The Supreme Court of Canada has rejected an appeal challenging an arrest based on an informer's tip followed by police surveillance.
In R. v. Whyte, 2011 SCC 49, a CBSA officer assigned to the integrated weapons trafficking investigations team received a tip. A previously reliable informant told him a black male, possibly named "Jay," was coming to Windsor from the Toronto area for a transaction related to firearms and drugs. "Jay" would possibly be with someone else and the informer provided the address of an apartment building where the transaction was going to imminently take place.
The tip was passed on to a Windsor police officer assigned to the Provincial Weapons Enforcement Unit. In the officer's experience, Windsor was a place where people came to purchase inexpensive firearms because of its proximity to Detroit. In the officer's view, Windsor had become a nucleus for illegal trafficking in firearms. Since drugs such as cocaine were cheaper in the Toronto area, there was a trade in firearms and drugs between the two cities.
Police set up surveillance at the apartment and saw a black Pontiac Grand Prix arrive at about 5 am. A black male wearing a track suit and a black female entered the building, returned to their car about half an hour later and headed back to the Toronto area. A check of the licence plate revealed the car was rented. This was significant because, in the officer's experience, people involved in trafficking illegal drugs and firearms tend to rent vehicles to transport their goods for asset forfeiture reasons.
Surveillance was broken but Peel police found the car parked in the upper level of a parking lot outside a high rise apartment building at about 7:45 am. A black male moved the car a few minutes later and shortly after that, police found the car parked in the apartment building's underground parking lot. About 15 minutes later, two black males and one black female came out of the apartment building and went into the underground parking lot, walking directly to the trunk of the car.
One of the men, wearing a tracksuit, carried a shoebox, supporting the bottom with both hands. The two men bent over the trunk area and seemed to move things around. The man in the tracksuit pulled off the cover where the spare tire would be kept, removed the tire, replaced it with the shoebox and then put the cover back. The accused and the female then drove off.
Police followed the vehicle to downtown Toronto, where a tactical team stopped it, arrested Whyte and a woman and conducted a search. Three handguns wrapped in a pillowcase were found in the shoebox, one loaded. Another loaded handgun was located in the centre console. Officers also found a backpack with some ammunition. Whyte was charged with six firearms offences.
At trial in the Ontario Superior Court of Justice, Whyte argued the evidence should have been excluded under s. 24(2) of the Charter. The judge found the arresting officer had the requisite subjective belief to make an arrest but lacked the objective grounds. Although Whyte conceded that the informant was credible, the judge found the tip wasn't compelling. It was very vague and the opportunity for innocent coincidence was too high.
The tip had not been independently corroborated. The fact the vehicle was rented added nothing to the grounds for arrest, nor did the handling of the shoebox indicate that its contents were contraband. While hiding it was suspicious, it did not meaningfully contribute to the existence of reasonable grounds.
Considering the totality of circumstances, the trial judge held police only had a hunch or suspicion that the vehicle contained firearms, not reasonable grounds to arrest the vehicle occupants, thus Whyte's arrest was unlawful and the search that followed unreasonable. As a result of these s. 8 and 9 Charter breaches, the evidence was excluded under s. 24(2) and Whyte was acquitted.
The Crown appealed to Ontario's top court. Justice Rosenberg, delivering the Ontario Court of Appeal's opinion, concluded the trial judge failed to give any weight to Whyte's concession that the police informer was credible. In addition, the totality of the information available to the arresting officers was not considered in finding police did not have the requisite objective grounds to arrest the car's occupants.
An informer's tip and reasonable grounds
The test for determining whether there are reasonable grounds based on an informer's tip requires weighing whether the information predicting the commission of a criminal offence is compelling, the source credible and if the information can be corroborated. These factors do not form separate tests, but rather must be viewed on the "totality of the circumstances." Weaknesses in one factor may be compensated by strengths in the other two.
In this case, Whyte conceded the informant was credible, not just in the general sense because he had previously provided reliable information – he had also previously provided information about firearms and drugs. The informer's credibility wasn't just simply a factor to consider; it could compensate for weaknesses in the other two areas, especially whether the information predicting the commission of an offence was compelling.
As for the police surveillance, the trial judge had compartmentalized the information obtained from it and unreasonably discounted its value. It had confirmed elements of the tip, including the attendance at the address provided by the reliable informer. Plus, driving all the way from Toronto in a rental car for a 30 minute stay was highly suspicious and provided some confirmation the people were in Windsor for a criminal purpose.
"These facts, on their own, may not have been sufficient to provide the police with reasonable grounds for arrest and the police themselves recognized this fact," said Rosenberg. "However, these facts were beginning to build a compelling picture of criminal activity as predicted by the informer."
As to the significance that the car was rented, Rosenberg added:
First, whether or not there were reasonable grounds did not stand or fall on the opinion of officers as to the weight to be attached to mundane items that could be found in any vehicle, rented or otherwise. The police in this case were relying on a tip from an informer who had proved reliable in the past…
Second, the inference to be drawn from the use of a rented car was simply one piece of information to be considered along with all the other information. It was entitled to some weight based on the officers' training and experience. On its own, it could not provide objective grounds for a search. However, it could not be wholly discounted, since there was no evidence to undermine the value of the officers' training and experience…
Finally, the fact of the use of a rented car had to be placed into context. The car had been rented in the Toronto area, which confirmed the aspect of the tip that the suspects were coming from Toronto. First, whether or not there were reasonable grounds did not stand or fall on the opinion of officers as to the weight to be attached to mundane items that could be found in any vehicle, rented or otherwise (para. 26).
As for police briefly losing sight of the vehicle and being unable to verify that the people who travelled to Windsor were the same ones who returned to the car with the shoebox, this surveillance was still of value.
"In Windsor, a black male wearing a track suit and a black female were associated with the vehicle," said Rosenberg. "In Toronto, a black male wearing a track suit and a black female were again associated with the vehicle, along with another black male. The police could not say for certain that they were the same people associated with the vehicle in Windsor, but it was an interesting coincidence."
The highly suspicious handling of the shoebox was also, even on its own, powerful evidence that the vehicle was carrying contraband. Viewed in isolation it wasn't possible to say that the shoebox contained firearms as opposed to drugs or some other contraband, but it could nonetheless meaningfully contribute to the existence of reasonable grounds, contrary to the trial judge's conclusion. The surveillance wasn't to stand on its own but independently confirmed the informer's tip. In conclusion, Rosenberg held:
To summarize, by the time the police decided to stop the vehicle they had the following information to confirm the tip from the reliable informer:
· The vehicle arrived at the Windsor apartment building address as predicted in the tip;
· Windsor was known to be a location for firearm/drug transactions;
· The suspects were driving a rental vehicle;
· The suspects arrived in Windsor at 5:00 a.m. and remained for only 30 minutes;
· A black man wearing a track suit and a black woman were involved in both Windsor and Peel;
· The vehicle was parked in Peel for only 30 minutes before the occupants of the car were on the move again, this time with a shoebox secreted in the space where the spare tire had been.
Taken together, this information was sufficient to confirm the tip from the reliable informer and provide the police with the necessary objectively reasonable grounds to arrest the occupants of the vehicle and search the vehicle…
In this case, the sequence of events, from the 30 minute stay at the specified address in Windsor to the secreting of the shoebox after the 30 minute stay in Peel, sufficiently conformed to the anticipated pattern to remove the possibility of innocent coincidence. This sequence of events had to be measured against the knowledge and experience that the police officers brought to the investigation in informing the inferences to be drawn from the observations. That experience included knowledge of the trafficking in firearms in the Windsor area and the use of rental cars in illegal trafficking of drugs and firearms (paras. 29-31).
The court found police had reasonable subjective and objective grounds to believe the vehicle occupants possessed illegal firearms. Their arrest was lawful and the search that followed was incidental to arrest. There were no Charter breaches and the evidence was admissible.
The Crown's appeal was allowed, several weapons convictions were entered and the matter was remitted back to the trial judge for sentencing. Whyte was subsequently sentenced to 6.5 years imprisonment, with 2.5 years to be served after credit for four years of pre-trial custody. He was also given a lifetime firearms prohibition and ordered to provide his DNA and forfeit the seized weapons.
The accused appealed to the Supreme Court of Canada. In a short oral judgment, Justice Deschamps, delivering