COURT FILE NO.: CR-19-00000179
DATE: 20220401
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DANIEL CAMPBELL-JOHNSON
Defendant
Shushanna Harris, for the Crown
Kevin Mehar, for the Defendant
HEARD: February 7 and 8, 2022
RULING ON CHARTER APPLICATION
DI LUCA J.:
[1] On February 26, 2019, two police officers from the Port Hope detachment of the Ontario Provincial Police were conducting surveillance at a location in Cobourg. The building they were watching was known to be a location where drug dealing activity regularly occurred. Their surveillance efforts were interrupted when it appeared that their presence had been discovered by a person known to be involved in drug dealing activity. As a result, the officers drove into a nearby parking lot with the intention of resuming the surveillance once the circumstances permitted.
[2] While in the parking lot, the applicant, Mr. Campbell-Johnson, was observed driving into the parking lot and interacting with some individuals who were nearby. Based on their observations of these interactions, the officers came to believe that the applicant had engaged in a “hand-to-hand” drug deal. The applicant was arrested and searched incident to arrest. Police discovered a loaded .45 caliber handgun and $140 in cash in a satchel that was located on the floor of the driver’s side seat area. Police also discovered 14.3 grams of crack cocaine, 171.4 grams of a prescription drug known as phenacetin, digital scales and two cell phones.
[3] Following his arrest, Mr. Campbell-Johnson was charged with gun and drug trafficking related offences. He has elected to be tried before a judge and jury and that trial is scheduled to commence on April 25, 2022.
[4] Mr. Campbell-Johnson brings a pre-trial Charter motion seeking exclusion of the evidence seized following his arrest. The central issue in this motion is whether the police had reasonable grounds to arrest him for drug trafficking. The applicant argues that the police did not have sufficient grounds for the arrest and that, as a result, the arrest was unlawful. The applicant further argues that the ensuing search incident to arrest resulted in a violation of the applicant’s section 8 Charter rights, ultimately warranting exclusion of all evidence discovered.
[5] The Crown argues that the police had ample grounds for the arrest, as revealed in the surveillance video tendered into evidence. As such, the Crown argues that the search incident to arrest was properly grounded in a lawful arrest. In the alternative, the Crown argues that even if the applicant has discharged his burden in proving section 9 and 8 Charter violations, the exclusion of the evidence under section 24(2) is unwarranted in the circumstances.
[6] Following the completion of argument on the motion, I reserved my decision. On March 23, 2022, I provided a bottom-line ruling indicating that the Charter motion was dismissed as I was satisfied that the police had sufficient grounds to arrest the applicant. I indicated that written reasons would follow, and these are those reasons.
Lawfulness of Arrest – Section 9 of the Charter
[7] Before reviewing and assessing the evidence heard on the motion, I will set out the legal principles that govern the analysis.
[8] Section 495(1)(a) of the Criminal Code authorizes a police officer to arrest a person without warrant where the officer believes on reasonable grounds that the person has committed or is about to commit an indictable offence. An analysis of the lawfulness of arrest involves two central components. First, the arresting officer must have the requisite subjective belief. Second, the officer’s subjective belief must be objectively reasonable based on the totality of circumstances, including the dynamics of the situation as seen from the perspective of a reasonable person with comparable experience, see R. v. Griffith, 2021 ONCA 302, at para. 27.
[9] In R. v. Amare, 2014 ONSC 4119, Hill J. provided a detailed canvass of the legal principles governing the lawfulness of an arrest. He noted, inter alia, the following:
a. an arbitrary arrest includes an unlawful arrest: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 55, 57;
b. an arrest will be unlawful, and arbitrary, if the arresting officer does not have reasonable and probable grounds to believe that the subject has committed, is committing, or is about to commit a criminal offence: Criminal Code, s. 495(1);
c. although it has been observed that “the onus is on the Crown to show that the objective facts” rise to the level supporting a lawful detention (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 45), it has generally been recognized that the onus is on the accused to demonstrate that his detention was unlawful: R. v. Nartey, 2013 ONCA 215, at para. 14;
d. not only must the police officer have reasonable grounds in the subjective sense of a personal, honestly-held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-3, 83; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-1;
e. in other words, the ‘reasonable grounds to believe’ standard “consists of compelling and credible information that provides an objective basis”, objectively discernible facts, for drawing inferences as to the existence of factual circumstances: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 117;
f. the fact “that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable”: R. v. Biccum, 2012 ABCA 80, at para. 21; see also R. v. Luong, 2010 BCCA 158, at para. 19; Chehil, at para. 47;
g. reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach – it is necessarily a qualitative standard upon which reasonable people can differ in some cases: R. v. Campbell (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), at paras. 52-4 (affd 2011 SCC 32, [2011] 2 S.C.R. 549); Chehil, at paras. 29, 62, 69; MacKenzie, at para. 71; R. v. Ward, 2012 ONCA 660, at para. 116;
h. that said, reasonable grounds is about “probabilities” (Chehil, at paras. 27-8; MacKenzie, at para. 74), not confidence at the level of no reasonable doubt (R. v. Debot (1986), 1989 CanLII 13 (SCC), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219 (affd (1989), 52 C.C.C. (3d) 193 (S.C.C.), at pp. 198, 213), nor at the low threshold of mere suspicion or possibility (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 37; R. v. Baron (1993), 1993 CanLII 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.), at paras. 43, 47;
i. the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers “always be correct, but that they always be reasonable” United States v. Clutter, 674 F.3d 980, 983 (8th Cir. 2012);
j. reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond, a balance of probabilities: Mugesera, at para. 14; R. v. Spence, 2011 BCCA 280, at para. 31; R. v. Loewen (2010), 2010 ABCA 255, 260 C.C.C. (3d) 296 (Alta. C.A.), at para. 18 (affd 2011 SCC 21, [2011] 2 S.C.R. 167); R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; Florida v. Harris, 133 S.Ct. 1050, 1052 (2013);
k. in assessing whether she or he has reasonable grounds, a police officer must take into account all available information, disregarding only such information as she or he has good reason to believe is unreliable: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at p. 203 – the officer is not required “to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations”: Chehil, at paras. 34, 67;
l. an officer’s training and experience may provide “an objective experiential…basis” for grounds of belief: Chehil, at para. 47; MacKenzie, at paras. 62-4, 73;
m. a court reviewing the existence of reasonable grounds concerns itself “only with the circumstances known to the officers”: R. v. Wong, 2011 BCCA 13, at para. 19 (leave to appeal denied [2011] S.C.C.A. No. 90) (emphasis in original); and
n. provided that the officer who directs that an arrest take place has reasonable and probable grounds, officers acting under his or her direction are deemed to be acting on those grounds: Debot (S.C.C.), at pp. 206, 214.
[10] To this list, I would add the following. The application of the “reasonable and probable grounds” standard is context specific. The courts have recognized that in the arrest context, officers are often making decisions in a volatile, quickly changing situation, and often without complete information. In this context, the standard is applied less stringently than in the ex parte judicial authorization context where more can be expected from police officers, see R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.) and R. v. Bush, 2010 ONCA 554, at paras. 43-47. See also R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at p. 304.
[11] I would also note that in cases where a lawful arrest issue arises in the context of a warrantless search, the onus will be on the Crown to establish the lawfulness of the arrest, see R. v. Gerson-Foster, 2019 ONCA 405, at para. 75.
Analysis and Findings
[12] Against the backdrop of these legal principles, I turn next to my analysis and findings.
[13] On February 26, 2019, Det. Cst. Ryan Charron and Det. Cst. Steven Fenton were tasked with conducting surveillance at 351 John St. in Cobourg. The apartment at this location was known to police to be a location frequented by drug dealers and drug users. At a briefing prior to the surveillance, the officers were advised that the purpose of their surveillance was to assist with ongoing drug investigations. The officers were advised that a black male known as “Chubbs” was trafficking drugs at the location.
[14] The surveillance started at approximately 10:32 a.m. The officers were conducting the surveillance from an unmarked police van and they took up surveillance at different locations near the target address. At a certain point, the officers observed a known drug user in their vicinity, and they became concerned that their presence had been discovered.
[15] At approximately 12:10 p.m., the surveillance was called off as the officers did not want to engage with the known drug user and risk further compromise of their surveillance. The plan was to drive a short distance away and wait a period of time before resuming surveillance.
[16] The officers drove to the parking lot located at 25 James Street. While this was an address known to the officers, it was not a target location for their investigation.
[17] Once in the parking lot, the officers drove to the back of the lot and parked “nose first” in a spot. They shut the engine off and sat waiting. At a certain point, the officers observed a Toyota Camry pull into the lot and park in a spot along the wall of the adjacent building. These observations were made by both officers as they either looked in the side view or rear view mirrors, or backwards out the rear window of the van they were in.
[18] According to Det. Cst. Charron, as he was looking back at the Toyota Camry, he observed a male and female standing by a nearby Kia motor vehicle. The male and a second female approached the Camry. He observed the driver’s side window of the Camry roll down. He observed the male and female engage the driver in discussion. At a certain point, he decided to activate a camera which he had been using for the earlier surveillance. Initially he took a few pictures of Mr. Campbell-Johnson and the second female, who was later identified as Ms. Patricia Sass. He then started taking a video which captured the further interaction. He explained that he started the video camera because he suspected that what he was observing was a drug transaction.
[19] Det. Cst. Charron observed the male outside the car, who was later identified as a Mr. Floyd Graham, appear to engage in a “hand-to-hand” transaction with Mr. Campbell-Johnson. In particular, he observed Mr. Graham engage Mr. Campbell-Johnson in discussion. He then saw Mr. Graham reach his left hand into the car to fist bump Mr. Campbell-Johnson. He observed that Mr. Graham appeared to have something in his hand as his hand cleared the car window after doing the fist bump. Det. Cst. Charron then believed he saw Mr. Graham put something in his pocket and then turn to walk away from the car. Based on the totality of his observations and his experience in observing hand-to-hand transactions on many previous occasions, Det. Cst. Charron formed the belief that he had observed a hand-to-hand transaction involving Mr. Campbell-Johnson and Mr. Graham. He then advised his partner, Det. Cst. Fenton, of this belief and they proceeded to exit their vehicle to effect an arrest.
[20] Det. Cst. Charron dealt with Mr. Graham and the first female, who was later identified as Ms. Ashley Ouellette. He arrested Mr. Graham and searched him incident to arrest. No drugs were located on him, though a baggie of crack cocaine was later discovered on the ground underneath a nearby car.
[21] In cross-examination, Det. Cst. Charron agreed that when he was using his camera, he was viewing the scene through a small screen that was possibly three inches square. He agreed that he was approximately 20 to 30 feet away from the scene he was recording. He further agreed that when he said “that guy just hand to hand” or words to that effect, Det. Cst. Fenton merely said “ok” and not “that’s what I saw” or something similar.
[22] Det. Cst. Charron also agreed that based on his vantage point and the positioning of Mr. Graham, he could not see various aspects of the transaction. He agreed that Mr. Graham’s left hand could not really be seen in the video, and further agreed that he never saw an exchange during the fist bump. Nonetheless, Det. Cst. Charron maintained that he believed he had observed a hand-to-hand transaction. Lastly, while Det. Cst. Charron acknowledged that he had been told during the briefing that police were interested in a black male named “Chubbs”, he denied that this information played a role in his belief. He indicated that he would have formed the same belief if the person in the car had been a white male instead of a black male.
[23] According to Det. Cst. Fenton, while he and Det. Cst. Charron were sitting in the van in the parking lot, he was making observations of the scene behind the van and into the parking lot. In doing so, he was looking back over the rear seats and through the side and rear-view mirrors. He was not using a camera or other assistive device. While the surveillance he was conducting earlier had been paused, he continued to make observations as he believed that the area they were in was an area frequented by drug traffickers and drug users.
[24] As he was watching the Toyota Camry, he observed Mr. Graham reach into the open driver’s side window for a moment. He observed a fist bump and then saw Mr. Graham and Mr. Campbell-Johnson smile and laugh. When Mr. Graham’s hand came out of the car, he observed what he believed to be white packaging material grasped in Mr. Graham’s left forefinger and thumb. Based on his experience with drug trafficking investigations, Det. Cst. Fenton knew that drug traffickers often use torn-off corners of plastic bags to package drugs for re-sale. He formed the belief that Mr. Graham had this type of packaging in his hands, and formed the further belief that what had happened was a hand-to-hand drug trafficking transaction.
[25] When he heard Det. Cst. Charron articulate his belief that a hand-to-hand transaction had just occurred, it confirmed and strengthened his belief. He replied, “let’s go get him”, exited the police vehicle and went to arrest Mr. Campbell-Johnson.
[26] In cross-examination, Det. Cst. Fenton agreed that when Det. Cst. Charron indicated his belief that he had just observed a drug transaction, he did not say anything suggesting that he had formed the same belief. He denied that it would have been difficult to make his observations from his vantage point without the assistance of a zoom lens on a camera. He maintained that he never saw Mr. Graham’s hand go into the car after the fist bump. Lastly, he disagreed with the suggestion that if there were discrepancies between his observation and the observations made by Det. Cst. Charron, the observations of Det. Cst. Charron would have been more reliable or accurate.
[27] The video taken by Det. Cst. Charron was tendered into evidence. The video captures most of the interaction described by the two police officers. In particular, the video shows Mr. Graham standing outside Mr. Campbell-Johnson’s car. The video captures some arm and hand movements by Mr. Graham followed by a very clear fist bump. After the fist bump, there is further movement of Mr. Graham’s left arm near the open window. During the fist bump, Mr. Graham appears to have something in his left hand. After the fist bump, Mr. Graham can be seen turning and walking away. He appears to transfer whatever is in his left hand over to his right hand as he walks away. The object in his hand resembles a small white plastic item. The transaction is quick, and Mr. Campbell-Johnson can be seen smiling as it concludes.
[28] I turn next to my analysis of the Charter claims. I start with the observation that my task is to determine whether the Crown has established that the police officers had reasonable grounds to arrest Mr. Campbell-Johnson for drug trafficking. To be clear, in order to successfully respond to the Charter motion, the Crown is not required to prove beyond a reasonable doubt that Mr. Campbell-Johnson actually trafficked drugs to Mr. Graham. The objective reasonableness of the arresting officer’s subjective belief is a qualitatively and quantitatively different determination than proof of the offence. The evidence supporting the officer's belief may support a conclusion that the arrest was lawful, but nonetheless fall short of proving the offence of trafficking beyond a reasonable doubt.
[29] In terms of assessing the grounds in this case, I note at the outset that the officer who ultimately arrested Mr. Campbell-Johnson was Det. Cst. Fenton. While he claimed to form his own grounds based on his unaided visual observations, he explained that when Det. Cst. Charron stated “they just hand to hand”, his belief was strengthened as he understood that Det. Cst. Charron was using the camera to view the same events he was. In any event, even if Det. Cst. Fenton had not observed the event, it would have been open to him to act on the belief conveyed to him by Det. Cst. Charron, see R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166-1167.
[30] I accept Det. Cst. Charron’s evidence that he believed a hand-to-hand drug transaction occurred between Mr. Graham and Mr. Campbell-Johnson. While there were some discrepancies between his description of the event and the portion that is captured on video, I find that these discrepancies are not significant and do not diminish the credibility or reliability of his evidence. Further, I accept that Det. Cst. Charron’s belief was reasonable in the circumstances. He was an experienced officer who had knowledge of how hand-to-hand drug transactions occur. By pure happenstance, he was in a position to observe the interaction between Mr. Graham and Mr. Campbell-Johnson, and he quickly formed the belief that what he saw was a drug transaction. His observations are, in large part, supported by the video recording.
[31] In terms of Det. Cst. Fenton, I found his evidence less than impressive. Despite having experience in testifying before the courts, he was unnecessarily defensive and combative with defence counsel. At one point in his cross-examination, he replied to defence counsel “You obviously have never done surveillance.” At another point, when counsel made a suggestion to the officer, he replied “is that even a question…”
[32] Det. Cst. Fenton’s evidence appeared geared towards “beating” defence counsel as opposed to simply telling the truth. Moreover, this was not an instance where the tone or nature of the questions being asked were either improper or unprofessional, or otherwise warranted a defensive response. Defence counsel was simply trying to do his ethically mandated job. But for Det. Cst. Charron’s evidence and the video recording which I will discuss further below, I would have placed little weight on Det. Cst. Fenton’s evidence standing alone. Nonetheless, in view of the burden, and in consideration of the totality of the evidence, I accept that Det. Cst. Fenton reasonably believed that a drug transaction had occurred when he placed Mr. Campbell-Johnson under arrest.
[33] In finding that the officers’ subjective beliefs were reasonable in the circumstances of this case, I place significant weight on the surveillance video which provides a contemporaneous record capturing much of what the officers were observing when they formed their grounds. The video serves as an objective tool against which the officers’ subjective beliefs, as expressed through their evidence, can be measured.
[34] I note there are some limitations to the video. First, when I watch the video, I am watching it on a large screen with an ability to pause it and re-watch it as need be. When Det. Cst. Charron made the video, he was viewing the events through a small screen on the camera. He was also watching the video in real time and the portion of interest lasts approximately 20 seconds. As well, Det. Cst. Fenton was watching the scene unaided by an electronic device and at some distance. Second, I note that the video does not capture the entire interaction. It starts part way through the observations reported by the officers. Despite these limitations, I am satisfied that the video usefully corroborates key aspects of the evidence of the officers. In particular, the video clearly shows Mr. Graham’s arm movements near the open window of the car. A fist bump between Mr. Graham and Mr. Campbell-Johnson can be clearly seen. Most importantly, when Mr. Graham turns away, he has a small white item in his left hand, and he appears to transfer it to his right hand.
[35] When I consider the video recording in context with the fact that the officers watching the transaction were experienced investigators who had, on numerous occasions, observed hand-to-hand drug transactions, I am readily satisfied that their respective subjective beliefs were objectively reasonable.
[36] Despite defence counsel’s capable submissions, this is not a case like R. v. Brown, 2012 ONCA 225, wherein there was nothing in the conduct observed by the arresting officer that lent objective justification or verification to the officer’s belief. Here, there is ample evidence supporting a finding of objective reasonableness in relation to the observed conduct.
[37] As a result, I am satisfied that the Crown has established that Mr. Campbell-Johnson was lawfully arrested. I am further satisfied that he was subjected to a reasonable search incident to arrest. I find no violation of either section 9 or section 8 of the Charter.
[38] In view of my findings on section 9 and 8 of the Charter, there is no need to engage in a section 24(2) analysis.
[39] The application to exclude the evidence is dismissed.
[40] I thank counsel for their efficient and effective advocacy.
J. Di Luca J.
Released: April 1, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DANIEL CAMPBELL-JOHNSON
Defendant
RULING ON CHARTER APPLICATION
The Honourable Justice J. Di Luca
Released: April 1, 2022