truck. Officer McCready then discreetly followed the accused’s vehicle and notified other members of his team as to his actions. Thereafter, Officer McCready, Officer Marr, and two other NRPS officers worked together to keep the accused under surveillance. This was the first time that NRPS officers had conducted any significant surveillance of the accused, and the first time that they had followed the accused in his vehicle.

[7] The officers observed the accused stop for gas and then drive to a residence in Hamilton, Ontario. The accused remained in the residence for approximately 15 minutes. Then, the accused and another male person exited the residence and drove away in separate vehicles, one following the other. The two vehicles drove to another Hamilton residence at 93 Oxford Avenue.

[8] At the Oxford Avenue residence, the other male person exited his vehicle, momentarily opened the passenger door of the accused’s vehicle, closed the passenger door of the accused’s vehicle, and then entered the residence. Approximately three minutes later, the other male person exited the residence and entered the accused’s vehicle through the passenger door. After approximately five to ten seconds, the other male person exited the accused’s vehicle, and both the accused and the other male person left the scene in their respective vehicles.

[9] Officer Marr testified that after the events at 93 Oxford Avenue had taken place, he believed that a drug transaction had occurred. Then, in consultation with the other officers involved in the surveillance, Officer Marr formed the belief that there were reasonable and probable grounds to arrest the accused for possession of cocaine for the purpose of trafficking.

[10] The NRPS officers kept the accused’s vehicle under surveillance until the vehicle entered onto the Queen Elizabeth Way. At approximately 11:11 a.m. on October 26, 2011, at the direction of Officer Marr, NRPS officers stopped the accused’s vehicle on the Queen Elizabeth Way and arrested the accused. Immediately thereafter NRPS officers searched the accused and his vehicle and discovered 55.9 grams of crack cocaine and $508 in cash.

THE ISSUES

[11] The accused submits that reasonable and probable grounds for his arrest did not exist. Thus, the accused submits that his arrest was unlawful and any search incidental to the arrest was also unlawful. The accused requests that the fruits of the search, including the crack cocaine, be excluded as evidence at the trial of this charge.

[12] The relevant sections of the Charter read as follows:

Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[13] In light of these sections of the Charter, there are two broad legal issues in this case. First, this court must determine if there were reasonable and probable grounds to arrest the accused in these circumstances. I heard submissions with respect to the right to detain the accused and the right to search the vehicle, but in my view those matters are ancillary to the real question of whether there were reasonable and probable grounds for the arrest.

[14] As soon as the two vehicles left 93 Oxford Avenue the officers made the decision that the accused would be arrested. If reasonable and probable grounds to arrest the accused existed at that point, then the officers were entitled to stop the vehicle and arrest the accused. Once the accused had been lawfully arrested, then the officers were entitled to search the vehicle so long as the search was carried out in a reasonable manner and for a valid purpose. See R. v. Caslake 1998 838 (SCC), [1998] 1 S.C.R. 51.

[15] If there were no reasonable and probable grounds to arrest the accused, then the police officers breached s. 9 of the Charter by stopping the vehicle for the purpose of the arrest. Moreover, any search that is incidental to an unlawful arrest would constitute an unlawful search.

[16] The second legal issue relates to the application of s. 24(2) of the Charter. If this Court determines that the s. 8 and s. 9 rights of the accused were breached, then this court must determine whether the admission of the evidence that was obtained would bring the administration of justice into disrepute. If so, the evidence should be excluded pursuant to s. 24(2).

REASONABLE AND PROBABLE GROUNDS TO ARREST

[17] Section 495(1)(a) of the Criminal Code of Canada defines a police officer’s powers of arrest, in part, as follows:

(1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

[18] The Supreme Court of Canada in the case of R. v. Storrey 1990 125 (SCC), [1990] 1 S.C.R. 241 set out the test for the manner in which a court should determine whether reasonable grounds to arrest an accused exist. At p. 250 of the Storrey decision, Cory, J. wrote:

There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest.

[19] In the present case I accept that the four police officers involved in the surveillance subjectively believed that there were reasonable and probable grounds to arrest the accused. Therefore, the issue is whether, viewed objectively, a reasonable person, standing in the shoes of the police officers, would have believed that reasonable and probable grounds existed to make the arrest.

[20] Objectively, I find that the police officers had only two pieces of evidence from which they could have formed the belief that the accused had committed an offence. First, the police officers had the information they had received from C.I. #1 and C.I. #2. Second, the police officers had the observations they made of the activities of the accused while the accused was under surveillance on October 26, 2011. In my view, there are significant frailties with both of these pieces of evidence.

[21] The information provided by the two confidential informants can be summarized as follows. In December 2010 C.I. #1 told police that a black male lived on the top floor at 4793 Montrose Road and drove a beige pickup truck. He said that this male was dealing crack cocaine. In January 2011 C.I. #2 told police that a black male named Pete lived in Niagara Falls and drove a pickup truck. Pete was selling crack cocaine and Pete met people in parking lots in Fort Erie. He gave the police officer a phone number for Pete. In late January 2011 C.I. #1 told police that a black male named Pete lived on the top floor at 4793 Montrose Road and was still dealing crack cocaine. Pete went out of town to pick up his cocaine. A male and female person lived in the basement of the building, and the female was a runner for Pete.

[22] I accept that much of this confidential information is neutral or innocuous. For example, it would be very easy for any person to know that a black male lived at this address and drove a beige pickup truck.

[23] As to the incriminating portions of the confidential information, it must be acknowledged that incriminating tips provided by confidential sources are fraught with problems. It is important for police officers to carefully assess the reliability of any confidential information provided by tipsters before such information is relied upon as the basis for an arrest or a search. The degree of reliability of the confidential information can in part be assessed by a police investigation designed to verify or refute the information provided by the tipster.

[24] In the case of R. v. Debot (1989) 1989 13 (SCC), 52 C.C.C. (3d) 193, the Supreme Court of Canada considered whether confidential information received from a tipster could be used, in conjunction with the observed activities of the accused, to justify a warrantless search. Wilson, J. wrote at p. 215 of the Debot case as follows:

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?

[25] Similarly, in the case of R. v. Garofoli 1990 52 (SCC), [1990] 2 S.C.R. 1421, the Supreme Court of Canada dealt with the issue of the reasonableness of a search in the form of a wiretap. The authorization for the wiretap was based in part upon confidential information received from a tipster. At para. 68 of Garofoli, Sopinka J. set out the following propositions with respect to confidential information from a tipster:

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances.” There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

(a) the degree of detail of the “tip”;

(b) the informer’s source of knowledge;

(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

[26] These principles were applied in the case of R. v. Zammit (1993) 1993 3424 (ON CA), 13 O.R. (3d) 76 (O.C.A.), a case in which a police officer received confidential information that the accused was selling drugs. After the officer did some cursory investigation to confirm the correctness of the neutral information, the officer received further information that the accused would be coming into possession of a quantity of cocaine. The decision was then made to stop the accused’s vehicle, and arrest the accused. Cocaine was discovered in the vehicle on the search incidental to the arrest. In setting aside the conviction of the accused at trial, the Ontario Court of Appeal, relying on the reasoning in the Debot case, determined that the confidential information, combined with the subsequent investigation by the officer, was insufficient to form the basis for the arrest of the accused and the search of his person and vehicle.

[27] In the present case, Officer McCready testified that C.I. #1 had provided useful and correct information in the past. But, in my opinion, the NRPS officers, including Officer McCready, did very little to independently assess the reliability of the confidential information provided by C.I. #1 and C.I. #2 regarding this accused.

[28] In particular, the police officers could have checked the neutral information provided by the informants. If a police check of this neutral information had verified the information, then the incriminating information provided by the informants would be given strength. For example, the police officers could have reviewed the municipal rolls to determine who was living on the top floor at 4793 Montrose Road; they could have attempted to determine if a male and female person were living in the basement; or they could have attempted to determine the description of any vehicles that were registered to the accused. None of this was done.

[29] Also, the police officers could have conducted some meaningful surveillance of the accused or the residence. Surveillance could have revealed the comings and goings of the accused; it could have revealed whether the accused was making frequent trips out of town; it could have revealed whether the accused was in the habit of meeting different people for short periods of time; or it could have revealed whether the accused was going to parking lots in Fort Erie. This surveillance would have assisted in verifying or refuting both the neutral and the incriminating portions of the confidential information.

[30] In fact, the police officers did minimal surveillance of the accused in the nine or ten months between the receipt of the information and the arrest of the accused. In total, there were only a few drive-bys of the residence for the purpose of observing the vehicles that were in the driveway. No significant surveillance was done until October 26, 2011, the day on which the accused was followed and arrested.

[31] Further, the confidential information received from C.I. #1 and C.I. #2 lacked detail, a fact which tends to negate the reliability of the information. There was no detail as to where the accused travelled when he went out of town; which parking lots he attended; the time of day that he was dealing crack cocaine; to whom he was selling cocaine; or how often he was making trips to pick up or deliver cocaine. Moreover, there was no detail as to the involvement of the female person as a runner, and neither of the confidential informants provided the source of their information.

[32] Still further, this was not the first time that the NRPS officers had engaged in this type of conduct with this accused. On March 1, 2011, based on the same untested confidential information, this accused was detained while operating his motor vehicle, arrested, and searched by NRPS officers. On that date the search revealed nothing of significance, and no charges were laid. This court cannot determine whether the arrest of the accused on March 1, 2011, was unlawful, as all of the particulars of that incident have not been provided; however, the events of March 1, 2011, tend to negate the reliability of the confidential information that was in the hands of the officers.

[33] Overall, as of October 26, 2011, the police officers possessed confidential information that was untested, relatively unspecific, and raised many questions. In essence, the confidential information in the possession of the police officers constituted conclusory statements that the accused was dealing crack cocaine. Thus, in my view, a reasonable person, standing in the shoes of the police officers, would have placed very little weight on this confidential information.

[34] Regarding the observed activities of the accused on October 26, 2011, on their own these activities are not incriminating. The accused did not make frequent stops; he made two stops, one for a very short period of time. The police officers did not observe any hand-to-hand contact between the accused and the other male person; the police officers did not observe any exchange between the two persons; and the police officers did not observe any item being carried into or out of either of the vehicles.

[35] I accept that the activities of the accused on the day in question may be consistent with a drug transaction, but I find that these activities are not strong evidence that the accused was involved in a drug transaction.

[36] The next question is whether the untested confidential information in combination with the observed ambiguous activities of the accused can objectively form the basis for the belief that reasonable and probable grounds existed to make the arrest. In my view, these two pieces of evidence do not provide such a basis.

[37] The surveillance of October 26, 2011, in my view, was a good start toward verifying the confidential information, but the activities of the accused had only been closely observed on this one occasion. One trip out of town and one short encounter does not verify the confidential information provided by the tipsters. The observed activities of the accused cannot realistically support a belief that the accused was travelling out of town to pick up drugs, that he was engaged in drug transactions, or that he was travelling to parking lots in Fort Erie.

[38] If the police officers had observed several instances in which this accused made similar trips to various locations, it might be that the surveillance would establish a pattern of trips, frequent stops, and exchanges that would bolster the strength of the confidential information. That did not occur in this case.

[39] The untested conclusory statements provided by the confidential informants, combined with one fairly ambiguous trip to Hamilton, may make the police officers suspicious that the accused was involved in dealing crack cocaine. However, objectively, suspicion is not enough to form the basis for a belief that reasonable and probable grounds existed to arrest the accused.

[40] Therefore, I find that, from an objective point of view, reasonable and probable grounds to arrest the accused did not exist. Therefore, the arrest of the accused was not authorized at law. The arrest of the accused constitutes a breach of s. 9 of the Charter, and the subsequent search constitutes a breach of s. 8 of the Charter.

SHOULD THE EVIDENCE BE EXCLUDED PURSUANT TO S. 24(2)?

[41] The evidence obtained as a result of the arrest of the accused and the search of his person and vehicle was obtained in a manner that breached the Charter rights of the accused. Section 24(2) states that such evidence “shall be excluded if ... the admission of it in the proceedings would bring the administration of justice into disrepute”.

[42] The Supreme Court of Canada in the case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 set out the manner in which a court should assess an application for exclusion of evidence under s. 24(2) of the Charter. At para. 71 of Grant the Court wrote:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious statement misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[43] Regarding the seriousness of the Charter-infringing conduct, I accept that the police officers in this case acted in good faith in the sense that they honestly believed that there were reasonable and probable grounds to arrest the accused and search his vehicle.

[44] However, it was the conduct of the police officers in failing to adequately investigate the confidential information that was the primary cause for the unlawful arrest and search. Specifically, there was minimal investigation into the veracity of any of the confidential information, and the first meaningful surveillance did not occur until approximately 10 months after the first information had been received.

[45] Further, the effects of the substandard investigation were exacerbated by the overzealous conduct of the police officers on October 26, 2011. The police officers should have been conducting surveillance so as to verify or refute the information they had received, but at the first sign of corroboration, based on mere suspicion, the officers rushed to arrest the accused.

[46] I also find that the prior arrest and search of the accused further heightens the seriousness of the breach in this case. Based on what is known, the events of March 1, 2011, are strikingly similar to the events of October 26, 2011. At the very least the incident of March 1, 2011, should have caused the officers to seriously question the reliability of the confidential information they had received. Thus, the officers should have been even more cautious about acting on that confidential information until a thorough investigation had been conducted.

[47] Considering these factors, I find that the Charter-infringing conduct in this case is toward the serious end of the spectrum.

[48] Regarding the impact of the breach on the Charter-protected interests of the accused, I find that the breach was not fleeting, nor was it egregious. The accused was not simply detained, questioned, and released; rather, the accused was detained, arrested, handcuffed, and taken into custody, all of which was in violation of his Charter rights.

[49] Therefore, I find that the impact of the breach on the Charter-protected interests of the accused was in the modest or middle range of the spectrum.

[50] Regarding society’s interest in the adjudication of the case on its merits, I accept that this factor almost always favours admission of the evidence. Moreover, in the present case, I accept that the charge of possession of crack cocaine for the purpose of trafficking is a very serious one, and accordingly the public would have a strong interest in having this case determined on its merits.

[51] However, as was stated in the Grant decision at para. 84, and reiterated in other decisions including R. v. Beattie, 2009 ONCJ 456 at para. 29, the gravity of the charge should not overwhelm the other factors. In Grant, the Court emphasized the need for the s. 24(2) judge to focus on the long term repute of the justice system. At para. 84 of the Grant decision, the Court wrote:

Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[52] Therefore, as much as it would benefit the public to have an adjudication of this case on its merits, from a long term perspective it would benefit the public if this court were to provide assurance that the rights and freedoms protected by the Charter would be upheld. In the circumstances of this case, in my view, any reasonable member of society would be offended by the unlawful arrest, detention, and search of the accused, and would not expect this court to condone such conduct.

[53] For all of these reasons, I find that the admission of the evidence obtained by reason of the unlawful arrest of the accused and the subsequent search of his person and his vehicle would bring the administration of justice into disrepute. Such evidence will therefore be excluded from the trial of this charge.

SUMMARY AND CONCLUSION

[54] In summary, I find that the arrest of the accused and the subsequent search of the accused and his vehicle constitute breaches of s. 8 and s. 9 of the Charter. Any evidence obtained as a consequence of these breaches is excluded from the trial pursuant to s. 24(2).

Henderson, J.

Released: June 17, 2013