R. v. Simpson, 2016 ONSC 690

CITATION: R. v. SIMPSON, 2016 ONSC 690

COURT FILE NO.: 15-535

DATE: 2016/03/02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

F. Brennan, for the Crown

• and -

BEVEN MATHEW SIMPSON

N. Wansbutter, for the accused

HEARD: November 12-13, 2015

LEACH J. (ORALLY)

Overview

[1] By way of overview, the accused, Beven Mathew Simpson, is charged with one count of possessing a controlled substance, (Methampetamine), contrary to s.4(1) of the Controlled Drugs and Substances Act, (“the CDSA”).

[2] In that regard, I note and confirm that, although the original form of indictment made reference to alleged possession of that substance “for the purpose of trafficking”, contrary to s.5(2) of the CDSA, the indictment was formally amended on consent to delete those words, and alter the legislative reference to s.4(1) of the CDSA, when the matter was called for trial.

[3] Moreover, although the original form of the indictment made reference to the alleged crime having been committed on August 18, 2014, the Crown applied successfully at the conclusion of trial, pursuant to s.601 of the Criminal Code, and without opposition from the defence, to further amend the indictment so as to make the date specified therein conform with the evidence at trial.

[4] The resulting single charge of possession of Methamphetamine, by Mr Simpson, stems from events said to have taken place here in the City of Stratford on August 28, 2014. Evidence in that regard is outlined in greater detail below. In broad terms, however, the Crown says that:

• On August 28, 2014, the Stratford police received information from a confidential informant, indicating that the accused would be walking along certain streets in downtown Stratford, towards his known residence there, with a certain amount of Methamphetamine in his possession.

• In response, two officers were briefed and dispatched in separate vehicles to the described locations from the nearby police Stratford police station.

• The two officers located and observed the accused walking in various areas of downtown Stratford with a small dog on a leash and harness. They then stopped, detained and arrested the accused shortly before he reached his residence.

• A preliminary search of the accused at the detention and arrest location did not result in the detection of any controlled substances. However, the accused and his dog then were both transported back to the Stratford police station, where further searches led to discovery and seizure of 7.6 grams of Methamphetamine found within the harness of the dog.

[5] Formal admissions were made in relation to the identity of the accused, (as the person detained and arrested), jurisdiction, and continuity of exhibits. The defence also was content to have the nature of the seized substance confirmed as Methamphetamine by the filing of an appropriate “Certificate of Analyst”, which was tendered as an agreed exhibit.

[6] Beyond that, the defence put the Crown to satisfaction of its onus of proving all essential elements of the charged offence beyond a reasonable doubt.

[7] However, by way of an appropriate formal application, the defence also contends that items seized during the aforesaid searches were obtained by the police pursuant to alleged contraventions of Mr Simpson’s right to be free from unreasonable search and seizure, (pursuant to section 8 of the Canadian Charter of Rights and Freedoms or “the Charter”), and/or his right not to be arbitrarily detained, (pursuant to section 9 of the Charter), in circumstances where the items accordingly should be excluded from evidence pursuant to s.24(2) of the Charter.

[8] The parties agreed that the matter should be addressed by way of a “blended” voir dire and trial proceeding.

Evidence – General Comments

[9] At trial, in addition to a number of exhibits, (including the aforesaid “Certificate of Analyst”, photographs of the dog harness and packet of Methamphetamine, and a street map of downtown Stratford), the Crown presented testimony from the following three witnesses, all of whom are employed by Stratford Police Services: Sergeant Mark Taylor; Detective Constable (“D.C.”) Gerald Schuurman; and D.C. Daniel Gray.

[10] While subjecting the Crown’s viva voce witnesses to cross-examination, the defence elected not to call any witnesses during the blended voir dire and trial.

[11] However, although all witnesses in the proceeding before me were called by the Crown, with Mr Simpson electing not to lead or present evidence, I have in mind throughout my entire reasons and analysis the presumption of innocence and the burden of proof upon the Crown.

[12] In particular, according to the constitutional guarantee in s.11(d) of the Charter of Rights, Mr Simpson is presumed to be innocent, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to the alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to the elements of the charge against Mr Simpson that are not admitted, never shifts.

[13] The accused Mr Simpson has no obligation whatsoever to establish his innocence, and I accordingly attach no significance to the fact that he gave no evidence during the voir dire and trial, although pursuant to R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, I have taken into account that certain evidence presented to me, (e.g., in relation to certain conduct and statements of Mr Simpson on the day in question), stands uncontradicted in the sense that there is no other evidence to consider in relation to such matters.

[14] Although the Crown has the overall onus at trial to establish Mr Simpson’s guilt beyond a reasonable doubt, in relation to the alleged offence, I nevertheless also bear in mind that, insofar as Mr Simpson’s Charter application is concerned, Mr Simpson has the onus of proving, on a balance of probabilities, that there has been a constitutional infringement and that evidence obtained by any infringement should be excluded. See R v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at para.35.

Evidence – General Facts

[15] With the above preliminary observations, I turn now to a review of the underlying evidence.

[16] While I will have more to say about certain aspects of that evidence later in my reasons, the following findings form the basic context of my further analysis:

• On August 28, 2014, Sergeant Taylor had been employed by the Stratford police for approximately 12 years, and had worked in and with its Street Crimes Unit (or “SCU”) for approximately 7 of the previous 8 years. From January of 2014 until the time of Mr Simpson’s alleged offence, Sergeant Taylor was in charge of the SCU, the primary focus of which was on illicit drugs, using investigation tools that included surveillance, as well as information supplied through “Crime Stopper” tips and confidential informants. Sergeant Taylor himself had worked directly with more than 20 such confidential informants over the years.

• On August 28, 2014, a confidential informant (or “C.I.”) spoke with Sergeant Taylor, and provided information concerning the accused, Mr Simpson. The C.I. in question was known to Sergeant Taylor. In particular:

o Sergeant Taylor had dealt and spoken with that particular C.I. on more than 15 prior occasions, over a two year period.

o On each of those prior occasions, the C.I. had provided drug-related information to Sergeant Taylor.

o On each of those prior occasions, the police had taken steps to follow up on, corroborate and otherwise test the particular information supplied by the C.I., to verify that the information being provided was reliable. In each prior instance, the information supplied by the particular C.I. was found to be reliable.

o While the information supplied by the particular C.I. had never led to issuance of a search warrant, it had led to 2-3 arrests. In each of those instances, illicit substances were found in searches performed incident to the arrest. Moreover, Sergeant Taylor was able to recall that “at least one” of those arrests and incidental discovery of illicit substances had proceeded to a conviction by the time of the trial before me.

o At the time of the communication between the C.I. and Sergeant Taylor on August 28, 2014, the C.I. was addicted to Methamphetamine.

o Sergeant Taylor felt unable to reveal the precise motivation of the C.I. to supply information to the police, on the basis that doing so might reveal his or her identity. Sergeant Taylor was able to confirm that the C.I. in question was not paid money to supply information, but did receive some other form of consideration for doing so. However, the arrangement also was such that the C.I. would receive no such consideration if the information being supplied by the C.I. was wrong.

o The relevant C.I. also has no criminal record involving crimes of dishonesty, (including theft, mischief or perjury).

• Sergeant Taylor confirmed that he was contacted by the C.I. in question on August 28, 2014, within two hours of Mr Simpson subsequently being arrested that day; i.e., between 4:30pm and 6:30pm on August 28, 2014. (Sergeant Taylor declined to be more specific as to the time of the telephone call made to him by the C.I., on the basis that doing so might reveal the C.I.’s identity.) The C.I. then provided Sergeant Taylor with the following information:

o that Mr Simpson was walking on Douro Street, in the City of Stratford, at the time of the telephone call;

o that Mr Simpson was in possession of “between a ball and a quarter” of Methamphetamine, (with a “ball” meaning approximately 1/8 of an ounce or 3.5 grams of that substance, and a “quarter” meaning approximately ¼ of an ounce or 7 grams of that substance); and

o that Mr Simpson was “going to be heading home”; i.e., to Mr Simpson’s personal residence, the location of which, (on Wellington Street near the entrance to Allen’s Alley), Sergeant Taylor already knew.

• To protect the C.I.’s identity, Sergeant Taylor felt unable to share how the C.I. had come to possess the information being supplied about Mr Simpson, including whether or not the C.I. had indicated any personal observation of Mr Simpson being in possession of the Methamphetamine he was said to have.

• At approximately 6:18pm on August 28, 2014, Sergeant Taylor then relayed the above information received from the confidential informant to D.C. Schuurman and D.C. Gray, who both were in the Stratford police station on George Street, (near its intersection with Downie Street), and who both were dispatched to the relevant downtown area of Stratford to look for Mr Simpson. Sergeant Taylor also provided the two detectives with instructions to monitor Mr Simpson’s movements on the way to his residence, (identified by Sergeant Taylor by reference to a specific address on Wellington Street near Allen’s Alley), to determine whether or not Mr Simpson would be meeting with anyone else along the way. If there was such a meeting, the detectives were to arrest Mr Simpson and whomever he was meeting with, if they formed reasonable grounds to believe that such an arrest was appropriate. If there was no such meeting, the detectives were to arrest Mr Simpson in any event before he got inside his residence, as a search warrant otherwise then would be required and the drugs or “product” Mr Simpson was thought to be carrying would likely be “gone”. Sergeant Taylor confirmed that, in either scenario, Mr Simpson was going to be arrested by the detectives. Sergeant Taylor also confirmed that the information received from the confidential informant was the sole basis for his instructions in that regard. For example, Mr Simpson had not been the subject of any recent surveillance that played any role in Sergeant Taylor’s decision.

• I should note that, in his testimony, D.C. Schuurman felt sure that the information provided by Sergeant Taylor included an indication that Mr Simpson would be walking with a dog, which in turn might suggest that such an indication formed part of the information supplied to Sergeant Taylor by the confidential informant. However, that was not the evidence of Sergeant Taylor, who refreshed his memory by making reference to his contemporaneous notes, yet mentioned nothing about the C.I. having made any reference to Mr Simpson walking a dog. Similarly, in his testimony, D.C. Gray recalled Sergeant Taylor saying that a confidential informant had indicated Mr Simpson was in the area of Douro Street, and believed to be going to his home near Allen’s Alley in possession of Methamphetamine, but his recollection included no memory of Sergeant Taylor mentioning that Mr Simpson would be walking with a dog. Nor did the contemporaneous notes made by D.C. Schuurman and D.C. Gray make any reference to Sergeant Taylor having indicated that Mr Simpson would be with a dog. In that regard, D.C. Schuurman emphasized that his notes admittedly were incomplete, insofar as they only record Sergeant Taylor having indicated that Mr Simpson was in possession of Methamphetamine, despite D.C. Schuurman’s independent memory that the information provided to him by Sergeant Taylor included indications that Mr Simpson would be walking along Douro Street, with a dog, and towards Mr Simpson’s residence at a specified Wellington Street address near Allen’s Alley, in possession of Methamphetamine. D.C. Gray similarly acknowledged and emphasized that his notes were incomplete, insofar as they only make reference to Sergeant Taylor saying that Mr Simpson was in possession of “a controlled substance” in the area of Douro Street, despite D.C. Gray’s independent memory that the information provided by Sergeant Taylor also included an express mention of Methamphetamine, and indications that Mr Simpson would be heading along Douro Street towards his residence on Wellington Street near Allen’s Alley. In my view, having regard to the evidence as a whole, the information provided to the detectives by Sergeant Taylor clearly went beyond that recorded in the separate notes of D.C. Schuurman and D.C. Gray, as their subsequent movements make it clear that D.C. Schuurman knew to look for Mr Simpson on Douro Street, D.C. Gray immediately went to wait near Mr Simpson’s Wellington Street address to intercept his anticipated arrival there, and D.C. Schuurman similarly knew he should proceed to the same location and wait for Mr Simpson after losing sight of him. However, there are no similar reasonable inferences capable of being drawn in relation to whether Sergeant Taylor included an indication, to the detectives, that the confidential informant also had mentioned that Mr Simpson would be walking with a dog. On the whole, I find that D.C. Schuurman, while generally a credible and reliable witness, was mistaken on that particular point, and unintentionally allowed his memory of subsequent events and observations to supplement his memory of the information originally supplied by Sergeant Taylor. In particular, I think it unlikely that Sergeant Taylor would have failed to recall or mention in his testimony that the information provided by the confidential informant included an indication that Mr Simpson was walking with a dog, and there is no evidence of any other basis on which Sergeant Taylor would have had such current information to supply to detectives Schuurman and Gray.

• Returning to the events of the evening in question, at the time of the two detectives receiving their aforesaid instructions from Sergeant Taylor:

o D.C. Schuurman had been working with the Stratford Police for approximately 5 years, and had been assigned to the SCU for approximately 8 months. D.C. Schuurman also already knew who Mr Simpson was, as the result of prior dealings with Mr Simpson during D.C. Schuurman’s time with the Stratford Police.

o D.C. Gray had been working with the Stratford Police for approximately 15 years, and had been assigned to the SCU since 2013. D.C. Gray also already knew Mr Simpson, as a result of previous investigations and dealings with Mr Simpson during D.C. Gray’s time as a uniformed patrol officer.

• Within minutes of receiving the aforesaid information and instructions from Sergeant Taylor, D.C. Schuurman and D.C. Gray both left the police station in separate “undercover” vehicles. D.C. Gray went directly to the area of Allen’s Alley and its intersection with Wellington Street, where Mr Simpson lived and was thought to be heading. In particular, D.C. Gray parked his vehicle on Wellington Street just south of the entrance to Allen’s Alley, (with a view to preventing Mr Simpson from entering his residence if he approached, as anticipated, from the direction of Douro Street), and waited there. D.C. Gray believes he arrived at the location within minutes of receiving the aforesaid information and instructions from Sergeant Taylor. Meanwhile, D.C. Schuurman went to Douro Street to look for Mr Simpson. After travelling just 3-4 blocks from the police station, D.C. Schuurman observed Mr Simpson walking a dog (a Jack Russell terrier) on the sidewalk along Douro Street, near its intersection with Front Street. D.C. Schuurman then continued his observations of Mr Simpson, while sharing them with D.C. Gray by radio.

• In particular, D.C. Schuurman watched Mr Simpson and the dog proceed west on Douro Street for a block, before turning north on Nile Street for a block, before then turning west on Grange Street, heading towards its terminus one block to the west at a “T” intersection with Waterloo Street. Throughout this time, Mr Simpson was walking the dog on a leash, at a normal pace, and was not seen entering any buildings or speaking on a telephone. D.C. Schuurman then temporarily lost sight of Mr Simpson and the dog during a change of location, and proceeded west in his undercover vehicle to the intersection of Wellington Street and Market Square, where he parked and waited one block north of Mr Simpson’s Wellington Street residence near Allen’s Alley, where D.C. Gray was already waiting in his separate vehicle.

• While waiting at that location, D.C. Schuurman and D.C. Gray both then independently saw Mr Simpson and the dog come back into view, near the LCBO, walking on the east side of Wellington Street, approximately 50 feet to the south of its intersection with Allen’s Alley. (I note in passing that these various locations I have been describing, and the observed route taken by Mr Simpson, are depicted in detail in the maps entered at trial as Exhibits 3 and 4.) By radio, D.C. Gray confirmed his sighting of Mr Simpson, and expressed the view that Mr Simpson would be at his residence within moments.

• D.C. Schuurman then exited his vehicle, (after advising D.C. Gray by radio that he was doing so), and walked south on Wellington Street as Mr Simpson and the dog were crossing to the sidewalk on the west side of that street and moving north, nearing Mr Simpson’s Wellington Street residence. At that point, (approximately 6:30pm), D.C. Schuurman approached and took hold of Mr Simpson by his right arm, (on the sidewalk of Wellington Street close to the Allen’s Alley entrance and a number of nearby stores), advising Mr Simpson that he was under arrest for possession of a substance.

• D.C. Schuurman says he arrested Mr Simpson at that point because it was the safest location for that to be done. He also confirmed that the grounds he relied upon in making the arrest were the grounds relied upon by Sergeant Taylor, (his superior and unit supervisor), who directed the making of the arrest. However, D.C. Schuurman added that the information provided to him by Sergeant Taylor also was consistent with D.C. Schuurman’s personal observations of Mr Simpson’s original location on Douro Street, and Mr Simpson’s direction of travel towards his residence.

• Intending to arrest Mr Simpson, (based on the information and instructions provided by Sergeant Taylor, as well as D.C. Gray’s own prior personal knowledge of Mr Simpson’s involvement in Stratford’s drug culture), D.C. Gray had exited his vehicle at almost the same time as D.C. Schuurman had exited his, and joined D.C. Schuurman and Mr Simpson shortly after the latter was arrested. (D.C. Gray was close enough to hear D.C. Schuurman inform Mr Simpson that he was under arrest.) D.C. Gray then placed Mr Simpson in handcuffs while stepping on the leash of the dog, and restraining it thereafter, to prevent it from running away. No difficulties were encountered during the making of the arrest or handcuffing of Mr Simpson, who was appropriately submissive, and made no attempt to flee. No excessive force was required or used during the course of the arrest and detention. D.C. Schuurman cautioned Mr Simpson and advised him of his rights, including the right to counsel. Mr Simpson confirmed that he understood, (indicating that he wished to speak with a specifically named lawyer), but also repeatedly indicated: “I don’t have anything on me.” D.C. Schuurman then called the police dispatcher, to request attendance of a uniform police vehicle to transport Mr Simpson back to the police station.

• Immediately after the arrest and handcuffing, and while waiting for the uniform vehicle to arrive, D.C. Schuurman and D.C. Gray also carried out an initial search of Mr Simpson’s person, pockets and backpack, incident to arrest, in order to look for weapons and evidence. In particular, the detectives wanted to ensure that Mr Simpson had nothing in his possession that might be used to harm the officers or himself, but also believed, (based on the information supplied by the confidential informant and relayed by Sergeant Taylor), that Mr Simpson was in possession of a controlled substance. While the backpack contained a cellular phone and an “I-pad”, the preliminary search at the location of Mr Simpson’s arrest revealed no weapons or illegal substances. However, the detectives contemplated making a more thorough search for the controlled substance thought to be in Mr Simpson’s possession once Mr Simpson had been taken back to the police station. In that regard, D.C. Gray in particular emphasized that, based on his experience investigating drug offences in Stratford, it is only the “odd time” in which pat down searches, (which may include the turning out of pockets but otherwise not going under a person’s clothes in a public area), reveal the presence of controlled substances. That is because those carrying such substances usually conceal the drugs in places where they are unlikely to be found during a pat down search; e.g., in the person’s body, underwear, or other “hard to reach spot”. The detectives therefore intended to conduct a more thorough search back at the police station, rather than in public, because it was felt that Mr Simpson deserved privacy.

• While the aforesaid preliminary search was being conducted, Mr Simpson voiced concerns about what would happen to the dog, and indicated that he wanted the dog to be taken upstairs and put inside his apartment. When D.C. Schuurman indicated that was not going to happen, (as the police had no idea who might be in the apartment, and D.C. Schuurman thought the safest course was simply to take the dog back to the police station and deal with it there), Mr Simpson asked that the Ontario Society for the Prevention of Cruelty to Animals (OSPCA) be called to take the dog. D.C. Gray indicated that such requests seemed “very odd” and unusual, based on his experience of those being arrested in possession of cats and dogs normally asking for such animals to be brought along with them, whereas Mr Simpson seemed intent on leaving the dog behind. Certainly, a request from a pet owner to have his or her pet taken by the OPSCA seemed “out of the ordinary”.

• A uniformed officer, (Constable Pender), then arrived at the scene in a police cruiser, approximately 10 minutes after the initial arrest. The dog was placed in the front of the cruiser by D.C. Gray. Mr Simpson was placed in the rear of the cruiser, and transported to the police station, still in handcuffs. On arrival at the police station, Mr Simpson initially was taken to a locked cell block area, located towards the rear of the building.

• From there, Mr Simpson was taken to one of the search rooms there, where D.C. Schuurman, with the assistance of D.C. Gray, (both of whom had returned to the nearby police station), then conducted a “full body search” or “strip search” of Mr Simpson. In particular, Mr Simpson was instructed to successively remove each item of his clothing himself, with each item then being checked by the detectives to see whether there was anything inside of it. All items of clothing eventually were removed and searched, before being returned immediately to Mr Simpson. However, I accept D.C. Gray’s testimony and assurance that Mr Simpson was never completely naked at any point during the search, pursuant to the officer’s standard practice of permitting those undergoing such a search to remove their upper clothing and lower clothing in sequence, with the person also being permitted to put searched upper clothing items back on before removing their lower clothing items, and vice versa. D.C. Schuurman and D.C. Gray each indicated that the search was carried out in that separate room, by two male officers with no one else present, to determine whether Mr Simpson was in possession of any illegal substances while respecting his privacy. In that regard, D.C. Schuurman initially indicated at trial that the search was carried out to determine whether there were any such substances “on or in” Mr Simpson’s person. However, D.C. Schuurman then clarified and confirmed that no search was made of the interior of Mr Simpson’s mouth, or any other part of his body. In particular, while Mr Simpson’s clothing was being progressively removed and restored, the search of his person by the police did not go beyond a completely visual inspection. No force was used, and no physically invasive searching was performed.

• The further search of Mr Simpson, described above, lasted approximately 10 minutes and did not result in the discovery of any narcotics.

• Following that additional search, D.C. Schuurman followed his usual practice in such arrests, and advised Mr Simpson a second time of his rights to counsel. Shortly thereafter, (at approximately 6:53pm or 6:55pm), a call was placed to another lawyer specified by Mr Simpson, and Mr Simpson was able to connect with and speak to that lawyer.

• In the meantime, D.C. Gray informed Sergeant Taylor that the searches of Mr Simpson had not resulted in the discovery of any controlled substance.

• At that point, Sergeant Taylor once again became actively involved in the matter by asking another officer, (Constable Lang), to search the dog Mr Simpson had with him at the time of his arrest. With Sergeant Taylor still present, Officer Lang performed that additional search, removing a harness device, (depicted in Exhibit 2A), which was wrapped around the dog and came up towards its back. In removing the harness, Officer Lang detected something hard located inside, up towards the front area near the dog’s collar. Further examination of the harness then revealed the presence of a small “cut” on the upper inside of the harness, (i.e., the side immediately adjacent to the dog during use of the harness), within which was a small clear plastic bag, (also depicted in Exhibit 2A), containing 7.8 grams of Methamphetamine. (The precise weight was determined later by D.C. Gray who, in his role as the exhibits officer, received and photographed the dog harness and drugs, and weighed the Methamphetamine using a digital scale, before logging the items in evidence.)

Analysis

[17] With the above evidence and principles in mind, I turn to consideration of the sole count on the indictment, which as finally amended reads as follows:

That on or about the 28^th day of August, 2014, at the City of Stratford, in the Southwest Region, in the Province of Ontario, did possess a substance included in Schedule 1 of the Controlled Drugs and Substances Act, to wit: Methamphetamine, contrary to s.4(1) of the said Act.

[18] For me to find Mr Simpson guilty of the offence charged, Crown counsel must prove, beyond a reasonable doubt, each of the following essential elements of the offence:

i. that Mr Simpson was in possession of a substance;

ii. that the substance was Methamphetamine; and

iii. that Mr Simpson knew the substance was Methamphetamine.

[19] In relation to the first essential element of the offence, a person may have a substance in his or her possession in a number of different ways, only one of which is actual physical possession of a substance; e.g., by holding it in his or her hand, or by keeping it in his or her pocket. Generally, a person who has actual physical control of a substance has that substance in his or her possession. It does not matter how long a person has a substance in his or her possession, as long as I am satisfied beyond a reasonable doubt that the requirements of possession have been met. In this context, “substance” has its ordinary meaning, and generally means any material thing, in any form.

[20] In relation to the second essential element of the offence, a controlled substance is any substance that a person cannot legally buy, sell or possess without government authorization. Pursuant to the CDSA and its Schedules, Methamphetamine is a controlled substance.

[21] In relation to the third essential element of the offence, the focus is on the accused’s knowledge of the nature of the substance; i.e., on whether the accused knew that the substance in question was indeed the controlled substance specified in the indictment. In that regard, “knowledge” is a state of mind, and in particular, the accused’s state of mind. Crown counsel may prove the requisite knowledge of the accused in a number of different ways; e.g., by proving that the accused actually knew or was aware that the substance in question was that specified in the indictment, or that the accused was aware of the need to make an inquiry about the nature of the substance but deliberately failed to do so because he or she did not want to know the truth about it.

[22] With those general considerations in mind, I turn to the specifics of this case, and a consideration of whether the Crown has proven the essential elements of the charge against Mr Simpson beyond a reasonable doubt.

[23] In doing so, I nevertheless intend to consider, as a threshold matter, the Charter issues raised by the defence.

[24] In particular, if certain evidence should be excluded pursuant to a successful Charter application by Mr Simpson, on the alternative grounds outlined above, that issue should be addressed and resolved before making determinations as to whether the Crown has presented admissible and reliable evidence sufficient to prove the essential elements of the alleged offence beyond a reasonable doubt.

GENERAL PRINCIPLES – SECTIONS 8 AND 9

[25] Before turning to a more detailed assessment of whether or not Mr Simpson has satisfied his general onus of proving, on a balance of probabilities, that his section 8 and/or 9 Charter rights were violated, I pause to note a number of general principles relevant to the application of sections 8 and 9 of the Charter, in order to provide a general framework for that analysis.

[26] In relation to section 8 of the Charter, general principles and considerations include the following:

• Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures, which extends at least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches be prevented. It may not be reasonable in every instance to insist on a prior authorization order to validate governmental intrusions upon individuals’ expectations of privacy. For example, exigent circumstances may require immediate action for the safety of police and/or to secure and protect evidence. However, prior authorization, where feasible, is a precondition for a valid search and seizure. It follows that warrantless searches are ordinarily inconsistent with section 8 of the Charter, and prima facie unreasonable under section 8. Although the burden of establishing violation of a Charter right normally is upon the accused, a party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness. See Canada v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Brown, [1996] O.J. No. 704 (C.A.), at paragraph 3; and R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at paragraph 52.

• In that regard, a warrantless search will respect section 8 if the search is authorized by law, and both the law and the manner in which the search is conducted are reasonable. See R. v. Feeney, supra, at paragraph 46.

• However, the long-standing common law power of “search incident to arrest” is an exception to the general rule that a search conducted without prior authorization is presumptively unreasonable. That common law power is regarded as “eminently sensible”, and “essential for the protection of police officers carrying out their all too often dangerous duties”. See: R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at paragraph 33; R v. Golden (2001), 2001 SCC 83, 159 C.C.C. (3d) 449 (S.C.C.), at p.488; and R. v. Blazevic, [2010] O.J. No. 67 (S.C.J.) at paragraph 80.

• In particular, at common law, after making a lawful arrest, a police officer has the right to search the person arrested and take from his person any property reasonably believed to be connected with the offence charged, or which might be used as evidence against the person arrested on the charge, or any weapon or instrument that might enable the arrested person to commit an act of violence or effect his escape. See, for example: R. v. Rao, 1984 CanLII 2184 (ON CA), [1984] O.J. No. 3180 (C.A.), at paragraph 38; R. v. Morrison (1987), 1987 CanLII 182 (ON CA), 35 C.C.C. (3d) 437 at p.442 (Ont.C.A.); and R. v. Tomaso (1989), 1989 CanLII 9947 (ON CA), 70 C.R. (3d) 152 (Ont.C.A.), at p.160.

• That automatic right of police officers to search incident to lawful arrest, and seize anything in the arrested person’s possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape, or provide evidence against him, arises at common law but has survived introduction of the Charter. That common law right must nevertheless be exercised in a manner consistent with the fundamental values enshrined in the Constitution. To that end:

o The search must be for a valid objective in pursuit of the ends of criminal justice, (such as the discovery of an object that may be a threat to the safety of the police, the accused or public, or that may facilitate escape or act as evidence against the accused). Such searches, made incidentally to arrest and justified, are not limited by necessity.

o The purpose of the search must not be unrelated to the objectives of the proper administration of justice, (which would be the case, for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions).

o The search also must not be conducted in an abusive or unreasonable fashion. In particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.

See Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at paragraphs 49, 56, and 61-62.

• Moreover, if the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of that doctrine must be respected. The most important of those limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier v. Langlois, supra, (i.e., protecting the police, protecting the evidence, and discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. See Cloutier v. Langlois, supra, at paragraph 59; and R v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paragraphs 19-20 and 25.

• If a search is carried out incident to an arrest that is found to be unlawful, the search will be unreasonable and therefore constitute a breach of an individual’s section 8 right to be free from unreasonable search and seizure. See: R. v. Iaboni, [2003] O.J. No. 3805 (O.C.J.), at paragraphs 51 and 71; R v. Mohamad (2004), 2004 CanLII 9378 (ON CA), 69 O.R. (3d) 481 (C.A.), at paragraph 28; R v. Cunsolo, [2008] O.J. No. 3743 (S.C.J.), at paragraph 102; and R. v. Williams, [2008] O.J. No. 4404 (S.C.J.), at paragraph 34.

[27] Applicable general principles relating to section 9 of the Charter include the following:

• While section 9 provides that everyone has the right “not to be arbitrarily detained”, it is well recognized that a lawful detention is not “arbitrary” within the meaning of that provision. See: R. v. Mann, 2004 SCC 52, [2004] S.C.J. No. 49, at paragraph 20; and R. v. Clayton, 2007 SCC 32, [2007] S.C.J. No. 32, at paragraphs 20-21. On the other hand, an “arbitrary” detention includes an unlawful arrest and the detention that follows upon an unlawful arrest. See: R. v. Grant, supra, at paragraphs 55 and 57; and R. v. Jarrett, [2011] O.J. No. 5330 (S.C.J.), at paragraphs 16 and 18.

• Although it generally has been recognized that the onus is on an accused to demonstrate that his or her detention was unlawful, the onus is on the Crown to show that the objective facts rise to the level supporting a lawful detention. See R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paragraph 45, and R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225 (S.C.J.), at paragraph 83(3).

• A police officer may lawfully arrest an individual without a warrant if the officer has subjective and objective grounds to make the arrest. In particular, the Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest, (which requires the officer to have an honest belief, supported by objective facts, that the suspect has committed or is about to commit a criminal offence). However, those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they do not require proof beyond a reasonable doubt, a prima facie case for conviction, or even proof on a balance of probabilities, before making the arrest. See R. v. Storrey, [1990] 1. S.C.R. 241, at paragraph 17; R. v. Hall, 1995 CanLII 647 (ON CA), [1995] O.J. No. 544 (C.A.), at paragraph 34; R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at paragraph 51; R. v. Jacobson, 2006 CanLII 12292 (ON CA), [2006] O.J. No. 1527 (C.A.), at paragraph 22; R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at paragraph 26; and R. v. Loewen, 2010 ABCA 255, [2010] A.J. No. 980 (C.A.), at paragraph 18, affirmed 2011 SCC 21, [2011] S.C.J. No. 100.

• Determining the existence of reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances, but rather a common sense and non-technical approach. It necessarily is a qualitative standard, upon which reasonable people can differ in some cases. See: R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767 (C.A.), at paragraphs 52-54, affirmed 2011 SCC 32, [2011] S.C.J. No. 32; R. v. Chehil, supra, at paragraphs 29 and 62; and R. v. Amare, supra, at paragraph 83(7).

• The fact that an experienced police officer has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable. See R v. Luong, 2010 BCCA 158, [2010] B.C.J. No. 918 (C.A.); R. v. Biccum, [2012] A.J. No. 234 (C.A.), at paragraph 21; R. v. Chehil, supra, at paragraph 47; and R. v. Amare, supra, at paragraph 83(3).

• Determining whether reasonable and probable grounds exist is a fact-based exercise, which depends on all the circumstances of the case. The totality of the circumstances relied upon by the arresting officer, including the dynamics within which the officer acted, and his or her knowledge and experience, (which entitle the officer to draw inferences and make deductions drawing on that experience), will form the basis of the objective assessment as to whether there were reasonable and probable grounds for an arrest. In making that assessment in any given case, trial judges should not engage in after-the-fact dissection of an officer’s grounds, and individual facts and observations, considered in isolation. Trial judges also must appreciate that arrests often are made in a fast-moving, dynamic and/or volatile situation without the benefit of lengthy reflection. The law does not expect the same kind of inquiry of a police officer deciding to make an arrest that it demands of a justice faced with an application for a search warrant. Moreover, what may appear innocent to the general public may have a very different meaning to a police officer experienced in drug-related matters. See: R. v. Polashek (1999), 1999 CanLII 3714 (ON CA), 134 C.C.C. (3d) 187 (Ont.C.A.); R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.), at paragraph 4; R. v. Juan, 2007 BCCA 351, [2007] B.C.J. No. 1402 (C.A.), at paragraph 27; R v. Cunsolo, supra, at paragraph 68(6); R. v. Palmer, [2010] O.J. No. 4739 (S.C.J.), at paragraph 21; and R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.), at paragraphs 54 and 55.

• 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. See R. v. Golub, 1997 CanLII 6316 (ON CA), [1997] O.J. No. 3097 (C.A.), at paragraph 21. However, the officer is not required to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. See R. v. Chehil, supra, at paragraphs 34 and 67, and R. v. Amare, supra, at paragraph 83(11).

• 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. If a peace officer is relying on an order or direction from another officer, the undertaking of an independent assessment as to whether a suspect should be arrested is not necessary. See R. v. Debot, [1989] S.C.J. No. 188, at paragraph 49-50; R. v. Cunsolo, supra, at paragraph 68(9); and R. v. Amare, supra, at paragraph 83(14).

[28] In determining whether reasonable and probable grounds exist to carry out a search or effect an arrest, police officers not infrequently act upon hearsay information received from a confidential informant. General principles in that regard include the following:

• Hearsay statements of an informant can provide reasonable and probable grounds, although evidence of a tip from an informer, by itself, is insufficient. See R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.), at p.191.

• In weighing such evidence relied upon by the police, (to establish reasonable and probable grounds and justify a warrantless search), reliability of a “tip” is to be assessed by recourse to “the totality of the circumstances”. Relevant considerations in that regard include whether the information was compelling, credible and corroborated. Weaknesses in one such area may, to some extent, be compensated by strengths in the other two. See: R. v. Debot, supra, at paragraph 53; and R. v. Garofoli, supra, at p.191.

• In determining whether such information is “compelling”, courts have regard to considerations such as: whether the information is current; whether it goes beyond “mere rumour or gossip”, and/or “bald conclusory statements”, to provide specific information and details; and the informant’s source of knowledge or basis for his or her assertions, (with first-hand or direct knowledge of the relevant facts being more compelling). The fewer the details, the greater the risk of innocent coincidence, a false tip, and reliance on rumour, gossip and speculation. Similarly, reliability of an informant’s information is diminished by an absence of any sense as to how the informant acquired his or her information. See: R. v. Debot, supra, at paragraph 54; R. v. Garofoli, supra, at p.191; R. v. Lewis (1998), 1998 CanLII 7116 (ON CA), 122 C.C.C. (3d) 481 (Ont.C.A.), a p.490; R. v. Sutherland (2001), 2000 CanLII 17034 (ON CA), 150 C.C.C. (3d) 231 (Ont.C.A.); R. v. Zammit (1993), 1993 CanLII 3424 (ON CA), 81 C.C.C. (3d) 112 (Ont.C.A.), at pp.120-121; and R. v. Amare, supra, at paragraph 84(2). A tip can be compelling even if it contains some inaccuracies. See R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 (C.A.), at p. 123.

• In determining whether such information is “credible”, courts have regard to considerations such as: whether the informant is anonymous or known and identified, (which exposes the informant to the jeopardy of being charged with public mischief or obstruction of justice for deliberately misleading the police); the basis on which the informant provides information, (with first-hand knowledge being more credible); whether any benefit was sought or promised or actually given in exchange for the information; whether the informant has any charges or investigation pending against him, and/or convictions for crimes of dishonesty such as perjury or obstruction of justice; and whether or not the informant is an “untried” and “untested” source, or someone who has a track record of providing information to the police that has proved to be accurate, reliable and truthful in the past. See: R. v. Debot, supra, at paragraphs 54 and 59; and R. v. Amare, supra, at paragraphs 8-9 and 84(3).

• In determining whether such information is “corroborated”, courts have regard to considerations such as the results of police surveillance. It is not necessary for the police to confirm each detail in an informant’s tip, or to confirm the commission of the alleged crime itself. However, actual observations should conform sufficiently to the provided information to remove the possibility of innocent coincidence, and there should be confirmation of something material within the communicated information as opposed to routine or commonly available facts. Moreover, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided, and the risk of innocent coincidence is greater. See: R. v. Debot, supra, at paragraph 63; R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342 (C.A.), at paragraph 23, affirmed 2008 SCC 65, [2008] S.C.J. No. 66, at paragraph 2; and R. v. Amare, supra, at paragraph 84(4).

• Reputation alone will never provide reasonable grounds, but the past activities of a suspect are also not irrelevant, provided the reputation is related to the ostensible focus of the investigation, and its veracity is based on police familiarity with the suspect rather than hearsay, (in which case its veracity cannot be assumed). See R. v. Debot, supra, at paragraphs 56-58 and 63.

[29] With the above principles in mind, I will turn to an assessment of whether there have been breaches of the section 8 and/or 9 Charter rights of Mr Simpson in this case.

STANDING

[30] Before doing so, I pause briefly to note my independent agreement with submissions made by defence counsel, and accepted by Crown counsel, that regardless of ownership of the dog Mr Simpson was controlling on a leash at the time of his arrest, Mr Simpson had a sufficient reasonable expectation of privacy in relation to the animal and its harness to give Mr Simpson standing to bring his Charter application.

[31] In my view, a reasonable expectation of privacy in relation to such a “place”, (i.e., the harness of a dog being walked on leash down public streets), pales in comparison with the reasonable expectations individuals understandably may have in relation to the sanctity of their “home” or “dwelling house”, or the perimeter space around their home, which lie at or near the top of the “hierarchy” or “spectrum” of territorial privacy expectations described by the Supreme Court of Canada in cases such as R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at paragraph 140, R. v. Feeney, supra, at paragraph 43, and R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paragraph 22.

[32] In particular, like the ownership and operation of vehicles on public streets, dog ownership and the control of dogs in public places are voluntary activities subject to state regulation, control and monitoring. Moreover, unlike vehicles, dogs inherently are capable of independent movement that may bring them into contact with others, and/or place them temporarily beyond the control of their owners and controllers from time to time without any intention of abandonment.

[33] Furthermore, in most situations, there would seem to be very little about a publicly displayed dog and its harness inherently capable of exposing any intimate details of the lifestyle of its owner or controller, or that person’s biographical information.

[34] However, for present purposes, applying the criteria outlined by the Supreme Court of Canada in R. v. Tessling, supra, at paragraph 32, and having regard to the totality of the circumstances, I am satisfied on balance that Mr Simpson had a diluted but sufficient reasonable expectation of privacy in the dog he was controlling, and its harness, to give him standing to bring his Charter application in relation to a search of those “places” by the police.

[35] Without limiting the generality of the foregoing:

• Regardless of whether Mr Simpson owned the dog or not, he had a direct interest in the dog and its harness, as the person controlling the animal.

• In my view, the dog-related requests made by Mr Simpson to the police, following Mr Simpson’s arrest, reflect a subjective expectation that he had the ability to control the dog and its disposition, which in turn reflect a subjective expectation of privacy in relation to the dog and, at least, the interior of its harness.

• Similarly, in my view, such an expectation was objectively reasonable, although the level of privacy to be reasonably expected was considerably less than an individual might expect in relation to other “places”, such as a home or the perimeter space around a home. Certainly, the interior of the dog’s harness was not in public view, had not been abandoned, and was incapable of being removed and examined without a measure of intrusion by third parties, which a dog’s controller normally would be able to disallow or lawfully resist.

[36] As Mr Simpson has standing to bring his Charter application, I therefore return to an assessment of whether there have been breaches of the section 8 and/or 9 Charter rights of Mr Simpson in this case.

CHARTER BREACH - ANALYSIS

[37] In my view, counsel generally and correctly placed the primary focus on whether there were reasonable and probable grounds for the arrest of Mr Simpson, as that determination effectively forms a significant linchpin of each side’s further desired analysis. In particular:

• If such grounds existed, and it accordingly was a lawful arrest, there was no arbitrary detention giving rise to a section 9 breach, and a proper search incident to arrest of Mr Simpson’s person and possessions, (including the dog he was controlling on a leash), was lawful and reasonable, such that there was no breach of section 8 either. If so, there is no basis for the application of s.24(2) of the Charter.

• Conversely, if such grounds did not exist, the arrest was unlawful and therefore arbitrary, (giving rise to a section 9 breach), and the warrantless search incident to an unlawful arrest was in turn unlawful and unreasonable, (giving rise to a section 8 breach). If so, s.24(2) analysis is required to determine whether the drugs found during the unlawful search should be excluded.

[38] Given that reality, the logical starting point for my analysis is not section 8, but the question of whether or not there was a contravention of the section 9 Charter right of Mr Simpson to be free from arbitrary detention.

[39] As noted above, a detention will not be characterized as “arbitrary” if it is lawful, as it would be in the case of a lawful arrest; i.e., an arrest based on “reasonable and probable grounds” in the sense demanded by the authorities.

[40] In my view, at the relevant time, and having regard to the totality of the circumstances, there were reasonable and probable grounds, both subjectively and objectively, to arrest Mr Simpson for possession of an illicit substance.

[41] Although the actual arrest was carried out by D.C. Schuurman, (with the immediate assistance of D.C. Gray), I think the proper focus for “reasonable and probable grounds” analysis should be on Sergeant Taylor, insofar as D.C. Schuurman and D.C. Gray were relying largely upon Sergeant Taylor’s decision and directions. Again, see R. v. Debot, [1989] S.C.J. No. 188, at paragraph 49-50; R. v. Cunsolo, supra, at paragraph 68(9); and R. v. Amare, supra, at paragraph 83(14).

[42] Counsel for Mr Simpson conceded that Sergeant Taylor, (and the detectives acting on Sergeant Taylor’s instructions), had an honest belief in the existence of reasonable and probable grounds for directing the arrest of Mr Simpson.

[43] However, I independently accept the testimony of Sergeant Taylor in that regard, and find that he had an honest belief that Mr Simpson had committed the offence of possession of an illicit substance, based on the information available to him at the time. In particular, his belief in that regard was not simply based on a “hunch”. Rather, it was based on his interpretation of available facts, which was informed by his training, knowledge and experience, including his pre-existing familiarity with Mr Simpson and knowledge of Mr Simpson’s residence.

[44] Similarly, I independently accept the testimony of detectives Schuurman and Gray that they had a similar honest belief, based on their conversation with Sergeant Taylor and their subsequent independent observations.

[45] The subjective component of “reasonable and probable grounds” required to effect a lawful arrest therefore was satisfied when Sergeant Taylor directed D.C. Schuurman and D.C. Gray to apprehend Mr Simpson if they observed either of the scenarios described above; i.e., Mr Simpson walking along Douro Street and then towards his residence while meeting someone en route, or Mr Simpson walking along Douro Street and then towards his residence without meeting anyone.

[46] As for the required objective component of “reasonable and probable grounds”, having regard to the totality of the circumstances, I find that the grounds relied upon by Sergeant Taylor in directing the arrest of Mr Simpson for possession of a controlled substance also were justifiable from an objective point of view; i.e., in the sense that a reasonable person, placed in the position of Sergeant Taylor, and possessed of the same information, training, knowledge and experience, would conclude that there were indeed reasonable and probable grounds for the arrest.

[47] Without limiting the generality of the foregoing, my considerations in that regard include the following:

• In my view, various considerations support characterization of the confidential informant’s information as compelling. In particular:

o I agree with defence counsel that a necessary corollary of the police choosing to withhold details of how the relevant confidential informant acquired his or her information makes it inherently less compelling than it otherwise might have been; e.g., in comparison to situations where the nature of the information supplied by the confidential information makes it absolutely clear that he or she was reporting direct observations and first-hand knowledge.

o However, it also seems to me that the confidential informant provided some very specific details inherently making it clear that the information being supplied went beyond mere rumour and gossip, and/or bald conclusory statements. For example, the confidential informant did not make vague or general references to an unidentified person possibly having some unknown quantities of unspecified illicit drugs in unspecified locations from time to time. To the contrary, Sergeant Taylor was being told that a specifically identified person was in a specific location, in possession of a specified quantity of a specified narcotic, and travelling in a specified way with that narcotic to another specified location.

o As emphasized by defence counsel, Sergeant Taylor declined to reveal expressly the precise time at which he was contacted by the confidential informant on the evening in question, in an effort to help protect that person’s identity. However, I reject defence counsel’s suggestion that there accordingly is no way of telling whether or not the information being provided by the confidential informant was current, and whether or not it actually may have referred to Mr Simpson walking on Douro Street towards his residence in downtown Stratford on some earlier occasion, as much as two hours before Mr Simpson’s arrest. In my view, despite his efforts at discretion, the answers Sergeant Taylor did give, coupled with evidence of his actions and those of the two detectives he instructed that evening, effectively made it clear that the information being supplied by the confidential informant was current, and provided just a short time before Sergeant Taylor spoke with D.C. Schuurman and D.C. Gray at approximately 6:18pm, (and therefore shortly before Mr Simpson was arrested). In my view, there is no other reasonable inference to be drawn from Sergeant Taylor’s confirmation that Mr Simpson was in the process of walking along Douro Street on his way to his Wellington Street address, and Sergeant Taylor reacting to that information by dispatching two detectives with immediately executed instructions to look for Mr Simpson on Douro Street and prevent him from reaching his residence.

• Similarly, in my view there are numerous considerations indicating that the confidential informant relied upon by Sergeant Taylor was credible. For example:

o The informant in question was not anonymous, but someone known to Sergeant Taylor.

o The informant also was known to be addicted to Methamphetamine, meaning that he or she necessarily would be actively involved in the area’s drug sub-culture, and familiar with activity relating to the possession and supply of Methamphetamine.

o The informant was not untried or untested, but had a proven track record of consistently providing information to the police that was accurate and reliable.

o Moreover, the informant was not just credible in the general sense of having provided reliable information to the police in the past. He or she had always provided drug-related information in the past, and on this occasion his or her tip also related to drugs.

o The informant had no criminal antecedents suggesting dishonesty.

o It also was very much in the interest of the confidential informant to provide accurate information to the police, as it was understood that consideration would be provided by the police, in return, only for the supply of correct information. Moreover, as the confidential informant was not anonymous but known to Sergeant Taylor, provision of false information would expose the informant to potential prosecution for misleading the police.

• As for corroboration of the information provided by the confidential informant and relied upon by Sergeant Taylor:

o As noted above, while the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed, (as in the case of an anonymous informant), or where fewer details are provided, and the risk of innocent coincidence is greater, in this case the informant was not anonymous but known to the police, and he or she was providing the sort of specific details one might expect in relation to a case of simple possession of a narcotic, (as opposed to situations involving the manufacture or trafficking of narcotics).

o Taken at face value, the testimony of Sergeant Taylor might suggest that corroboration formed no part of the reasonable and probable grounds relied upon by Sergeant Taylor in directing the arrest of Mr Simpson in either of the two contemplated scenarios he outlined to D.C. Schuurman and D.C. Gray. In particular, as noted above, Sergeant Taylor confirmed his belief, when giving instructions to D.C. Schuurman and D.C. Gray, that Mr Simpson would be arrested that evening whether he met someone en route from Douro Street to his Wellington Street residence, or immediately before entering that Wellington Street residence if he travelled there from Douro Street without such a meeting taking place. On its face, that in turn might be taken as an indication that Sergeant Taylor decided to have Mr Simpson arrested that evening regardless of whether D.C. Schuurman and/or D.C. Gray saw or found anything to corroborate the information being supplied by the confidential informant. However, that was not my impression during the course of the trial. In particular, Sergeant Taylor did not instruct the detectives to arrest Mr Simpson wherever and whenever they might find him, and no matter what he might happen to be doing. To the contrary, expressing confidence in his confidential informant’s indications of Mr Simpson’s location and intended destination, Sergeant Taylor provided the two detectives with instructions regarding Mr Simpson’s arrest that clearly contemplated a degree of surveillance, and clearly were conditional, in the sense they were premised on the detectives first observing and corroborating the accuracy of what the informant was saying, and to arrest Mr Simpson only in one of two expressly contemplated scenarios consistent with the information supplied by the confidential informant; i.e., Mr Simpson proceeding from Douro Street to his residence without meeting anyone en route, or Mr Simpson proceeding from Douro Street to his residence but stopping along that route for a meeting that suggested reasonable and probable grounds for a joint arrest.

o D.C. Schuurman and D.C. Gray then did in fact obtain such corroboration, by police investigation, before deciding to follow through on Sergeant Taylor’s conditional arrest instructions. In particular, prior to arresting Mr Simpson, the detectives were not only relying on the information and conditional instructions supplied by Sergeant Taylor, but also were able to confirm, through police investigation, that Mr Simpson was where the confidential informant said Mr Simpson would be, and proceeding towards the location to which the confidential informant said Mr Simpson intended to go.

• Based on the authorities noted above, the fact that Sergeant Taylor was a trained, experienced and knowledgeable officer actively involved in the SCU of the Stratford Police Service, and held a subjective belief in the existence of reasonable and probable grounds for the arrest based on the totality of the circumstances outlined above, in the event the detectives were able to corroborate the information supplied by the confidential informant, is in itself some additional evidence to support a conclusion that his subjective belief was objectively reasonable. Similar considerations apply, albeit to a lesser degree, to the honestly held subjective beliefs of detectives Schuurman and Gray.

[48] For the above reasons, I find that D.C. Schuurman, with the assistance of D.C. Gray, effected a lawful arrest of Mr Simpson, at the direction of Sergeant Taylor, for possession of an illicit substance, when Mr Simpson was physically detained.

[49] As there was a lawful arrest, and therefore a lawful detention, that detention of Mr Simpson cannot be regarded as arbitrary.

[50] Mr Simpson accordingly has not satisfied me, on a balance of probabilities, that there was any constitutional infringement of his section 9 Charter right not to be subjected to arbitrary detention and imprisonment.

[51] That still leaves, for formal determination, the question of whether there was a violation of Mr Simpson’s section 8 Charter right to be secure from unreasonable search and seizures.

[52] In my view, the searches of Mr Simpson’s person, and of the dog which he was controlling on a leash at the time of his arrest, which led to the discovery of the 7.6 grams of Methamphetamine, was a proper “search incident to arrest”. In particular:

i. Having lawfully arrested Mr Simpson on a charge of possession of an illicit substance, the police were entitled to search Mr Simpson and the items in his immediate surroundings, and take from his person and those items in his immediate surroundings, any property reasonably believed to be connected with the offence charged, or which might be used as evidence against Mr Simpson on that charge. In my view, the 7.6 grams of Methamphetamine found in the harness of the dog being controlled by Mr Simpson, on a leash, clearly fall within that description.

ii. In my opinion, the searches were truly incidental to the arrest, and viewed objectively, the purpose of the searches was not unrelated to the objectives of the proper administration of justice. I did not understand counsel for Mr Simpson to suggest otherwise, during the course of oral submissions. Certainly, this was not, for example, a case involving the police embarking on some form of unrelated investigation and warrantless “fishing expedition” that was not based on reasonable and probable grounds, or on a mere unsupported “hunch” that the accused might be in possession of drugs

iii. In my view, the relevant searches also were not conducted in an abusive fashion, or in anything but a reasonable manner. To the contrary, while the purpose of the searches and common practices of drug concealment warranted the successive removal and examination of Mr Simpson’s items of clothing, that was done in a manner that offered Mr Simpson as much privacy and respect as possible in the circumstances.

[53] As a valid and proper exercise of the common law power of “search incident to arrest”, the warrantless searches of Mr Simpson’s person, and the dog he was controlling on a leash at the time of his arrest, therefore were not presumptively unreasonable. To the contrary, they were reasonable, and therefore Charter compliant.

[54] In the result, Mr Simpson accordingly has not satisfied me, on a balance of probabilities, that there was any constitutional infringement of his section 8 Charter right to be free from unreasonable search and seizure.

CONSEQUENCE OF CHARTER BREACH DETERMINATION

[55] As I have found no breach of the section 8 or section 9 Charter rights of Mr Simpson, consideration of how s.24(2) of the Charter otherwise may have applied is unnecessary and inappropriate.

[56] In the absence of an established Charter breach, there is no basis for excluding evidence of the 7.8 grams of Methamphetamine found in the harness of the dog Mr Simpson was controlling on a leash at the time of his arrest, and during the observed walk leading up to his arrest.

FURTHER ANALYSIS – ESSENTIAL ELEMENTS

[57] With resolution of those Charter and admissibility issues, I turn finally to the remaining analysis required; i.e., to determine whether the Crown has proven the essential elements of the charged offence beyond a reasonable doubt. In that regard:

i. I find that Mr Simpson was in possession of the substance located within the package found in the harness of the dog. In particular:

• The harness and dog clearly were in the physical control of Mr Simpson.

• I think it clear beyond a reasonable doubt that the dog and harness belonged to Mr Simpson. When he was arrested, Mr Simpson did not ask or suggest that the dog be taken to any residence other than his own. Nor did Mr Simpson ask or suggest that the police contact anyone other than the OSPCA about taking the dog. Moreover, Mr Simpson’s request that the dog be turned over to the OSPCA, without his first having to ask anyone else for instructions or permission in that regard, provides further confirmation that Mr Simpson himself believed he had sufficient ownership rights over the dog to unilaterally control and direct its disposition, without consulting any other individual.

• In my view, there actually is no evidence, to weigh in the balance against such clear inferences, indicating or even suggesting that the dog belonged to anyone other than Mr Simpson. In the circumstances, it seems to me that such a theory, (of the dog belonging to someone other than Mr Simpson), therefore amounts to nothing but speculation without foundation.

• Given that Mr Simpson was the dog’s owner, I think the only reasonable inference is that Mr Simpson applied its harness, and knew about the packaged substance secreted inside that harness. However, that inference is buttressed on the facts of this case by the efforts made by Mr Simpson to put distance between himself and the dog at the time of Mr Simpson’s arrest; i.e., by asking the police to put it inside his apartment, (where a warrant for a further search would have been required), and by then unusually asking the police to give his pet to the OPSCA.

ii. It was not disputed, and it was confirmed by the certificate of analysis filed as an exhibit, that the substance inside that package was Methamphetamine.

iii. In my view, Mr Simpson knew the nature of the substance in his possession or, at the very least, was aware or should have been aware of the need to make an inquiry as to the nature of that substance in his possession. The secreting of the substance within the harness, and Mr Simpson’s aforesaid unusual efforts to distance himself from the dog and its harness at the time of Mr Simpson’s arrest, make it clear beyond a reasonable doubt that he knew the package inside the harness contained an illicit substance.

[58] I therefore find that the Crown has proven all essential elements of the offence charged, beyond a reasonable doubt.

[59] Stand up please Mr Simpson.

[60] For the reasons set out above, I find you guilty of the charge set forth on the indictment.

[61] The verdict should be noted and documented accordingly.

”Justice I. F. Leach

JUSTICE I. F. LEACH

Released: (Orally) March 3, 2016