



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dunkley, 2017 ONCA 600

DATE: 20170712

DOCKET: C62287

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Orlando Dunkley

Appellant

Cate Martell, for the appellant

Christopher Walsh, for the respondent

Heard: July 7, 2017

On appeal from the conviction entered on May 27, 2016 by
    Justice Peter B. Hockin of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

A.

Introduction

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking, and related offences, as well as firearms-related offences. The
    charges arose out of his arrest March 19, 2014 and evidence found in his car
    pursuant to a search incident to arrest.

[2]

He appeals his convictions, submitting that the trial judge erred in
    holding that his arrest was based on reasonable and probable grounds. He says
    that, in the absence of a valid arrest, the evidence seized incident to arrest
    should be excluded under s. 24(2) of the
Charter
.

[3]

For the reasons that follow, we dismiss the appeal.

B.

Background

[4]

On March 19, the police were conducting surveillance in London, Ontario
    at a house that was the residence of a suspected cocaine dealer. At 9:05 p.m.,
    D.C. Bullick observed a silver Honda Accord park on the street near the house.
    The appellant was the driver, and he was let into the house. Bullick observed
    the driver to be a slim black male, about six feet tall, with a dark jacket on.
    He ran the vehicles license plate and determined that it was registered to a
    Michelle Rhooms at a Brampton address.

[5]

Bullick then recalled information that he received from D.C. Bourdeau
    earlier in March. Bourdeau was the handler for a confidential informant who had
    provided information that the male driver of a silver Honda Accord with the
    same license plate number was a high-level cocaine supplier in London. The
    informant had described the male as thin, black, in his thirties and from out
    of town. Boudreau had told Bullick that the informant was proven reliable and
    that the information was first-hand.

[6]

Bullick shared this information with the other members of the
    surveillance team. Around 9:33 p.m., the police saw the suspected cocaine
    dealer showing the appellant out of the house. The appellant drove away from
    the house. Bullick and D.C. Garwood formed the belief that the appellant was
    the suspect described by the informant and determined that they had grounds to
    arrest the appellant for possession of cocaine for the purpose of trafficking.

[7]

The appellant drove to a nearby McDonalds drive-through. At around 9:47
    p.m., Bullick, Garwood, D.C. Brown and D.C. Pavoni followed the appellant,
    stopped him and arrested him.

[8]

Brown performed a pat-down search incident to arrest and searched the
    car. He found a total of six cellphones in the appellants pants pockets and
    the centre console of the appellants vehicle. Some of the messages on these
    phones were later used as evidence to support the trafficking charges at trial.
    In addition, $1,200 cash was found in a backpack in the back seat of the
    appellants car, along with a handwritten list of names and phone numbers and a
    large, empty Ziplock bag.

[9]

The appellants vehicle was moved to the London Police headquarters
    where Brown and Bullick conducted a more extensive search that they regarded as
    a continuation of the roadside search incident to arrest. They removed several
    plastic panels that concealed natural voids within the vehicle. Behind the
    plastic panel on the rear drivers side arm rest, they found U.S. currency
    totalling approximately $440,000 and a loaded handgun wrapped in saran wrap.
    Behind the rear passenger-side panel, they found approximately 5.5 kilograms of
    cocaine, packaged in various quantities.

[10]

At trial, the appellant argued that his arrest was unlawful and that the
    evidence the police found pursuant to a search incident to arrest should be
    excluded. The trial judge held that the arrest was lawful and admitted the
    evidence.

C.

Trial Judges Decision

[11]

The trial judge noted that the warrantless arrest power in s. 495(1)(a)
    of the
Criminal

Code
requires the arresting officer to have
    reasonable and probable grounds to believe that the accused committed an
    indictable offence. He reviewed the evidence and concluded that the police did
    have the requisite grounds for three reasons:

1.

The
    house being watched was the residence of a suspected cocaine dealer

2.

The
    appellant entered the residence and left with the suspected cocaine dealer
    about half an hour later.

3.

The
    appearance of the appellant and his vehicle completely matched the information
    provided by the confidential informant. There was no innocent coincidence. The
    presence of the appellant at the address corroborated the informants tip. That
    information could be acted upon.

[12]

The trial judge held that the searches of the appellants person and
    vehicle were incident to a valid arrest and their purpose was to discover and
    preserve evidence with respect to possession for the purpose of trafficking. He
    did not consider the delay involved in moving the vehicle to the police station
    as precluding the subsequent search of the vehicle from being a reasonable
    exercise of the search incident to arrest power.

D.

Issues

Three issues are
    raised on this appeal:

1.

Was
    the arrest unlawful, thereby making the search a violation of the appellants
    s. 8
Charter
rights?

2.

If
    the arrest was not lawful, should the evidence be excluded pursuant to s. 24(2)
    of the Charter?

3.

Did
    the trial judge misapprehend the evidence regarding the seizure of the
    appellants cell phone?

E.

Analysis

(1)

Section 8 of the
Charter

[13]

The appellant submits that the trial judge erred in assessing the
    reliability of the information provided by the confidential informant. Bourdeau
    did not testify. Bullick had no personal dealings with the informant, but
    believed from information provided to him by Boudreau that the informant was
    reliable. Therefore, according to the appellant, there was no evidence capable
    of providing an objectively reasonable basis for the trial judges conclusion
    that Bullicks reliance on Bourdeaus statement about the informants
    reliability was warranted. Further, the appellant submits that the trial judge
    should not have ruled out an innocent coincidence. The police were required to
    confirm the accuracy of the tip through independent investigation before acting
    on it.

[14]

We would not give effect to this ground of appeal.
The trial judge properly recognized and applied the
    factors set out by Wilson J. in
R. v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168, for determining
    whether reasonable grounds to arrest arise from an informers tip.
The
    tip was compelling: it contained sufficient detail to ensure that it was based
    on more than a mere rumour or gossip. 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.

[15]

Contrary to the appellants submission, the 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:
R. v. Rocha
, 2012 ONCA 707, 112 O.R. (3d) 742,
    at para. 22. 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:
Debot
, at p. 1172.

[16]

The trial judge correctly found that this possibility was removed in this
    case. 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 informants handler. The supplier let the appellant 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.

[17]

We conclude, therefore, that the arrest was lawful and there is no s. 8
    violation.

(2)

Section 24(2) of the
Charter

[18]

The trial judge did not conduct a s. 24(2) analysis. In light of our
    conclusion that he did not err in finding that there was no s. 8 breach, it is also
    unnecessary for us to do so.

(3
)      Misapprehension
    of the Evidence

[19]

The appellant raises a discrete ground
    of appeal unrelated to the issue of whether the police violated his
Charter
rights.
At trial during D.C. Browns
    testimony, it was revealed that he did not have any independent recollection of
    whether a Blackberry Q10 phone he seized from the appellant incident to the
    arrest was taken from the appellants pocket, rather than the centre console of
    his vehicle. According to the appellant, there was no other evidence
    establishing that a Blackberry Q10 was seized from the appellants pocket. The
    text messages on the Q10 (as well as text messages found on other phones seized
    from the appellants person or vehicle incident to arrest) revealed that the
    sender of the messages was referred to as Stun and that Stun had sent
    incriminating communications about the handling and packaging of cocaine. The
    trial judge inferred that Stun was the appellant and concluded that the
    cocaine and cash found in his vehicle were his. The appellant submits that the
    trial judge misapprehended the evidence by relying on the fact that the Q10 was
    seized from his pocket in finding that he was Stun.

[20]

We would not give effect to this
    submission. In our view, there was sufficient evidence for the trial judge to
    conclude at the Q10 was found in the appellants pocket. In particular, the
    phones were entered into evidence as exhibits in an order corresponding to
    where they were found, and the Q10 was entered alongside other phones found in
    the appellants pockets.

[21]

In any event, any error regarding
    the location of where the Q10 was found would not have amounted to a palpable
    and overriding error. The fact is that all of the cell phones were located
    either on the appellants person or in the vehicle in which he was the sole
    occupant. It would be a reasonable inference that he was using the Q10 and any incriminating
    messages sent from that phone were his even if the phone was seized from the
    centre console of the appellants vehicle.

[22]

The appeal is dismissed.

K.M. Weiler J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


