R. v. Burke, 2011 NBCA 51

COURT OF APPEAL OF NEW BRUNSWICK 75-09-CA HER MAJESTY THE QUEEN APPELLANT - and - SHAWN ROBERT BURKE RESPONDENT SA MAJESTÉ LA REINE APPELANTE - et - SHAWN ROBERT BURKE INTIMÉ R. v. Burke, 2011 NBCA 51 R. c.

Burke, 2011 NBCA 51 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Quigg CORAM : L’honorable jug e Larlee L’honorable juge Richard L’honorable juge Quigg Appeal from a decision of the Provincial Court: June 10, 2009 Appel d’une décision de la Cour provinciale : Le 10 juin 2009 History of the Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: November 23, 2010 Appel entendu : Le 23 novembre 2010 Judgment rendered May 26, 2011 Jugement rendu : Le 26 mai 2011 Reasons for judgment by: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard

Concurred in by: The Honourable Justice Larlee The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Quigg Counsel at the hearing: For the appellant: Robert A. Murray, Q.C. For the respondent: Ronald E. Morris, Q.C. Avocats à l’audience : Pour l’appelante : Robert A. Murray, c.r. Pour l’intimé : Ronald E. Morris, c.r. THE COURT The appeal is allowed, the verdict is set aside and a new trial is ordered. LA COUR L’appel est accueilli, le verdict est annulé et la tenue d’un nouveau procès est ordonnée. The judgment of the Court was delivered by RICHARD J.A. I.

Introduction [ 1 ] In the fall of 2007, three confidential informers, who had proven reliable in the past, informed members of the Fredericton City Police Drug Squad that Shawn Burke received orders for cocaine and Dilaudid by cell phone and that he delivered the drugs from his home using either a white minivan or a black pickup truck. The informers provided the information independent of one another. They related having either personally observed or participated in the illegal drug transactions. On the basis of this information, and after only limited observations of Mr.

Burke in a white minivan in the parking lot of a local Tim Hortons, the police arrested Mr. Burke. A search of his person revealed he possessed both cocaine and Dilaudid. Mr. Burke was charged with possession for the purpose of trafficking in both these substances, but he was acquitted in the Provincial Court after the trial judge excluded the fruits of the search on the grounds that Mr. Burke’s s. 8 and 9 Charter rights had been infringed and that admission of the evidence at trial would bring the administration of justice into disrepute. The Attorney General appeals and seeks a new trial.

For the reasons that follow, I would allow the appeal.

II. Background [ 2 ] Between September 17 and December 19, 2007, three officers of the Fredericton City Police Drug Squad received information from confidential informers that Mr. Burke was selling drugs. The first informer provided the information to Detective Chris Haines of the Drug Squad. On September 17, that individual informed Det. Haines that Mr. Burke was delivering pre- packaged cocaine and Dilaudid in either a white minivan or a black pickup truck. A few days later, the informer said he saw Mr. Burke delivering cocaine in his pickup on the north side of the city.

On October 14, the informer reported having seen Mr. Burke with cocaine and Dilaudid in his white van and, on December 18, reported having seen Mr. Burke selling a quantity of cocaine and Dilaudid again from his white van. Another informer provided information to Detective Troy Clarkson on eight occasions between September 25 and December 13, 2007. This informer reported that on several occasions he had arranged for Mr. Burke to deliver cocaine and Dilaudid to him. He described how he called a particular telephone number to contact Mr. Burke, and that Mr. Burke would then deliver the drugs.

The police verified that the number the informer provided belonged to Mr. Burke. On December 5 and 11, the informer reported that, within the last 24 hours from each of those dates, respectively, Mr. Burke had delivered cocaine to him. The delivery had been made in a white minivan. On December 13, the informer reported having received cocaine from Mr. Burke on that same day. On December 1, the third informer reported to Cpl. Sue Evans and advised her that within the past month he had bought cocaine or Dilaudid on at least a dozen occasions from Mr.

Burke, who would use a white minivan or a black truck for deliveries. That informer revealed the phone number used to order drugs and, as it turned out, it was the same number that had been reported to Det. Clarkson. On December 13, the third informer told Cpl. Evans Mr. Burke had sold and delivered cocaine within the past 24 hours and Dilaudid within the last 48 hours. In each case, Mr. Burke had been driving a white minivan. [ 3 ] All three of the police informers were known to their respective police handlers and had proven to be reliable. All the information was passed on to Det.

Haines who, on December 19, 2007, determined he had reasonable grounds to arrest Mr. Burke. On that date, Det. Haines placed Mr. Burke under surveillance. At 4:30 p.m., he followed Mr. Burke as he proceeded in his white minivan to the Tim Hortons parking lot on Union Street, in Fredericton. Mr. Burke drove in and parked next to another vehicle, which was backed into a parking space. Cst. Haines noticed that the two drivers appeared to be talking. After only one to two minutes, the two vehicles left the parking lot without anyone exiting either vehicle. [ 4 ] Det. Haines instructed a uniformed officer to stop Mr.

Burke’s vehicle in an adjoining parking lot. Within seconds, Det. Haines arrived on the scene and arrested Mr. Burke for possession of controlled substances for the purpose of trafficking. He conducted a pat down search and seized $210 from Mr. Burke’s coat pocket. [ 5 ] When advised of his right to consult counsel, Mr. Burke initially stated he wanted to call his lawyer. However, after arriving at the police station, he was unable to contact his own lawyer and declined the opportunity to call another. [ 6 ] Upon being told he was going to be strip searched, Mr.

Burke handed over two plastic bags, one of which contained 10.94 grams of cocaine packaged into 14 individual packets and the other which contained 20 Dilaudid pills. In the minivan, which was registered to Mr. Burke’s girlfriend, the police found a cell phone, the number for which was the one the informers had reported they would call to obtain drugs. A wallet containing four $20 bills was also found in the glove box of the minivan, together with the vehicle’s registration and insurance card. [ 7 ] Mr.

Burke was charged with two counts of possession of a controlled substance for the purposes of trafficking, one relating to cocaine and the other to Hydromorphone (Dilaudid), both being offences set out in s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. He was also charged with possession of proceeds of crime ( s. 354(1) (

a) of the Criminal Code ). He pled not guilty. [ 8 ] At trial, Mr. Burke sought the exclusion of the evidence the police had seized from him and from his vehicle. He alleged the police had violated rights guaranteed to him by the Canadian Charter of Rights and Freedoms . Specifically, he argued his arrest was unlawful and therefore arbitrary (a violation of s. 9) and that the search was also unlawful and therefore unreasonable (a violation of s. 8).

He also argued he had not been properly informed of his right to counsel (a violation s. 10( b )) because, although the police had informed him of his right and he had tried to call his lawyer, the police did not obtain a proper waiver from him before questioning him after he had been unable to reach his lawyer. However, Mr. Burke did not provide the police with any information as a result of this questioning and this alleged violation was not pursued before us. [ 9 ] On June 10, 2009, a judge of the Provincial Court ruled that Mr. Burke’s ss. 8 and 9 Charter rights had been violated.

Applying s. 24(2) of the Charter , the judge excluded the evidence obtained in the searches of both Mr. Burke and his vehicle

on the grounds that the admission of this evidence would bring the administration of justice into disrepute. As a result, Mr. Burke was acquitted. III. Issues on Appeal [ 10 ] The Attorney General appeals on the following grounds: 1. The trial judge erred in law by failing to correctly apply the proper legal test in his determination of the reasonable and probable grounds for an arrest without a warrant; 2. The trial judge erred in law by failing to find that there were reasonable and probable grounds for the arrest on the facts as found by him; 3.

The trial judge erred in law by misinterpreting material parts of the evidence that were significant to the trial judge’s reasoning process; and, 4. The trial judge erred in law by failing to apply the proper legal test or by making an unreasonable finding in his determination of whether the evidence should be excluded under section 24(2) of the Charter . [ 11 ] With respect, I agree the trial judge erred in applying the proper legal test in his determination of whether or not there were reasonable grounds to arrest Mr. Burke without a warrant.

I therefore find merit to the first ground of appeal and, as a result, see no need to consider the other grounds. IV. Analysis [ 12 ] It is common ground that the legality of the arrest was the determining factor at trial and is the determining factor in this appeal. If the arrest was lawful, the detention was not arbitrary and the searches incident to the arrest were not unreasonable. Section 495(1) of the Criminal Code governs. It provides as follows:

(1) A peace officer may arrest withoutwarrant (

a) a person who has committed an indictableoffence or who, on reasonable grounds, hebelieves has committed or is about to commitan indictable offence; (

b) a person whom he finds committing acriminal offence; or (

c) a person in respect of whom he hasreasonable grounds to believe that a warrantof arrest or committal, in any form set out inPart XXVIII in relation thereto, is in forcewithin the territorial jurisdiction in which theperson is found. 495.

(1) Un agent de la paix peut arrêter sansmandat :

a) une personne qui a commis un actecriminel ou qui, d’après ce qu’il croit pour desmotifs raisonnables, a commis ou est sur lepoint de commettre un acte criminel;

b) une personne qu’il trouve en train decommettre une infraction criminelle;

c) une personne contre laquelle, d’après cequ’il croit pour des motifs raisonnables, unmandat d’arrestation ou un mandat de dépôt,rédigé selon une formule relative auxmandats et reproduite à la

partie XXVIII, estexécutoire dans les limites de la juridictionterritoriale dans laquelle est trouvée cettepersonne. [13] As is evident from the language of s. 495(1)(a), an officer may arrest a person who, on reasonable grounds, theofficer believes has committed an indictable offence. Trafficking in cocaine and Dilaudid or possessing these drugs for the purpose oftrafficking are indictable offences. It is not necessary for the officer to either find the person in the process of committing the offence orto have witnessed the commission of it.

The law is well established that, for a warrantless arrest to be valid, the arresting officer mustsubjectively have reasonable grounds on which to base the arrest and those grounds must, in addition, be justifiable from an objectivepoint of view. In other words, a reasonable person placed in the position of the officer must be able to conclude there were indeedgrounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12 (QL), at paras. 16-17. [14] In his decision on the voir dire, the trial judge found Det. Haines had the required subjective reasonablegrounds.

It is with respect to the objective component of the analysis that the judge found the arrest deficient. Specifically, the judgeheld that, although there was much information about Mr. Burke’s activities over a series of months, it was not objectively demonstratedthat there were reasonable grounds “that Mr. Burke would have drugs in his possession for the purpose of trafficking on that day at thattime”. According to the judge, more in terms of confirmation of this fact was required. [15] In coming to his conclusion, the judge relied on Goodine v.

R., 2006 NBCA 109, 307 N.B.R. (2d) 178, assetting out the law regarding grounds for arrest based on information received from one or more informers. In that case, the accused wasconvicted of the indictable offence of possession of tobacco products that were not stamped as required by the Excise Act, 2001, S.C.2002, c. 22. On appeal, the only ground pursued was whether the appellant had been arbitrarily detained on the basis of an unlawfularrest. It was alleged the arresting officers had acted upon information emanating exclusively from an untested anonymous tipsterwhose allegation of possession by Mr.

Goodine of contraband tobacco products was uncorroborated by independent sources. [16] Dismissing the appeal, Drapeau C.J.N.B., for the Court, explained that in some circumstances the informationprovided by an anonymous tipster can form sufficient basis upon which an arrest can be made.

In essence, he stated that the correctapproach to the assessment of the reliability of the tip is to look at “the totality of the circumstances”, including factors such as thedegree of detail of the “tip”, the informer’s source of knowledge, and indicia of the informer’s reliability such as past performance orconfirmation from other investigative sources (paras. 20-29). As he noted, quoting from the Supreme Court of Canada in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J.

No. 115 (QL): “[t]he results of the search cannot, ex post facto, provideevidence of reliability of the information” (para. 23). [17] The standard of review that applies to this case is set out in R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527,as applied in Tontarelli v. R., 2009 NBCA 52, 348 N.B.R. (2d) 41:

While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge,the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As withany issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at firstblush as though the issue of reasonable and probable grounds is a question of fact.

However, this Court has repeatedly affirmed that theapplication of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para.18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. […] Although the trial judge’s factual findings are entitled todeference, the trial judge’s ultimate ruling is subject to review for correctness. [para. 20 of Shepherd, para. 61 of Tontarelli] [Emphasis in original.] [18] In my respectful view, the trial judge’s decision in the present case cannot be upheld against that standard ofreview.

While the judge identified the correct legal test, that is “the totality of the circumstances” approach, he made a fatal error in hisapplication of that test. As the Chief Justice pointed out in Goodine, “the genius of the ‘totality of the circumstances’ approach […] liesin the flexibility that it provides” (para. 28). This flexibility is such that, in some circumstances, it is permissible to make an arrest solelyon the basis of the information received from one or more informers, even, in some cases, where the tip is from an anonymous source.

As he explained: [...] [L]ack of corroboration of the “criminal” aspect of a tip by an untested anonymous source does not preclude a finding that an arrestbased on that tip was lawful, at least where the following circumstances are in play: (1) there is no evidence that an improper motiveunderlies the tipster’s report; (2) the corroborated “neutral” data would lead a reasonable and dispassionate observer to infer that thetipster is both closely acquainted with the target and privy to the criminal activity being reported; and (3) that observer would be at a lossto point to any fact-based, as opposed to speculative, justification for the conclusion that the allegation of criminal conduct is unreliable.In my view, the issue for trial judges is always whether, having regard to the totality of the circumstances, sufficient grounds existed tolawfully carry out the arrest.

In other words, there is no hard and fast rule; what is required is a case-specific determination that reflectsan assessment of the totality of the circumstances apparent to the arresting officers at the time they took action. [para. 20] [19] In Goodine, the Chief Justice adopted the words of Doherty J.A., in R. v. Lewis, (ON CA),[1998] O.J. No. 376 (C.A.) (QL), who pointed out that “[t]he totality of the circumstances approach is inconsistent with elevating onecircumstance to an essential prerequisite to the existence of reasonable grounds” (para. 22 of Lewis, para. 26 in Goodine).

In the presentcase, the judge focused almost exclusively on the absence of independent evidence corroborating the information the informershad provided. In my respectful view, he elevated that circumstance to an essential prerequisite because he was focused not on whetherthere were reasonable grounds for the officer’s belief that Mr. Burke had committed an indictable offence, but rather on the questionwhether there were grounds to believe Mr. Burke would be in possession of drugs at the time of his arrest. [20] The trial judge held that there was nothing more than suspicion for the officer’s belief that Mr.

Burke “wouldhave drugs in his possession for the purpose of trafficking on that day at that time”, that is the date and time of the arrest. With respect,this is not the proper basis upon which the officer’s belief ought to have been assessed. The proper question is whether there was anobjective basis for the officer’s belief that Mr. Burke had committed an indictable offence.

If so, the officer was lawfully empowered toarrest him. [21] Had the judge asked himself the right question, he would have had to determine whether the reliability of anyof the tips was satisfactorily established to provide the requisite grounds to arrest on the basis of the officer’s subjective belief Mr. Burkehad committed an indictable offence. In making this determination, the judge was required to consider all the circumstances, includingthe following, some of which are extrapolated from his findings of fact and others taken from Goodine: 1.

Members of the Fredericton Police Drug Squad had been for some months gathering evidence about Mr. Burke’s activities; 2. All three of the informers who provided information to the officers had proven reliable on many occasions; 3. All three of the informers had personal knowledge of the drug transactions in which Mr. Burke was involved, with two of themhaving themselves participated in the transactions; 4.

The informers provided significant detail regarding the transactions, i.e. the types of drugs involved, the fact that the cocaine waspre-packaged, the method of communication used, the phone number (found to belong to Mr. Burke), the vehicles he used, and the partof the city in which the transactions took place (this detail corroborated the informers reports that they were closely acquainted with Mr.Burke);

5. There was no evidence of an improper motive underlying the reports of the informers; and 6. There was no fact-based, as opposed to speculative, justification for the conclusion that the allegations of criminal conduct were unreliable. [ 22 ] In my respectful view, despite the judge’s finding that the activity witnessed in the Tim Hortons parking lot was insufficient to corroborate the tips (a finding upon which I am not required to comment), there was nevertheless more than sufficient objective support for the officer’s belief that Mr. Burke had committed an indictable offence.

The police had been told by three reliable sources who had personally witnessed multiple transactions that Mr. Burke had been trafficking in drugs. These informers, independent of one another, provided the police with sufficient detail regarding these transactions to guarantee the trustworthiness of each informer’s disclosure, especially where the detail provided by one source was corroborated by the details provided by one or both of the other sources.

Had the judge weighed all the circumstances, as he was required to do, and not elevated one to an almost prerequisite, he would necessarily have concluded there were sufficient indicia of the informers’ reliability so as to justify an arrest solely on the basis of the information provided. [ 23 ] In my respectful view, the trial judge erred in finding the arrest to have been unlawful. It follows he erred in finding violations of Mr. Burke’s Charter rights and in excluding the evidence. V.

Disposition [ 24 ] For these reasons, I would allow the appeal, set aside the verdict and order a new trial. ____________________________ J.C. MARC RICHARD, J.A. WE CONCUR: ______________________________ M.E.L. LARLEE, J.A. _______________________________ KATHLEEN A. QUIGG, J.A.