ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11618
DATE: 20151207
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
BERNARD BOACHIE
Applicant
B. Eberhard, for the Crown
J. Zegers, for the Applicant
HEARD: October 8, 2015
LEITCH J.
[1] The applicant moves pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms for an order excluding evidence obtained in violation of his rights guaranteed by sections 7, 8 and 9 of the Canadian Charter of Rights and Freedoms.
[2] The applicant was arrested on November 22, 2013 and charged with six counts of possession of a Schedule I substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[3] As set out in the application, when the applicant’s car, person and backpack were searched following his arrest, the following items were found:
a. $1,040 in cash
b. A Samsung cell phone
c. 26 hydromorphone pills
d. 3 morphine pills
e. 42 capsules containing MDMA
f. 20 grams of crack cocaine
g. 1 gram of powder cocaine
h. 12 grams of marijuana
i. 2 grams of heroin
[4] The applicant’s position is that there was insufficient evidence to arrest him for possession of a controlled substance for the purpose of trafficking, the subsequent searches of his person, backpack and motor vehicle as an incident of arrest were unreasonable and unlawful and all evidence stemming from the applicant’s arrest ought to be excluded pursuant to s. 24(2) of the Charter.
[5] The applicant’s counsel indicated there is no issue that if the applicant’s arrest was lawful, the searches of his car, person and backpack were lawful.
The Position of the Applicant
[6] The applicant’s position is that his arrest was unlawful and most of the factors relied on by Officer Bullick, who gave the instructions to arrest the applicant, created only suspicions and not reasonable and probable grounds.
[7] The applicant emphasizes that he was not seen doing anything and the only basis for his arrest was his possession of a supposedly unique backpack.
[8] The applicant contends that Officer Bullick “jumped the gun” perhaps because of his prior experiences with the applicant. Officer Bullick circumvented the procedures he should have followed, that is obtaining a search warrant or authorizing further surveillance.
[9] In relation to what Officer Bullick relied on, which will be discussed more fully below, the applicant submits that his prior record was dated and essentially a young offender record and was thus a neutral factor; the previous drug and gun investigation of the applicant while of some relevance created only suspicion; lying about one’s identity during a street check is not unique to a drug offender and the other information from the street checks was vague on details and not particularly significant to a drug investigation.
[10] Essentially the applicant’s position is that “it comes down to” a backpack which applicant’s counsel asserts was described in two different ways by two different sources with the last description being 22 days prior to arrest.
[11] The applicant’s counsel also asserts that the seized backpack did not conform exactly to the descriptions provided by the confidential sources.
[12] The position advanced on behalf of the applicant is that there was information that might have been sufficient to apply for a search warrant but it was not enough to form reasonable and probable grounds for an arrest.
[13] Further it is submitted that there was a serious breach of the applicant’s Charter rights, that Officer Bullick took shortcuts and did not follow proper procedure and the application of the Grant factors leads to a conclusion that the seized evidence ought to be excluded.
The Position of the Crown
[14] The Crown emphasizes that the arrest was based on the surveillance of a specific motor vehicle. There was no intention to arrest the applicant prior to the conclusion of that surveillance and, then only if the conditions of the arrest were met - that is, the applicant had to have in his possession the backpack with the description provided by sources #1 and #4.
[15] The Crown notes that there is no issue that Officer Bullick subjectively had reasonable and probable grounds on which to base the applicant’s arrest considering the information he gleaned from his 2011 investigation, what was seized as a result of the execution of the search warrant in 2011, the information from confidential sources and the information from the street checks. The Crown further submits that those grounds were justifiable from an objective point of view.
[16] The Crown contends that the applicant viewed each of the factors considered by Officer Bullick individually and they have to be considered in totality.
[17] The Crown’s position is that there was compelling evidence from the confidential informants based on its specificity and that evidence was corroborated by the surveillance.
[18] The Crown contends that there was no shortcut taken and no “jumping of the gun”. The officers acted in good faith and while a breach of liberty is serious, the fruits of the search are essential to the Crown’s case and considering what occurred there is no basis on which to exclude the evidence based on the Grant factors.
Disposition
[19] Section 495(1)(a) of the Criminal Code of Canada provides that an arrest can be made without a warrant if the arresting officer has reasonable and probable grounds to believe that the suspect has committed, or is about to, commit an indictable offence.
[20] In R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316 the Supreme Court of Canada made clear that it is insufficient if a police officer personally believes that he or she has reasonable and probable grounds to make an arrest. The court made clear that it depends on the question whether a reasonable person in the circumstances of Officer Bullick could conclude that reasonable and probable grounds existed to arrest the applicant.
[21] As set out in R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, the standard of reasonable and probable grounds lies somewhere between “reasonable suspicion” and “proof beyond reasonable doubt”; each ground should not be examined in isolation and a reviewing court should appreciate that the opinions of officers are developed “without the luxury of judicial reflection”. (See paras. 36 to 37 and 47.)
[22] To address the issues on this motion I will first describe how the applicant came to be arrested on November 22, 2013.
[23] Officer Micah Bourdeau has been a member of the City of London Police Guns and Drugs Unit since April, 2009. On November 22, 2013, his attention was drawn to a vehicle that he had seen before which was parked in a metered parking spot in front of an apartment building at 310 Dundas Street. He was aware that this vehicle was associated with the applicant who was being actively investigated.
[24] Officer Bourdeau confirmed on cross-examination that while he recognized the vehicle as belonging to the applicant, he saw no one in the vehicle and saw no “drug activity” around the vehicle.
[25] Officer Bourdeau also confirmed that he had been directly involved in a prior drug investigation of the applicant and was aware of other intelligence information respecting the applicant. In the prior investigation the applicant had not been charged.
[26] Officer Bourdeau contacted Officer Bullick and informed him that he had observed the vehicle and would remain in the area watching the vehicle until Officer Bullick arrived.
[27] Officer Bullick testified that at 12:45 p.m. on November 22, 2013 he was contacted by Officer Bourdeau who informed him that he had seen a vehicle related to the applicant parked on Dundas Street near Waterloo Street and he was watching that vehicle.
[28] The vehicle in question was a 2011 Chrysler 300 with a specific licence plate. Officer Bullick was aware that this vehicle was associated to the applicant as a result of investigating the applicant as a suspect in drug trafficking in cocaine.
[29] Officer Bullick has been a member of the Guns and Drugs section of the City of London Police since January 2010. He has been involved in more than 100 guns and drugs investigations and has been a handler of more than 50 confidential informants.
[30] At 12:50 p.m., Officer Bullick arrived with his team (Officers Porter, Pavoni, Garwood and Brown) in the area where the subject vehicle was parked at a metered spot on the north side of Dundas Street, just west of Waterloo Street, in front of two high rises with municipal addresses 310 Dundas Street and 405 Waterloo Street, which according to Officer Bullick were frequented, and at times occupied, by cocaine dealers.
[31] On cross-examination Officer Bullick acknowledged that while these buildings are unique in that there are mid to high level cocaine traffickers associated with them, the applicant had no connection to the buildings other than having parked in front.
[32] As will be discussed more fully below Officer Bullick relied on the applicant’s criminal record in forming grounds to arrest (specifically his prior record of convictions for several violent offences); the investigation the police conducted in 2011; the evidence obtained when a search warrant was executed in 2011 in relation to the applicant which revealed evidence of trafficking; information from street checks submitted by officers who had dealt with the applicant; and information from four different confidential informants (Officer Bullick noted that he relied in particular on four confidential informants although there were others).
[33] Officer Bullick confirmed on cross-examination that all of the information he had relating to the applicant was conveyed to his team and that the grounds for the applicant’s arrest were conditional. That is that if the applicant was observed in possession of a certain backpack and came back to the motor vehicle he could be arrested.
[34] Officer Bullick indicated that he emphasized that the officers had to see the applicant with the backpack before they would arrest him.
[35] Officer Bullick testified that there was a certain urgency in play because the applicant’s vehicle was present in London but there was no London address that he was associated with.
[36] Officer Porter testified that at 4:30 p.m. he had direct observation of the Chrysler parked in front of 310 Dundas Street from his position across the road. He believed he could recognize the applicant based on his mug shot.
[37] Officer Porter had information that he was to look to see if the applicant had a backpack with skulls on it.
[38] Officer Porter testified that at 5:02 p.m. he saw the applicant approach the vehicle. What had caught Officer Porter’s attention were the applicant’s mannerisms and specifically the fact that he looked around frequently as he walked.
[39] He saw the applicant walk to the trunk of the vehicle.
[40] Officer Porter described having about 30 seconds of observation from when he first saw the applicant until when the applicant was seated in the vehicle.
[41] Officer Porter described seeing the applicant with a backpack with red shapes and lighter coloured shapes which included skulls, what he would describe as urban graffiti. Specifically, he took note of the skulls and advised over the radio that he had seen the applicant with a backpack with skulls on it. He also described the bag as having items in it based on its rounder shape. He testified that he saw the applicant put the backpack into the trunk of the car out of plain view, enter the car into the driver’s seat and then drive west.
[42] Officer Porter was shown the exhibit bag which contained what was seized and he was 100 percent certain it was the backpack that he had observed.
[43] Officer Bullick testified that at 5:02 p.m. Officer Porter relayed to him that he saw a male walk back to the Chrysler; Officer Porter identified this male as the applicant; and reported that he saw that the applicant had a dark backpack with a skull design and he had seen the applicant put the backpack into the trunk of the Chrysler and enter the driver’s seat and travel westbound on Dundas Street.
[44] Officer Porter also relayed to Officer Bullick that he believed the applicant was behaving suspiciously in the way he looked around before he entered the vehicle and while that was a matter of perception, Officer Porter was an experienced officer and Officer Bullick accepted his observations.
[45] Officer Bullick testified that based on Officer Porter’s observations, which he trusted, the conditions for arrest were met.
[46] The applicant’s arrest took place shortly thereafter.
[47] Officer Bullick acknowledged that the circumstances of the applicant’s arrest were unique. However, based on all of the information he had, he testified that he was satisfied that he had reasonable and probable grounds that the applicant was active in the drug trade and he had reasonable and probable grounds to believe that the backpack contained drugs.
[48] As a result, Officer Bullick gave the orders to arrest the applicant and a uniformed officer, Officer Campbell stopped the applicant’s vehicle. The applicant was arrested and the applicant, his backpack and the Chrysler were searched.
[49] It was put to Officer Bullick on cross-examination that he deliberately avoided the process of getting a search warrant because of the fact that in 2011 when he executed a search warrant he “came up short”.
[50] Officer Bullick denied that that was the case and reiterated that he had reasonable and probable grounds to arrest the applicant and to search his vehicle and the applicant incident to arrest and did not require a search warrant.
[51] Applicant’s counsel reviewed the applicant’s criminal record with Officer Bullick on cross-examination. Officer Bullick agreed that the applicant’s most recent conviction prior to the offence date was on August 3, 2012 when he was convicted for possession of a Schedule I substance (which had arisen from the execution of a search warrant in 2011 that Officer Bullick had referred to), two failures to comply and one count of public mischief. His conviction prior to 2012 was in 2007 for aggravated assault. Officer Bullick agreed that there was a significant gap in his record. He also acknowledged that the applicant did not have a record of continual criminal activity and much of his record is a youth record.
[52] Officer Bullick was challenged on cross-examination how it was that with a first and only drug conviction in 2012 the applicant’s record provided any reasonable and probable grounds for his arrest.
[53] Officer Bullick responded that the nature of the applicant’s convictions, which included offences such as armed robbery and assaults commonly associated with drug offences, and his violent criminal history indicated to Officer Bullick a history of criminal behaviour. All of which was relevant to him forming reasonable and probable grounds. Although, he did acknowledg that a record of drug trafficking would have been more relevant.
[54] Officer Bullick explained that the applicant’s criminal history was not a significant factor in forming his grounds to arrest but it was a factor and a clear indication that the applicant is not an average, everyday citizen.
[55] On cross-examination Officer Bullick confirmed that the 2011 drug investigation in which he had applied for the search warrant and the seizure of 21 grams of marijuana bud from a hotel room provided him with suspicion that the applicant was involved in drug activity. This suspicion “played a role” in him forming grounds to arrest in the context of what Officer Bullick testified were numerous sources that the applicant was active in drug trafficking.
[56] When the search warrant was executed in 2011 in a hotel room, 21 grams of marijuana, a digital weigh scale, a pot with white powder residue, and bags with pieces out of them were seized. Additionally, 0.5 grams of cocaine were seized from a female who was with the applicant and $2,900 in cash plus another $220 in cash was seized from the applicant. A search of a console of a different Chrysler 300 produced a weigh scale; a second cell phone, two plastic bag pulls, and a plastic bag with pieces pulled from it. 13 oxy pills and a Pyrex measuring cup, a scoop, and baking powder which is commonly used in drug trafficking were found in the trunk of the Chrysler.
[57] Officer Bullick explained that between 2011 and November 22, 2013, there were three specific street checks conducted which he relied on. The first was in 2012 when the applicant was stopped and had lied about his identity. According to Officer Bullick in his experience traffickers frequently provide a different identity. The second was from a motor vehicle stop when the officer noted the smell of freshly burned marijuana and that officer indicated that he believed the applicant was trying to intimidate him. According to Officer Bullick, a number of traffickers use this strategy with police officers and push the issue of being stopped in order to prevent the officer from investigating further. The third street check involved stopping the applicant while he was leaving a strip club with someone who had a firearm. According to Officer Bullick, adult entertainment clubs are frequented regularly by traffickers and unlawful possession of firearms and trafficking go hand-in-hand.
[58] Officer Bullick confirmed on cross-examination that information from the three street checks assisted in him forming grounds for arrest although he acknowledged that he relied on other officers’ perceptions both in terms of what they smelled and how the applicant reacted to being stopped. Officer Bullick conceded that persons other than drug dealers lie about their identity when stopped to divert attention from criminal activity that they might be involved in and drug and gun offences do not always go hand-in-hand.
[59] In forming grounds to arrest, Officer Bullick testified that he relied most heavily on information from four confidential informants.
[60] In April 2012, source #1 informed Officer Bullick that the applicant is a cocaine dealer; he is from Toronto and stays there but comes to London to deal cocaine; and he keeps his cocaine in a backpack that has little skulls near the zipper.
[61] Source #2 informed Officer Pavoni in 2013 that the applicant is still actively dealing cocaine, is from Toronto; goes back and forth to London; and, has a nice car which is new, white and has four doors.
[62] In August 2013, source #3 informed Officer Atkinson that the applicant sold cocaine and that he drives a white Chrysler 300.
[63] In October 2013, source #4 told Officer Bullick that the applicant supplies cocaine to dealers; drives a white Chrysler 300; can provide any kind of drug anyone wants and has lots for sale; he is from Toronto; he deals in drugs from Toronto to Windsor; and, keeps his drugs in a backpack that has polka dots and skulls on it.
[64] Officer Bullick testified that he found reference to a backpack involving a description of skulls very compelling as it confirmed what source #1 had stated a year and a half before.
[65] Officer Bullick testified that in considering all of the information that he had and the recent and fresh tip from source #4 which confirmed source #1’s information about the unique backpack, he had reasonable and probable grounds to believe that drugs were in the backpack.
[66] Officer Bullick testified that the fact that source #1 and source #4 referenced a skull design made him reasonably believe that they were describing the same backpack when he factored in other factors.
[67] He found it insignificant that sources #2 and #3 made no reference to the backpack because some sources provide greater detail than others. He noted that the information from source #2 was consistent with the information from other sources.
[68] On cross-examination Officer Bullick agreed that the design on the seized backpack was more round splatters than polka dots.
[69] Considering his evidence, I am satisfied that Officer Bullick had an honest belief that he had the necessary grounds to arrest the applicant. I am satisfied that he did not act recklessly or without regard to the applicant’s Charter rights.
[70] I turn next to the question of whether a reasonable person in the circumstances of Officer Bullick could conclude that reasonable and probable grounds existed to arrest the applicant.
[71] As the Court of Appeal made clear in Bush at para. 54 the question of whether reasonable and probable grounds exist is “a fact-based exercise dependent upon all the circumstances of the case” and “the totality of the circumstances must be considered”.
[72] In this particular case it seemed to me that as the Court of Appeal in Bush described at para. 55, the applicant was asking that I “engage in a dissection of the officer’s grounds looking at each in isolation”. That type of an assessment is not appropriate.
[73] The jurisprudence makes clear that in weighing evidence relied on by police the issues to be addressed are as set out in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, 1989 52 CCC 3rd 193: whether the information predicating the commission of a criminal offence was compelling; where that information was based on a tip originating from a source outside the police, was that source credible and was the information corroborated by police investigation. The totality of the circumstances must be considered and weaknesses in one area may to some extent be compensated by strengths in the other two.
[74] Here the police had information respecting the vehicle in question, its make, its colour, its model and its licence plate; that the vehicle was associated with the applicant; that the applicant drove to London from time to time; that the applicant trafficked in cocaine; and, the applicant carried drugs in a backpack that had a skull design. That information was compelling.
[75] Was the information credible? There is no information before me with respect to the “pedigree” of the confidential informants and it is not possible to assess their credibility on that basis. However source #1 and source #4 provided consistent information.
[76] Further Officer Porter saw the applicant carrying a backpack that fit the description provided by the two confidential informants.
[77] Viewed objectively, Officer Bullick had more than mere suspicions to connect the applicant to the commission of an offence. He was an experienced officer in the City of London Police drugs and guns unit and had information relating to the applicant based on his own investigation; information from other officers during street checks and most significantly there were tips from confidential informants that were compelling; two sources corroborated each other and the applicant was seen with the backpack fitting the description provided by the two sources.
[78] While a close call, I am satisfied that a reasonable person in the circumstances of Officer Bullick could conclude that reasonable and probable grounds existed to arrest the applicant.
[79] Because my conclusion on the grounds for arrest was a “close call”, I will go on to consider whether I would have excluded the evidence pursuant to s. 24(2) of the Charter had I found a breach of the applicant’s Charter rights.
[80] A determination of whether illegally obtained evidence should be excluded pursuant to s. 24(2) of the Charter involves a consideration of the well-known Grant factors – the seriousness of the Charter infringing conduct that led to the discovery of the evidence; the extent to which the breach undermined the applicant’s protected interests; and society’s interest in the adjudication of the case on its merits.
[81] There is no issue that following the arrest there was any improper conduct by the police. These are not circumstances where I would find any deliberate or reckless infringement of Charter rights and therefore the first factor in the Grant analysis favours the admissibility of the evidence seized following the applicant’s arrest.
[82] With respect to the second factor considering the breach of the applicant’s liberty, the second Grant factor favours exclusion of the evidence.
[83] However, the third factor, strongly, favours inclusion of the evidence given the nature of what was seized, the fact that it is reliable evidence and the fact that it is crucial to the Crown’s case.
[84] These circumstances are quite distinct than those before the court in R. v. Beepath, 2011 ONSC 4104, 240 C.R.R. (2d) 289, a case relied on by applicant’s counsel. In Beepath the court found at para. 70 that the breaches fell on the more serious end of the spectrum and that “the police breached Mr. Beepath’s rights from beginning to end”. At para. 72 the court concluded that the “attitude and misconduct” in that case moved “the violations more toward the deliberate, reckless and non-technical end of the spectrum”. Ultimately the court in Beepath found at para. 79 that the state conduct was such that the court should disassociate itself from that conduct, the impact of the multiple violations on Mr. Beepath’s Charter protected rights was “sufficiently profound that the court should not accept the state conduct” and “the long term interest of the administration of justice would not be served by admitting the evidence”.
[85] The applicant has been charged with serious offences, the evidence in issue is reliable evidence and excluding this evidence will bring the case to an end. Overall a balancing of the Grant factors leads to a conclusion that the evidence should be admitted. I conclude that on balance the exclusion of the evidence would have a greater negative impact on the repute of the administration of justice than admitting the evidence at trial.
[86] For the foregoing reasons the application is dismissed.
Madam Justice L.C. Leitch
Released: December 7, 2015
COURT FILE NO.: 11618
DATE: 20151207
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BERNARD BOACHIE
REASONS FOR JUDGMENT
LEITCH J.
Released: December 7, 2015