Blue Line

Features Case Law Opinion
Handcuffing did not eliminate safety concern

Every detail of an informer’s tip does not need to be verified by independent investigation before it rises to the level of reasonable grounds for arrest. In R. v. Dunkley, 2017 ONCA 600, the police were surveilling a suspected cocaine dealer’s residence when they saw Orlando Dunkley, a slim black male about six feet tall with a dark jacket, park a silver Honda Accord on the street near the house at about 9:05 p.m.

October 12, 2017  By Mike Novakowski

The Honda’s license plate was registered to a female at an out-of-town address. An officer recalled receiving information earlier that month from the handler of a confidential informer that the male driver of a silver Honda Accord with the same license plate number was a high-level cocaine supplier in town. The informer had described the male as thin, black, in his thirties and from out of town. The informer was believed to be reliable by the handler and the information was first-hand.

This information was shared with the other members of the surveillance team and the police saw the suspected cocaine dealer showing Dunkley out of the house around 9:33 p.m. When Dunkley drove away from the house, officers formed the belief that he was the suspect described by the informer and that they had grounds to arrest him for possessing cocaine for the purpose of trafficking. As he drove to a nearby McDonald’s drive-through at 9:47 p.m., he was stopped and arrested.

Dunkley was patted down incident to his arrest and his car was also searched. Six cellphones were recovered from Dunkley’s pants pockets and the centre console of his vehicle. As well, $1,200 cash was found in a backpack in the back seat of the car along with a handwritten list of names and phone numbers and a large, empty Ziploc bag.

Dunkley’s car was moved to the police station where a more extensive search was conducted, which the police regarded as a continuation of the roadside search incident to arrest. Several plastic panels that concealed “natural voids” within the vehicle were removed. Behind the plastic panel on the rear driver’s side arm rest, police found about US$440,000 and a loaded handgun wrapped in saran wrap. Behind the rear passenger-side panel, approximately 5.5 kilograms of cocaine was found, packaged in various quantities. Dunkley was charged with drug and firearms offences.


In the Ontario Superior Court of Justice Dunkley argued his arrest was unlawful and that the evidence found when police conducted their searches incidental to it should be excluded. The judge, however, held that the arrest was lawful and admitted the evidence. The judge found the police had the requisite grounds to justify an arrest under s. 495(1)(a) of the Criminal Code. First, the house being watched was the residence of a suspected cocaine dealer. Second, Dunkley entered the residence and left with the suspected cocaine dealer about half an hour later. And finally, Dunkley’s appearance and vehicle completely matched the information provided by the confidential informer. The judge found this was not an innocent coincidence and Dunkley’s presence at the address corroborated the informant’s tip.

As for the searches of Dunkley and his vehicle, the judge concluded they were proper as an incident to a valid arrest. The purpose of these searches was to discover and preserve evidence with respect to possession for the purpose of trafficking. The delay involved in moving the vehicle to the police station did not preclude the subsequent search from being one properly conducted as an incident to arrest. Dunkley was convicted of several offences including possessing cocaine for the purpose of trafficking and firearms-related offences.

In Ontario’s highest court, Dunkley appealed his convictions submitting, among other things, that the trial judge erred in finding that his arrest was based on reasonable and probable grounds. Moreover, he contended, the evidence seized, incident to his invalid arrest, should be excluded under s. 24(2) of the Charter.

The arrest
Since the arresting officer had no personal dealings with the informer, Dunkley suggested there was no evidence capable of providing an objectively reasonable basis that the arresting officer could rely on the handler’s statement about the informer’s reliability. Further, Dunkley argued that the trial judge should not have ruled out an innocent coincidence and the police were required to confirm the accuracy of the tip through independent investigation before acting on it.

The Court of Appeal, however, found the trial judge properly determined whether the police had the necessary reasonable grounds to arrest arising from the informer’s tip.

“The tip was compelling: it contained sufficient detail to ensure that it was based on more than a mere rumour or gossip,” said the Court of Appeal. “The tip was credible. The tip was corroborated: the surveillance team independently observed a vehicle completely matching the description given by the informant arrive at the very residence they were staking out for drug trafficking.”

The Court continued:

[T]he police are not required to corroborate the very criminality of the information given by the informant through their independent investigation, and it is not necessary to confirm each detail in a tip. The police must only be satisfied that the possibility of innocent coincidence is removed based on the conformity of the events actually observed to the pattern anticipated by the tip. [References omitted, para. 15.]

In this case, the trial judge correctly found that the possibility of innocent coincidence had been removed:

He correctly held that the attendance of a man fitting the description provided by the informant, in the same car identified by the informant and at the house of a known cocaine supplier, was clear corroboration of the tip that rendered it sufficiently reliable to be acted upon, despite the absence of evidence from the informant’s handler. The supplier let the [accused] into his house and escorted him back to his car. The high degree of suspicion attached to these non-criminal acts was sufficient to remove the possibility of innocent coincidence. [para. 16.]

Dunkley’s arrest was lawful, there was no s. 8 Charter violation and it was therefore unnecessary to conduct a s. 24(2) analysis. Dunkley’s appeal was dismissed and his convictions were upheld.

Mike Novakowski is Blue Line’s case law columnist. He can be contacted at

Print this page


Stories continue below