





CITATION: R. v. Smith, 2011
          ONCA 748



DATE:  20111129



DOCKET: C51325



COURT OF APPEAL FOR ONTARIO



Doherty, Rosenberg and Juriansz JJ.A.



BETWEEN



Her Majesty the Queen



Appellant



and



Philip Smith



Respondent



Robin Flumerfelt, for the appellant



Frank Addario, for the respondent



Heard and released orally:
November 25,
          2011



On appeal from the acquittal entered by Justice R.E. Jennis of
          the Ontario Court of Justice dated October 29, 2009.



ENDORSEMENT



[1]

The trial judge determined that the combination of a tip from an
    untested informant that lacked any information as to the source of the
    tipsters alleged assertion that the respondent was a drug dealer, combined
    with the very brief observation of the respondent meeting with an unidentified
    person in the respondents vehicle, did not provide a reasonable basis upon
    which the police could arrest the respondent.  The trial judges analysis
    reveals no legal error and, in our view, does not reveal any material
    misapprehension of the evidence.

[2]

We agree with the trial judges characterization of the tip provided by
    the informant and the surveillance observations made by the police officer. 
    The very short duration of the meeting between the respondent and the
    unidentified person in the respondents 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.

[3]

It follows from the finding that the arrest was illegal that the
    subsequent search of the respondent 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 respondent and the vehicle
    was also unconstitutional.  These violations were compounded by the officers
    admitted and, in our view, serious breach of the respondents right to counsel
    at the time of his arrest.

[4]

We also reject the submission that the trial judge erred in excluding
    the evidence under s. 24(2). The trial judge conducted a s. 24(2) analysis that
    tracked closely the template in
R. v. Grant
.  We defer to that analysis.

[5]

The appeal is dismissed.

Doherty J.A.

M. Rosenberg J.A.

R.G. Juriansz J.A.


