) ) Her Majesty the Queen Respondent – v. –, 2013 ONSC 4169

CITATION : Regina v. Powell 2013 ONSC 4169 COURT FILE NO.: 3893/12 DATE: 2013-06-17 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Her Majesty the Queen Respondent – and – Anthony Powell Applicant/Accused ) ) ) ) ) ) ) ) ) Darren Anger, for the Respondent Ronald Charlebois, for the Applicant/Accused ) ) ) HEARD: May 24, 2013 THE HONOURABLE JUSTICE J. R. HENDERSON D E C I S I O N O N A P P L I C A T I O N [ 1 ] While he was driving his motor vehicle on October 26, 2011, the applicant/accused, Anthony Powell, was stopped by police officers and arrested.

Thereafter, a search of the vehicle revealed a quantity of crack cocaine. The accused now stands charged with possession of cocaine for the purpose of trafficking contrary to s. 5(3)(

a) of the Controlled Drugs and Substances Act . [ 2 ] The accused brings this application for a declaration that his arrest constitutes an arbitrary detention, and that the subsequent search of his person and his vehicle was unreasonable, contrary to s. 9 and s. 8 respectively of the Canadian Charter of Rights and Freedoms (“the Charter ”). [ 3 ] Further, if this court finds that there was an infringement of the Charter rights of the accused, the accused submits that the evidence obtained as a result of the search should be excluded from the trial of this charge pursuant to s. 24(2) of the Charter .

THE FACTS [ 4 ] In December 2010 and January 2011 members of the Niagara Regional Police Service (“NRPS”) received information from two separate confidential informants (“C.I. #1” and “C.I. #2”) that a black male who resided at 4793 Montrose Road, Niagara Falls, Ontario, was dealing in crack cocaine.

The NRPS officers believed that the black male in question was the accused, Anthony Powell. [ 5 ] Between December 2010 and October 26, 2011, only minimal surveillance of the accused was conducted by NRPS officers, and the accused was at no time observed dealing in drugs or meeting persons for short periods of time. [ 6 ] On October 26, 2011, NRPS Officer McCready took up surveillance of the accused at his residence. Officer McCready observed the accused leave his residence on Montrose Road in Niagara Falls driving a pickup truck.

Officer McCready then discreetly followed the accused’s vehicle and notified other members of his team as to his actions. Thereafter, Officer McCready, Officer Marr, and two other NRPS officers worked together to keep the accused under surveillance. This was the first time that NRPS officers had conducted any significant surveillance of the accused, and the first time that they had followed the accused in his vehicle. [ 7 ] The officers observed the accused stop for gas and then drive to a residence in Hamilton, Ontario. The accused remained in the residence for approximately 15 minutes.

Then, the accused and another male person exited the residence and drove away in separate vehicles, one following the other. The two vehicles drove to another Hamilton residence at 93 Oxford Avenue. [ 8 ] At the Oxford Avenue residence, the other male person exited his vehicle, momentarily opened the passenger door of the accused’s vehicle, closed the passenger door of the accused’s vehicle, and then entered the residence. Approximately three minutes later, the other male person exited the residence and entered the accused’s vehicle through the passenger door.

After approximately five to ten seconds, the other male person exited the accused’s vehicle, and both the accused and the other male person left the scene in their respective vehicles. [ 9 ] Officer Marr testified that after the events at 93 Oxford Avenue had taken place, he believed that a drug transaction had

occurred. Then, in consultation with the other officers involved in the surveillance, Officer Marr formed the belief that there werereasonable and probable grounds to arrest the accused for possession of cocaine for the purpose of trafficking. [10] The NRPS officers kept the accused’s vehicle under surveillance until the vehicle entered onto the Queen Elizabeth Way. Atapproximately 11:11 a.m. on October 26, 2011, at the direction of Officer Marr, NRPS officers stopped the accused’s vehicle on theQueen Elizabeth Way and arrested the accused.

Immediately thereafter NRPS officers searched the accused and his vehicle anddiscovered 55.9 grams of crack cocaine and $508 in cash. THE ISSUES [11] The accused submits that reasonable and probable grounds for his arrest did not exist. Thus, the accused submits that hisarrest was unlawful and any search incidental to the arrest was also unlawful. The accused requests that the fruits of the search,including the crack cocaine, be excluded as evidence at the trial of this charge. [12] The relevant sections of the Charter read as follows: 8.

Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 24.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or deniedany rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [13] In light of these sections of the Charter, there are two broad legal issues in this case. First, this court must determine if therewere reasonable and probable grounds to arrest the accused in these circumstances.

I heard submissions with respect to the right todetain the accused and the right to search the vehicle, but in my view those matters are ancillary to the real question of whether therewere reasonable and probable grounds for the arrest. [14] As soon as the two vehicles left 93 Oxford Avenue the officers made the decision that the accused would be arrested. Ifreasonable and probable grounds to arrest the accused existed at that point, then the officers were entitled to stop the vehicle and arrestthe accused.

Once the accused had been lawfully arrested, then the officers were entitled to search the vehicle so long as the search wascarried out in a reasonable manner and for a valid purpose. See R. v. Caslake (SCC), [1998] 1 S.C.R. 51. [15] If there were no reasonable and probable grounds to arrest the accused, then the police officers breached s. 9 of the Charterby stopping the vehicle for the purpose of the arrest. Moreover, any search that is incidental to an unlawful arrest would constitute anunlawful search. [16] The second legal issue relates to the application of s. 24(2) of the Charter.

If this Court determines that the s. 8 and s. 9 rightsof the accused were breached, then this court must determine whether the admission of the evidence that was obtained would bring theadministration of justice into disrepute. If so, the evidence should be excluded pursuant to s. 24(2). REASONABLE AND PROBABLE GROUNDS TO ARREST [17] Section 495(1)(

a) of the Criminal Code of Canada defines a police officer’s powers of arrest, in part, as follows:

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; [18] The Supreme Court of Canada in the case of R. v. Storrey (SCC), [1990] 1 S.C.R. 241 set out the test for themanner in which a court should determine whether reasonable grounds to arrest an accused exist. At p. 250 of the Storrey decision,Cory, J. wrote: There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she hasreasonable and probable grounds to make an arrest.

Rather, it must be objectively established that those reasonable and probablegrounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed thatreasonable and probable grounds existed to make the arrest. [19] In the present case I accept that the four police officers involved in the surveillance subjectively believed that there werereasonable and probable grounds to arrest the accused.

Therefore, the issue is whether, viewed objectively, a reasonable person,standing in the shoes of the police officers, would have believed that reasonable and probable grounds existed to make the arrest. [20] Objectively, I find that the police officers had only two pieces of evidence from which they could have formed the belief thatthe accused had committed an offence. First, the police officers had the information they had received from C.I. #1 and C.I. #2. Second,the police officers had the observations they made of the activities of the accused while the accused was under surveillance on October26, 2011.

In my view, there are significant frailties with both of these pieces of evidence.

[21] The information provided by the two confidential informants can be summarized as follows. In December 2010 C.I. #1 toldpolice that a black male lived on the top floor at 4793 Montrose Road and drove a beige pickup truck. He said that this male was dealingcrack cocaine. In January 2011 C.I. #2 told police that a black male named Pete lived in Niagara Falls and drove a pickup truck. Petewas selling crack cocaine and Pete met people in parking lots in Fort Erie. He gave the police officer a phone number for Pete.

In lateJanuary 2011 C.I. #1 told police that a black male named Pete lived on the top floor at 4793 Montrose Road and was still dealing crackcocaine. Pete went out of town to pick up his cocaine. A male and female person lived in the basement of the building, and the femalewas a runner for Pete. [22] I accept that much of this confidential information is neutral or innocuous.

For example, it would be very easy for any personto know that a black male lived at this address and drove a beige pickup truck. [23] As to the incriminating portions of the confidential information, it must be acknowledged that incriminating tips provided byconfidential sources are fraught with problems. It is important for police officers to carefully assess the reliability of any confidentialinformation provided by tipsters before such information is relied upon as the basis for an arrest or a search.

The degree of reliability ofthe confidential information can in part be assessed by a police investigation designed to verify or refute the information provided by thetipster. [24] In the case of R. v. Debot (1989) (SCC), 52 C.C.C. (3d) 193, the Supreme Court of Canada consideredwhether confidential information received from a tipster could be used, in conjunction with the observed activities of the accused, tojustify a warrantless search.

Wilson, J. wrote at p. 215 of the Debot case as follows: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based ona “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? [25] Similarly, in the case of R. v.

Garofoli (SCC), [1990] 2 S.C.R. 1421, the Supreme Court of Canada dealt withthe issue of the reasonableness of a search in the form of a wiretap. The authorization for the wiretap was based in part upon confidentialinformation received from a tipster. At para. 68 of Garofoli, Sopinka J. set out the following propositions with respect to confidentialinformation from a tipster: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence ofa tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances.” There is no formulaic test as towhat this entails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the “tip”; (

b) the informer’s source of knowledge; (

c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [26] These principles were applied in the case of R. v. Zammit (1993) (ON CA), 13 O.R. (3d) 76 (O.C.A.), acase in which a police officer received confidential information that the accused was selling drugs.

After the officer did some cursoryinvestigation to confirm the correctness of the neutral information, the officer received further information that the accused would becoming into possession of a quantity of cocaine. The decision was then made to stop the accused’s vehicle, and arrest the accused. Cocaine was discovered in the vehicle on the search incidental to the arrest.

In setting aside the conviction of the accused at trial, theOntario Court of Appeal, relying on the reasoning in the Debot case, determined that the confidential information, combined with thesubsequent investigation by the officer, was insufficient to form the basis for the arrest of the accused and the search of his person andvehicle. [27] In the present case, Officer McCready testified that C.I. #1 had provided useful and correct information in the past.

But, inmy opinion, the NRPS officers, including Officer McCready, did very little to independently assess the reliability of the confidentialinformation provided by C.I. #1 and C.I. #2 regarding this accused. [28] In particular, the police officers could have checked the neutral information provided by the informants. If a police check ofthis neutral information had verified the information, then the incriminating information provided by the informants would be givenstrength.

For example, the police officers could have reviewed the municipal rolls to determine who was living on the top floor at 4793Montrose Road; they could have attempted to determine if a male and female person were living in the basement; or they could haveattempted to determine the description of any vehicles that were registered to the accused. None of this was done. [29] Also, the police officers could have conducted some meaningful surveillance of the accused or the residence.

Surveillancecould have revealed the comings and goings of the accused; it could have revealed whether the accused was making frequent trips out oftown; it could have revealed whether the accused was in the habit of meeting different people for short periods of time; or it could haverevealed whether the accused was going to parking lots in Fort Erie.

This surveillance would have assisted in verifying or refuting boththe neutral and the incriminating portions of the confidential information. [30] In fact, the police officers did minimal surveillance of the accused in the nine or ten months between the receipt of theinformation and the arrest of the accused. In total, there were only a few drive-bys of the residence for the purpose of observing thevehicles that were in the driveway. No significant surveillance was done until October 26, 2011, the day on which the accused wasfollowed and arrested.

[31] Further, the confidential information received from C.I. #1 and C.I. #2 lacked detail, a fact which tends to negate thereliability of the information. There was no detail as to where the accused travelled when he went out of town; which parking lots heattended; the time of day that he was dealing crack cocaine; to whom he was selling cocaine; or how often he was making trips to pick upor deliver cocaine.

Moreover, there was no detail as to the involvement of the female person as a runner, and neither of the confidentialinformants provided the source of their information. [32] Still further, this was not the first time that the NRPS officers had engaged in this type of conduct with this accused. OnMarch 1, 2011, based on the same untested confidential information, this accused was detained while operating his motor vehicle,arrested, and searched by NRPS officers. On that date the search revealed nothing of significance, and no charges were laid.

This courtcannot determine whether the arrest of the accused on March 1, 2011, was unlawful, as all of the particulars of that incident have notbeen provided; however, the events of March 1, 2011, tend to negate the reliability of the confidential information that was in the handsof the officers. [33] Overall, as of October 26, 2011, the police officers possessed confidential information that was untested, relatively unspecific,and raised many questions. In essence, the confidential information in the possession of the police officers constituted conclusorystatements that the accused was dealing crack cocaine.

Thus, in my view, a reasonable person, standing in the shoes of the policeofficers, would have placed very little weight on this confidential information. [34] Regarding the observed activities of the accused on October 26, 2011, on their own these activities are not incriminating. Theaccused did not make frequent stops; he made two stops, one for a very short period of time.

The police officers did not observe anyhand-to-hand contact between the accused and the other male person; the police officers did not observe any exchange between the twopersons; and the police officers did not observe any item being carried into or out of either of the vehicles. [35] I accept that the activities of the accused on the day in question may be consistent with a drug transaction, but I find that theseactivities are not strong evidence that the accused was involved in a drug transaction. [36] The next question is whether the untested confidential information in combination with the observed ambiguous activities ofthe accused can objectively form the basis for the belief that reasonable and probable grounds existed to make the arrest.

In my view,these two pieces of evidence do not provide such a basis. [37] The surveillance of October 26, 2011, in my view, was a good start toward verifying the confidential information, but theactivities of the accused had only been closely observed on this one occasion. One trip out of town and one short encounter does notverify the confidential information provided by the tipsters.

The observed activities of the accused cannot realistically support a beliefthat the accused was travelling out of town to pick up drugs, that he was engaged in drug transactions, or that he was travelling to parkinglots in Fort Erie. [38] If the police officers had observed several instances in which this accused made similar trips to various locations, it might bethat the surveillance would establish a pattern of trips, frequent stops, and exchanges that would bolster the strength of the confidentialinformation.

That did not occur in this case. [39] The untested conclusory statements provided by the confidential informants, combined with one fairly ambiguous trip toHamilton, may make the police officers suspicious that the accused was involved in dealing crack cocaine. However, objectively,suspicion is not enough to form the basis for a belief that reasonable and probable grounds existed to arrest the accused. [40] Therefore, I find that, from an objective point of view, reasonable and probable grounds to arrest the accused did not exist. Therefore, the arrest of the accused was not authorized at law.

The arrest of the accused constitutes a breach of s. 9 of the Charter, andthe subsequent search constitutes a breach of s. 8 of the Charter. SHOULD THE EVIDENCE BE EXCLUDED PURSUANT TO S. 24(2)? [41] The evidence obtained as a result of the arrest of the accused and the search of his person and vehicle was obtained in amanner that breached the Charter rights of the accused. Section 24(2) states that such evidence “shall be excluded if ... the admission ofit in the proceedings would bring the administration of justice into disrepute”. [42] The Supreme Court of Canada in the case of R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 set out the manner inwhich a court should assess an application for exclusion of evidence under s. 24(2) of the Charter. At para. 71 of Grant the Court wrote: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct (admission may send the message the justice system condones serious statement misconduct), (2)the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights countfor little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balancethe assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute. [43] Regarding the seriousness of the Charter-infringing conduct, I accept that the police officers in this case acted in good faith inthe sense that they honestly believed that there were reasonable and probable grounds to arrest the accused and search his vehicle. [44] However, it was the conduct of the police officers in failing to adequately investigate the confidential information that was theprimary cause for the unlawful arrest and search.

Specifically, there was minimal investigation into the veracity of any of theconfidential information, and the first meaningful surveillance did not occur until approximately 10 months after the first informationhad been received.

[ 45 ] Further, the effects of the substandard investigation were exacerbated by the overzealous conduct of the police officers on October 26, 2011. The police officers should have been conducting surveillance so as to verify or refute the information they had received, but at the first sign of corroboration, based on mere suspicion, the officers rushed to arrest the accused. [ 46 ] I also find that the prior arrest and search of the accused further heightens the seriousness of the breach in this case. Based on what is known, the events of March 1, 2011, are strikingly similar to the events of October 26, 2011.

At the very least the incident of March 1, 2011, should have caused the officers to seriously question the reliability of the confidential information they had received. Thus, the officers should have been even more cautious about acting on that confidential information until a thorough investigation had been conducted. [ 47 ] Considering these factors, I find that the Charter -infringing conduct in this case is toward the serious end of the spectrum. [ 48 ] Regarding the impact of the breach on the Charter- protected interests of the accused, I find that the breach was not fleeting, nor was it egregious.

The accused was not simply detained, questioned, and released; rather, the accused was detained, arrested, handcuffed, and taken into custody, all of which was in violation of his Charter rights. [ 49 ] Therefore, I find that the impact of the breach on the Charter -protected interests of the accused was in the modest or middle range of the spectrum. [ 50 ] Regarding society’s interest in the adjudication of the case on its merits, I accept that this factor almost always favours admission of the evidence.

Moreover, in the present case, I accept that the charge of possession of crack cocaine for the purpose of trafficking is a very serious one, and accordingly the public would have a strong interest in having this case determined on its merits. [ 51 ] However, as was stated in the Grant decision at para. 84 , and reiterated in other decisions including R. v. Beattie , 2009 ONCJ 456 at para. 29 , the gravity of the charge should not overwhelm the other factors. In Grant , the Court emphasized the need for the s. 24(2) judge to focus on the long term repute of the justice system.

At para. 84 of the Grant decision, the Court wrote: Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [ 52 ] Therefore, as much as it would benefit the public to have an adjudication of this case on its merits, from a long term perspective it would benefit the public if this court were to provide assurance that the rights and freedoms protected by the Charter would be upheld.

In the circumstances of this case, in my view, any reasonable member of society would be offended by the unlawful arrest, detention, and search of the accused, and would not expect this court to condone such conduct. [ 53 ] For all of these reasons, I find that the admission of the evidence obtained by reason of the unlawful arrest of the accused and the subsequent search of his person and his vehicle would bring the administration of justice into disrepute. Such evidence will therefore be excluded from the trial of this charge.

SUMMARY AND CONCLUSION [ 54 ] In

summary, I find that the arrest of the accused and the subsequent search of the accused and his vehicle constitute breaches of s. 8 and s. 9 of the Charter . Any evidence obtained as a consequence of these breaches is excluded from the trial pursuant to s. 24(2). Henderson, J. Released: June 17, 2013 CITATION : Regina v. Powell 2013 ONSC 4169 COURT FILE NO.: 3893/12 DATE: 2013-06-17

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen Respondent – and – Anthony Powell Applicant/Accused D E C I S I O N o n a p p l i c a t i o n Henderson, J. Released: June 17, 2013