COURT FILE NO.: Crim J(F)1639/16 DATE: 2017 06 19

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Sam Weinstock, for the Crown Respondent

- and -

VINCENT HAM William MacKenzie, for the Applicant/Accused Applicant

HEARD: April 10, 11 and 12, 2017

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

INTRODUCTION

[1] The applicant/accused, Vincent Ham, faces two charges. It is alleged that on or about May 6, 2015, he had in his possession, for the purpose of trafficking, a quantity of heroin.

[2] It is also alleged that on the same date he did have in his possession property or proceeds from property, being a sum of money exceeding $5,000 knowing that all or part of it was obtained, derived, directly or indirectly, as a result of a commission in Canada of an indictable offence.

[3] The accused has before the court an application to exclude all of the evidence on the grounds that his sections 7, 8 and 9 Charter rights were violated. It is submitted that the police did not have reasonable and probable grounds to arrest the accused. Therefore, it is submitted that all of the evidence obtained as a result of the arrest ought to be excluded.

[4] The trial and the application proceeded together.

EVIDENCE

[5] Exhibit 1 is an agreed statement of facts. There are no issues as to identity and continuity. It is agreed that 247.15 grams of heroin was seized from the accused and that the quantity of heroin is consistent with possession for the purpose of trafficking.

[6] The accused’s arrest was part of an ongoing police drug investigation known as Project Union. Persons by the name of Phillip Ferriera and Benitio Cruz were suspected of being high level drug traffickers and were the prime targets of the investigation. The investigation included extended surveillance on a commercial property in Toronto known as Ryan Auto Collision.

[7] In the course of the investigation another male person, Mr. Hoang, became a person of interest.

[8] On May 6, 2015, the accused was observed taking a black bag from the trunk of a car operated by Mr. Hoang. Shortly thereafter the accused was arrested and pursuant to a search, incidental to arrest, he was found to be in possession of the heroin and money both of which were located in the black bag the accused retrieved from Mr. Hoang’s car trunk.

[9] At the time of his arrest the accused was unknown to the police. He had never been identified or observed prior to May 6, 2015, in any of the surveillance or investigation conducted as part of Project Union.

[10] The evidence of the Crown consisted of the testimony of five police officers who, in 2014 and 2015 were members of the Peel Police’s Major Crimes Unit and were part of the team running Project Union.

[11] All the police witnesses had extensive experience in drug investigations and surveillance and testified as to typical behaviour of persons involved in the drug trade.

Peel Police Officer Bryant

[12] Project Union started in the summer of 2014, and Officer Richard Bryant was the lead investigator for Project Union.

[13] In October 29, 2014 Officer Bryant had a video camera installed across the road from Ryan Collision. The camera was activated by a motion detector and operated 24/7.

[14] Apart from what was recorded by the camera, much of Officer Bryant’s evidence, relevant to the arrest of the accused, came from the team’s surveillance notes and radio communications.

[15] Ferriera was the subject of a previous drug investigation so was known to Officer Bryant. His association with Cruz was noted and confirmed via surveillance. Cruz has a dated criminal record which included a conviction for trafficking cocaine.

[16] In August, 2014, Ferriera was followed to the premises at 15 Drummond Street, Toronto, the location of Ryan Auto Collision. In September, 2014 he was observed attending at the same address. Parked in front of the premises was a black Dodge Durango which was registered to W.T.H. Car Rentals. Mr. Cruz was observed getting into the Dodge and leaving the property. Also parked at the premises was a vehicle operated by Ferriera.

[17] Officer Bryant formed the opinion that Ryan’s Auto Collision, 15 Drummond Street, Toronto was likely a “stash house” used for the trafficking of drugs.

[18] Officer Bryant testified that he did not believe it was a coincidence that these two men were together at the premises after hours. He believed the meeting at Ryan’s was consistent with the premises being a stash house.

[19] It was for these reasons he decided to install the camera.

[20] Exhibit 2 is a series of “still” pictures taken from the video recordings captured by the camera. What is seen in these pictures is supplemented by the testimony of the officers who, at times, were conducting personal surveillance on Ryan Auto Collision.

[21] On October 30th Mr. Cruz is recorded opening and taking possession of two blue tote bins from an unknown male who arrived in a dark Nissan sedan with the license plate 2HARSH. The bins were moved to a Lexus motor vehicle not visible in the picture.

[22] On November 3, 2104, at 2:39 pm, a woman in blue pants, approaching from the left and is seen holding a white bag. An unknown male is observed opening the front door of Ryan Auto Collision for her. Later the woman was seen leaving, as was Cruz, who appeared to be carrying the same white bag (Exhibit 2, pg 2).

[23] Other pictures in Exhibit 2 show various persons entering and leaving the premises by the front door. They either are carrying something or leaving with something. Things brought to the premises are later seen in Cruz’s hand when he leaves.

[24] Officer Bryant provided evidence as to the various levels of drug trafficking relying on his experience in drug investigations. He explained that high level drug traffickers, as he believed Cruz and Ferriera were, provide drugs to mid-level dealers.

[25] The behaviour observed at Ryan Auto Collision, in Officer Bryant’s opinion was consistent with high level drug trafficking.

[26] At the higher levels of drug trafficking the frequency of transactions is less and the quantities larger.

[27] The use of rental cars is consistent with the drug trade. It provides deniability to persons operating the rental cars if they were ever the subject of a traffic stop.

[28] Returning now to the pictures in Exhibit 2, at page 5 and 6, the picture is dated November 10, 2014. At 4:09 pm Cruz is seen carrying a large box. He had arrived earlier at Ryan’s in his Porsche Carrera. After his arrival a Hyundai Santa Fe pulls up operated by an unknown Asian male. The license plate is BNWB572 and it was determined that the vehicle was registered to W.T.H. Car Rentals.

[29] The Asian male is later identified as a Mr. Hoang and he is seen entering Ryan Auto Collision with Cruz. At 4:58 Hoang is observed leaving with the box and putting it in the rear of the Santa Fe. It was subsequently determined that the Santa Fe had been leased to Hoang.

[30] At page 12 is a still taken from the video recording on February 2, 2015. On this occasion members of the police unit were personally conducting surveillance on Ryan Auto Collision. Mr. Cruz is observed arriving at 4:11 pm and entering the front door. At 5:31 pm a black Volkswagen SUV arrives with a license plate of BNWD 744. It is determined that the SUV is registered to W.T.H. Car Rentals and again subsequently determined that the vehicle had been rented by Hoang.

[31] An Asian male, later identified as Mr. Hoang, is observed getting out of the SUV and going to the front door of Ryan’s. He tried the front door but it is locked so he goes around to the back. He leaves the premises an hour later.

[32] At pages 13 and14 of Exhibit 2 are stills taken from the recording made on February 13, 2015. On that date and time (after dark) there was also a surveillance team in place. Mr. Cruz is noted on-site but his Porsche was parked out of camera range. The same black VW SUV as noted on February 2nd arrives and Mr. Hoang gets out and goes into the shop. He later comes out with a small bag in hand, gets into his car and leaves.

[33] Officer Bryant testified that Mr. Hoang was followed after he left Ryan’s on February 13th. He was followed that night to a number of locations in Vaughan and Toronto.

[34] Officer Bryant testified that Ryan Auto Collision was not the only focus of the investigation although, as noted previously, he was of the opinion that Ryan was a stash house notwithstanding that there was also a legitimate business carried on there. A male person identified as Daniel Ryan was regularly observed examining damaged autos which had been brought to the premises. Auto parts were seen delivered. Employees were observed arriving and leaving the premises at scheduled times.

[35] Officer Bryant was of the opinion that suspicious behaviour was observed when Cruz was present at Ryan Auto Collision. He obviously had a key and came and went as he pleased, often after business hours. He was always dressed in casual clothes and not dressed as someone working in an auto body repair shop.

[36] Person, seemingly not involved in the business of collision repair, spent varying amounts of time in the building.

[37] Officer Bryant decided the police needed to obtain search warrants to authorize covert entries of the Ryan Auto Collision premises and Cruz’s home.

[38] Cruz’s residence was surreptitiously entered on March 4, 2015 and located therein was a quantity of marijuana which was deemed for personal use. A box was located with different types of marijuana as well as cannabis resin (Exhibit 2, pg. 15).

[39] The police also found financial records consistent with huge financial transactions. Officer Bryant was not surprised that they did not find much in the way of drugs at the home stating that high level traffickers would never keep a quantity of drugs where they live.

[40] On March 26th, Ryan Auto Collision was entered and a small room was noted at the front of the building. Therein was located some bags of marijuana, a black tray with cannabis resin, a small block of what was believed to be hash and a box of bottles with black tops.

[41] Also noted was a set of scales and items consistent with creating cannabis resin.

[42] It was Officer Bryant’s opinion that what was found in Ryan Auto Collision was consistent with the storage of drugs.

[43] At page 18 of Exhibit 2 is a still from what was recorded on April 28, 2015. At 7:36 pm Mr. Hoang arrives at Ryan Auto Collision in a Ford Taurus registered to W.T.H. Car Rentals. He goes into the shop and leaves 20 minutes later with a bag in hand (pg 18). It was subsequently determined that the Taurus had been rented to Hoang.

[44] Mr. Cruz was observed shutting the door at 7:56 pm.

[45] In summary, between November 10, 2014 and April 28, 2015, Hoang is observed at Ryan Auto four times and operating three different vehicles registered to W.T.H. Car Rentals.

[46] Each time Hoang is observed entering Ryan Auto Collision empty-handed and exiting carrying something.

[47] Continuing with the observations of April 28th, the police decided to continue mobile surveillance and followed Hoang to a Tim Horton’s in Markham. After a short period of time he leaves and travels to 148 Breckenridge in Markham which was believed to be his home. He is observed taking two bags from the trunk, one of which is the bag he left Ryan Auto Collision with. He enters the house through the side door.

[48] Hoang leaves his residence at 9:00 pm and attends the East Side Mario’s restaurant in Markham where he is observed walking up to an unknown vehicle at 9:10 pm.

[49] Hoang is observed leaving the restaurant at 9:10 pm and travels to 89 Tulsa Road, Markham and enters a unit. At 9:18 pm he exits the unit and goes to his car. He then re-enters the unit. He leaves 20 minutes later carrying a white plastic bag which he places in his car. He then returns to the unit. He repeats this pattern a couple of times.

[50] At 12:47 am Hoang is observed exiting the unit and going to his car where he moves the bags from the car interior to the trunk. He and a female then get in the car and go to a Comfort Inn in Markham at which point surveillance is discontinued.

[51] On April 29th Officer Bryant attended at the Comfort Inn to confirm that it was Hoang who registered at the Inn.

[52] As a result of the investigation up to and including the observations made April 28, 2015, Officer Bryant formed the opinion that Hoang is a major player in the world of drug trafficking and that he obtains at least some of his drugs from Cruz. He further decided that Hoang was to be a focus of Project Union and concluded that tangible, physical evidence was required.

[53] On April 28, 2015, Officer Bryant was of the opinion that reasonable and probable grounds existed to make an arrest.

[54] Bryant instructed his team to continue to follow Hoang and if they observed a drug transaction they were to arrest the third party customer in a way that would not alert Hoang. Officer Bryant surmised that if Hoang became aware of an arrest he would notify Cruz which would jeopardize the larger investigation.

[55] The team was left with the discretion as to when to make an arrest and Officer Bryant relied on his team’s experience and training.

[56] Further, he sought production orders to confirm Hoang was renting the cars from W.T.H. Car Rentals, although Hoang had been identified as the Asian male first observed in November, 2014 before receiving the car rental registration information pursuant to a production order. However, Officer Bryant conceded that with respect to the pictures at pages 5 and 6 of Exhibit 2, he could not say for sure that the guy in the picture was Hoang because of the quality of the pictures.

[57] Hoang’s identity was confirmed as well, as noted above, as the person who registered at the Comfort Inn on April 28th.

[58] A criminal record check confirmed that Hoang did not have a criminal record.

[59] As a result of his instructions to his team the accused was arrested on May 6, 2015.

[60] Officer Bryant agreed that a hand to hand transaction was never actually observed.

Peel Police Officer Muresan

[61] Officer Mike Muresan testified as to typical behaviours observed generally in drug trafficking. Usually it involved two people meeting briefly in a house, a car or on the street. Either may be nervous and/or looking around. Usually there is an exchange. With respect to higher level traffickers often bags or suitcases are used.

[62] Typically the drugs cannot be seen as they are packaged and concealed. Often buyers are arrested to build a case against the supplier.

[63] On April 28th Officer Muresan had Ryan Auto Collision under surveillance and confirmed in his testimony what he observed in regards to Hoang at Ryan Auto Collision.

[64] Hoang was observed leaving the shop at 7:56 pm with a black bag, getting into his car and leaving. Officer Muresan then took up mobile surveillance. He confirmed the travels of Hoang to his house and elsewhere that evening.

[65] It is Officer Muresan’s opinion that what he observed was consistent with drug transactions.

[66] Officer Muresan confirmed that he was told by Officer Bryant on or about April 28th that the police had enough to effect an arrest.

[67] Officer Muresan was also part of the mobile surveillance team on May 6, 2015. On that day their objective was to conduct surveillance on Hoang and if a drug transaction was observed the buyer was to be arrested in a manner by which Hoang would not be aware of the arrest.

[68] At 6:39 pm Hoang is observed leaving his home and travelling around the corner to Ravencliff Road where he pulls over to the side of the road. He is observed using his cell phone. Five minutes later a black Hyundai car, driven by an Asian male, travelling in the opposite direction, pulls over on the other side of the road across from Hoang. Hoang is observed getting out of his car carrying a black package and crossing the road and getting into the Hyundai.

[69] Hoang and the driver are observed having a discussion and at 6:46 pm Hoang gets out of the Hyundai without the package and returns to his car. Both cars drive away in opposite directions.

[70] Officer Muresan was of the opinion that he had just observed a drug related meeting involving a car to car transaction. It is the type of behaviour that he had seen numerous times.

[71] The officer continues his mobile surveillance and Hoang travels to a pet store on Kennedy Road in Toronto. He exits 7 minutes later and travels to John Street in downtown Toronto, near Queen Street.

[72] Three other officers are also involved in the mobile surveillance. Officer Muresan in the vicinity of John Street, stops his car in a location from which he could not see Hoang’s vehicle. He heard what transpired via his police radio. He understood that Hoang had pulled his car over at the curb on John Street. He hears that a pedestrian (the accused) was observed approaching the Hoang vehicle, and retrieving a black bag from the trunk of Hoang’s vehicle.

[73] A drug transaction is called out and an arrest is to be made.

[74] The accused’s description is relayed over the radio and Officer Muresan gets out of his vehicle, as does Officer Plummer from his vehicle. The accused is observed walking in their direction.

[75] The officers identify themselves to the accused as Peel Police Officers and Mr. Ham is arrested. Officer Muresan takes possession of the black bag and becomes the exhibit officer, responsible for the bag. Although the bag and its contents were processed at the police station, the officer did reach in the bag and feel what he thought was currency. He also observed a brown paper bag inside of which was a clear zip lock type bag which contained a brownish substance the officer believed to be heroin.

[76] Exhibit 3 are a series of photographs showing what was found in the bag which included the drugs amounting to 246 grams and bundles of 20 dollar bills which totalled $15,000.

[77] On cross-examination Officer Muresan confirmed that he was told, likely in April, 2015, that Hoang was “arrestable” if observed conducting a drug transaction.

[78] He confirmed that it was his opinion that what he observed on April 28th involved a drug transaction. He observed Hoang leave Ryan Auto Collision with a black bag although he agreed that he did not see who gave the bag to Hoang. He described Ryan Auto Collision as a central hub where people get drugs.

[79] Officer Muresan was part of the search team on March 26th and stated that just because they did not find much in the way of drugs did not mean the property was not used for drug related matters. He believed that the room in Ryan Auto Collision was dedicated to processing and packaging drugs based on what they found.

[80] He was not surprised cocaine was not found as it is a drug that is “moved” quickly.

[81] In regards to Ryan Auto Collision, Officer Muresan testified that they saw a pattern. After hours Cruz was present and the same characters kept showing up and leaving with something.

[82] In regards to the black Hyundai observed on Ravencliff Road the officer acknowledged that he could not see any exchange as he could not see down into the car although he saw Hoang carry a package to the Hyundai and leave without it.

[83] Officer Muresan agreed that pursuant to their instructions they could have arrested the driver of the Hyundai but testified that they decided not to because, given the circumstances, an arrest would have been unsafe.

[84] Officer Muresan explained that the Hyundai was followed for a period of time after the alleged transaction but there was no safe place and enough man power to effect an arrest.

Peel Police Officer Plummer

[85] On May 6, 2015, Officer John Plummer was in the vicinity of John Street and Queen Street in Toronto. He was part of the Hoang surveillance team. He could not see the Hoang vehicle but heard Officer McEachern say he believed Hoang was involved in a drug transaction.

[86] The accused was observed walking on John Street wearing a red shirt. The team was instructed by McEachern, who was the “road boss” to discreetly arrest the accused, whose identity was unknown at that point. Officer Plummer drove north bound on John Street and observed the accused. He parked his car and approached the accused identifying himself as a police officer.

[87] Officer Plummer arrested the accused and searched his person finding a variety of things like keys and a blackberry cell phone.

[88] The officer confirmed that Bryant had previously instructed the team to arrest any third party they observed in a drug transaction with Hoang. He also noted that he never saw the black bag carried by the accused before and did not see how it originally came into Hoang’s custody. He was not in a position to observe any interaction between Hoang and the accused.

[89] Officer Plummer relied on Officer McEachern as to reasonable and probable grounds for arrest.

Peel Police Officer McEachern

[90] Officer McEachern was involved in the surveillance of Ryan Auto Collision on April 28, 2015 and was aware of the travels of Hoang after he had attended at Ryan Auto Collision. He understood that Hoang was an associate of Cruz from whom he obtained his drugs. The officer described himself as the surveillance team leader.

[91] In the week leading up to May 6th, Officer McEachern confirmed that the team was instructed by Officer Bryant to arrest a third party customer who was involved in a drug transaction with Hoang.

[92] On May 6, 2015, Officer McEachern was part of the team conducting surveillance on the Hoang residence in Markham. He observed a silver Ford Taurus in the driveway. At 6:33 pm Hoang got into the car after placing a gym or duffel bag in the truck.

[93] Hoang drove a short distance to Ravencliff Road and pulls to the side of the road and uses his cell phone. The officer then observed a black Hyundai with an Asian male driver pull up on the other side of the road. At 6:44 pm Hoang is observed by this officer walking over to the Hyundai with a package in his hand and getting in. Two minutes later he was observed returning to his car and not carrying anything.

[94] Officer McEachern could not observe any actual hand to hand transaction.

[95] Officer McEachern formed the opinion that he had just observed a drug transaction. After both cars left, the officer decided that he and another officer would follow the Hyundai. Other officers would remain with Hoang. The Hyundai was followed to a parking lot on Kennedy Road but surveillance was lost.

[96] Officer McEachern testified that had the opportunity presented itself he would have arrested the driver of the Hyundai. The officer testified that safety issues were a concern and the situation did not provide an opportunity to arrest the driver.

[97] At 7:46 pm Officer McEachern caught up with the Hoang surveillance team in the vicinity of John Street and Queen Street in Toronto. He observed Hoang making a U-turn on John Street and park on the west side of the street. He took up a position from where he could clearly observe John Street and the Hoang vehicle.

[98] At 7:49 pm Officer McEachern observed an Asian male (the accused), walking northbound on John Street carrying a beverage and wearing a red t-shirt. The male crosses the street in front of Hoang’s vehicle and looks directly at Hoang. He then walks to the front passenger side window which was down and had a brief conversation with Hoang. The male then walks to the rear of the Hoang vehicle and the trunk of the car is observed popping open. The male reached into the trunk and removes the black gym bag that the officer observed Hoang put in the trunk earlier. The male then closes the trunk and walks away with the bag. Hoang drives away from the area and the male continues walking.

[99] Officer McEachern believed he had just observed a drug transaction involving Hoang and calls for the “take down” of the Asian male (the accused). He did not want to arrest Hoang or tip him off as to the arrest.

[100] The circumstances of the transaction were, in the officer’s opinion, typical of a drug deal. It involved two men in a public place with a brief interaction and the removal of a bag or package.

[101] The order for the take down was in accordance with Bryant’s instructions and also took into account the information received in briefings as to Hoang and his involvement with Cruz.

[102] Officer McEachern agreed that he had received instructions prior to May 6th to arrest a third party customer but said that the decision to arrest would be in his discretion.

[103] The officer testified that he had seen Hoang with Cruz at Ryan Auto Collision but could not recall when he put a name to the then unknown Asian male (Hoang).

[104] Officer McEachern testified that he was the only officer in a position to see what actually happened between the accused and Mr. Hoang.

ARGUMENT

[105] The only real issue before me is whether or not the police had reasonable and probable grounds to arrest the accused. If I determine the grounds did not exist and the accused’s Charter rights were violated then I would be required to do a section 24(2) analysis and determine if the evidence is to be excluded.

Defense Argument

[106] Counsel for the applicant/accused concedes that if there were reasonable and probable grounds to arrest the accused, then the accused is guilty of the both counts on the indictment.

[107] Counsel for the applicant submits that Officer Bryant, on April 28, 2015 made the decision for an arrest of a third party customer of Hoang if they were observed conducting a drug transaction.

[108] Counsel submits that whatever occurred after April 28th, and particularity what occurred on May 6th is irrelevant as the decision had already been made. The circumstances of what occurred on the 6th involving the Hyundai and what occurred on John Street do not play a role in the reasonable and probable grounds analysis.

[109] It is submitted by defence counsel that on April 28th there were no reasonable and probable grounds to arrest on any objective basis as prescribed by the case law.

[110] The police were acting on information provided by a CI in regards to Cruz trafficking in cocaine. The camera was set up on October 29, 2014, and operated 24/7. As of, April 28, 2015, Hoang was only observed four times at Ryan Auto Collision.

[111] Dozens of people were observed going to and from the premises. Within the premises was an active auto collision repair shop. Counsel for the accused submits that the simple fact that Hoang may have had some type of association with Cruz does not give rise to reasonable and probable grounds.

[112] While Officer Bryant testified that he believed Ryan Auto Collision was a stash house, there was no information provided by any CI in relation to Ryan Auto Collision. When the police surreptitiously entered the premises there was no real evidence of cocaine trafficking.

[113] It is submitted that the unknown Asian male observed at Ryan Auto Collision may not even be the accused because some of the pictures are not clear enough to be able to make a facial identification.

[114] At no time was any hand to hand exchange observed.

[115] In some pictures an individual identified by the police as Hoang does not have anything in his hands.

[116] Defence counsel submits that Officer Bryant should have re-evaluated the project and that on April 28, 2015, all the officer had was a hunch, a suspicion. There was no objectively reasonable foundation upon which to determine there were reasonable and probable grounds.

[117] Accordingly, it is submitted that the evidence seized pursuant to an unlawful arrest ought to be excluded.

Crown Argument

[118] The Crown submits that while Officer Bryant formed his grounds for arrest on March 28th, the court must also consider the evidence of what occurred on May 6th, the day of the arrest to determine whether there were reasonable and probable grounds to arrest the accused.

[119] All of the police officers were experienced in the investigation of drug transactions and surveillance conducted as part of the investigation. What was observed by the officers is consistent with drug transaction at the higher level.

[120] The higher the level the less frequent the interactions.

[121] The Crown submits that while Cruz’s criminal record is dated, he was convicted of trafficking marijuana and in 2001 convicted for the possession of cocaine.

[122] The Crown submits that in the summer of 2014 it was clear to the police that Cruz was associated with Ryan Auto Collision. It was determined that Cruz owned the buildings beside and behind the premises.

[123] The exchange of boxes or bags, and the fact that much of this activity took place at night, suggests drug activity.

[124] Such behaviour occurred when Cruz was present.

[125] Brief meetings, lasting only a few minutes, is also a characteristic of drug trafficking.

[126] On the occasions Hoang was at Ryan Auto Collision he used at least three different rental cars. He was positively identified as the person renting the cars from W.T.H. Car Rental.

[127] Some indicia of drugs was found in the surreptitious police entry of Ryan Auto Collision. One officer suggested there was evidence of packaging and production.

[128] Officer Bryant, on April 28th, formed the opinion that there are reasonable and probable grounds to arrest and instructed his team to make an arrest when possible. The Crown submits however that his team members were not automatons but could rely on their own experience and discretion and form an opinion as to whether they were observing a drug transaction.

[129] It is submitted that what occurred on May 6th, up to the point of arrest, was consistent with drug trafficking.

[130] It is submitted that the police had reasonable and probable grounds at the time of the arrest to, in fact, arrest the accused.

[131] Alternatively if the accused’s Charter rights were violated, the Crown argues that under the section 24(2) analysis, the evidence ought not to be excluded.

ANALYSIS AND THE LAW

[132] I will first deal with the issue as to what point in time is used to determine if the police had reasonable and probable grounds to arrest the accused.

[133] As noted previously, counsel for the accused submits that the point in time is April 28, 2015, when Officer Bryant believed he had such grounds and instructed his team to arrest a third party customer of Hoang.

[134] I respectfully disagree. In my opinion the time to determine if reasonable and probable grounds exist is at the time of arrest. I rely on the authority, R. v. Clayton 2007 SCC 32, [2007] S.C.J. No. 32, a decision of the Supreme Court of Canada. While I recognize the court in this case was dealing with the reasonableness of a search, I find that its rationale is applicable to an issue of the reasonableness of an arrest.

[135] From paragraph 48 I quote,

“Intention alone does not attract a finding of unconstitutionality. It is not until that subjective intent is accompanied by actual conduct that it becomes relevant….The Charter protects us from conduct, not imagination, and even a benign motive may not justify objectively unreasonable police conduct.”

[136] I also rely on the text by E.G. Ewaschuk, Criminal Pleadings and Practice in Canada (current to print release 134 (03/17)), at 5:0200, which reads, “Furthermore, an officer’s belief may be based on reasonable grounds arising as a result of investigation done after a decision to arrest but prior to the arrest.”

[137] R. v. Pomeroy, 2008 ONCA 521 deals with a decision to arrest versus the actual exercise of the power to arrest. In this matter the police decided to arrest the accused for a breach of probation but held off on arresting him in order to question him on a voluntary basis about a suspicious death. He was arrested after the interview.

[138] From paragraph 30 I quote,

“A physical detention does not depend on the intention of the police but on their action in directing or taking control of a person.”

[139] From paragraph 38 I quote,

“To summarize, in assessing when a detention has occurred for the purpose of the Charter, the focus cannot be limited simply to the time at which the police make a decision to deprive the individual of his or her liberty. That approach improperly limits the entire focus to the perception or intention of the police. Rather, as in Moran, a broader contextual analysis that accounts for all relevant factors is required to ascertain whether an individual was detained.”

[140] Further I find that Officer Bryant’s instructions to arrest first required evidence and opportunity resulting from a police observation of a drug transaction. Therefore the circumstances and facts surrounding the arrest are relevant to the issue of whether the police had the requisite grounds for arrest.

[141] The arresting officers, I agree, are not automatons. They rely on their experience and training and exercised discretion in deciding to arrest the accused.

[142] As noted in R. v. Cesoni 2001 CarswellOnt 4590, a decision of C. Hill J., at paragraph 36, “In dealing with probabilities relating to human behaviour a trained officer is entitled to draw inferences and made deductions drawing on experience.”

[143] In R. v. Burnett 2013 ONSC 3281, Spies J. states, at paragraph 51, “Although not referred to by counsel, there are many cases where the court has held that based on observations of an experienced drug officer, the officer had reasonable and probable grounds to arrest someone without a warrant.”

[144] Accordingly, the actions and movement of Mr. Hoang on May 6, 2015, are relevant to the determination of reasonable and probable grounds and the existence of such grounds are to be determined at the time of arrest.

[145] Section 495 of the Criminal Code of Canada provides peace officers the power to arrest without a warrant. A person may be arrested if a peace officer, on reasonable grounds, believes the person has committed an indictable offence or is about to commit an indictable offence. Possession of drugs for the purpose of trafficking is an indictable offence under the Controlled Drugs and Substances Act.

[146] The leading authority on the subject of, grounds for arrest, is R. v. Storrey, [1990] 1 S.C.R. 241 a case in which the consideration was whether the arrest and detention of Mr. Storrey violated s. 9 of the Charter.

[147] Section 9 of the Charter states, “Everyone has the right not to be arbitrarily detained.”

[148] While the word “probable” is not found in the applicable Criminal Code section, the Court in considering the section stated, at paragraph 9,

“That section provides that a peace officer may arrest without a warrant a person who has committed or is about to commit an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence.”

[149] Without reasonable and probable grounds an arrest is arbitrary.

[150] From paragraph 14 and 15, I quote,

“Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed the offence of aggravated assault before they could arrest him. Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest.

The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual’s right to liberty and the need for society to be protected from crime. Thus the police need not establish more than reasonable and probable grounds for an arrest.”

[151] The police are not required to have a prima facie case for conviction before acting (para. 15).

[152] From paragraphs 16 and 17 of the Storrey decision I quote,

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

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justified 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…Specifically they are not required to establish a prima facie case.”

[153] I have also had regard to R. v. Brown 2012 ONCA 225, [2012] O.J. No. 1569, a decision of the Ontario Court of Appeal. From paragraph 14 I quote,

“In our view, however, there must be something in the conduct observed by the officer, place in the context of the rest of the circumstances, that leads to objective justification or verification to the officer’s belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter demand that the belief be “reasonable’ meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest.”

[154] R. v. Amare 2014 ONSC 4119, is a decision of C. Hill J. At paragraph 83 therein he discusses the applicable considerations in determining whether the police breached s. 9 of the Charter. Some of the considerations are set out as follows:

(6) the fact that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the believe is objectively reasonable.

(7) reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach----it is necessarily a qualitative standard upon which reasonable people can differ in some cases.

(9) the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers always be correct, but that they always be reasonable.

(12) an officer’s training and experience may provide an objective experiential…basis for grounds of belief.

(14) provided that the officer who directs that an arrest take place has reasonable and probable grounds, officers acting under his direction are deemed to be acting on those grounds.

[155] In the matter before me, there is no doubt that Officers Bryant and McEachern believed subjectively that they had reasonable and probable grounds to arrest the accused.

[156] Counsel for the accused did not argue otherwise.

[157] While defense counsel challenges the opinion of the police in regards to reasonable and probable grounds, he does not challenge the credibility of the officers and their subjective belief.

[158] The arrest was the result of ongoing investigation and surveillance that started in the summer of 2014. Officer Bryant on, April 28, 2015, came to the conclusion that based on this investigation and surveillance reasonable grounds existed for an arrest. He so instructed his team of officers.

[159] More importantly, at the time the accused was arrested Officer McEachern believed he had the grounds to arrest the accused, based upon his experience, the instruction provided to him, and upon what he observed on May 6, 2015.

[160] However the analysis must now consider objectively whether reasonable and probable grounds existed to arrest the accused on May 6, 2015, after he was observed removing a black gym bag from the trunk of car operated by Mr. Hoang.

[161] The question to ask is, would a reasonable person, placed in the position of Officer McEachern, be able to conclude that there were such grounds to arrest the accused?

[162] My answer to that question is, yes. I believe, viewed objectively, that the police had the requisite grounds to arrest the accused on May 6, 2015.

[163] I find on the evidence before me that there was suspicious activity observed by the police at Ryan Auto Collision over an extended period of time. Numerous persons, without any connection to the auto collision business, went to and from the premises. They either arrived carrying something and leaving with nothing or arrived carrying nothing and leaving with a package.

[164] This activity was carried on often after dark, that is to say, after normal business hours.

[165] I accept that Mr. Hoang was observed on the premises at least four times, using at least three different rental cars, typical of drug traffickers.

[166] The officers who testified at this trial and who were members of the team of police involved in this investigation, are experienced police officers who had years of experience in police drug work. They formed opinions based on their experience and training.

[167] The reasonable person standing in the shoes of Officer McEachern would have to consider the question with the benefit of the experience and training of the officer.

[168] It is arguable that on April 28, 2015, the police did have reasonable and probable grounds to arrest Hoang and anyone observed in a drug transaction with him. However, even if it can only be said that the evidence gathered by the police as of April 28th rose to no more than a suspicion, the police observations of what occurred on May 6, 2015, viewed objectively, standing in the shoes of Officer McEachern, rose to and beyond the threshold of reasonable and probable grounds for arrest.

[169] It is not necessary to see the drugs to conclude an arrest is to be made (R. v. Burnett, para. 55).

[170] Prior to the circumstances that lead to the arrest of the accused, Mr. Hoang was observed pulling over to the side of the road after driving a short distance from his home. He was observed on his phone. Shortly thereafter, the black Hyundai pulled over and stopped on the other side of the road. Hoang, carrying a package, went over to the Hyundai and sat in the front passenger seat. A brief conversation was observed and Hoang exited the Hyundai, without the package and returned to his own car. This observation, in my opinion, would raise a mere suspicion to the threshold required to affect an arrest.

[171] The reasonable and probable grounds to arrest Hoang flowed through to any customer of his who was involved in a drug transaction with Hoang.

[172] The exchange observed involving the accused on John Street in downtown Toronto also established reasonable and probable grounds. The actions of Hoang in stopping his rented vehicle on John Street and the approach of the accused on foot, the brief exchange through a window, and the accused taking a bag out of the trunk of the car operated by Hoang have all the indicia of a drug transaction.

[173] Adding these facts to the totality of the evidence and the facts derived therefrom objectively viewed by a reasonable person in the shoes of Officer McEachern, by any measure, established reasonable and probable grounds for the arrest of the accused.

[174] I find therefore that the accused’s Charter rights were not violated as a result of his arrest. The accused’s application to exclude the evidence is dismissed.

[175] I find, beyond a reasonable doubt, on the evidence, guilt on the part of the accused on both counts and convictions will be registered.

SECTION 24(2) OF THE CHARTER

[176] As a result of my ruling I am not obliged to conduct a section 24(2) analysis. However, I will conduct such analysis in the event my decision to dismiss the application is overturned.

[177] Section 24(2) requires a consideration of the police conduct, the impact of the breach on the Charter protected interests of the accused, and society’s interest in an adjudication on the merits of the case (R. v. Brown, para. 21).

[178] There is no evidence of bad faith on the part of the Crown. The decision to arrest was made after months of investigation and surveillance. The accused’s rights were not deliberately violated. Subjectively the police believed there were reasonable and probable grounds to arrest.

[179] Any breach of a Charter right which results in an arrest carries significant impact. The arrest can be considered highly intrusive of the accused’s liberty and privacy interests (R. v. Brown, para. 27).

[180] In my opinion, to exclude the evidence would bring the administration of justice into disrepute. The arrest resulted in the discovery of a significant amount of heroin, the drug considered by the courts to be the most serious of drugs and the most harmful to society.

[181] On balance, had I found a violation of the accused’s Charter rights I would not have excluded the evidence.

Bielby J. Released: June 19, 2017