2013 QCCA 1311, 2013 QCCA 1311

Czajkowski c. R. 2013 QCCA 1311 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005149-123 (500-01-049636-100) DATE: AUGUST 5, 2013 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. LORNE GIROUX, J.A. JACQUES A. LÉGER, J.A. MICHAEL CZAJKOWSKI APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutor JUDGMENT [ 1 ] On appeal from a judgment of the Court of Quebec, District of Montreal (the Honourable Justice Denis Lavergne), rendered on March 16 th , 2012, which found the Appellant guilty of possession and transport of a prohibited firearm and prohibited ammunition, contrary to sections 95(2) (a), 94(1) (2)(a), 91(2) (3)(

a) and 86(1) (3)(

a) of the Criminal Code ; [ 2 ] For the reasons of the Chief Justice, with which Giroux and Léger, JJ.A. concur, THE COURT: [ 3 ] DISMISSES the appeal. NICOLE DUVAL HESLER, C.J.Q. LORNE GIROUX, J.A. JACQUES A. LÉGER, J.A. Mtre Gabriel Babineau Mtre Nicholas St-Jacques LE GROUPE NOURAIE INC.

For Appelant Mtre Dennis Galiatsatos CRIMINAL AND PENAL PROSECUTING ATTORNEY For Respondent Date of hearing: June 6, 2013 REASONS OF DUVAL HESLER, C.J.Q. [ 4 ] Acting on confidential information received from an informant, police officers engaged in the surveillance of a vehicle located in a Tim Hortons' parking lot proceeded to arrest its three occupants, including the appellant, Michael Czajkowski. A prohibited firearm

and two prohibited devices, more specifically two cartridge magazines containing respectively 11 and 12 rounds of ammunition, were discovered inside a tuque on the driver's side of the vehicle. [ 5 ] The appellant was convicted of possession of an unloaded prohibited firearm with readily accessible ammunition, contrary to section 95(2) (

a) of the Criminal Code . [1] He was also convicted of unauthorized possession of a prohibited firearm in a motor vehicle (s. 94(2)(

a) Cr. C. ), unauthorized possession of a prohibited firearm ( s. 91(2) (3)(

a) Cr. C. ), and careless transportation of a prohibited firearm (s. 86(1)(3)(

a) Cr. C. ). However, a conditional stay was entered on these three counts pursuant to Kienapple v. The Queen. [2] Lastly, the appellant was acquitted of possession of a weapon for a purpose dangerous to the public peace (s. 88(2)(

a) Cr. C. ). [ 6 ] The appellant’s co-accused, Patrick Robinson, was acquitted on all five counts. [ 7 ] The issues on appeal relate to the legality of the appellant's arrest, his right under

section 9 of the Canadian Charter of Rights and Freedoms [3] not to be arbitrarily detained or imprisoned, and the inferences that could reasonably be drawn from the circumstantial evidence. I – THE FACTS [ 8 ] On the morning of December 14, 2010, an informant told Detective Philippe Paul that the appellant, alias "Miami Mike", was going to carry out a "burn" the following day at an unknown location. A "burn" consists of a home invasion in order to steal money and drugs.

According to the informant, the appellant was scheduled to meet his accomplices, a few black men, at a Tim Hortons restaurant at the corner of Metropolitan Boulevard and Rockland Road, in Montreal, shortly before the "burn", in order to finalize their plans. It was expected that he would arrive in a blue Chrysler 300 with licence plate number [...]. Detective Paul transmitted this information to Detective Jean Paquin.

There is contradictory evidence as to how much information was shared between the two detectives. [ 9 ] Detective Paquin dispatched a surveillance team and a SWAT team on site the next day. [ 10 ] At 10 a.m. on December 15, 2010, the surveillance team took up position near the Tim Hortons. From 10:46 a.m., they kept watch on a black man, later identified as Daniel Walker, who arrived in a black Chevrolet Malibu. Then at 12:27 p.m., a blue Chrysler 300 with licence plate number [...] was observed driving into the parking lot.

A white man, about 35 years old and later identified as the appellant, and a black man, later identified as Keithus Samuels, exited the Chrysler 300 and went inside the Tim Hortons. The driver, another black man, stayed alone in the vehicle. He was later identified as Patrick Robinson and the owner of the vehicle. [ 11 ] At 12:31 p.m., Walker left the Tim Hortons, sat in the front passenger seat of the Chrysler 300, and spoke briefly with Robinson. A few minutes later, he returned to the Tim Hortons. Robinson followed suit but returned to vehicle after about three minutes.

At 12:47 p.m., Walker and the appellant took their food and beverages and left the Tim Hortons. The appellant sat in the front passenger seat of the Chrysler 300 while Samuels sat in the back seat. Walker went back inside the Tim Hortons. [ 12 ] At 12:48 p.m., the SWAT team intervened: a van blocked the back of the vehicle and police officers alerted the occupants to their presence by sounding the sirens. They proceeded to approach the Chrysler 300 on foot.

According to the testimony of Alain Rioux, the officer who led the SWAT team, the occupants of the vehicle were ordered four or five times to put their hands up. He cannot recall whether there orders were yelled out in French or English, but the SWAT team usually alternates between both languages. Robinson and Samuels complied immediately while the appellant fidgeted in his seat, moved his shoulders sideways from left to right, and ultimately leaned towards the driver's seat on the left. Officer Rioux could not see the appellant's hands, but believed that he was trying to discard something.

Ten to fifteen seconds passed before police officers broke the front passenger window. Only then did the appellant comply and put his hands up. [ 13 ] The appellant, Robinson and Samuels were arrested. The search of the vehicle revealed a black and grey tuque near the centre console on the driver's side.

A prohibited firearm and two cartridge magazines containing respectively 11 and 12 rounds of ammunition were discovered inside the tuque. [ 14 ] The appellant sought to exclude that evidence on the basis that there were insufficient grounds for his arrest and for the search of the vehicle. [ 15 ] The trial judge found that the police officers had reasonable grounds to suspect that the occupants of the vehicle would be involved in a home invasion and that the police could therefore detain them and that such detention was not arbitrary.

Nor was the search of the vehicle unreasonable. [ 16 ] Although there was no direct evidence linking the appellant to the tuque or the firearm, the trial judge was satisfied beyond a reasonable doubt that the appellant's guilt was the only rational inference that could be drawn from the circumstantial evidence. In the case of Robinson, the trial judge believed his testimony that he never saw the firearm or the tuque in his car and acquitted him on all counts.

II – ANALYSIS The Arrest [ 17 ] The respondent acknowledges that the police officers arrested the occupants of the vehicle and did not detain them solely for investigative purposes. Accordingly, the prosecution concedes that the trial judge erred in law by using the "reasonable grounds to suspect" standard instead of the "reasonable grounds to believe" standard. However, this error, in my view, is of no consequence since the arrest, even when considered under the higher standard, was valid in the circumstances of this case.

[ 18 ] The appellant submits that only the information possessed by Detective Paquin at the time of his arrest should be considered for the purpose of ascertaining whether there were reasonable grounds to believe that the appellant had committed or was about to commit an indictable offence. [ 19 ] It is settled law that an arresting officer must have reasonable and probable grounds to believe that an indictable offence has been committed or is about to be committed (s. 495 Cr.

C. ) and that such grounds must be objectively justifiable. [4] There is also a subjective component to the requirement, in that the police officer must actually believe that s/he has sufficient grounds to proceed to an arrest [5] . [ 20 ] The issue becomes more complex when several officers are involved in an arrest. Pursuant to R. v. Debot , [6] it is the police officer who makes the decision to arrest who must possess reasonable grounds, as opposed to an officer who simply executes the order.

The information possessed by each individual officer cannot be combined or “pooled” in assessing reasonable and probable grounds. A decision to arrest made by an officer without sufficient grounds cannot be saved by the sufficient information possessed by another officer. [ 21 ] In this case, even accepting the appellant's proposition that only the information possessed by Detective Paquin must be assessed, that information is sufficient. [ 22 ] In R. v. Debot , [7] the Supreme Court of Canada held that information received from an informant can establish reasonable and probable grounds.

Three factors must be weighed, each of them not constituting a separate test. It is the "totality of the circumstances" that must be considered. In other words, is the tip compelling, credible, and corroborated by police investigation? [ 23 ] The credibility of the informant is not really at issue in this case. Granted, he was paid for providing information. However, Detective Paul testified that he had received reliable information from the same source on six or seven prior occasions, even if arrests had not always ensued.

The information was therefore provided by a sufficiently credible source. [ 24 ] The appellant submits that the "tip" was not sufficiently compelling. He contends that Detective Paquin had incomplete information, making it impossible to exclude the possibility of a simple coincidence or a mere rumour. [ 25 ] Detective Paquin knew the appellant's alias ("Miami Mike") as well as his basic physical description. He knew that "Miami Mike" was expected to meet three or four black men at that particular Tim Hortons restaurant on that particular date and at that particular time, to finalize plans for a "burn".

He knew to expect a blue Chrysler 300. Even accepting that he may not have known the licence plate number, the information was sufficiently specific and compelling to warrant the attention of the police. It would be difficult to accept a police decision to do nothing in such circumstances. [ 26 ] Moreover, those details were amply confirmed by police surveillance.

It is not necessary, as a general rule, that a tip be confirmed in its "criminal" aspect. [8] In this case, since the police knew the informant, it was unnecessary for the surveillance team to confirm details relating to the specific criminal activity being planned in order to justify the arrest. For the most part, the information received from the informant was confirmed: a blue Chrysler 300 carrying a white man and two black men arrived at the Tim Hortons on December 15, 2010, at the expected time. The occupants later talked with another black man who was waiting at the Tim Hortons.

It could not be mere coincidence.

Detective Paquin was told that they would imminently conduct a "burn"; he could consequently infer that they would be armed. [ 27 ] In short, considering the totality of the circumstances, a reasonable person placed in the position of Detective Paquin would have had reasonable and probable grounds to believe that an indictable offence was about to be committed. [ 28 ] The appellant further argues that Detective Paquin did not hold a subjective belief that he had sufficient grounds to arrest the occupants of the vehicle, because he stated in cross-examination that he had not obtained a warrant due to the urgency of the situation and because he had insufficient grounds.

The appellant is basing this assertion on one of those confusing excerpts of testimony that may be found in many trial transcripts. What matters is that Detective Paquin testified that he gave the "green light" for the arrest when the surveillance team confirmed that the occupants of the vehicle could be the suspects.

Read in context, what the transcript shows is that Detective Paquin thought that it was impossible to obtain a telewarrant due to the urgency of the situation, since it was only after the surveillance team confirmed the information provided by the informant that he acquired reasonable grounds, and by then, it was indeed too late to obtain a telewarrant. [ 29 ] Like the trial judge, I therefore conclude that the arrest was legal and that there was no breach of the appellant's rights under sections 8 or 9 of the Charter .

The search of the vehicle was a lawful exercise of the common law power of search incidental to an arrest. [9] The arrest was legal, the search was truly incidental to the arrest, and the search was not conducted in an abusive fashion. [10] The Guilty Verdict [ 30 ] The evidence did not allow one to determine who owned the tuque which contained the firearm, the ammunition, and the cartridge magazines.

The trial judge was nevertheless satisfied that the appellant's guilt was the only rational conclusion that could be drawn from the circumstantial evidence. [ 31 ] The appellant submits that the trial judge erred by drawing an inference from an unproven fact.

Specifically, he contends that the trial judge would have had to assume that the tuque was placed near the centre console on the driver's side only a few seconds after police officers intervened in the parking lot, an assumption that he says the evidence cannot sustain beyond a reasonable doubt. [ 32 ] The trial judge accepted the evidence of the driver, Robinson, that he did not see the tuque upon returning from the Tim Hortons. The tuque would have been visible for someone entering the vehicle on the driver's side.

One could therefore deduce that the tuque was placed between the driver's seat and the centre console during the police intervention. It was conceded by the appellant's attorney that unless the gun was already in the car before the appellant entered it, he would have been the only person with an

opportunity to place it there. [ 33 ] The trial judge also accepted Officer Rioux's testimony that the accused was seen leaning to the left, behaving in a fashion consistent with placing something on the floor of the car. Unlike Robinson and Samuels, the appellant did not raise his hands immediately upon being given the order to do so. He only complied when the car window was broken by police officers. [ 34 ] It is trite to say that findings of facts are not to be lightly interfered with by appellate courts. The verdict is one that a properly instructed jury acting judicially could have reasonably rendered.

Certainly the trial judge, considering all the evidence, could conclude, beyond a reasonable doubt, that the appellant had both the knowledge and the requisite degree of control necessary to establish possession of the firearm. [ 35 ] For these reasons, I would dismiss the appeal. NICOLE DUVAL HESLER, C.J.Q.