



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Italiano, 2015 ONCA 179

DATE: 20150316

DOCKET: C56934

Tulloch, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Italiano and Mohamed Abdul-Hamid

Appellant

Daniel C. Santoro, for the appellant

Brian Puddington, for the respondent

Heard and released orally: February 26, 2015

On appeal from the convictions entered by Justice Brian P.
    OMarra of the Superior Court of Justice, sitting without a jury, on January
    22, 2013.

ENDORSEMENT

[1]

The appellants, Christopher Italiano and Mohamed Abdul-Hamid,
    appeal their convictions on charges of trafficking and possession of cocaine
    for the purposes of trafficking, respectively, contrary to ss. 5(1) and 5(2) of
    the
Controlled Drugs and Substances Act.

[2]

Abdul-Hamids appeal is dismissed as abandoned, as he has not
    surrendered into custody.  Counsel confirms that Italianos appeal is based on
    the allegation that the police did not have reasonable and probable grounds to
    arrest Abdul-Hamid and thus the evidence against  Italiano should have been
    excluded.  Given our finding on the merits of the appeal, it is not necessary
    for us to decide the issue of whether Italiano has standing to challenge the constitutionality
    of the arrest of Abdul-Hamid.

[3]

Both appellants were arrested following police observations of what they
    perceived to be a drug transaction between the two.  On the day of the arrest
    several plain clothes officers were watching a house located at 36 Celt Avenue
    in Toronto.  One of the officers, Sergeant Mancuso, had previously received
    information through two confidential informants that a man named Michele
    Santonato was a large scale drug dealer, They believed he operated out of that
    location.

[4]

While watching the location, the police observed the appellant,
    Italiano, entering the house and emerging a few minutes later with a shoebox in
    his hands.  He then entered his car and drove away. The police followed.  About
    15 minutes later, Italiano stopped his car. The other appellant, Abdul-Hamid,
    entered Italianos car and then got out two minutes later, holding the same
    shoebox.  Abdul-Hamid got into his own car and drove away.  The police followed
    him, stopped him and arrested him at gunpoint.  Following the arrest, his
    vehicle was searched and the shoebox was located. It contained one kilogram of
    cocaine.

[5]

Both appellants were subsequently convicted on the charges as stated
    above.  At trial, they both challenged the arrest and subsequent search on the
    basis that the arresting officer, Detective Asselin, lacked reasonable and
    probable grounds to make the arrest. They argued that as a result the search incident
    to arrest was unlawful and the evidence should be excluded pursuant to s. 24(2)
    of the
Charter
.  The trial judge dismissed the
Charter
motion, finding that the officers had sufficient reasonable and probable
    grounds to make the arrest based on the information that they received, as well
    as their observations and surveillance. He concluded the search was validly
    conducted incident to arrest.

[6]

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.

[7]

In our view, the arresting officer had the requisite reasonable and
    probable grounds to conduct the arrest.  In this case, Det. Asselin ordered the
    appellant Abdul-Hamids arrest.  At the time, this officer had received
    confidential information communicated through Sgt. Mancuso, that Santonato was
    a significant drug-dealer.  Det. Asselin could rely on a summary of the
    information given to him by Sgt. Mancuso in deciding whether he had grounds to
    make the arrest.  Santonato was observed at 36 Celt Avenue.  The appellant
    Italiano went into 36 Celt Avenue and emerged a few minutes later with a
    shoebox.  The shoebox was later seen in the appellant Abdul-Hamids possession.
    He took it in his car and then left.  Det. Asselin, who ordered Abdul-Hamids
    arrest, made most of these observations in person, and was informed of the rest
    by his fellow investigating officers.

[8]

The Court must consider the totality of the circumstances to determine whether
    the constellation of factors taken together supports the officers reasonable
    and probable grounds.  We are satisfied that the evidence established the
    requisite reasonable and probable grounds relied on by Det. Asselin to make the
    arrest.

[9]

Accordingly, we see no error in the trial judges decision.  The appeal
    is dismissed.

M.
    Tulloch J.A.

G.
    Pardu J.A.

"M.L. Benotto
    J.A."


