



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bediako, 2015 ONCA 788

DATE: 20151119

DOCKET: C59029

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richmond Bediako

Appellant

Danielle Robitaille and Samuel Walker, for the appellant

Christine Tier, for the respondent

Heard: July 2, 2015

On appeal from the conviction entered on March 5, 2014
    and the sentence imposed on March 7, 2014 by Justice Thomas J. Carey of the
    Superior Court of Justice, sitting without a jury.

ENDORSEMENT

A.      Overview

[1]

The appellant, Richmond Bediako, was convicted of three counts related
    to his possession of an unauthorized, prohibited firearm and cartridge magazine.

[2]

The appellants conviction followed the dismissal of his application under
    s. 24(2) of the
Canadian Charter of Rights and Freedoms
to
    exclude at his trial the evidence of the loaded firearm. This firearm was obtained
    in alleged breach of the appellants rights under ss. 7, 8 and 9 of the
Charter
as a result of the appellants arrest and the subsequent warrantless search incident
    to his arrest that was conducted by the Windsor Police Services on January 29,
    2013.

[3]

The appellant was sentenced to a global term of imprisonment of four
    years, less credit for 403 days of pre-trial custody, allowed on a 1.25 times
    basis as 500 days.

[4]

The appellant appeals his conviction and seeks leave to appeal his
    sentence.

B.      Conviction appeal

i.        The Constitutionality of the Appellants Arrest
    and Search

[5]

The main argument on this appeal is that the trial judge erred in finding
    that the police had reasonable and probable grounds on an objective basis to
    arrest and without a warrant subsequently search the appellant incident to his
    arrest. The appellant does not contend that the police lacked the requisite
    subjective belief that the appellant was in unlawful possession of a firearm.

[6]

The appellant and his associate were arrested by the police on January
    29, 2013 at around 11:06 p.m., after they left the apartment of a known drug
    user named William Newbold or Beard, entered a taxicab, and travelled a short
    distance west. During the subsequent roadside search of the appellant, the
    police discovered that the appellant had a loaded .40 calibre Smith and Wesson
    handgun tucked into his belt and that he was wearing a bulletproof vest.

[7]

In accordance with the provisions of s. 495 of the
Criminal Code
and the criteria articulated by the Supreme Court of Canada in
R. v. Debot
,
    [1989] S.C.J. No. 118, at para. 53, the trial judge correctly instructed
    himself on the proper test to be applied in determining whether the police
    subjectively believed that they had reasonable and probable grounds to arrest
    the appellant for possession of a firearm, and that those grounds were
    objectively reasonable in the totality of the circumstances.

[8]

In particular, the trial judge carefully and thoroughly analyzed the strengths
    and weaknesses of the information provided by the confidential informants and
    of the confidential informants themselves and, having considered the totality
    of the circumstances, found the confidential informants and their information to
    be compelling, credible and corroborated.

[9]

The trial judge also determined that the police did not act prematurely
    in arresting the appellant and his associate: the potential loss of evidence if
    the appellant and his associate were allowed to leave the contained area of the
    taxicab and the danger to the public and police because of the likely presence
    of firearms justified the arrest and the subsequent warrantless search of the
    appellant incident to his arrest.

[10]

We
    agree with the trial judges analysis and conclusions.

[11]

We
    do not agree with the appellants submission that the police acted prematurely on
    dated, generic information or that the police failed to take any steps to
    corroborate the confidential informants information.

[12]

The
    appellants arrest followed the receipt by the police of specific and current
    information from confidential informants concerning the particular location and
    movements of individuals who turned out to be the appellant and his associate, a
    detailed physical description of them, and the corroboration by police surveillance
    on January 29, 2013 of important details of the information provided by the
    confidential informants.

[13]

Further,
    given the similarity in their information, the police also confirmed that the
    first two confidential informants were not the same person. Moreover, some of
    the information provided by the confidential informants was already known to
    the police from previous investigations and the police also attempted to corroborate
    the information received through earlier surveillance and a review of police
    databases.

[14]

Specifically,
    the police learned first-hand and acted upon distinctive, detailed information from
    a reliable, confirmed confidential informant (Confidential Informant A) who
    was involved in the drug subculture, had no convictions for perjury or
    misleading police, and had provided assistance to the police in the past that
    had resulted in the execution of search warrants, arrests and seizures. Confidential
    Informant A advised that two individuals named Leo and Shane were selling
    crack cocaine at Beards place, the Wyandotte address of William Newbold, a
    drug user whose name, address and uniquely bullet-ridden door were previously known
    to the police; Leo and Shane were always wearing bullet proof vests and
    carrying guns; they were staying in the west end of Windsor; Shane was
    described as a black male, 25 years of age, 170 pounds, 5 feet, 10 inches tall,
    with a scruffy beard and short black hair.

[15]

The
    particular information that Leo and Shane were selling drugs from Beards
    place, Leo and Shane had both been seen with vests and guns, as well as
    the physical description of Shane, was confirmed by a second confidential
    informant (Confidential Informant B) through his handler, an OPP officer. Confidential
    Informant B knew Leo and Shane and further provided the description of
    Leo as an Iraqi male, 24 years of age, 6 feet tall, 250 pounds. Confidential Informant
    B was reliable and confirmed: his handler had known him for a number of years; Confidential
    Informant B had no convictions for perjury or misleading the police;
    information provided by this informant had resulted in CDSA warrants, arrests
    and charges being laid with drugs being seized.

[16]

Further
    confirmation of some of the information provided by Confidential Informants A
    and B came from a third confidential informant (Confidential Informant C) who
    described Leo, also known as Abdul, as being of Iraqi background, of
    youthful appearance, namely, about 19 years of age, and 6 feet tall, and
    advised that Leo was selling cocaine from Beards place. Confidential
    Informant C also related the unusual, specific detail that Leo took a taxicab
    to and from Mr. Newbolds residence on Wyandotte from his residence on Peter
    Street, west of Wyandotte.

[17]

The
    police did not arbitrarily or precipitately arrest the appellant and his
    associate but waited until police surveillance on January 29, 2013 confirmed
    important identifying details provided by the three confidential informants.

[18]

During
    the surveillance conducted between 8:30 and 11:06 p.m., the police observed
    various individuals coming and going in the area of Beards place but did not
    move to arrest any of them. The police waited until they noted a taxicab pull
    into the alley behind Mr. Newbolds building at 11:04 p.m. and saw a black male
    (the appellant) and a white male (the appellants associate), roughly matching
    the descriptions provided by the confidential informants, enter and then leave Mr.
    Newbolds building. The police then conducted additional surveillance to
    confirm whether the taxicab would travel west of Wyandotte, which it did,
    confirming the information that Leo and Shane resided in the west part of
    Windsor. It was at this point that the police arrested the appellant and his
    associate in a high risk takedown at the intersection of Peter Street and
    Rosedale Avenue.

[19]

The
    trial judge properly viewed the evidence of the grounds for arrest in the
    context of the dynamics of an urgent situation likely involving firearms. He
    correctly concluded that in these circumstances, based on the information that
    the police had received and the surveillance which confirmed some material details
    about the appellant, his associate, and their activities, the police had
    objectively reasonable and probable grounds to arrest the appellant and his
    associate and then to search the appellant incident to his arrest.

ii.       The s. 24(2) Charter Analysis

[20]

Even
    though the trial judge found no
Charter
breach, he went on to conduct the
    s. 24(2)
Charter
analysis. The trial judge recognized that if there
    had been a breach, it would have had a significant impact on the appellants
    privacy rights. However, he concluded that any such breach was at the lower end
    of the spectrum and was neither flagrant nor deliberate. He determined that
    excluding the real evidence of the firearm and ammunition would have a negative
    impact on the long term reputation of the administration of justice, and that
    the concerns for public safety and the public interest in a trial on the merits
    of the very serious charges against the appellant outweighed the appellants
    privacy rights in the circumstances of this case.

[21]

The
    appellant contends that the trial judge erred in his s. 24(2)
Charter
analysis and that the evidence discovered as a result of the police search of
    the appellant should have been excluded from the evidence at the appellants
    trial.

[22]

We
    find that the trial judge properly balanced all of the well-known elements of
    the analytical framework set out in
R. v. Grant
, 2009 SCC 32,

and,
    for the reasons that he expressed with which we agree, correctly determined
    that the loaded firearm found tucked into the appellants belt should not be
    excluded.

[23]

For
    these reasons, we agree with and find no basis to interfere with the trial
    judges decision.

C.      Sentence appeal

[24]

The
    trial judge gave the appellant credit of 500 days on a 1.25 times basis for the
    402 days that he had spent in pre-trial custody. The parties agree that the
    appellant should have received credit of 603 days for the 402 days of his pre-trial
    custody on a 1.5 times basis, in accordance with
R. v. Summers
, 2014
    SCC 26, that was released following the imposition of the sentence in this
    case.

[25]

We
    agree that the appellant should be given the enhanced credit on a 1.5 times
    basis, which amounts to a reduction in his sentence of 103 additional days.

[26]

The
    appellant further argues that notwithstanding the enhanced credit for pre-trial
    custody, the sentence imposed is still demonstrably unfit and should be
    reduced.

[27]

We
    disagree. The trial judge properly considered that the principles of
    denunciation and deterrence must be given substantial weight in sentencing the
    appellant for his gun-related offences, especially in light of the appellants aggravating
    prior gun-related convictions. The trial judge also expressly took into account
    the appellants mitigating factors of youth, family support, and his potential
    for rehabilitation.

[28]

The
    sentence imposed reflects the trial judges proper balancing of all the relevant
    sentencing principles and is well within the range for these offences. The
    sentence reached by the trial judge is reasonable, attracts considerable
    deference, and should not be varied, other than to incorporate the enhanced
    credit for pre-trial custody of an additional 103 days.

D.      Disposition

[29]

For these reasons, the appeal from conviction is dismissed. Leave to
    appeal the sentence is granted, the appeal from sentence is allowed on consent
    to increase the credit allowed to the appellant for pre-trial custody on a 1.5
    times basis from 500 to 603 days, but is otherwise dismissed.

David Watt J.A.

David
    Brown J.A.

L.B.
    Roberts J.A.


