Court File and Parties
COURT FILE NO.: CR-22-30000244 and CR-2230000243 DATE: 2023-03-02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – VITO BAILEY-RICKETTS and VICTORIA DITTMER Applicants
Counsel: Glen Crisp and Zachary Kerbel, for the Crown Mark Hogan, for the Applicant Vito Bailey-Ricketts Matthew Campbell-Williams, for the Applicant Victoria Dittmer
HEARD: February 13-16 and 21, 2023
REASONS FOR JUDGMENT on a pre-trial section 8 and 9 charter motion
M. A. Code J.
A. OVERVIEW
[1] The Applicants Vito Bailey-Ricketts and Victoria Dittmer (hereafter, Bailey-Ricketts and Dittmer) are awaiting trial in this Court in Toronto on Indictments alleging various offences. Both accused are charged with trafficking and constructive trafficking of cocaine and fentanyl, and with related criminal organization offences. Dittmer is also charged with possession of a forged document and a counterfeit mark. The offences are mainly alleged to have taken place in Barrie and Thunder Bay during the period between March and May 2020.
[2] The two Applicants were jointly charged but the Crown severed their cases when delays were being caused by counsel’s availability. Bailey-Ricketts’ trial is now scheduled to proceed on May 8, 2023 and Dittmer’s trial is scheduled for September 11, 2023. The Applicants jointly brought the present pre-trial Motion before me, alleging violations of their ss. 8 and 9 Charter rights and seeking the exclusion of certain evidence.
[3] The facts relating to the present Motion centre on the arrest of the two Applicants on Highway 400 just north of Barrie, on April 21, 2020, and the ensuing warrantless searches incident to those arrests. Crown counsel agreed that the onus was on the Crown in relation to the lawfulness of the searches incident to arrest. As a result, the Crown called four police witnesses and filed a considerable amount of documentary evidence, including a substantial Agreed Statement of Fact. See, in relation to the onus issue, R. v. Brown (1996), 47 C.R. (4th) 134 (Ont. C.A.). No defence evidence was called.
[4] At the end of the four-day hearing, I reserved judgment until February 21, 2023. These are my Reasons for Judgment.
B. FACTS
[5] The charges against Bailey-Ricketts and Dittmer emerged from a lengthy wiretap investigation in Toronto referred to as “Project Sunder”. The investigation was focused on the activities of a group known as the Eglinton West Crips. I recently heard a long complex s. 8 Charter Application relating to this investigation. It was brought by 50 accused who are awaiting trial in this Court in Toronto on 22 separate Indictments. The present two Applicants, Bailey-Ricketts and Dittmer, were amongst the 50 Applicants who brought that earlier s. 8 Application which was focused mainly on the admissibility of the wiretaps.
[6] I summarized the facts relating to the “Project Sunder” investigation in my Reasons on that s. 8 Application, released on January 10, 2023, in which I held that there were no s. 8 violations and that the wiretaps were admissible at the upcoming trials. I will not repeat that summary of the facts and adopt it for purposes of the present much narrower Charter motion relating to the arrests of Bailey-Ricketts and Dittmer near Barrie. See: R. v. McPherson and 49 others, 2023 ONSC 232.
[7] The Applicant Bailey-Ricketts was a named target in the initial “Sunder” wiretap authorization granted by McMahon J. on March 5, 2020. In the earlier s. 8 Application, I reviewed the sufficiency of the grounds set out in the affidavit in support of the naming of various Applicants, including Bailey-Ricketts. I was satisfied that there was “abundant evidence” justifying the interception of Bailey-Ricketts’ private communications. See: R. v. MacPherson and 49 others, supra at paras. 163-165. As a result of these lawful interceptions on Bailey-Ricketts’ phone, the police learned of Dittmer’s activities when her communications with Bailey-Ricketts were intercepted.
[8] The narrow factual and legal issue on the present Charter Motion is whether the police had reasonable and probable grounds to lawfully arrest Bailey-Ricketts and Dittmer on April 21, 2020 for the offence of possession of a controlled substance for the purpose of trafficking, contrary to s. 5(2) of the CDSA. If the police had these statutorily and constitutionally required grounds, and the arrest was therefore lawful pursuant to s. 495 of the Criminal Code, it is conceded that there was no s. 9 Charter violation and that the subsequent searches of the Applicants’ persons, bags, and vehicle were also lawful. In other words, there is no suggestion that the police lacked a proper arrest-related purpose to justify these warrantless searches pursuant to common law powers. On the other hand, if the police lacked reasonable and probable grounds to justify the arrest, it is conceded that the ensuing warrantless searches were unlawful and violated s. 8 of the Charter. See: R. v. Caslake (1998), 121 C.C.C. (3d) 97 at para. 13 (S.C.C.).
[9] I will summarize the specific evidence relating to the grounds for arrest of Bailey-Ricketts and Dittmer in the next section of these Reasons, when analyzing the lawfulness of the arrest. By way of background, the first wiretap was granted on March 5, 2020 and it was activated shortly afterwards. The three senior Toronto Police officers who were in charge of “Project Sunder” were Detectives Moreau, Plunkett, and Tanabe. They all worked different shifts in the “wire room” at Intelligence Services where interceptions of the named targets were being monitored and recorded. They were assisted by other officers and by the civilian monitors and they would coordinate the ongoing “Sunder” investigation from the “wire room”, for example, by deploying surveillance teams and ordering arrests, depending on what was learned from the wiretaps, the surveillance teams and cameras, and other sources of investigative information.
[10] There were a large number of named targets in the “Sunder” investigation and so the “wire room” could become very busy, particularly when the activities and communications of a number of targets were under scrutiny at any given time. Det. Plunkett testified that there were over 400,000 wiretap intercepts during the “Sunder” investigation and the investigators were following a number of targets and reviewing many intercepts on April 21, 2020, the date of the arrest of Bailey-Ricketts and Dittmer.
[11] The O.P.P. had seconded a senior officer to the “Project Sunder” investigation, in order to take lead responsibility for aspects of the investigation that were taking place outside Toronto. Det. Sgt. Brown took on this lead O.P.P. role in what became a Joint Forces investigation. Det. Sgt. Brown had previously been a Toronto police officer, being joining the O.P.P. He had 18 years’ experience, including a substantial amount of work in drug cases, both in Toronto and with the O.P.P. He had previously been qualified as an expert in the meaning of drug-related terminology. Det. Sgt. Brown worked from a desk in the “wire room”, near to the desk used by Moreau, Plunkett, and Tanabe, and they frequently conferred. He had started his secondment to “Project Sunder” in January 2020 and had worked on investigative tasks that were required in preparation for the wiretap Application, which was made in early March of 2020. In particular, he received a briefing package relating to Bailey-Ricketts that included his criminal record (with a conviction for drug trafficking).
[12] It was Det. Sgt. Brown who ordered the arrests of Bailey-Ricketts and Dittmer on April 21, 2020, from his desk in the “wire room” in Toronto. It is therefore Det. Sgt. Brown’s grounds for arrest that are relevant to the ss. 8 and 9 Charter issue on the present Motion. See: R. v. Beaver, 2022 SCC 54, [2022] S.C.J. No. 54 at para. 72, citing R. v. Debot (1989), 52 C.C.C. (3d) 193 at 206 and 214 (S.C.C.). The reason why Det. Sgt. Brown took lead responsibility for this decision to arrest Bailey-Ricketts and Dittmer was because the “Sunder” investigation had led the police to believe that Bailey-Ricketts and Dittmer (and others) were carrying on drug trafficking activities in Thunder Bay. As a result, Det. Sgt. Brown had been focused on these aspects of the “Sunder” investigation that were outside Toronto. By the time of the arrests on April 21, 2020, Det. Sgt. Brown had been utilizing a number of different investigative techniques relating to Bailey-Ricketts and Dittmer, during the months of March and April 2020, including the following: monitoring and reviewing their wiretap intercepts; deploying surveillance teams in Thunder Bay and reviewing their reports; reviewing video surveillance from fixed police cameras; placing a tracking device on a BMW car that was registered in Dittmer’s name and monitoring and reviewing the resulting tracking information; reviewing “LBS data” obtained from the wiretap intercepts (this data provided by the telephone service companies, shows where an intercepted phone was located at the time of a particular intercept).
[13] On April 21, 2020, Det. Sgt. Brown began his shift in the “wire room” at 6:00 a.m. Det. Tanabe started his shift at 1:00 p.m. And Det. Plunkett started his shift at 3:00 p.m. All three of these senior “Sunder” investigators were in the “wire room” before Det. Sgt. Brown made the decision to have Bailey-Ricketts and Dittmer arrested on the highway north of Barrie. Det. Sgt. Brown arranged for a team of O.P.P. officers from Orillia and Barrie to be available to make the arrest. That team was led by Det. Sgt. Beamer, who had no independent grounds to justify the arrest. He simply took direction over the telephone from Det. Sgt. Brown in Toronto.
[14] It is an admitted fact that that the Applicants Bailey-Ricketts and Dittmer were travelling northbound on Highway 400 on April 21, 2020 when their car came to a stop north of Barrie. It appears that they had a flat tire. The car they were driving was a BMW X5 SUV, which was registered in Dittmer’s name. There was a third party in the car, one Kyle Guillaume, who was also a named target in the “Sunder” investigation. As a result, Guillaume’s private communications were also being intercepted. The “Sunder” investigators had installed a fixed surveillance camera at a residence in Toronto located at 568 Lander Avenue. This residence was associated with Bailey-Ricketts. Footage from that camera showed Dittmer’s BMW arriving at the residence at 10:58 a.m. that morning. Dittmer was driving and Bailey-Ricketts was the front seat passenger. They both got out of the car and looked in the rear hatch. Bailey-Ricketts briefly entered the residence and then returned to the car. They drove away in the BMW at 11:14 a.m. It was unclear where or when Guillaume was picked up by the BMW. As mentioned above, the “Sunder” investigators had a tracking device that had been attached to Dittmer’s BMW on April 3, 2020, when the car was in Thunder Bay. Tracking data from the BMW was being received in “real time” by the “Sunder” investigators. In addition, they had wiretaps on Bailey-Ricketts’ and Guillaume’s cell phones. The wiretaps provided “LBS data”, whenever the phones sent or received messages or calls. Based on all this information, the “Sunder” investigators in the Toronto “wire room” were able to track the BMW as it travelled north past Barrie and then appeared to come to a stop (when it apparently blew a tire).
[15] It is an admitted fact that the BMW was now inoperable. The occupants must have called for roadside assistance because a flat bed truck and a taxi minivan arrived at the roadside. The BMW was placed on the truck and the three occupants got into the taxi with their bags. The truck and the taxi then proceeded southbound on Highway 400, heading back towards Barrie. It was at this point that Det. Sgt. Brown instructed Det. Sgt. Beamer to arrest the three occupants for possession of a controlled substance for the purpose of trafficking, and to conduct searches incident to arrest. Det. Tanabe had given Det. Sgt. Brown “the green light”, indicating that the Toronto Police “Sunder” investigators were “okay” with Brown’s decision and that the O.P.P. should proceed with the arrests whenever it was safe. At approximately 4:00 p.m., the O.P.P. arrest team stopped the two vehicles and made the arrests without incident. Bailey-Ricketts was found in personal possession of two cell phones and Dittmer was found in personal possession of a cell phone and a quantity of cocaine and fentanyl wrapped in a rubber glove and packing tape. Two duffle bags and a backpack were removed from the taxi and searched. One of the duffle bags contained apparently female items and $615 in cash. The other duffle bag contained both male and female clothing. The backpack contained men’s clothing, digital scales, and fentanyl and crack and power cocaine inside Ziplock bags. A search of the BMW back at the Barrie detachment at about 4:45 p.m. led to the seizure of scales and baggies as well as fraudulent identification associated with Dittmer.
[16] Bailey-Ricketts, Dittmer, and Guillaume were kept in custody in Barrie overnight and were released on an undertaking in the morning of April 22, 2020. While they were in custody, the “Sunder” investigators arranged for Toronto police technical officers to travel to Barrie and install an audio probe in the BMW at about 10:05 p.m. This installation was carried out pursuant to the terms of the wiretap authorization granted by McMahon J. on March 5, 2020. The fruits of this audio probe installed in the BMW led to another arrest of Bailey-Ricketts and Dittmer in Thunder Bay on May 7, 2020 in relation to further drug trafficking and criminal organization offences.
C. ANALYSIS
[17] The law relating to the statutory requirement of “reasonable grounds” in s. 495, and the meaning of the s. 9 constitutional standard of “reasonable probability”, was comprehensively summarized by Jamal J. in the Supreme Court’s recent decision in R. v. Beaver, supra at paras. 71-72:
The police have statutory authority to arrest a person without a warrant under s. 495 of the Criminal Code, R.S.C. 1985, c. C-46. The applicable part of s. 495 in this appeal, s. 495(1)(a), allows a peace officer to arrest a person without a warrant if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence.
The essential legal principles governing a warrantless arrest are settled:
A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint (R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Latimer, [1997] 1 S.C.R. 217, at para. 26; R. v. Tim, 2022 SCC 12, at para. 24).
In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 17). Subjective grounds for arrest are often established through the police officer’s testimony (see, for example, Storrey, at p. 251; Latimer, at para. 27; Tim, at para. 38). This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal (R. v. G.F., 2021 SCC 20, at para. 81; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 4).
The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer (Storrey, at pp. 250-51; Latimer, at para. 26; Tim, at para. 24).
Evidence based on the arresting officer’s training and experience should not be uncritically accepted, but neither should it be approached with “undue scepticism” (R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 64-65). Although the analysis is conducted from the perspective of a reasonable person “standing in the shoes of the [arresting] officer”, deference is not necessarily owed to their view of the circumstances because of their training or experience (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45 and 47; MacKenzie, at para. 63). The arresting officer’s grounds for arrest must be more than a “hunc[h] or intuition” (Chehil, at para. 47).
In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete” (R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 750, per Doherty J.A.). Courts must also remember that “[d]etermining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘[c]ommon sense, flexibility, and practical everyday experience’” (R. v. Canary (2018), 2018 ONCA 304, 361 C.C.C. (3d) 63 (Ont. C.A.), at para. 22 per Fairburn J.A. (as she then was), citing MacKenzie, at para. 73).
“Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime (Chehil, at para. 27; R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166). At the same time, police do not require a prima facie case for conviction before making an arrest (Storrey, at p. 251; Shepherd, at para. 23; Tim, at para. 24). Nor do the police need to establish that the offence was committed on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; see also R. v. Henareh, 2017 BCCA 7, at para. 39; R. v. Loewen, 2010 ABCA 255, 490 A.R. 72, at para. 18). Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence” (MacKenzie, at para. 74 (emphasis deleted); Debot, at p. 1166). A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information” (Mugesera, at para. 114; see also R. v. Al Askari, 2021 ABCA 204, 28 Alta. L.R. (7th) 129, at para. 25; R. v. Omeasoo, 2019 MBCA 43, [2019] 6 W.W.R. 280, at para. 30; R. v. Summers, 2019 NLCA 11, 4 C.A.N.L.R. 156, at para. 21). The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest (Chehil, at para. 34; Shepherd, at para. 23; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at para. 34; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1, at paras. 44-45; R. v. Rezansoff, 2014 SKCA 80, 442 Sask. R. 1, at para. 28; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose-leaf)), at § 5:40).
The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest (R. v. Biron, [1976] 2 S.C.R. 56, at p. 72; R. v. Brayton, 2021 ABCA 316, 33 Alta. L.R. (7th) 241, at para. 43; Ha, at paras. 20-23; R. v. Montgomery, 2009 BCCA 41, 265 B.C.A.C. 284, at para. 27; Ewaschuk, at § 5:40).
When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds (Debot, at pp. 1166-67).
[18] The Applicants conceded that Det. Sgt. Brown had legitimate but generalized beliefs that Bailey-Ricketts and Dittmer were engaged in drug trafficking, and that the trafficking was connected to Thunder Bay. These legitimate beliefs were based on the wiretaps, the surveillance reports, and the location data from the preceding two months. However, the Applicants submit that these generalized beliefs only gave rise to a reasonable possibility and not a reasonable probability that drugs were in the car north of Barrie on April 21, 2020. They submit that more specific information was required, such as evidence that drugs had recently been purchased for the April 21st trip to the north, in order for Det. Sgt. Brown’s grounds to rise to the level of “reasonable probability”. The Applicants submit that this case raises the spectre of police officers being able to arrest and search a person at any time and place, simply on the basis of a legitimate but generalized belief that the person is a drug trafficker.
[19] The Crown conceded that generalized suspicion that a person is a drug trafficker does not provide reasonable and probable grounds to arrest and search incident to arrest. However, the Crown submits that there was specific information in this case about the recent activities of Bailey-Ricketts and Dittmer and that this information related to this specific car and to a pattern of travel between Toronto and Thunder Bay for the purpose of drug trafficking.
[20] Det. Sgt. Brown testified on the present Motion that there had been “thousands” of intercepts of Bailey-Ricketts’ incoming and outgoing text messages and phone calls in the approximately 6 week period between the March 5, 2020 wiretap authorization and the April 21, 2020 arrest. Det. Sgt. Brown had reviewed almost all of these intercepts, either by listening to the recording of the interception or by reading an investigator’s summary of the interception. This estimate of “thousands” of intercepts of Bailey-Ricketts’ communication appears to be confirmed by the fact that the most recent intercept of Bailey-Ricketts that was included in the Application Record, dated April 17, 2020, was numbered “session 3,404”. Det. Sgt. Brown further estimated that about 90% of these intercepts were drug-related. Det. Tanabe confirmed that early on, after the authorization was granted, the “Sunder” investigators began intercepting a lot of wiretap evidence relating to Bailey-Ricketts and drug trafficking. He testified that they were eventually “overwhelmed” by the number of these drug-related intercepts of Bailey-Ricketts. However, both Det. Sgt. Brown and Det. Tanabe agreed that there were no intercepts of Bailey-Ricketts specifically about taking drugs to Thunder Bay on April 21, 2020. In other words, the grounds for arrest involve drawing an inference.
[21] In addition to the above wiretap evidence, Det. Sgt. Brown testified that there was a great deal of location evidence related to the above drug trafficking activity. The “LBS data” from the wiretap intercepts, reports from police surveillance teams, fixed video camera surveillance evidence, and the tracking device installed on Dittmer’s BMW, all indicated that Bailey-Ricketts’ drug trafficking activity was taking place in Thunder Bay. Det. Sgt. Brown had no evidence that Bailey-Ricketts was trafficking anywhere else. Once again, Det. Tanabe confirmed that the location data connected Bailey-Ricketts’ drug trafficking activity to Thunder Bay.
[22] Det. Sgt. Brown testified that the totality of all the above-summarized evidence led him to believe that Bailey-Ricketts was in charge of others, in particular Dittmer, and that they were trafficking crack cocaine and fentanyl in Thunder Bay. He believed that they would travel from Toronto to Thunder Bay, sometimes by plane and sometimes in Dittmer’s BMW, and that they used certain houses in Thunder Bay as their base. They would return to Toronto when they ran out of drugs in Thunder Bay.
[23] The totality of this very large body of evidence gathered by the “Sunder” investigators during the first six weeks of the wiretap phase of the investigation was not filed in documentary form on the present Charter Application, although Det. Sgt. Brown made it clear in his testimony that he relied on it in its totality. Instead, Det. Sgt. Brown and the Crown prepared a large Application Record and some additional reports that set out a small number of the more relevant wiretap intercepts, surveillance reports, tracking data, fixed video camera reports, and “LBS data”. Det. Sgt. Brown explained in his testimony how he interpreted these specific items of evidence and how they contributed to his subjective belief that he had reasonable and probable grounds to arrest Bailey-Ricketts and Dittmer on April 21, 2020 when they were found north of Barrie on Highway 400 in Dittmer’s BMW.
[24] In my view, the more important evidence relating to Det. Sgt. Brown’s decision to arrest can be summarized as follows:
First, the “Project Sunder” investigation was focused on a group known as the Eglinton West Crips who were believed to be engaged in criminal activities in a particular neighbourhood in the west end of Toronto. One of their principal activities and sources of income was believed to be drug trafficking. The reasonableness of these investigative beliefs was conceded on the earlier s. 8 Application in which Bailey-Ricketts and Dittmer were parties. See: R. v. McPherson and 49 others, supra at paras. 14-18. Bailey-Ricketts was a named target in this “Project Sunder” investigation. Det. Sgt. Brown produced a number of surveillance reports that he relied on in order to infer where Bailey-Ricketts lived. These reports were from surveillance officers who followed Bailey-Ricketts in Toronto and Mississauga during February and March 2020. In particular, the surveillance reports connected Bailey-Ricketts to a residence at 568 Lander Avenue. These reports also indicated that Bailey-Ricketts associated with two other named targets in the “Project Sunder” investigation, namely, Ammaan Charley and Kyle Guillaume. Det. Sgt. Brown believed these two associates of Bailey-Ricketts to be drug traffickers. The April 21, 2020 surveillance report, on the morning of the arrests, showed Bailey-Ricketts apparently using a key to enter the 568 Lauder Avenue residence in Toronto at 11:04 a.m. He then returned to Dittmer’s BMW and they began their trip to the north. Det. Sgt. Brown had been involved in investigative work in January and February 2020 in preparation for the first “Project Sunder” wiretap application in early March 2020. He testified on the present Motion that he believed Bailey-Ricketts brought drugs to Thunder Bay from Toronto. He did not believed that Bailey-Ricketts was buying drugs in Thunder Bay. He believed that Bailey-Ricketts would return to Toronto when he ran out of drugs in Thunder Bay;
Second, the “LBS data” from the intercepts on Bailey-Ricketts’ 416-624-9529 phone indicated the following: from March 13 until the early morning of March 15, 2020, the phone was in the vicinity of Thunder Bay; from the evening of March 15 until the early morning of March 17, 2020, the phone was in the vicinity of Toronto; from the late morning of March 17 until the evening of April 2, 2020, the phone was in the vicinity of Thunder Bay; and on April 21, 2020 the phone was in the vicinity of Toronto in the morning and then moved to the north until about 3:00 p.m. to 4:00 p.m. when it became stationary some distance to the north of Toronto;
Third, an O.P.P. surveillance report on March 17, 2020 (when the above “LBS data” showed Bailey-Ricketts’ 9529 phone was moving from Toronto to Thunder Bay) indicated the following: Bailey-Ricketts was observed arriving at the Thunder Bay airport on an Air Canada flight in the late morning, without any luggage; he was picked up by a woman driving a Ford Focus; during the day, Bailey-Ricketts was driven to various premises in Thunder Bay including a residence at 369 Syndicate and a residence at 1420 Arthur; and Bailey-Ricketts was observed at various points during the day in the company of a woman “with bright red hair” who was later identified as Dittmer;
Fourth, on March 13, 2020 (at times when the above “LBS data” showed Bailey-Ricketts’ 9529 phone was in Thunder Bay) an O.P.P. surveillance report indicated the following: a black BMW X5 SUV registered to Dittmer was observed in Thunder Bay at the 1420 Arthur residence; a female was driving the BMW with two male black passengers; the surveillance officers observed what appeared to be a “hand to hand exchange” at the passenger side of the BMW on one occasion;
Fifth, a “Project Sunder” fixed surveillance camera located outside the residence at 369 Syndicate in Thunder Bay, together with wiretap intercepts of Bailey-Ricketts’ 9529 phone, inferred that Bailey-Ricketts was interacting with various persons at that residence on March 17, 18, and 19, 2020. In particular, on March 21, 2020 the fixed surveillance camera at the Syndicate residence and wiretap intercepts on Bailey-Ricketts’ 9529 phone indicated the following: a black BMW SUV was seen on the 369 Syndicate camera at 10:26 a.m.; Bailey-Ricketts entered the residence carrying shopping bags and a suitcase at 10:28 a.m., followed by a “female with red hair”; at 10:42 a.m., the “female with red hair” exited the residence; at 10:46 a.m., a caller asked Bailey-Ricketts if he was “out and about” and at 10:47 a.m. Bailey-Ricketts exited the residence with a white plastic bag and a black duffle bag;
Sixth, after the tracking device was installed on Dittmer’s BMW on April 3, 2020, this vehicle remained in the vicinity of Thunder Bay from April 3 to 8, 2020. In addition, intercepts on Bailey-Ricketts’ 9529 phone were made in close proximity to the BMW tracker at five different locations;
Seventh, the sample filed in the Application Record of wiretap intercepts of 17 phone calls and 5 text messages strongly inferred that Bailey-Ricketts was engaged in drug trafficking and that he was directing Dittmer (and others like Carton Jones and Jose Lopez-Valencia) in these activities. In particular, there were references to selling both “hard” and “down” which Det. Sgt. Brown understood to mean crack cocaine and fentanyl. There were intercepts inferring Bailey-Ricketts’ direct involvement in trafficking on dates when his phone was in Thunder Bay, like March 13, 2020. There were also intercepts on dates when Bailey-Ricketts’ phone was apparently back in Toronto, like March 11 and 16, 2020, and he made inquiries of Jones and Dittmer as to the status of their trafficking activities in Thunder Bay (Dittmer advised, “no one buying drugs”). There were three important intercepts on March 14, 2020 when Bailey-Ricketts’ phone was in Thunder Bay. In the first call, Jones advised Bailey-Ricketts, “I’m dry… I have not a damn thing… I don’t have nothing”, inferring that he was out of drugs. In the second call, Lopez-Valencia suggested to Bailey-Ricketts that, “we could arrange like getting it from somebody here… Getting from somebody here, yeah”. Bailey-Ricketts responded to this suggestion in a negative and perhaps threatening manner stating, “not in my vicinities, my nigger. Like, get from who? Like whoever you could get it from, you could do that but like it’s not flying around here. You know what I’m saying”. This forceful and final exchange ended the conversation. In the third call, Bailey-Ricketts phoned Ammaan Charley (who was apparently in Toronto) and stated, “I think I’m just gonna fly in tomorrow.. I’m gonna jump on a plane”, and “we just need some, front some drugs from a man or rob a man for some drugs”, and “I’m a see you flying, I’m a see you in the morning… I’m a fly”. Charley replied, “Yeah, you already know I’m here.” The “LBS data” and the surveillance reports, summarized above, indicated that Bailey-Ricketts’ phone was in Toronto the next day, March 15, 2020 and that he stayed there for two days until March 17, 2020 when he returned to Thunder Bay on an Air Canada flight (as summarized above). An intercept of Jones on March 17, 2020 in the mid-afternoon, a few hours after Bailey-Ricketts had flown back into Thunder Bay, appeared to indicate that Jones now had both “hard” and “down”. Further intercepts between Bailey-Ricketts and Dittmer on April 2, 2020 infer that she now had drugs for sale and that she was being directed by Bailey-Ricketts. Det. Sgt. Brown testified that he inferred that Bailey-Ricketts had brought drugs to Thunder Bay when he flew back from Toronto on March 17, 2020;
Eighth, the most recent relevant wiretap intercept of Bailey-Ricketts, prior to his April 21, 2020 arrest, was on April 17, 2020. It was the subject of a considerable amount of testimony and argument on the present Motion. Det. Sgt. Brown testified that this particular intercept was important evidence indicating that Bailey-Ricketts was going back to Thunder Bay. In the context of all the other evidence, Det. Sgt. Brown believed that Bailey-Ricketts was going back to Thunder Bay to engage in drug trafficking. It was generally agreed, both in argument and in Det. Sgt. Brown’s testimony, that the overall tenor of this one call between Bailey-Ricketts and Valencia-Lopez was to the effect that the drug trafficking business was going through a difficult period. These difficulties were due to the cost of obtaining a supply of drugs, because prices were high. Det. Sgt. Brown explained that the pandemic had led to supply constraints and that drug prices had almost doubled. He testified that prices were even higher in Thunder Bay. In this context, Bailey-Ricketts and Valencia-Lopez engaged in a lengthy “drawing board” discussion, as they described it, about various ways in which they could reduce their expenses. The most important part of the call was a short exchange where Valencia-Lopez complained about apparently high prices for an ounce of cocaine and Bailey-Ricketts replied, “Yeah, I know, I know. I’m literally gonna go collect my shit from out there and come. I don’t even (unintelligible) … buy no more work today … Yeah, I was just saying I’m gonna collect my shit. I don’t think I’m gonna buy no more works, dog… If I’m like buy one-two, one-two bounce, it doesn’t make… make sense buying packs at, for those price… it does not make sense”. Det. Sgt. Brown testified that “work” means drugs, that “bounce” means an ounce, and that “packs” refers to buying multiple ounces. The conversation continued and Bailey-Ricketts eventually stated, “I’m not in a hurry. I’d rather just deal with what I’m dealing with”. The defence suggested that Bailey-Ricketts was saying that he was going north simply to “collect my shit”, while Det. Sgt. Brown believed that Bailey-Ricketts was saying only that he was not buying “more” at the prices “today” and that he still had drugs;
Ninth, on April 21, 2020 Det. Sgt. Brown testified that Det. Plunkett advised him that the fixed camera surveillance at 568 Lauder indicated that Bailey-Ricketts and Dittmer were “in BMW heading north”, as Det. Sgt. Brown put it in his notes. He then reviewed Bailey-Ricketts’ incoming wiretap intercepts that day, and in the previous days, and saw that a lot were from the 807 area code (which is the Thunder Bay area code). Det. Sgt. Brown also saw in “real time” that the tracking data for the BMW and “LBS data” for Bailey-Ricketts’ phone indicated that they were travelling north out of Toronto. Det. Sgt. Brown inferred that Bailey-Ricketts’ customers in Thunder Bay were likely anticipating his arrival with drugs and were planning to meet up with him in order to make purchases. Finally, Det. Sgt. Brown testified that at some point in this sequence of developments on April 21, 2020, he received “LBS data” that Guillaume’s phone was in the BMW with Bailey-Ricketts and Dittmer. Det. Sgt. Brown knew that Guillaume was a “Project Sunder” named target and they had information that he was trafficking drugs in Sault St. Marie. Det. Tanabe confirmed this information in his testimony;
Tenth, Det. Sgt. Brown phoned his O.P.P. supervisor, Staff Sgt. Deyell, shortly after 3:00 p.m. on April 21, 2020 and asked him to locate the BMW, which appeared from the tracking data and “LBS data” to have come to a stop somewhere in the area of Barrie. Staff Sgt. Deyell found the BMW and called back. He advised Det. Sgt. Brown that the vehicle was on the shoulder at the Forbes Road exit from Highway 400, north of the Highway 11 “split”, and that there were 3 occupants. This information tended to confirm Det. Sgt. Brown’s belief that the BMW was heading in the direction of Thunder Bay, through Sudbury and Sault St. Marie, and was not continuing on Highway 11; and
Eleventh, Bailey-Ricketts had a criminal record that included a conviction for trafficking cocaine that was relatively recent. Det. Sgt. Brown had been briefed on the criminal record.
[25] I am satisfied that the totality of the above eleven items or bodies of circumstantial evidence gave rise to a reasonably probable inference that there were controlled substances in the possession of Bailey-Ricketts, Dittmer, and Guillaume for the purpose of trafficking, on April 21, 2020 when they were arrested. In other words, there were objectively reasonable and probable grounds that were relied on by Det. Sgt. Brown to make a lawful s. 495 arrest.
[26] The Applicants’ main argument is based on one possible interpretation of one April 17, 2020 intercept and on the absence of any intercept specifically referring to some recent purchase of drugs for the purpose of the April 21, 2020 trip to the north. Relying heavily on these two points, they submit that the evidence could infer that the three occupants of the BMW were simply heading north to “collect” whatever belongings they had left in Thunder Bay (or presumably in Sault St. Marie in Guillaume’s case) and they were not bringing drugs with them for the purpose of trafficking. In my view, this argument fails to consider the totality of the circumstantial evidence and it focuses piecemeal on one possible innocent interpretation of one item of circumstantial evidence. The more reasonably probable inference from all the evidence was that Bailey-Ricketts and Dittmer had a recent practice of obtaining their drugs in Toronto and bringing them to Thunder Bay in order to sell to their customers, and that they were likely following this same practice on April 21, 2020.
[27] The above-summarized argument of the Applicants ignores basic precepts about the meaning of “reasonable and probable grounds” for arrest and about how to assess circumstantial evidence. In relation to the former, Jamal J. stated in R. v. Beaver, supra at para. 72 that, “The police are not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest ”[Emphasis added]. In this regard, Jamal J. relied on a previous line of appellate authority. In particular, he referred to the following paragraph in the reasons of McDonald and Schutz JJ.A. in R. v. Ha (2018), 2018 ABCA 233, 363 C.C.C. (3d) 523 at para. 34 (Alta. C.A.):
Put another way, the presence of other possible, plausible, innocent explanations for police-observed behaviour does not legally or automatically negate credibly-based probability, that is, reasonable and probable grounds. All that Cst Campeau required was to have an objectively reasonable basis for believing the appellant was engaged in an illicit drug transaction, without necessarily ruling out potentially innocent inferences, defences or lawful excuses: see, for example: R. v. MacCannell (2014), 2014 BCCA 254, 314 C.C.C. (3d) 514 (B.C.C.A.) [Emphasis in the original].
Also see: R. v. Shepherd (2009), 2009 SCC 35, 245 C.C.C. (3d) 137 at paras. 22-23 (S.C.C.); R. v. MacCannell (2014), 2014 BCCA 254, 314 C.C.C. (3d) 514 at paras. 44-46 (B.C.C.A.)
[28] Turning to the law relating to the assessment of circumstantial evidence, Watt J.A. gave the judgment of the Court in the recent case of R. v. Gibson, 2021 ONCA 530 at paras. 75-79 (Ont. C.A.). He stated the following:
Some principles about the nature of circumstantial evidence and its use as proof of facts in a criminal case help resolve this claim of error.
First, circumstantial evidence is all about inferences. Individual items of circumstantial evidence give rise to a range of inferences. The available inferences must be reasonable according to the measuring stick of human experience. That there may be a range of inferences available from an individual item of circumstantial evidence does not render the item of evidence irrelevant or neutralize its probative value: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112, per Martin J. (dissenting, but not on this point), citing R. v. Smith, 2016 ONCA 26, 333 C.C.C. (3d) 534, at para. 77.
Finally, where proof of an essential element or the offence charged depends wholly or substantially on circumstantial evidence, it is the cumulative effect of all the evidence, taken together, each item in relation to another and the whole, that must be considered in determining whether the standard of proof has been met: Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.
[29] It must be remembered that Watt J.A. was speaking of circumstantial evidence and the ultimate burden of proof beyond reasonable doubt in Gibson, and not about the lower standard of reasonable grounds for arrest. In the case of this latter standard, it is equally or more important to assess “the cumulative effect of all the evidence taken together” and not focus on the fact that “individual items of evidence give rise to a range of inferences.” Also see: R. v. Calnen (2019), 2019 SCC 6, 374 C.C.C. (3d) 259 at para. 112 (S.C.C.); R. v. Coté (1941), 77 C.C.C. 75 at p. 76 (S.C.C.); R. v. Morin (1988), 44 C.C.C. (3d) 193 at p. 208 (S.C.C.); R. v. Uhrig, 2012 ONCA 470 at para. 13.
[30] Applying the above principles to the eleven items or bodies of circumstantial evidence summarized above, I am satisfied that they meet the s. 9 constitutional standard of “reasonable and probable grounds”. The Applicants’ “possible innocent explanation” for their trip back to Thunder Bay on April 21, 2020 – to simply collect their belongings – does not neutralize or negate the more probable inference arising from the totality of the eleven circumstances, which I have already set out above.
[31] There is one final issue that I need to address in these Reasons and that is Mr. Hogan’s attack on the reliability of certain aspects of Det. Sgt. Brown’s notes. It appears that Det. Sgt. Brown is an officer who makes a lot of relatively detailed notes. This, of course, is to his credit, although his writing is hard to read. A sample of his notes was filed in the Application Record. By April 6, 2020, when he had been working in the “wire room” for about a month, it appears that he had made 122 pages of notes in a ringed binder. Mr. Hogan’s focus was on three pages of notes that relate to developments on April 21, 2020, between about 9:00 a.m. and 4:00 p.m. This was a very long 18-hour day for Det. Sgt. Brown. He started his shift at 6:00 a.m. and he did not finish until midnight. He testified that he “generally” made his notes in “real time”, as events were happening, but there were occasions when he was very busy in the “wire room”. In particular, if there were multiple investigations going on at the same time in relation to multiple targets, he would have to move back and forth between a number of different investigations and sources of information that were coming into the “wire room”, including wiretaps. Det. Sgt. Brown was one of a number of officers and monitors located at various desks in the “wire room”.
[32] The one particular note made by Det. Sgt. Brown that day, which appears to be unreliable in part, states the following: “Det. Plunkett advises that observed on camera at 568 Lauder Ave Victoria Dittmer and VBR [Vito Bailey-Ricketts] in BMW CHTL 224 heading north”.
[33] There is no time noted anywhere on the page of notes where this entry is found. Det. Sgt. Brown testified that it was a long day and he was not sure when or how Det. Plunkett provided him with this information apparently from the Lauder Avenue fixed camera. It would have been between 6:00 a.m. and 3:00 p.m., as Det. Sgt. Brown had certain earlier and subsequent events noted at these times. He recalled Det. Plunkett being in the “wire room” with him and he recalled having several discussions with Det. Plunkett that day about the investigation of Bailey-Ricketts and Dittmer. However, he could not recall their specific discussion about the above Lauder Avenue surveillance camera information. In particular, he did not know how Det. Plunkett would have known that the BMW was “heading north”, based on the fixed Lauder Avenue video surveillance camera. He testified that his note may have been a summary of what Det. Plunkett told him and not a quote. He also testified that the officers in the “wire room” knew the BMW was “heading north” from the tracking data and the “LBS data”. The surveillance desk was watching this data relating to the BMW’s location in “real time”. After receiving the above-noted information from Det. Plunkett, apparently based on the Lauder Avenue surveillance camera, Det. Sgt. Brown’s notes indicate that he then reviewed a number of earlier wiretaps relating to Bailey-Ricketts, including the April 17, 2021 intercept, and he reviewed the incoming area code 807 calls, in order to learn as much as he could about this trip north.
[34] Based on the testimony of Det. Tanabe and Det. Plunkett, I am satisfied that it was Det. Tanabe who was at the supervisor’s desk in the “wire room” with Det. Sgt. Brown, during the lead up to the arrests of Bailey-Ricketts and Dittmer at about 4:00 p.m. Det. Plunkett arrived at the “wire room” shortly before his shift was to start at 3:00 p.m. It was at this point, shortly after 3:00 p.m., that Det. Plunkett examined the Lauder Avenue fixed camera surveillance footage from earlier that morning and advised the officers in the “wire room” of his observations of Bailey-Ricketts and Dittmer leaving from the residence in the BMW. Det. Plunkett testified that he was “in and out” of the “wire room”, leaving Det. Tanabe and Det. Sgt. Brown in charge of the ongoing tracking and the eventual arrests of the three parties in the BMW. He did not provide information to the effect that the BMW was “heading north”, as this was not apparent from the Lauder Avenue surveillance images that he examined. He testified that the officers in the “wire room” were already following the BMW northbound when he told them about the earlier surveillance images from the Lauder Avenue fixed camera. These developments were all prior to the arrests at about 4:00 p.m., according to Det. Plunkett.
[35] In conclusion on this issue relating to the reliability of Det. Sgt. Brown’s notes, I am satisfied that it has no impact on the central issue on the Motion, namely, “reasonable and probable grounds” for the arrests. The substance of the information that Det. Sgt. Brown’s note attributes to Det. Plunkett is accurate: the fixed surveillance camera at Lauder Avenue did show Bailey-Ricketts and Dittmer in the BMW earlier that morning and they were heading north. The note is simply inaccurate in suggesting that Det. Plunkett and the surveillance camera were the source of the latter part of this information. In fact, the source was the tracking data and the “LBS data”, which was coming from the surveillance desk. Det. Sgt. Brown’s note is also somewhat inaccurate in terms of the sequence and timing of events, as the notes suggest that Det. Plunkett provided this information at a somewhat earlier stage than he did.
[36] In my view, these are minor and understandable deficiencies in Det. Sgt. Brown’s notes. Whenever it was that he came to write up his notes, it was undoubtedly an extremely busy sequence of events on a very long day, with information coming into the “wire room” from a variety of sources, most of it in “real time”. The fact that he made mistakes about the source of a part of the information and about the exact sequence and timing of a part of the information is understandable. The Lauder Avenue camera surveillance information did relate to the early stages of events that day, namely, between 10:58 a.m. and 11:14 a.m. It is understandable that this information ended up in Det. Sgt. Brown’s notes at an earlier time than when he actually received the information, which was around 3:00 p.m. It is also understandable that Det. Sgt. Brown’s present recollection, about these small details from a long busy day in the “wire room” almost three years ago, is not the best. The substance of the information in Det. Sgt. Brown’s notes is accurate and it is the substance of the information that provided him with “reasonable and probable grounds” to arrest the Applicants.
D. CONCLUSION
[37] For all the reasons set out above, I am satisfied that Det. Sgt. Brown subjectively believed that he had “reasonable and probable grounds” to order the arrest of Bailey-Ricketts and Dittmer on the afternoon of April 21, 2020, for the offence of possession of a controlled substance for the purpose of trafficking. I am also satisfied that those grounds were objectively reasonable.
[38] Accordingly, the arrests did not violate s. 9 of the Charter and the subsequent searches of the person, the bags, and the vehicle did not violate s. 8 of the Charter. The Motion alleging violations of the Charter is, therefore, dismissed.
M. A. Code J.