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Vague informant insufficient to justify arrest


December 5, 2011
By Mike Novakowski

The police need more than In R. v. Smith, 2011 ONCA 748, a police officer received general and generic information from a previously untested informant that the accused was in possession of cocaine and was selling it in the Hamilton area. The informant further stated that Smith kept the cocaine inside his vehicle and at his house as well as a firearm; however, the location of where the firearm was kept was unknown. Smith, according to the informant, drove a black Nissan with black rims. The informant had a lengthy criminal record, was deeply entrenched in the criminal culture, and appeared to be motivated by the hope of consideration for his own outstanding charges at the time.There was no indication of the source of the informant’s information and there were no specific details of any drug transaction. The police confirmed the information about the motor vehicle Smith drove and set up surveillance on his residence. He was seen leaving the residence and drove to a townhouse complex where a male walked to Smith’s car and got in. The car proceeded to move slowly for about 10 metres and stopped, at which point the unknown male got out and walked towards the complex. This male was unknown, was not detained, and was not seen carrying anything in or from the car. Because the windows were tinted no observations could be made of any activity and nothing was overheard. Smith drove away, parked his vehicle and entered a bank. When he returned to his car he was arrested, advised of his rights, and indicated he wanted to speak to counsel. However, instead of holding off questioning, a police officer interviewed Smith as to the existence of a firearm and drugs at his residence. Police found cocaine in the car and cash and cell phones on his person. The police, using the evidence found from the post arrest searches as well as Smith’s statements, applied for and obtained a tele-warrant to search his house. Cocaine, other drug paraphernalia, a sizable amount of cash, a firearm and ammunition were subsequently located.

The trial judge in the Ontario Court of Justice found Smith’s arrest unlawful and arbitrary. The tip from was from an untested informant and lacked any information as to the source of the tipster’s alleged assertion that Smith was a drug dealer. This, combined with a very brief observation of Smith meeting with an unidentified person in his vehicle, did not provide reasonable grounds for the arrest.  “I find that the arrest fell short of passing the objective requirement insofar as reasonable grounds are concerned,” said the judge. “Combining the vague information from a previously untested informant with the observation of one event which was also reasonably capable of innocent explanation is insufficient to meet the standard for objective belief of the commission of the offence subjectively believed by the officers. This information and observation certainly justified further observation and  investigation but not an arrest.” The judge also found the s. 10(b) violation, which was conceded by Crown, to be serious breach of the accused’s right to counsel. The evidence following the arrest was excluded and could not be used to support the search warrant of Smith’s home. He was acquitted.

The Crown’s appeal of Smith’s acquittal to the Ontario Court of Appeal was dismissed. “We agree with the trial judge’s characterization of the tip provided by the informant and the surveillance observations made by the police officer,” said the Court. “The very short duration of the meeting between the [accused] and the unidentified person in the [accused’s] car, the only fact relied on by the police to support the inference that the meeting involved a drug transaction, was, on any reasonable view, a neutral fact. It follows from the finding that the arrest was illegal that the subsequent search of the [accused] and his vehicle were unconstitutional. The search of the residence based upon a warrant founded on information flowing from the unconstitutional arrest and searches of the [accused] and the vehicle was also unconstitutional.”  These Charter breaches were compounded by the serious breach of the accused’s right to counsel. The trial judge did not err in excluding the evidence under s. 24(2). Facts of the case taken from 2009 ONCJ 641.

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