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All circumstances determine reasonable grounds


November 6, 2015
By Mike Novakowski

The totality of the circumstances must be assessed when considering whether an informer’s tip provides reasonable grounds.

In <R. v. Amare, 2015 ONCA 673> a confidential informer told a police officer about a large drug transaction involving black participants. The officer had dealt with the informer on a “few” prior occasions and received information related to criminal activity including organized drug crime, although no arrests or charges directly resulted from the information.

Each time, the information proved to be reliable and truthful, there was no inaccuracies or exaggerations and the informer had no convictions for crimes of dishonesty such as perjury or obstruction. He had also provided the names of specific individuals and conveyed information that was not of a type generally known or even within the knowledge of the average police officer. The informer was promised consideration if the information was accurate and, for example, resulted in an arrest or successful search.

The officer briefed a number of colleagues, including a mobile surveillance team, about the drug transaction expected to take place later in the day. Further information from the informer confirmed that the transaction would take place and that the drugs would be in a black Nissan Pathfinder. He provided the license plate, the area where it would be and said it might be travelling with a gold Maxima.

A member of the surveillance team subsequently spotted a black Pathfinder and Maxima travelling together in the area mentioned by the informant. The Pathfinder was stopped in a laneway and Amare, the lone occupant, was arrested at gunpoint. The rear door was opened and the officer saw a large red suitcase in the storage area. It contained what police believed to be ecstasy tablets and cocaine in vacuum sealed bags.

The vehicle was moved out of the laneway, where it was obstructing traffic, to a rear lot of one of the apartment buildings. The suitcase had 10 bags of pills or tabs (ecstasy) totalling 99,820 tabs and the powder, weighing 1.9 kilograms, tested as MDMA. The drugs were valued at $300,000. Amare was charged with possessing a controlled substance for the purpose of trafficking.

In the Ontario Superior Court of Justice, Amare argued, among other things, that his <ss. 8 and 9> Charter rights had been breached and the evidence should be excluded. In his view, there were no reasonable and probable grounds for his arrest, rendering it arbitrary under <s. 9>. Thus the warrantless search incident to that arrest was unlawful and breached his right to be secure against unreasonable search and seizure under <s. 8>.

At trial it was agreed that the arresting officers had the requisite subjective belief to believe reasonable grounds existed that Amare had committed an offence. The judge also concluded that they had an objective basis to believe on a totality of the circumstances approach using the Debot factors (how compelling was the tip, how credible was the source and how much was the tip corroborated).

The gunpoint arrest was not unreasonable, nor was the warrantless search for the presence of illegal drugs. There were no <ss.8 or 9> Charter breaches. Amare was convicted of possessing MDMA (ecstasy) for the purposes of trafficking and sentenced to four years in prison.

Amare appealed to Ontario’s top court asserting that the trial judge erred in finding objectively discernible facts existed to support reasonable and probable grounds for the arrest. He suggested that the informer information had a “thin” or “sparse” evidentiary basis when considering each of the Debot factors. In his opinion, the trial judge lowered the requisite standard from reasonable and probable grounds to arrest to one of reasonable suspicion to detain.

The Ontario Court of Appeal disagreed. The trial judge properly considered the Debot factors and recognized that they do not form a separate test. Based on the totality of the circumstances, the trial judge did not err in finding reasonable and probable grounds for Amare’s arrest.

<First, the information from the confidential informant was compelling. As a result of this information, the police were alerted to expect a drug deal on May 21, 2010. In accordance with this tip, the police had precise details of the target vehicle carrying the drugs, including the make of the vehicle and its license number.

In addition, as a result of the tip the police expected the Pathfinder to be travelling in the geographic area of Kipling Avenue and Dixon Road in Toronto in tandem with a gold Maxima vehicle. We note that the colour discrepancy – gold and not silver – was minor and was taken into account by the trial judge.

Moreover, as found by the trial judge, the incremental updating of information to the police by the confidential informant supported the inference that the informant was “speaking from a position of real time and direct sourcing, not rumour or gossip or fabrication.”

Second, with respect to the credibility of the confidential informant, it is of importance to note that the confidential informant was neither an anonymous tipster nor an untested source. The confidential informant worked with his police handler for about a year. While the information he provided to the police did not lead to any charges or arrest, the confidential informant provided authorities with the names of persons involved in organized drug trafficking.

Significantly, the confidential informant had established a track record for providing accurate information that was unique, and without error or exaggeration. Finally, the trial judge found it was in the interest of the informant to provide accurate information in order to receive compensation and avoid potential prosecution for misleading the police.

Third, there existed corroboration to support the confidential informant’s information. The police surveillance located the target vehicle with the reported license number in the same northwest area of Toronto identified by the confidential informant. The driver of the Pathfinder, as reported, was black. As well, the target vehicle was travelling in tandem with a Maxima vehicle> [paras. 9-11].

Amare’s appeal was dismissed. Additional facts taken from <R. v. Amare, 2014 ONSC 4119>.


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