R. v. Stockton, 2016 ONSC 1408

CITATION: R. v. Stockton , 2016 ONSC 1408

COURT FILE NO.: 1757/14

DATE: 2016/02/29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Sharon Stockton

BEFORE: The Honourable Mr. Justice Russell Raikes

COUNSEL: M. Robb, Counsel for Federal Crown

N. Cake, Counsel for S. Stockton

HEARD: January 4, 2016 at Sarnia, Ontario

RAIKES J.:

[1] The Defendant, Sharon Stockton, stands charged with one count of possession for the purpose of trafficking methamphetamine contrary to section 5(2) of the Controlled Drugs & Substances Act. The charge relates to methamphetamine which she removed from her clothing and handed to a female officer at the Sarnia Police Station following her arrest on November 14, 2012 in Sarnia, Ontario.

[2] Ms. Stockton was arrested at a 7-11 variety store at the intersection of Christina Street and London Road in Sarnia by Constable Vansickle of Sarnia Police. She was turned over to a female uniformed officer for transport to the Sarnia Police Station. She went through the booking process before being escorted to a room where she handed over the drug to the officer. It is undisputed that she was properly cautioned and read her rights before that search incidental to her arrest.

[3] The Defendant challenges the validity of the arrest and, as a consequence, the search which I have just described. The Defendant seeks to exclude the evidence of the methamphetamine pursuant to section 24(2) of the Charter. She contends that the arrest, made without a warrant, was effected without the requisite reasonable and probable grounds and is thereby unlawful. If so, the Defendant argues that the fruits of the search incidental to the arrest should not be admitted into evidence.

[4] For reasons which follow, I do not agree and dismiss the Defendant’s application. This ruling is made on a voir dire. Counsel have agreed that the evidence on the voir dire shall form part of the evidence at trial if found to be admissible.

FACTS

[5] Detective Constable Ivan Skinn is a member of the Sarnia Police. On November 14, 2012, he was assigned to the Criminal Investigations Division. He was previously a member of the Vice Unit for approximately eight years. In the course of his work in the Vice Unit, Detective Constable Skinn developed a network of Confidential Informants (CI’s) who provided information to him about illicit drug activity in the Sarnia area.

[6] On November 14, 2012, Detective Constable Skinn met with one of those CI’s in the afternoon. He prepared an edited summary of the information provided. The summary was carefully “vetted” to remove information that might disclose the identity of the CI.

[7] With respect to the reliability of this particular CI, Detective Constable Skinn testified as follows:

a. The CI had provided accurate and reliable information that was verified on at least 20 prior occasions;

b. The CI had never provided false or inaccurate information;

c. The CI was part of the drug sub-culture in Sarnia;

d. The CI was compensated for information provided but only if accurate;

e. He had worked with this CI for approximately five years as of November, 2012;

f. The CI has an historical, trivial criminal record which does not include any history of misleading police or perjury.

[8] In the afternoon of November 14, 2012, the CI advised him that:

a. The CI was at a residence occupied by John Dobbie at 174 North Christina St. on November 14, 2012;

b. The CI observed that John Dobbie was in possession of a large quantity of crystal methamphetamine;

c. The CI witnessed a sale of crystal methamphetamine by John Dobbie to the Defendant within the preceding 72 hours;

d. The quantity of crystal methamphetamine sold to the Defendant was a large quantity;

e. John Dobbie was the Defendant’s supplier of crystal methamphetamine;

f. Sharon Stockton was dealing drugs and obtained her daily supply at John Dobbie’s residence;

g. The CI had personally observed Sharon Stockton attend at John Dobbie’s residence approximately five times, and each time she left with crystal methamphetamine;

h. Sharon Stockton had no other purpose for attending John Dobbie’s residence. She did not go there to visit or socialize. Sharon Stockton’s only purpose for going to John Dobie’s residence was to purchase crystal methamphetamine;

i. When Sharon Stockton leaves John Dobbie’s place, she will have crystal methamphetamine in her possession.

[9] At approximately 9 p.m., Detective Constable Skinn provided all of the above information to Constable Vansickle of the Vice Unit. He was entering the rear door of the police station when he met Constable Vansickle and provided that information. He testified that he told Constable Vansickle that: “…if he saw Sharon Stockton leaving John Dobbie’s residence that she was arrestable for the offence of possession of crystal methamphetamine for the purpose of trafficking”.

[10] Detective Constable Skinn did nothing more to investigate the information provided by the CI as he was not then part of the Vice Unit. He testified that John Dobbie and Sharon Stockton were known to him from his tenure in the Vice Unit.

[11] Constable Vansickle confirmed that he was informed by Detective Constable Skinn that “he had information from a confidential source that there was a large amount of crystal methamphetamine observed recently at John Dobbie’s residence…stating the address of 174 North Christina Street in Sarnia and specifically that there’s reasonable and probable grounds to arrest Sharon Stockton for the offence of possession of a controlled substance if she is observed leaving John Dobbie’s residence.”

[12] John Dobbie and the Defendant were also known to Constable Vansickle from his police work.

[13] Constable Vansickle testified that he immediately left the police station to undertake surveillance of the exterior of 174 North Christina Street. The building at that location had a commercial unit on the ground or street level, and apartments above. He parked on North Christina Street where he had a view of the door which leads upstairs to the residential units.

[14] From his vantage point, he could clearly see the numbers for the address on the building. He observed a taxi parked in front of the building. It was running and facing the opposite direction to his vehicle across the street. He watched the taxi and doorway for approximately five minutes when he saw a single blonde female wearing a black jacket emerge from the door at 174 North Christina Street. He was not able to ascertain from his location whether the female was the Defendant.

[15] The taxi pulled away from the building proceeding north on Christina Street. Constable Vansickle turned his vehicle and followed the taxi to the 7-11 variety store where the female he saw exiting the door at 174 North Christina Street got out of the taxi and went inside. He parked his vehicle in the store lot and went inside to identify the female. He was dressed in plain clothes.

[16] Once inside, he could see that the female was indeed the Defendant. He then arrested the Defendant for possession for the purpose of trafficking methamphetamine. With respect to the basis for his decision to arrest, Constable Vansickle testified that he relied upon the following:

a. The information provided to him by Detective Constable Skinn;

b. His observation of the Defendant leaving 174 North Christina Street;

c. His belief based on his knowledge of Ms. Stockton from past dealings that she would be involved in this type of activity;

d. John Dobbie was also known to him as someone involved in drug trafficking.

[17] He also testified that upon confirming the identity of the blonde woman leaving the building as Sharon Stockton, it brought into clarity the “constellation of facts” known to him from his conversation with Detective Constable Skinn. He trusted Detective Constable Skinn that there were grounds to arrest the Defendant if seen leaving the building at 174 North Christina Street.

Position of Defendant

[18] The Defendant argues that the Crown has not satisfied the onus upon it to establish reasonable and probable grounds for the arrest of the Defendant as:

1. Although Detective Constable Skinn had reasonable and probable grounds to arrest, the evidence of what was in the arresting officer’s mind is less clear. Constable Vansickle did not sufficiently articulate in his evidence what he was told and what he understood from his conversation with Detective Constable Skinn.

2. The grounds expressed by Constable Vansickle do not meet the standard of an objectively justifiable arrest.

3. The officers were not entitled to rely upon the information from the CI as sufficient grounds to arrest without further corroboration which they did not obtain before the arrest.

4. The information provided by the CI was too vague or non-specific to justify the Defendant’s arrest merely for being at a particular address.

5. Constable Vansickle conceded in cross-examination that he had insufficient evidence to obtain a search warrant for John Dobbie’s residence. If there was insufficient evidence to obtain a warrant to search, there was insufficient evidence to provide a proper foundation for an arrest of the Defendant on reasonable and probable grounds.

[19] The Defendant further submitted that if the arrest was unlawful, the evidence from the search of the Defendant should be found inadmissible pursuant to section 24(2) of the Charter. Dealing with the factors in R. v. Grant, the Defendant submitted that:

1. The unlawful arrest constitutes a significant intrusion on her constitutionally protected rights with serious consequences to her.

2. The ongoing impact of the breach on her rights is considerable. Since her arrest, she has been subject to restrictions on her liberty. Permitting the evidence to be admitted sends the message that individual rights count for very little.

3. She acknowledges that illicit drugs such as methamphetamine are bad and dangerous; however, admission of the drugs she handed over at the police station will de-value the rights of all citizens that are protected by the Charter and will bring the administration of justice into disrepute.

Crown Position

[20] The Federal Crown made the following submissions:

1. Constable Vansickle was entitled to rely upon the direction provided by Detective Constable Skinn that the Defendant should be arrested for possession for the purpose of trafficking if coming from 174 North Christina Street.

2. The information obtained by Detective Constable Skinn was from a proven reliable source, based on first-hand knowledge and observation by that source, and was sufficiently specific in detail to provide reasonable and probable grounds for an arrest of Sharon Stockton.

3. The investigation, although very brief, corroborated some of the details provided by the CI.

4. The totality of the evidence meets both the subjective and objective components of the test for reasonable and probable grounds to arrest without a warrant pursuant to section 495(1) of the Criminal Code.

[21] With respect to the factors in R. v. Grant, if necessary, the Federal Crown submits that:

1. The drug turned over to police by the Defendant is real, not conscripted evidence. Constable Vansickle acted at all times in good faith. Exclusion of this evidence would bring the administration of justice into disrepute.

2. The actions of Constable Vansickle were not brazen, flagrant, or reckless, nor do they evidence a disregard for the Defendant’s Charter rights. There is no conduct by police from which this Court should feel the need to disassociate itself.

3. The detention and arrest of the Defendant did not deprive her of her liberty without some basis. The intrusion into her privacy post-arrest was not egregious.

4. The evidence of the drug in the Defendant’s possession is critical evidence to the charge. The serious nature and quantity of the drug in question militate in favour of the public’s interest in seeing a determination on the merits.

Law

[22] Section 495(1)(a) of the Criminal Code permits police to arrest without warrant “a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence.”

[23] In R. v. Amare, 2014 ONSC 4119, Justice C. Hill summarized a non-exhaustive list of considerations applicable to the determination of whether an arrest amounts to a breach of section 9 Charter rights. At paragraph 83, he wrote:

“83. In assessing whether the police breached s. 9 of the Charter in arresting a person, the following considerations apply:

(1) an arbitrary arrest includes an unlawful arrest: R. v. Grant, [2009]

a. 2 S.C.R. 353 at paras. 55, 57

(2) an arrest will be unlawful, and arbitrary, if the arresting officer does not have reasonable and probable grounds to believe that the subject has committed, is committing, or is about to commit a criminal offence: Criminal Code, s. 495(1)

(3) although it has been observed that “the onus is on the Crown to show that the objective facts” rise to the level supporting a lawful detention (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 45), it has generally been recognized that the onus is on the accused to demonstrate that his detention was unlawful: R. v. Nartey, 2013 ONCA 215, at para. 14

(4) not only must the police officer have reasonable grounds in the subjective sense of a personal, honestly-held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-3, 83; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-1

(5) in other words, the “reasonable grounds to believe” standard “consists of compelling and credible information that provides an objective basis”, objectively discernible facts, for drawing inferences as to the existence of factual circumstances: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 117

(6) the fact “that an experienced Constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable”: R. v. Biccum, 2012 ABCA 80, at para. 21; see also R. v. Luong, 2010 BCCA 158, at para. 19; Chehil, at para. 47

(7) reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach-it is necessarily a qualitative standard upon which reasonable people can differ in some cases: R. v. Campbell (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), at paras. 52-4 (affd 2011 SCC 32, [2011] 2 S.C.R. 549); Chehil, at paras. 29, 62, 69; MacKenzie, at para. 71; R. v. Ward, 2012 ONCA 660, at para. 116

(8) that said, reasonable grounds is about “probabilities” (Chehil, at paras. 27-8; MacKenzie, at para. 74), not confidence at the level of no reasonable doubt (R. v. Debot (1986), 1989 CanLII 13 (SCC), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219 (affd (1989), 52 C.C.C. (3d) 193 (S.C.C.), at pp. 198, 213), nor at the low threshold of mere suspicion or possibility (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R 253, at para. 37; R. v. Baron (1993), 1993 CanLII 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.), at paras. 43, 47

(9) the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers “always be correct, but that they always be reasonable” United States v. Clutter, 674 F. 3d 980, 983 (8th Cir. 2012)

(10) reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond, a balance of probabilities: Mugesera, at para. 14; R. v. Spence, 2011 BCCA 280, at para. 31; R. v. Loewen (2010), 2010 ABCA 255, 260 C.C.C. (3d) 296 (Alta. C.A.), at para. 18 (affd 2011 SCC 21, [2011] 2 S.C.R. 167); R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont.C.A.), at para. 22; Florida v. Harris, 133 S.Ct. 1050, 1052 (2013)

(11) in assessing whether he or she has reasonable grounds, a police officer must take into account all available information disregarding only such information as she or he has good reason to believe is unreliable: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont.C.A.), at p. 203 – the officer is not required “to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations”: Chehil, at paras. 34, 67

(12) an officer’s training and experience may provide “an objective experiential … basis” for grounds of belief: Chehil, at para. 47; MacKenzie, at paras. 62-4, 73

(13) a court reviewing the existence of reasonable grounds concerns itself “only with the circumstances known to the officers”: R. v. Wong, 2011 BCCA 13, at para. 19 (leave to appeal denied [2011] S.C.C.A. No. 90 (emphasis in original)

(14) provided that the officer who directs that an arrest take place has reasonable and probable grounds, officers acting under his or her direction are deemed to be acting on those grounds: Debot (S.C.C.), at pp. 206, 214.”

[24] In R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161, the Supreme Court of Canada considered the use which can be made of information from confidential informants on an application to obtain authorization for a search warrant. Sopinka J., writing for the majority, referred to the Court’s earlier decisions in R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 and R. v. Greffe (1990), 1990 CanLII 143 (SCC), 55 C.C.C. (3d) 161 where the Supreme Court considered the use that could be made of such information in the context of a warrantless search.

[25] At page 191 of the decision, Sopinka J. wrote:

“Although Greffe concerns admissibility under s. 24(2), in my opinion the discussion has a bearing on the sort of information that must be put before a judge issuing an authorization for electronic surveillance. I see no difference between evidence of reliability of an informant tendered to establish a reasonable and probable ground to justify a warrantless search (the issue in the cases cited by Lamer J.) and evidence of reliability of an informant tendered to establish similar grounds in respect of a wiretap authorization. Moreover, I conclude that the following propositions can be regarded as having been accepted by this court in Debot and Greffe:

(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;

(c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.

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

[26] In the Ontario Court of Appeal decision in R. v. Debot (1986), 1986 CanLII 113 (ON CA), 54 C.R. (3d) 120, Mr. Justice Martin wrote at pages 131 – 132:

“Unquestionably, information supplied by a reliable informer, even though it is hearsay, may in some circumstances provide the necessary “reasonable ground to believe” to justify the granting of a search warrant…. It would seem to be entirely logical and reasonable that such information can also provide the necessary “reasonable ground to believe” to justify a warrantless search where a warrantless search is authorized by law…. Highly relevant to whether information supplied by an informer constitutes a reasonable grounds to justify a warrantless search or an arrest without warrant or whether the informer’s “tip” contains a sufficient detail to ensure that it is based on more than a mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for belief.” (Emphasis added)

[27] The above quoted passage was cited with approval in Debot in the Supreme Court of Canada. Justice Sopinka concurred with Mr. Justice Martin’s view that the “totality of the circumstances” must meet the standard of reasonableness, and added that: “Weaknesses in one area may, to some extent, be compensated by strengths in the other two.”

[28] At paragraph 84 in R. v. Amare, supra, Justice C. Hill identified the following additional relevant principles from the authorities with respect to the extent that police are entitled to rely upon hearsay information received from a confidential informant:

“(2) in considering whether informant information is compelling, a number of factors are considered including the degree of specificity or detail in the tipster’s account, the currency of the information, whether the informant has first – hand or direct knowledge of the relevant facts, etc….

(3) in assessing the reliability of the tip, the credibility of the informant is important including consideration as to whether he or she is an untested source or has a track record of providing accurate information to the police in the past (R. v. Markiewicz, 2014 ONCA 455, at para. 2; R. v. Soto, 2011 ONCA 828, at paras. 8-9), the tipster’s own criminal antecedents, whether any benefit was sought or promised or actually given in exchange for the information, and, whether the informant is anonymous or identified to the police as in the latter case of the sources exposed to the jeopardy of being charged with public mischief or obstruction of justice for deliberately misleading police: R. v. Noorali, 2010 ONSC 2558, at para. 40 (affd 2012 ONCA 589)…

(4) while effective corroboration of a confidential informants information need not confirm all details of his or her account, and need not confirm the commission of the alleged crime itself…, there should be confirmation of something(s) material within the communicated information as opposed to routine or commonly available facts…

(8) in any event, determining whether or not, on the totality of the circumstances, the police had reasonable grounds based on a confidential informant’s tip is largely a fact- driven exercise with case- to-case comparisons of modest assistance at best…”

[29] If a violation of section 8 or 9 is established on a balance of probabilities, the court must consider whether to exclude the evidence obtained from the unreasonable search or seizure pursuant to section 24(2) of the Charter. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paragraph 71, the Supreme Court of Canada set out the factors to be considered in determining whether the admission of the evidence would bring the administration of justice into disrepute. 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 section 24(2), viewed in a long-term, forward-looking and a societal perspective. When faced with an application for exclusion under section 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 State misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights account for little); and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a section 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…”

Issues

[30] The following issues are raised by the Defendant’s application:

1. Did police have reasonable and probable grounds to arrest Sharon Stockton on November 14, 2012?

2. If not, should the evidence of methamphetamine handed over after her arrest be excluded pursuant to section 24(2) of the Charter?

Analysis

Reasonable and Probable Grounds for Arrest

[31] I am satisfied on the whole of the evidence before me that both the subjective and objective requirements for reasonable and probable grounds to arrest were present when Constable Vansickle arrested Sharon Stockton on November 14, 2012. In that regard, I note the following:

a. Constable VanSickle was an experienced police officer knowledgeable about the drug subculture in Sarnia including many of those known or believed to be engaged in the illicit sale and distribution of controlled substances.

b. Likewise, Detective Constable Skinn had extensive past experience as a police officer on the Vice Unit investigating those engaged in the sale and distribution of controlled substances like methamphetamine in Sarnia.

c. Sharon Stockton and John Dobbie were known to both officers in their capacities as police officers as persons within the drug subculture in Sarnia.

d. Detective Constable Skinn received confidential information from a CI with whom he had worked for five years and who had repeatedly (more than 20x) proven to be a reliable source of accurate information.

e. The information provided by the CI was based on his or her own direct observation and knowledge. The CI was not passing along rumour or gossip. Rather, the CI had witnessed Sharon Stockton buying crystal methamphetamine from John Dobbie on five previous occasions at John Dobbie’s residence at 174 N. Christina Street in Sarnia.

f. The number of sales to Sharon Stockton observed by the CI was sufficient for him or her to conclude that John Dobbie was Sharon Stockton’s supplier and that Sharon Stockton was engaged in the resale of that product to others.

g. The CI provided an exact address at which John Dobbie resided where Sharon Stockton purchased methamphetamine.

h. The CI observed a recent transaction, within 72 hours, where Sharon Stockton purchased methamphetamine from John Dobbie.

i. The information provided by the CI precluded any other innocuous reason for Sharon Stockton to visit John Dobbie at his residence.

j. The CI was part of the Sarnia drug subculture and had been for many years.

k. The CI was known to police and thereby exposed to the jeopardy which attaches to misleading or obstructing police.

l. The CI had never previously provided inaccurate information and had no record of perjury or misleading police.

m. The CI would only be paid for his information if it proved to be accurate and risked losing that source of money on an ongoing basis if he or she provided inaccurate information.

n. Police acted on the information on the same day it was received. There was no lag or delay which might lead one to conclude that the information was stale.

o. Police immediately set up surveillance on the building at 174 N. Christina Street.

p. The surveillance confirmed the existence of the building at 174 N. Christina Street – this was not a vacant lot or non-existent address.

q. Constable VanSickle followed the taxi taken by the Defendant and went inside the variety store to confirm the identity of the passenger who, by then, was in the store. Thus, he confirmed that it was Sharon Stockton who had exited the door to the building at 174 N. Christina Street consistent with the information received from the CI.

r. Constable VanSickle received the vetted information of the CI from Detective Constable Skinn with whom he had worked and in whom he had confidence.

s. Constable VanSickle was told by an experienced and trusted officer that Sharon Stockton was “arrestable” for possession for the purpose of trafficking methamphetamine if seen leaving the building at 174 N. Christina Street in Sarnia. It was reasonable for him to understand that Detective Constable Skinn had reasonable and probable grounds for her arrest for that charge in those circumstances.

t. Detective Constable Skinn did not pursue the investigation himself because he was no longer in the Vice Unit.

[32] There is no doubt that the amount of investigation actually done by Sarnia Police to corroborate the information provided by the CI was modest. Police did not conduct lengthy surveillance. Ms. Stockton was observed only five minutes after surveillance started, although it was not immediately known to be Ms. Stockton who had exited the building to get into the taxi. Sarnia Police did not confirm, for example, that John Dobbie actually resided at 174 N. Christina Street, nor was Ms. Stockton seen to exit his unit.

[33] Nevertheless, I am satisfied that the information provided by the CI was sufficiently reliable, sufficiently detailed and based on first-hand observations and knowledge such that it was reasonable for Detective Constable Skinn and Constable VanSickle to rely upon it as part of the overall circumstances to ground both a subjective belief that Sharon Stockton should be arrested and, on an objective basis, that there were reasonable and probable grounds for Ms. Stockton’s arrest on November 14, 2012.

[34] In my view, a reasonable man presented with the same information from the CI, with the experience these officers had, with their knowledge of John Dobbie and the accused, and with what Constable Vansickle observed during his brief surveillance would conclude there were reasonable and probable grounds to arrest Ms. Stockton for possession for the purpose of trafficking methamphetamine. The very limited corroboration by police is, in these circumstances, enough. The compelling information from the CI together with his credibility based on past tips compensates to some degree for the lesser corroboration done by police before arrest. In the totality of the circumstances, police had reasonable and probable grounds to arrest.

[35] Defence counsel submitted that, in effect, only the state of mind of Constable Vansickle was relevant because he was the arresting officer. His submissions suggested that I consider Constable Vansickle’s testimony in isolation for the purpose of assessing what he remembered being told by Detective Constable Skinn and what he understood from that conversation. In my view, that is not an appropriate approach.

[36] Detective Constable Skinn testified that he relayed to Constable Vansickle the information which I have set out above that was obtained from the CI. He was not seriously challenged in cross-examination on that point. Whether Constable Vansickle can recall all of the exact details provided to him 3 ½ years later is not the question. When I look at the evidence as a whole that each provided, I am satisfied that Detective Constable Skinn provided all of the necessary information to Constable Vansickle, that Constable Vansickle understood what was communicated to him and held an honest belief that there existed reasonable and probable grounds to arrest Sharon Stockton if she was observed leaving the building at 174 N. Christina Street.

[37] Further, I reject the argument that Constable Vansickle was required to formulate his own reasonable and probable grounds to arrest the Defendant independent of the direction received from Detective Constable Skinn. It is well-settled that the arresting officer may act upon direction received from another officer that there are reasonable and probable grounds for that arrest: R. v. Debot, supra, (S.C.C.) at p. 206 and 214.

[38] I note that during argument, I specifically asked defence counsel whether it would make any difference had the arrest being made by Detective Constable Skinn. He conceded, quite fairly, that if Detective Constable Skinn had done the surveillance in place of Constable Vansickle and the same events unfolded, Detective Constable Skinn likely would have reasonable and probable grounds to arrest. I can discern no appreciable basis for this distinction in the circumstances of this case.

[39] With respect to the argument that Constable Vansickle could not have had reasonable and probable grounds to arrest the Defendant if he lacked sufficient evidence to obtain a warrant to search Mr. Dobbie’s apartment, I find that position without merit for the following reasons:

1. The information provided by the CI did not specify which unit in the building was occupied by Mr. Dobbie, something essential to obtaining a warrant to search;

2. The courts have recognized that there is a different dynamic in an arrest situation where the officer must make immediate split second decisions;

3. Although both an arrest and search warrant require reasonable and probable grounds, the test to which those grounds apply is different.

[40] Therefore, I conclude that the arrest of Sharon Stockton was lawful. Accordingly, the methamphetamine which she turned over to police at the police station following her arrest is admissible evidence.

Consideration of Grant Factors

[41] Although not necessary in light of my finding above, I find that even if the arrest was invalid, the evidence of the drug which the defendant turned over to police following her arrest would nevertheless be admissible. I would decline to exclude that evidence under section 24(2) of the Charter for the following reasons:

1. Seriousness of Charter Infringing Conduct – The officers in question acted in good faith. Constable Vansickle was conducting legitimate and appropriate surveillance to confirm information from a confidential informant. He acted upon information which he believed to be accurate and reliable, particularly given his knowledge of Ms. Stockton and Mr. Dobbie, and his trust in Detective Constable Skinn. There was no brazen, flagrant or reckless disregard for Ms. Stockton’s rights. His conduct is not such that this Court should feel compelled to disassociate itself from it. At most, it might be said that Constable Vansickle moved to arrest Ms. Stockton prematurely.

2. Impact on Charter Protected Interests of the Accused- There is no question that the arrest of the Defendant led to the subsequent search, and to restrictions on her day-to-day activities while this process has played out. She was treated professionally by police at the time of and subsequent to her arrest at the variety store. She did undergo a search by a female Constable at the Sarnia Police Station even after she handed over the methamphetamine. Since then, she has been out of custody.

3. Society’s Interest in an Adjudication on the Merits- It may be said that society always has a desire that evidence be admitted which tends to prove the guilt of an accused. However, I must consider society’s broader interest in a vibrant and healthy Charter which protects all citizens from inappropriate and arbitrary State conduct. In this case, the drug turned over by Ms. Stockton to police is critical evidence to the charge she faces. The drug is a highly addictive and dangerous drug whose sale and distribution in Canada undermines our society, destroys families and communities. As Federal Crown counsel has noted, the drug is real evidence, not conscripted in nature.

[42] In my view, the consideration of the above factors weighs in favour of admission of the evidence of the drug. This does not mean that if the arrest was unlawful, such conduct is considered trivial or unimportant. Rather, I conclude that society’s interest in an adjudication on the merits in the circumstances of this case, together with the good faith conduct by the police officers involved leads me to conclude that on balance, the evidence of the drug will not bring the administration of justice into disrepute if admitted.

“original signed by Raikes, J”

Justice R. M. Raikes

Released: February 29, 2016

CITATION: R. v. Stockton , 2016 ONSC 1408

COURT FILE NO.: 1757/14

DATE: 2016/02/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

• and -

Sharon Stockton

REASONS

RAIKES, J.

Released: February 29, 2016