In R. v. Noorali, 2012 ONCA 589 a carded confidential informant told a major crimes unit detective about a male with a gun.
The source, who had previously provided information, said the man – brown, perhaps Guyanese, about 5' 10" tall, 160 lbs, with a goatee – would arrive at a mall parking lot later that afternoon, with a loaded gun, in a four-door, older-model, gold Toyota Camry with dark tinted windows, licence ANEV 261.
Plainclothes officers went to the mall and, a few hours later, saw a Camry matching the description turn into the parking lot. The plate matched and they initiated a 'high-risk takedown' by boxing the vehicle in and arresting the driver (Noorali) and a passenger for possession of a firearm.
They searched the Camry and found a Browning 9 mm machine pistol, two over-capacity magazines (one loaded) and a box with 35 rounds of .380 calibre ammunition. A bag of marijuana, powder and crack cocaine and a scale were found in the trunk behind a speaker box. Noorali was charged with nine firearm, ammunition and related devices counts and two counts of possessing drugs for the purpose of trafficking.
In the Ontario Superior Court of Justice Noorali sought to have all of the evidence found in the trunk excluded under s. 24(2) of the Charter, suggesting it was obtained in a manner that breached s. 8.
The judge recognized that "a police officer who makes an arrest or conducts a search at the request or direction of a fellow officer need not personally be in possession of reasonable and probable grounds for the arrest or search so long as those grounds are in the hands of the officer making the request or giving the direction." Although the detective in this case did not participate in the takedown, he "pulled the trigger" on it and the arrest would only be lawful if he possessed the necessary reasonable grounds.
The judge found the detective not only had the necessary subjective belief that Noorali possessed a firearm but that it was also objectively reasonable based on the totality of the circumstances. The information was compelling and the source provided specific details about the suspect vehicle, including where it would be driven, when and that there would be a firearm inside.
The informant was not untested and anonymous but a 'carded' confidential source who had provided information on at least two prior instances that led to successful seizures of illicit items, including a firearm.
The information was corroborated. As predicted by the source, a specific car arrived at the location within the specified time frame. "(The detective) was entitled to regard those circumstances as corroborative, notwithstanding that the corroboration did not relate specifically to whether there was a firearm in the motor vehicle," said the judge.
"The specificity of the information provided by the confidential source, the past history of the source as a reliable informant and the confirmation afforded when the specific vehicle described by the source was seen doing precisely what the source said it would be doing at the predicted time and place furnished (the detective) with objectively reasonable grounds for his belief."
The arrest was lawful and the search that followed was reasonable as incident to arrest. Noorali was convicted and sentenced to 8.5 years in prison less 33 months pre-trial custody, prohibited from possessing firearms and ordered to give a sample of his DNA.
An appeal to the Ontario Court of Appeal was unsuccessful. Noorali submitted, among other grounds, that the trial judge erred in finding the search reasonable but the court disagreed, finding the trial judge correctly applied the law.
The detective had the vehicle's licence number from the confidential informer, the detail in the tip was compelling and the informer was reliable. Noorali's conviction appeal was dismissed.
Editor's note: The case facts are taken from R. v. Noorali, 2010 ONSC 2558, 2010 ONSC 3747.