Court File and Parties

Court File No.: 689/15 Date: 2016-08-30 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Jesse Thomson, Defendant

Counsel: Jennifer Broderick, for the Crown Timothy Johnston, for the Defendant

Heard: June 22 and June 24, 2016

Before: D. S. Gunsolus, J.

Reasons for Judgment

[1] Jesse Thomson stands charged that he, on June 2, 2015, at the City of Kawartha Lakes, did possess a controlled substance, included in Schedule I, that is, cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act; possessed a loaded restricted firearm, being a 40 calibre handgun while he was not the holder of an authorization or licence that he may possess it and the registration certificate for the firearm, contrary to section 95(1) of the Criminal Code of Canada; and, further, was an occupant of a motor vehicle in which he knew that there was at that time a firearm, being the 40 calibre handgun, contrary to section 94(1) of the Criminal Code of Canada; and, further, did possess a restricted firearm, being the 40 calibre handgun knowing that he was not the holder of a licence under which he may possess it and a registration certificate for the firearm, contrary to section 92(1) of the Criminal Code of Canada; and did possess said firearm while he was prohibited from doing so, by an order pursuant to section 109 of the Criminal Code of Canada made by the Honourable Justice L. E. Chester of the Ontario Court of Justice in Lindsay Ontario on May 12, 2011, contrary to section 117.01(1) of the Criminal Code of Canada.

[2] At the request of both Crown and Defence counsel, Mr. Thomson’s trial proceeded with a blended voir dire.

[3] On June 2, 2015, Jesse Thomson was the passenger in a motor vehicle driven by his girlfriend, Sandra McInnes. At 6:47 p.m., Detective Constable Alex Whitefield and Detective Constable Gerrit Brouwer stopped the vehicle on St. George Street in Lindsay, City of Kawartha Lakes, after receiving information from two trusted and one untested informant and from the Regional Support Team (surveillance team) respecting the accused’s activities in Lindsay on that day. The vehicle stop was purportedly for the purpose of arresting the accused for the offence of possession for the purpose of trafficking cocaine.

[4] Whitefield approached the passenger side of the motor vehicle, where Thomson was sitting, with his firearm pointed at Mr. Thomson. He took the steps based on his experience and training that drug trafficking carries a potential for violence and that weapons are carried by drug traffickers as a means of self-protection. Informants had provided information to the arresting officers that Thomson had access to, and did possess, a firearm. The windows of the motor vehicle apparently had a dark tint, such that one could not see into the vehicle clearly. All of these factors provided the basis for the detective’s decision to conduct a high risk, gunpoint arrest in order to ensure officer, public and the detainee’s safety.

[5] Whitefield identified himself as a police officer and directed the accused to open the door and show his hands. He and his fellow officers were in fully marked cruisers with lights flashing and sirens sounding and wore full duty uniforms with bright yellow wording across their chests identifying them as “POLICE OFFICERS”. There is no question that the arresting officers yelled loudly and kicked the vehicle in which Thomson was situate when he and the driver failed to unlock and open the vehicle doors. When Thomson did respond, Whitefield opened the door of the motor vehicle and observed that the accused had a cell phone in his right hand which he directed the accused put down, which direction the accused complied with. Detective Constable Whitefield then took hold of the accused’s right wrist and removed him from the motor vehicle, placed him on the ground in a prone position and awaited the assistance of additional officers. During this time, the accused offered no resistance. When the vehicle doors were opened, much to the surprise of the arresting officers, a young child was discovered sitting in the backseat of the motor vehicle previously unseen because of the heavily tinted windows. The presence of a child in the motor vehicle was not known to the officers prior to the stop.

[6] At 6:48 p.m., Whitefield arrested the accused for possession for the purpose of trafficking cocaine. The accused acknowledged that he understood the reason for his arrest. At that time, as an incident to arrest, Detective Constable Brouwer searched the accused, Thomson, finding crack cocaine and cash in the front left pocket of the accused’s shorts. After patting down the accused, Brouwer proceeded to ask him questions regarding weapons. The exchange took place as follows:

D.C. Brouwer: Do you have any weapons on you? Accused: Awe, no. D.C. Brouwer: Jesse, are you sure, because you hesitated? Accused: I have a gun under the front seat. D.C. Brouwer: Is it loaded? Accused: Well, there is not [sic] chambered.

[7] Upon hearing this exchange, Detective Constable Whitefield proceeded to look under the front passenger seat of the motor vehicle where he observed what appeared to be a semi-automatic handgun. Whitefield then re-attended before the accused and advised him he was under arrest for possession of a firearm. He read the accused his rights to counsel to which the accused responded that he understood that he had a right to counsel. He was then asked if he wanted to call a lawyer and, the accused having stated that he did not have a counsel requested to speak to duty counsel. The accused was then taken to the City of Kawartha Lakes Detachment of the Ontario Provincial Police. Neither officer observed the accused to be under the influence of alcohol or drugs. After the initial stop, within a minute or so, the officers and the accused’s demeanour was one of calm.

[8] The Crown is seeking an order admitting into evidence the utterances made by Jesse Thomson to Detective Constable Gerrit Brouwer on the basis that they were made voluntarily.

Issue # 1 Was the statement voluntary?

[9] In assessing the admissibility of statements that an accused makes to police, one must look at the common law confessions rule. With respect to pre-trial investigation and statements made to persons in authority, the Crown bears the onus to show, beyond a reasonable doubt, that such statements were obtained in accordance with the common law confessions rule in order for those statements to be admitted to evidence. The common law confession rule consists of 2 prongs: 1) the statement must be made to a person in authority and; 2) it must be made voluntarily. Clearly, in this case, the first stage of the rule is easily met as the statements in question were made to a police officer, who falls within the definition of a person in authority contemplated by the common law confessions rule.

Voluntariness Analysis

[10] In R. v. Oickle, [2000] 2 SCR 3, 2000 SCC 38, voluntariness was found to be comprised of the following components:

a) The will of the accused must not be overborne by: (i) Threats, promises, or inducements; (ii) Oppressive circumstances; (iii) Lack of an operating mind. (b) The confession must not have been obtained by police trickery that would shock the conscience of the community.

[11] Applying the facts of this case to these principles, I will consider each of these components.

(a) The will of the accused must not be overborne by:

(i) Threats, promises or inducements

After Oickle, the Supreme Court of Canada decided in R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. that to determine if an accused’s will has been overborne, the question is whether the accused had meaningful ability or an effective choice. In the case before me, the police simply asked the accused a question upon arrest making no promises and the question was not posed after an extensive interrogation as occurred in the above cases. Counsel did not argue this issue, but, in any event, there is no evidence at all to suggest that Mr. Thomson’s will was overborne by threats, promises or inducements.

(ii) Oppressive Circumstances

Defence counsel argues that the circumstances of Mr. Thomson’s arrest were oppressive by virtue of the fact that there was “a three officer take-down with guns drawn”. The arresting officers had reliable information that Thomson had access to a weapon. The officers gave evidence that they needed to insure public safety, officer safety, and the safety of the accused, and thus treated the arrest as a high risk arrest. There was nothing in the evidence to suggest that the circumstances of Mr. Thomson’s arrest was, in anyway, oppressive. I do not find that it rises to the level required for oppressive circumstances. The officer's conduct in this matter was not oppressive, such that Mr. Thomson’s free will was overborne and he could have made an independent choice to speak or remain silent.

• In R. v. Hoilett, R. v. Serack, R. v. Antoine (1982), and R. v. Paris (1992), 97 Cr. App. R.99, oppressive circumstances were found to exist where an accused was left naked for hours; accused’s clothes were taken and he was left in a cell for hours with only a blanket; an accused was questioned endlessly for hours, locked in a room, given nothing to eat or drink other than coffee; and finally, where an accused was interviewed in excess of 13 hours over several days, notwithstanding the accused denied the charges in excess of 300 times.

The facts before me do not disclose oppressive circumstances of the kind contemplated by the caselaw. To the contrary, the evidence would suggest that the arresting officers acted with all due precaution, having the information that they did from trusted informants that not only was Mr. Thomson trafficking in cocaine, but he had access to, and did possess, a firearm. The arresting officers originally planned to approach Mr. Thomson in one marked police cruiser. A third officer was enlisted at the last moment as, being a highway traffic constable, the officer wished to exchange cruisers with the arresting officers. Apparently, the arresting officers had taken his assigned police cruiser which had within it radar equipment. The fact that a third officer was present and his assistance enlisted did not, in my view, create oppressive circumstances. The officers holstered their weapons as soon as the arrest scene was secured. In relation to the child found in the rear seat of the vehicle, the arresting officers proceeded to have Mr. Thomson speak to, assure and calm the child. They also allowed the mother of the child, Ms. McInnes, to do the same. After the initial stop and containment of the arrest scene, both the officers and the accused were calm during the arrest process and it was clear that Mr. Thomson understood all questions that were put to him.

(iii) The lack of an operating mind

Counsel has not pled anything in connection to Mr. Thomson’s mental state and there is nothing in the facts to suggest that the accused lacked an operating mind, due to impairment by alcohol, drugs or lack of cognitive ability.

(b) The confession must not have been obtained by police trickery that would shock the conscience of the community:

Examples of conduct that would shock the conscience of a community include a police officer pretending to be a chaplin (R. v. Clot (No. 1)) or a police officer injecting truth serum into a diabetic accused under the pretense that it is insulin (Rothman v. The Queen).

In this case, the police simply asked the accused a straight forward question while he was being arrested, without any pretense, trick or manipulation. It is to be noted that the officers did not ask Mr. Thomson if he had a weapon in the motor vehicle, rather, they asked whether or not he had a weapon on his person. The response that the officers received was unexpected and unresponsive to the question. Mr. Thomson replied that he had a weapon in the motor vehicle. Clearly, the officers did not ask Mr. Thomson if he had a weapon on his person in order to get his statement from him, but rather with officer safety as the primary motivating factor.

Counsel for the defence has only pursued alleged oppressive circumstances and it is clear that the situation was void of any threats, promises, inducements or trickery, and it is likewise clear that the accused possessed an operating mind. In short, I am not convinced that any aspect of voluntariness in this case has been violated or infringed. To that end, I find that the statement made by Mr. Thomson was made voluntarily.

Issue #2: Was the statement taken in contravention of the accused’s s. 10(b) rights?

[12] Counsel for Mr. Thomson has argued that the statement at issue was obtained from Mr. Thomson prior to him being given his right to counsel.

[13] Police may search an accused person as an incident to arrest and this power includes the right to pat down an accused in order to ensure that the safety of both officers and the accused is maintained (Cloutier v. Langlois).

[14] In R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, our Supreme Court has noted that safety searches are searches which are reasonably necessary to eliminate threats to the safety of the public or the police. Clearly, these searches are unplanned and are undertaken during an arrest. The officer’s decision to search must be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or nonexistent concern for safety, nor can the search be premised upon hunches or their mere intuition (R. v. Mann, 2004 SCC 52).

[15] The delay in providing Mr. Thomson his s. 10(b) right to counsel can be justified in the circumstances of the arrest as it was an urgent and potentially dangerous circumstance. This would only apply to the implementational aspect of his right to counsel (R. v. Fuller, 2012 ONCA 565). In this case, it may have been acceptable to briefly delay advising the opportunity for Mr. Thomson to exercise his right to counsel as the police had formed the opinion that the circumstances were such that, as a suspected trafficker in cocaine, Mr. Thomson would likely be carrying a weapon for self-protection.

[16] However, this exception does not apply to the informational component of the right to counsel which should be provided before information is elicited from an accused. In R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, an accused was not advised of his reasons for arrest for 22 minutes after his vehicle was pulled over and was then not advised of his right to counsel for a further 2 to 5 minutes. In that case, the Court found that there was insufficient evidence to support the assertion by police that they had to delay compliance with s. 10 in order to protect their investigation. The Court found no exceptional circumstances to justify the delay and upheld the trial judge’s finding that the accused’s s. 10(b) rights were violated. Even a few minutes can be unacceptable when it comes to s. 10(b) informational duties of police.

[17] In the case before me, Mr. Thomson was informed of his right to counsel very shortly after he was asked whether he had any weapons on his person, and this demonstrates that the arresting officer was aware of the importance of providing s.10(b) rights to an accused, thus making it rather unlikely that failure to inform the accused of this right immediately upon arrest was intentional. Had the police first informed the accused of his right to counsel and then briefly delayed his ability to exercise that right in order to insure he was not in possession of any weapons, there would clearly be no s. 10(b) violation. The requirement to advise an accused of his rights to counsel is subject to officer and public safety. In this case, once the arrest scene was secure, and public and officer safety was satisfied, the officers provided Mr. Thomson with his rights to counsel. This fits within the exception of R. v. Suberu, 2009 SCC 33. It is to be noted that the defence called no evidence and cross-examination of the officers did not illicit any evidence to indicate that the delay in the provision of Mr. Thomson’s right to counsel was not caused by a brief delay while officer and public safety was assured. The utterances here were made by Mr. Thomson spontaneously. Again, Mr. Thomson was asked whether or not he had a weapon on his person and he responded that he had a weapon in the motor vehicle. Mr. Thomson did receive his rights to counsel within minutes of his arrest and he provided no statements, nor was he questioned after his rights to counsel were given and before he actually exercised his right to counsel. The utterances were made spontaneously and by the tenor of the conversation between the arresting officer and Mr. Thomson, it might be confidently said that it would have been made, notwithstanding an alleged Charter breach. It is important to note that no one took a statement from Mr. Thomson before he had access to counsel.

Issue #3: Even if the accused’s s. 10(b) right was violated, should his utterance be admitted a s. 24(2) analysis?

[18] As summarized in R. v. Grant, 2009 SCC 32 the factors for determining whether evidence should be excluded if it was obtained in breach of the Charter are as follows:

1. The seriousness of Charter infringing state/police conduct.
2. The impact of the breach on the Charter protected interests of the individual.
3. Society’s interest in the adjudication of the case on its merits, at finding the truth or having evidence contribute to a good, truth-finding trial.

[19] In R. v. Mian, 2014 SCC 54, the Supreme Court upheld the trial judge’s decision to exclude the evidence under s. 24(2) “as society’s interest in adjudication of the case was outweighed by the wilful and flagrant state conduct and attempts by the police to mislead the court.” In that case, the police detained the accused, who was already identified as a person of interest in a homicide investigation, under the guise of a routine traffic stop. The accused, in that case, was not informed of his reason for arrest for 22 minutes after being detained and was not given his right to counsel for 2 to 5 minutes thereafter.

[20] In the case before me, the conduct of the police is far less egregious. The detention of Mr. Thomson was not made under false pretenses or under the guise of a routine traffic stop. Rather, the investigating officers stopped the car that Mr. Thomson was travelling in as a result of information they received from reliable informants and based on surveillance information provided to them by the Regional Support Team in relation to activities on that day. Further, Mr. Thomson was informed immediately, unlike in Mian.

[21] When conducting a s. 24(2) analysis, public interest in having a case tried on its merits must be balanced with reliability of the evidence that was obtained in breach of the Charter.

[22] In R. v. Chaif-Gust, 2011 BCCA 528, the accused was convicted of unlawfully possessing marijuana for the purpose of trafficking. At trial, it was determined that his s. 10(b) rights were violated, in that the police did not inform the accused of the reason for his detention when they first ordered him to the ground and handcuffed him, nor did they advise him of his right to counsel. Only when the arresting officer finally conducted the actual arrest did he tell the accused the reason for his arrest and notify him of his right to counsel. At trial, the impact of these breaches was found to be minimal and outweighed by society’s interest in seeing the case decided on its merits. This was upheld by the Court of Appeal and in upholding the trial judge’s decision, the Court of Appeal noted that the trial judge properly characterized s. 10 violations as being serious, however, the trial judge, likewise, observed that no other Charter rights were violated and confirmed the trial judge’s consideration and balancing of the impact of the breach against society’s interest in adjudicating a case on its merits.

[23] In the case before me, as in Chaif-Gust, no other Charter right was violated. Mr. Thomson was, within minutes of the stop, advised of the reason for his arrest and of his right to counsel. The arresting officer gave evidence that in circumstances of this nature, he always engages the accused in a conversation in order to calm them. He gave evidence that it was his intention to insure the safety of Mr. Thomson and the other occupants of the motor vehicle, the public and the officers by way of inquiring as to the existence or possession of a weapon. The questioning about whether or not Mr. Thomson had a weapon lasted mere seconds and Mr. Thomson willingly offered the information. The inadvertent delay in providing Mr. Thomson with his section 10(b) rights was to insure the safety of the officers, Mr. Thomson and others in the stopped vehicle and the public, and therefore was a justifiable delay. He had already been told of the reasons for his arrest and the need for this reliable and relevant evidence in the search for the truth, given the seriousness of the offence involving a firearm, cocaine with the presence of a very young child, weighs in favour of an inclusion of the evidence. I find that the circumstances under which the utterance was obtained was not so egregious as to bring the administration of justice into disrepute and should be admitted into evidence.

[24] The accused, Jesse Thomson, is seeking an order to exclude from trial all evidence obtained and seized as the result of the search of his person and the vehicle in which he was a passenger following the police stop on June 2, 2015.

[25] The grounds alleged for the application are that the stopping of the vehicle on June 2, 2015 in which Mr. Thomson was the passenger, the arrest and search of the applicant and the search of the motor vehicle and the result and seizures were all conducted absent reasonable and probable grounds.

[26] Counsel argued that the police conduct in doing so constituted a violation of the applicant’s right to be secure against unreasonable search or seizure and further constituted an arbitrary detention in violation of both sections 8 and 9 of the Canadian Charter of Rights and Freedom. Pursuant to s. 24(2), Mr. Thomson seeks to have the evidence so obtained excluded at this trial.

[27] This application turns on 3 main questions:

1. Did the search infringe the accused’s s. 8 Charter rights?
2. Did the detention infringe the accused’s s. 9 Charter right?
3. If the above 2 questions are answered in the affirmative, should the evidence be excluded pursuant to s.24(2)?

Issue #1: Did the search infringe the accused’s s. 8 Charter rights?

[28] As stated in the application, this was a warrantless search or seizure such that any evidence arising there from is presumptively inadmissible. The burden shifts to the Crown to demonstrate, on a balance of probabilities, that the search was reasonable in accordance with the test established in R. v. Collins. In that case, the Court held that a warrantless search is only reasonable where:

(c) It is authorized by law; (d) The law, itself, is reasonable; (e) The manner in which the search or seizure is carried out is reasonable.

[29] Additionally, there must be exigent circumstances present that make getting a warrant impracticable. The Court must then consider whether a warrantless search can be reasonable if it is based not on observation of actual criminal activity, but informant tips as in this case. Mr. Thomson has submitted that a search that is conducted solely on the basis of informant tips can never be reasonable.

[30] I do not agree with Defence counsel’s submissions on this point. In R. v. Debot, The Supreme Court set out the test that must be met, when relying solely on informant information to conduct the search, in order to determine if it was exercised based upon reasonable and probable grounds:

(f) Is the information compelling? (g) Is the source credible? (h) Has the evidence been independently corroborated by a police investigation?

[31] Although this additional test must be applied where a search is based primarily on informant tips in order to determine reasonability, it is simply incorrect at law to suggest that such a search is inherently unreasonable, or, indeed, that any search is unreasonable unless it is based on direct observation of the commission of the crime, as the accused submits. I note that Debot was recently endorsed by this Court in R. v. Lowe, 2014 ONSC 396:

“When the police rely on an informant to establish reasonable grounds for a search warrant, the Court must evaluate the tip based on whether it was compelling, whether the informant was credible and whether the tip was corroborated. No single factor is determinative. Rather, it is the totality of the circumstances that must meet the standard of reasonableness.”

[32] In order for a search to meet the reasonability threshold, the quality of the information received from an informant and the informant’s credibility must be evaluated. Factors, including the informant’s criminal history, whether they are being paid to provide information; and whether the informant may have any reason to fabricate information are all relevant considerations. No evidence was presented to suggest to the Court that the information the arresting officers received from their informants was not credible. Further, even if the police officers did not observe the commission of a crime directly, if they observed behavior consistent with trafficking narcotics, this may lend strength to the notion that the search was, indeed, reasonable.

[33] In relation to establishing reasonable and probable grounds for arrest, many factors are to be considered. The standard of proof that an officer must apply is based on the civil standard of proof, on a balance of probabilities. An officer may rely upon hearsay evidence provided it is reasonable. As noted in [R. v. Riley (2008) Carswell ON 174, para. 27], the important factor is not whether the peace officer’s belief, was accurate but rather whether or not it was reasonable. Even if it is drawn from hearsay, incomplete sources and contains assumptions, it will not result in its legal rejection by resort to facts which emerge later. What must be measured are the facts as understood by the police officer at the time he formed the belief.

[34] And as stated in R. v. Biron, 1976 2 SCR 56, when an officer makes an on the spot decision to arrest, he may be overzealous as well as mistaken. Courts are not to go on a guessing expedition out of regret for an innocent mistake or wrongheaded assessment by the officer.

[35] In this case, the police relied upon two known informants which they have in the past determined to be reliable. Information provided by these tried and true informants have resulted in multiple warrants and arrests in unrelated cases. Detective Constable Brouwer gave evidence that he has handled confidential human sources since December of 2008; has received training in this regard; and has handled in excess of 50 informants, both as a primary and secondary handler. The majority of the informants that he deals with are in relation to drug related investigations. The officers also relied upon a third informant who was unknown to them, but who corroborated the information provided by the known and trusted sources. The information provided by these informants was further corroborated by the activity observed by the surveillance in this case. The accused frequented a location known to be associated with drug activity. Further, the accused is known to associate with individuals known to be part of drug activity. The accused was observed conducting brief meetings with unknown males and on one occasion in a parking lot a male was observed walking away from the accused looking at something in his hand.

[36] From the evidence given in this case, it is clear that the arresting officers formed their belief that they had reasonable and probable grounds to arrest Mr. Thomson based on information obtained from two trusted informants and one untested informant who corroborated the trusted informants. Information obtained, whether accurate or not, that tended to supplement the information provided by the informants was not necessary to the formation of their belief. At the very least, the surveillance identified activity undertaken by Mr. Thomson was consistent with drug transactions even though the actual exchange of drugs was not observed. In any event, I accept the officer’s evidence that the surveillance information was unnecessary to the formation of their belief that they had reasonable and probable grounds to arrest Mr. Thomson given the information that they had obtained from their informants.

[37] Further, Detective Constable Whitefield gave evidence that they had already made a connection between Mr. Thomson and another known individual involved in drug trafficking through their record management system. He said he did not feel that surveillance evidence was needed to corroborate the information that they received, but rather wanted it “in order to place time and distance from the informants” in order to protect their identity from the accused. While it was later determined that some of the information that this officer heard and wrote down differed from the actual surveillance report later prepared and made available to him, the important factor is not whether this officer’s belief was based on accurate information, but whether or not it was reasonable at the time. Based upon all the evidence, I find that the arresting officers had reasonable and probable grounds for the arrest.

Issue #2: Did the detention infringe the accused’s s.9 Charter rights?

[38] The objection made by counsel for Mr. Thomson on this issue appears to be directed towards the officer’s decision to arrest. The Supreme Court in R. v. Mann, 2004 SCC 52, confirmed that a brief investigative detention based on reasonable suspicion is lawful, suggesting that a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary under s. 9 of the Charter. When assessing the reasonableness of a detention, the Ontario Court of Appeal in R. v. Peterkin, 2015 ONCA 8 endorsed Mann as follows:

“An investigative detention must be viewed as reasonably necessary on an objective view of all the circumstances informing the officer’s suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing offence. To conduct this analysis, we must assess the overall reasonableness of the detention decision, testing it against all the circumstances, most notably:

(iv) The extent to which the interference with individual liberty is necessary to perform the officer’s duty; (v) The liberty that is the subject of the interference; and, (vi) The nature and extent of the interference.”

‘The detention must be executed in a reasonable manner; meaning that it should be brief and that it should not impose an obligation upon the accused to answer questions posed by the police.’ (R. v. Mann, 2004 SCC 52; R. v. Fuller, 2012 ONCA 565)

[39] The above cases established that it is not enough for a police officer to subjectively believe that reasonable and probable grounds exist to detain. These grounds must be objectively reasonable and probable and a mere hunch will not suffice.

[40] Informant tips can provide reasonable and probable grounds to justify a search as established by the Supreme Court of Canada in R. v. Garofoli. While the evidence of an informant, if uncorroborated, may not be objectively conclusive, it may give rise to a reasonable subjective belief of a police officer that detention is justified. Such a belief considered collectively, with all of the other circumstances, can operate to render a detention reasonable (R. v. Sheck, 2015 BCCA 471).

[41] The notion that informant tips can give rise to reasonable and probable grounds that can justify detention was very recently endorsed by this Court in R. v. Barkley, 2015 ONSC 2811. In that case, Justice Koke found information provided by an informant to be compelling, in that it provided considerable detail and indicated that the informant had a great deal of personal information about the suspect. He also took into account the fact that the informant had proven reliable in the past. In this case, the police were relying on at least two informants that they had found to be reliable in the past. These officers were experienced in dealing with informants. They were provided information from the surveillance team that corroborated their belief that Mr. Thomson was trafficking in cocaine. As in Barkley, I find it was reasonable for the police to rely on the two confidential informants.

[42] Justice Koke went on to consider whether it was necessary to corroborate an informant’s tips and he determined “in my view, in order for the police to satisfy themselves that they have reasonable grounds for the detention of a suspect, it is not necessary that police corroborate the criminal aspects of the tip; in fact, I suspect that it is only on rare occasions that they are able to do so.” In that case, Justice Koke went on to determine that the totality of the circumstances, even without independent corroboration, provided police with a reasonable basis for detention.

[43] As such, counsel’s argument that it is incorrect to suggest that unless police officers are able to independently corroborate an informant’s tips or directly observe the commission of a crime, an accused’s detention is inherently and automatically arbitrary is not supported by the law. In this case, the quality of the informant’s tips and the informant’s history of reliability, suggests that it was reasonable for the arresting officers to rely on the information these informants provided to them. The totality of the evidence, including but not limited to, the informants’ tips, the management system records showing a connection between Mr. Thomson and another individual involved in trafficking, and the surveillance showing Mr. Thomson involved in activities consistent with drug trafficking provided the officers with a reasonable basis for detention. On this basis, I find that the detention was not arbitrary and does not contravene s. 9 of the Charter. The objective and subjective test have been met.

[44] Having found no breach in relation to s. 8 and 9, it is not necessary for me to address the arguments under s. 24(2) of the Charter.

[45] In this case, the police observed behavior consistent with trafficking narcotics (attending at addresses known to be associated with drug activity and briefly meeting others in parking lots). They were able to corroborate the information provided to them by at least two known and reliable informants by this surveillance of activity consistent with drug trafficking.

[46] To that end, I find that the accused’s s. 8 and 9 Charter rights were not breached. The accused’s application to exclude all evidence obtained and items seized as a result of the search of the applicant and the vehicle in which he was a passenger following the police stop of that vehicle on June 2, 2015 is denied.

Evidence of Detective Constable Neil Brown

[47] Detective Constable Neil Brown was qualified as an expert in order to give opinion evidence on cocaine and its derivatives, as well as packaging, pricing, trafficking and distribution. In order to arrive at his conclusions, he received and reviewed the following: Crown brief synopsis, arrest reports for Jesse Thomson, officers’ notes, exhibit report, certificate of analysis indicating seized substances were analysed as cocaine and numerous photographs.

[48] In relation to items that were seized from Mr. Thomson, he was aware of: a 140 calibre sig sauer semi-automatic handgun; $2,336.00 in Canadian currency; 75 grams of crack cocaine; 99 grams of powdered cocaine, 3 weigh scales and a number of additional drugs which he could not identify as to whether they would be considered legal or not. In his opinion, the 99 grams of cocaine and 75 grams of crack cocaine seized in the investigation, together with the weigh scales, and $2,336.00 are consistent with possession for the purpose of trafficking. The quantity of cocaine, he suggested, is consistent with possession for the purposes of trafficking as opposed to what a user would normally keep readily available for personal use.

[49] He noted that as the cash was found with the cocaine, that would be consistent with a trafficker who wishes to make rapid cash transactions. He also noted that the quantity of drugs found were indicative that the accused may have made a recent transaction and/or was holding onto the money in order to purchase more cocaine in bulk in order to then sell it in smaller amounts for profit. He noted the combined value, of the cocaine depending on actual sales would be between $8,540.00 and $26,880.00. He also noted that there was a firearm present under the seat of the vehicle in which Mr. Thomson was found just before his arrest. This suggested to Detective Constable Brown that it was possessed for protection to prevent being robbed and for intimidation. He said such a weapon is typical of what drug traffickers possess in order to protect their illicit business as opposed to a user.

[50] It was his opinion that Mr. Thomson possessed the characteristics and materials commonly found in persons who engage in the trafficking of cocaine. He did acknowledge during cross-examination that the cocaine was not divided into small “dime bags” and that no dime bags were found in the possession of Mr. Thomson. He noted that this may simply have been because he had just purchased the cocaine and had not yet broken it down. He further noted that in relation to crack cocaine, usually a small piece is broken off and sold without such packaging. He also noted that the quantity of cocaine is indicative of one person purchasing and then distributing it to others for the purposes of trafficking. He did acknowledge that it is cheaper to buy cocaine in bulk, but suggested that even if one were buying this quantity for one self and perhaps one other person, that it would be highly unusual.

[51] Based upon Detective Constable Neil Brown’s evidence, which was uncontradicted, it is clear that Mr. Thomson possessed the powdered and crack cocaine for the purposes of trafficking.

Summary and Conclusions

[52] The evidence seized from Mr. Thomson, and continuity in relation to that evidence, was admitted. The certificate of analysis in relation to the cocaine was admitted. The certified copy of the order of Justice Chester, dated the 12th of May 2011, being a weapons prohibition order imposed at sentencing, was admitted.

[53] Given my decisions on the voir dires, I am satisfied that the Crown has proven the charges alleged beyond a reasonable doubt. There will be a finding of guilt in relation to counts 1, 2, 3, 4 and 5 as set out on the Indictment, dated May 27, 2016.

D. S. Gunsolus, J. Released: August 30, 2016