Reasonable grounds for drug arrest without direct witnessing of crime: Ontario Court of Appeal

Police conducted surveillance after getting warning; behaviour consistent with trafficking

Reasonable grounds for drug arrest without direct witnessing of crime: Ontario Court of Appeal

A police officer need not witness an exchange of drugs and cash to form the requisite grounds to believe that a drug transaction took place, the Ontario Court of Appeal has ruled.

In R. v. Veliz, 2022 ONCA 653, police received an anonymous tip that “Asher V.” was trafficking in cocaine and thought that the appellant was that person. Over several days, a police officer conducted surveillance and believed that four of the appellant’s interactions were drug transactions.

The appellant had brief meetings in his car, always with one other individual. The other person entered his car from the passenger’s side and left after about two minutes on two occasions; the appellant drove the other person to an ATM machine and then back to the starting point on the third occasion; and he interacted with the other person through the window on the driver’s side on the fourth occasion.

Police arrested the appellant for drug trafficking and later obtained a warrant under the Controlled Drugs and Substances Act to search his home. There, they found 127 grams of cocaine in individually-wrapped dime bags, money, a weighing scale, a handgun, and ammunition.

The appellant requested to speak to counsel of his choice. The officer left two voicemails with that lawyer, emailed him, then asked the appellant if he was willing to speak to duty counsel if his preferred counsel could not be reached. The appellant agreed, spoke with duty counsel, and expressed satisfaction with the advice he received.

At trial, the appellant alleged breaches of his rights under ss. 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms. He asked for the exclusion of the evidence seized during the arrest and under the search warrant. The Ontario Superior Court of Justice rejected the charter claims, convicted the appellant, and imposed a 4.5-year net global sentence.

Experienced officer identified pattern of behaviour

The Ontario Court of Appeal ruled that the arrest was not arbitrary. The trial judge properly found that police had reasonable and probable grounds to arrest the appellant, given that they corroborated the information received from the tip, the court said.

The court noted that the officer who conducted surveillance decided, based on her training and experience in investigating drug transactions, that the appellant’s pattern of quick and clandestine meetings with different individuals was consistent with drug trafficking, where the buyer and seller want to conduct a quick transaction without being observed.

The appellate court also found that the search warrant was valid under s. 8 of the charter. The appellant claimed that the information to obtain fell short of the standard under s. 11 of the Controlled Drugs and Substances Act and was misleading because there was a failure to disclose that the appellant’s previous arrests for drug-related offences had led to no convictions and there was a failure to expressly state that police found no drugs or related paraphernalia on the appellant during the arrest.

The court disagreed and upheld the judge’s conclusion that the non-disclosures alleged by the appellant would not be misleading to the issuing justice.

In addition, the appellate court found that the appellant’s s. 10(b) right to counsel was not infringed as a result of not being able to speak with his counsel of choice. The judge properly determined that he had received a reasonable opportunity to contact his preferred counsel before police questioned him, the court said.

The court found it unnecessary to conduct a s. 24(2) analysis, given that there were no charter breaches.

Lastly, the appellate court saw no basis for the sentence appeal since the judge imposed a 4.5-year net global sentence for both the firearm and drug offences despite the fact that the Crown asked for a 6-year net global sentence.

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