Court File and Parties
COURT FILE NO.: CR-18-90000070-0000 DATE: 20180928 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Courtney Dennis Defendant
COUNSEL: E. Gilman, for the Crown J. Couse, for the Defendant
HEARD: June 4, 5, 6, 7 and 8, 2018 BEFORE: Bawden J.
Reasons for Judgment
[1] Detective Balint ordered members of his drug squad to arrest Courtney Dennis on the charge of possession for the purpose of trafficking cocaine on January 29th, 2017. Mr. Dennis was carrying a bag at the time of his arrest and when the arresting officers searched the bag, they found cocaine. The defence contends that the grounds for the arrest were not objectively reasonable and that the search therefore violated section 8 of the Charter.
[2] Detective Balint was the officer in charge of a team of drug officers who were investigating the applicant for trafficking. He had been a member of the Toronto Police Service for 23 years and became a Detective in 2009. He is a highly experienced drug investigator. As the officer in charge of this investigation, he received information from his team through formal briefings, informal conversations and written reports.
[3] The investigation began with information from a confidential informant. The informant told his/her handler the following:
- That he/she had purchased cocaine from Mr. Dennis on multiple occasions prior to January of 2017;
- That he/she had purchased cocaine from Mr. Dennis at least once in January 2017;
- That he/she had observed Mr. Dennis to be in possession of an additional amount of cocaine at some point during the month of January, 2017;
- That he/she had purchased cocaine from a male at 67 Wickson Trail in Scarborough in January of 2017;
- The licence plate, make and model of the car that Mr. Dennis drove.
[4] Detective Balint was not the handler for the informant but he had been fully apprised of the factors which were relevant to the informant’s reliability. He knew that the source was registered with the Toronto Police Service and that he/she was “imbedded” in the criminal element of Toronto. He knew that the source had not received any benefit for having provided the information and had been told that he or she would not receive any benefit unless the information proved to be reliable. Detective Balint was aware that the source had been proven reliable on multiple other occasions including at least one drug investigation where drugs had been seized.
[5] Detective Balint fully apprised himself of information which would tend to detract from the reliability of the informant. These features, which are sometimes described as “the negative features” of the informant, include whether or not he or she had a criminal record, the nature of the record and the presence or absence of outstanding criminal charges. The Crown has been unable to disclose any of these features for fear of identifying the source.
[6] The information received from the confidential source was investigated by police and was confirmed in the following respects:
- The information concerning the licence plate, make and model of the car driven by Mr. Dennis proved to be entirely correct. Detective Balint himself observed Mr. Dennis driving the black Infinity described by the informant on January 26th, 2017. Other officers observed Mr. Dennis driving the same car on January 27th.
- Police records demonstrated that Mr. Dennis had been pulled over driving the black Infinity on April 27th, 2015 and August 13th, 2016.
- Ministry of Transport records indicated that the Infinity was registered to Courtney Dennis’s father, Franklin Dennis. Both Franklin and Courtney Dennis provided 67 Wickson Trail to the Ministry of Transport as their home address.
- Surveillance officers observed Mr. Dennis drive the black Infinity to 67 Wickson Trail on January 27th. When he arrived at the address, Mr. Dennis backed the car into the driveway and entered the house using a key. His girlfriend, Marquesha Campbell, accompanied him into the house.
- When Mr. Dennis was pulled over by police in 2015 and 2016, he provided 67 Wickson Trail as his address. He also gave this address when he had been arrested for possession for the purpose of trafficking in 2007.
[7] Detective Balint also considered Mr. Dennis’ criminal record in assessing his grounds to arrest. Mr. Dennis does have a criminal record which could be described as consistent with the allegations made by the confidential informant. The convictions included the following:
- 2003 PPT Schedule 1
- 2006 Obstruct police, Possession Schedule 1 (x 2)
- 2008 Possession Schedule I, Possession Schedule II
- 2010 Trafficking Schedule I
- 2012 Possession Prohibited Firearm
[8] The 2012 firearms conviction is not directly related to drug trafficking but the association between the possession of firearms and drug trafficking in the City of Toronto is well established. Detective Balint was entitled to view a recent conviction for possession of a firearm as corroborative of an allegation that Mr. Dennis was selling cocaine and he did so.
[9] The police were not able to confirm all aspects of the information provided by the source. Surveillance was conducted over the course of three days and it did not reveal any evidence of drug trafficking by Mr. Dennis. It should be noted that in those three days of surveillance, Mr. Dennis was only under police observation for a total of 66 minutes. The reliability of the confidential information would have been substantially enhanced if surveillance officers had seen Mr. Dennis selling cocaine but the absence of such evidence does not wholly undermine the reliability of the informant. It is one factor to consider.
[10] Detective Balint directed Detective Constable Miller to prepare a search warrant application for 67 Wickson Trail and the black Infinity. The application was granted and the warrants were issued. Once the warrants had been granted, Detective Balint ordered the members of his team to arrest Mr. Dennis and execute the warrants.
[11] Detective Balint was challenged in cross-examination as to why he had not directed D.C. Miller to seek an arrest warrant along with the search warrants. The thrust of the defence position was that the warrant to search the applicant’s home and vehicle did not imply an authority to arrest the applicant and, unless the locations were searched and drugs recovered, there were insufficient grounds to justify the arrest.
[12] Detective Balint gave a straightforward response to that challenge. He observed that he had been aware not only of the information disclosed in the ITO but all of the information which had been provided by the informant including information which could not be disclosed for fear of compromising the informant. He knew of the applicant’s criminal record, the informant’s history as a registered informant and the efforts of his own team to corroborate the information received. Based on the totality of that information, he was fully satisfied that there were reasonable grounds to arrest Mr. Dennis for possession of cocaine for the purpose of trafficking. The Criminal Code permits him to do so without warrant. The officer explained that in order to ensure officer safety and prevent the destruction of evidence, it is necessary to arrest the suspect prior to executing the warrants. I accept that evidence.
[13] The authority to search Mr. Dennis derives from the fact of his arrest. The Crown bears the onus to demonstrate that that arrest was lawful. The Supreme Court of Canada stated the law in Storrey:
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 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 are not required to establish a prima facie case for conviction before making the arrest.
[14] An arresting officer must be acting on something more than mere suspicion in order to make an arrest. Reasonable grounds exist at the point that credibly based probability replaces suspicion. The court should consider all of the circumstances relied upon by the arresting officer when reviewing the objective grounds for the arrest. The facts of the case or the observations of the officer should not be considered in isolation but cumulatively, as the officer herself would have considered them. The objective assessment should take into account the experience of the arresting officer. That is, the reasonable person for the purposes of this test is a reasonable person armed with the experience and knowledge of the arresting officer.
[15] It is not the role of a reviewing court to dissect the evidence or to try to find alternative exculpatory inferences that might be drawn from the evidence. The fact that one could draw inferences from the evidence which are consistent with innocence does not render the decision to arrest unreasonable. Although the legal test for a warrantless arrest is the same as the test to obtain a search warrant, the dynamics at play in an arrest situation are different from those on an application for a search warrant. A police officer must make a decision to arrest based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry by an officer deciding whether to make an arrest that it demands of a justice considering an application for a search warrant.
[16] In this case, the complete grounds for the arrest have not been fully divulged in order to protect the identity of the informant. The Crown maintains that what has been disclosed is sufficient to establish reasonable and probable grounds for the arrest. The Crown relies on Justice Martin’s frequently quoted reasons in the Debot decision from 1986:
A mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity, or that drugs would be found at a certain place, would be an insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. I am of the view that such a mere conclusory statement made by an informant to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are, whether the informer’s “tip” contains sufficient detail to ensure it is based on more than mere rumor or gossip. Whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for relief.
[17] Did the confidential information provided in Mr. Dennis’s case provide sufficient detail to ensure that it was based on more than rumor or gossip? The source indicated that she or he had purchased cocaine from Mr. Dennis on multiple occasions prior to January 2017. In the month of January, he or she had purchased cocaine from him at least once and observed him to be in possession of an additional amount of cocaine. The source further indicated that he or she had purchased cocaine from a male at Mr. Dennis’ home, 67 Wickson Trail. Police were able to verify that this was Mr. Dennis’s home. The confidential informant also provided specific information concerning the vehicle that was driven by Mr. Dennis.
[18] All of the information cited above is unmistakably evidence of first hand observations. The informant was not reporting gossip or hearsay received from other sources. Although the full details of the informant’s statement cannot be disclosed, what has been disclosed sufficiently demonstrates that the informant was providing firsthand information. The first criteria of Debot is met.
[19] Has the defendant been told how the informant came to know what he or she told police? This was first-hand knowledge obtained by purchasing cocaine directly from Mr. Dennis. The Crown has disclosed that the informant was “imbedded” in the criminal element and had actually purchased cocaine from a male at Mr. Dennis’ home. The information was clearly fresh insofar as the informant reported having seen Mr. Dennis with cocaine less than a month before his arrest. The second criteria of Debot is also met.
[20] What basis was there to believe that this informant was reliable? The informant was a registered informant. All of his or her previous dealings with police had been documented in accordance with mandatory procedures. The informant had proven reliable on multiple occasions including at least one investigation which had led to the seizure of drugs. The source had been told that he or she would not receive any benefit for having provided information concerning Mr. Dennis unless the information was proven to be true.
[21] The information provided was corroborated in several respects. Police investigation determined that Mr. Dennis does have a lengthy criminal record which includes convictions for drug trafficking. Surveillance confirmed both the address and the vehicle which had been identified by the informant.
[22] An issue arose during argument as to whether Detective Balint could rely on the fact that warrants had been issued to search the premises in assessing his own grounds to arrest Mr. Dennis. Detective Balint testified that he did consider that fact but that he was fully satisfied that he had sufficient grounds without considering the decision of the Justice of the Peace. Based on that evidence, the Crown did not rely on the issuance of the warrant as a contributing factor in assessing the grounds for the arrest.
[23] In this case, the grounds to search the premises were effectively identical to the grounds to arrest the applicant. In my view, Detective Balint would have been entitled to consider the fact that an independent judicial officer had been satisfied of the reliability of the informant to confirm his own conclusion that there were sufficient grounds to arrest Mr. Dennis. The fact that an independent judicial officer approved the warrants based on the same confidential information could dispel any concern in Detective Balint’s mind that the grounds were premised on a biased view of the facts.
[24] The defence relied on the cases of Learning [2010] ONSC 3816 and Zammit, [2010] 81 C.C.C. (3d) 112 in arguing that the Crown had failed to prove the objective basis for the arrest. Both of those cases involve warrantless arrests based on confidential information.
[25] In Learning, the only information that was disclosed in order to establish the reliability of the informant was the bald statement that he or she “has been proven reliable.” The source provided generic information concerning a house and its occupants. He or she said that the suspect had been in trouble with the police. The informant gave general information which at best suggested that there was a gun in the house. The Crown was unable to disclose any further information provided by the informant. The Crown could not demonstrate the information was based on first-hand observation. There was no compelling detail to support the allegation. There was virtually no opportunity for police to investigate the details of the allegation. In those circumstances, the court not surprisingly concluded that there was an insufficient basis to find that the arrest of the suspect was objectively reasonable.
[26] In Zammit, the arresting officer testified that he considered the informant to be somewhat reliable but he had never previously dealt with him or her. The informant gave the name of the suspect, his municipal address and a description of his vehicle. He told the arresting officer that the accused would be coming into possession of cocaine. The police investigation was only capable of confirming information which was publicly available. The Court of Appeal found that on these facts, there was insufficient evidence to find that the arrest was objectively reasonable.
[27] The information which has been disclosed by the Crown in order to justify the arrest of Mr. Dennis far exceeds that which was provided in either Learning or Zammit.
[28] Mr. Couse, on behalf of Mr. Dennis, has argued that the failure of the Crown to disclose any of the “negative features” of this confidential informant preclude a finding that the arrest was objectively reasonable. Mr. Couse observes that the court does not know if the informant has a criminal record. There is no information as to the motivation of the confidential informant. The defence was not provided with any material detail concerning the informant’s prior purchase of cocaine from Mr. Dennis in January 2017 that would permit the defence to explore or respond to that allegation. The defence understandably places great stress on the fact that Mr. Dennis was under sporadic surveillance for three days and never demonstrated any behaviour that was consistent with drug-trafficking.
[29] All of these are very reasonable inquiries and would be highly pertinent if this was a Garofoli review of a search warrant. But it is not. The test to review the grounds for an arrest without warrant is quite different from the test in Garofoli. The fact that there are inferences consistent with innocence which might have been drawn from the available evidence does not mean that Detective Balint’s decision to arrest was unreasonable.
[30] Detective Balint subjectively believed that there were sufficient grounds to arrest Mr. Dennis. The Crown has demonstrated that his grounds were objectively reasonable and on that basis, I find that the arrest of Mr. Dennis was lawful. It follows that the search incident to that arrest was authorized by law. The search was undertaken in a reasonable manner and there was no violation of Mr. Dennis’ rights under section 8 of the Charter. The evidence which was recovered as a result of the search incident to arrest is admissible at trial.