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THE WHOLE IS GREATER THAN THE SUM OF ITS PARTS


April 5, 2015
By Mike Novakowski

In assessing the legality of an arrest, the factors forming its basis are to be viewed cumulatively, not in isolation.

In <R. v. Italiano, 2015 ONCA 179> a police officer had previously received general information from two confidential informants that a man named Michele Santonato dealt in large amounts of cocaine and operated out of a Toronto house. Police watched the house and saw the accused Italiano enter and leave a few minutes later carrying a distinctive looking shoebox – red and white with stripes.

Police followed when he drove away. About 15 minutes later, Italiano stopped his car. The other accused, Abdul-Hamid, got in, sat in the passenger seat for about two minutes and then exited with the shoebox and left in his own car. The police followed Abdul-Hamid, arrested him at gunpoint and searched his car. They found the shoebox, which contained one kilogram of cocaine.

In the Ontario Superior Court of Justice both men challenged Abdul-Hamid’s arrest and subsequent search on the basis that the arresting officer lacked reasonable and probable grounds. Thus, the search incident to arrest was unlawful and the evidence should be excluded under <s. 24(2)> of the Charter.

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The trial judge disagreed, finding the arresting officers had sufficient reasonable and probable grounds based on the information that they received, as well as their observations and surveillance.

<The information from the two confidential informants alone or the two confidential informants together but without everything else, would not be a lawful basis to arrest Mr. Santonato and that is not what is before me here. While the confidential informant information regarding Mr. Santonato is not compelling, it has elements of credibility and corroboration.

There is surveillance of Mr. Italiano, which was a reasonable step for the officers to make, from which they drew conclusions, and they did not act in terms of arresting anyone until they saw the handoff to [Abdul-Hamid].

In my view, having reviewed all of the evidence carefully, the confidential informant information, as corroborated to some extent by the surveillance, adds a layer to what was observed by the police and provides a basis for reasonable and probable grounds to arrest [Abdul-Hamid] and I find that they had those grounds> [paras. 50-51, 2013 ONSC 1744].

As for the search incidental to arrest, it was validly conducted. There were no <ss. 8 or 9> Charter breaches, the evidence was admissible, and Italiano and Abdul-Hamid were convicted of trafficking and possession of cocaine for the purposes of trafficking.

Both accused appealed their convictions to Ontario’s top court, arguing police did not have reasonable and probable grounds to arrest Abdul-Hamid and therefore the evidence ought to have been excluded. In a short endorsement, the Ontario Court of Appeal upheld the trial judge’s ruling.

<The trial judge found that during the investigations the officers involved in the arrest, including the arresting officer and the officer who had the tip from the confidential informants, were part of an investigative team conducting surveillance and they kept in contact by radio. He concluded that based on the information regarding Santonato and the officers’ observations, the arresting officer was entitled to order the arrest of Abdul-Hamid. We agree.

In our view, the arresting officer had the requisite reasonable and probable grounds to conduct the arrest. In this case, [the arresting officer] ordered the [accused] Abdul-Hamid’s arrest. At the time, this officer had received confidential information communicated through [another officer] that Santonato was a significant drug-dealer.

[The arresting officer] could rely on a summary of the information given to him by [the other officer] in deciding whether he had grounds to make the arrest. Santonato was observed at 36 Celt Avenue. The [accused] Italiano went into 36 Celt Avenue and emerged a few minutes later with a shoebox. The shoebox was later seen in the [accused] Abdul-Hamid’s possession. He took it in his car and then left. [The arresting officer], who ordered Abdul-Hamid’s arrest, made most of these observations in person, and was informed of the rest by his fellow investigating officers.

The Court must consider the totality of the circumstances to determine whether the constellation of factors taken together supports the officer’s reasonable and probable grounds. We are satisfied that the evidence established the requisite reasonable and probable grounds relied on by [the arresting officer] to make the arrest> [paras. 6-8].

The appeal against conviction was dismissed.