Ontario Criminal

Charter of Rights

Trial judge did not err in finding that police had objectively reasonable grounds for arrest for drug offence

Accused appealed from his conviction for possession of heroin for purpose of trafficking. Police received tip from confidential source that accused was trafficking in heroin from particular vehicle with particular licence plate number. Three police officers subsequently conducted surveillance of accused as he drove or rode in vehicle described in tip and made various stops and had various interactions over period of two days. In their evidence, one or more of officers described observing accused as he engaged in what relevant officer viewed as hand-to-hand transaction at address of known heroin user; as other individuals entered vehicle and then got out shortly after entering; and as accused approached entrances of other residences and then soon walked away. At end of surveillance period, police arrested accused and search incident to arrest revealed he was in possession of 7.3 grams of heroin in 10 individually wrapped pieces along with $1,215 in cash and digital scale. In reasons on pretrial Charter application, trial judge was not satisfied that police had established that accused attended residence of known heroin user or that they observed hand-to-hand transaction at that address. Nonetheless, in trial judge’s view, accused’s attendance at residence formed part of pattern of conduct that removed possibility of innocent coincidence. Accordingly, trial judge found police officers subjectively believed they had reasonable grounds to arrest accused without warrant and those grounds were objectively reasonable. On appeal, accused argued that, in light of findings of fact concerning police evidence, trial judge erred in finding that police had objectively reasonable grounds for arrest and further erred in failing to exclude evidence discovered on search incident to arrest. Appeal dismissed. Trial judge acknowledged that tip received by police was “bare bones” and that it required robust corroboration then carefully catalogued police observations of accused’s movements and stops over two-day period. Trial judge recognized that some of these observations could not reasonably be said to corroborate information received from tipster. After eliminating those observations from his list, trial judge was left with series of eight “stops” by accused during which either someone was seen briefly entering vehicle in which accused was riding or driving (which was subject of tip), or accused was seen approaching residence for brief period. Trial judge found pattern of conduct emerged from those observations, giving rise to reasonable grounds for arrest and court agreed.

R. v. Dezainde (Jun. 25, 2015, Ont. C.A., J.C. MacPherson J.A., Janet Simmons J.A., and H.S. LaForme J.A., File No. CA C59374) 122 W.C.B. (2d) 332

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