



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Omar, 2018 ONCA 787

DATE: 20180927

DOCKET: C63343

Hourigan, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Liban Omar

Appellant

Mark Halfyard, for the appellant

Diana Lumba and Bradley Reitz, for the respondent

Heard: September 26, 2018

On appeal from the convictions entered on October 24,
    2016 by Justice Joseph De Filippis of the Ontario Court of Justice, with
    reasons reported at 2016 ONCJ 633.

REASONS FOR DECISION

[1]

Mr. Omar appeals his conviction on one count of possession for the
    purpose of trafficking and one count of possession of proceeds of crime.  At
    the conclusion of the hearing, we dismissed the appeal with reasons to follow. 
    We now provide those reasons.

[2]

The trial proceeded as a blended
voir dire
. There were two
    separate
voir dire
components. First, there was an application in
    which the appellant asserted that the police violated his ss. 8 and 9
Charter
rights when they arrested and searched him on the basis of a tip from a
    confidential informant.  The appellant submitted that the evidence seized
    should be excluded pursuant to s. 24(2) of the
Charter
.

[3]

Second, there was an application brought by the respondent to admit
    certain calls made to cellular phones seized from the appellant after his
    arrest.  The respondent submitted that the calls were admissible pursuant to
    the principled exception to the hearsay rule.

[4]

The trial judge rejected the appellants
Charter
challenge. 
    The trial judge also admitted the evidence of the telephone calls.  The trial
    judge convicted the appellant and sentenced him to 18 months in custody.

The facts

[5]

The background facts can be stated briefly.  About a month before the appellants
    arrest, the police received a tip from a confidential informant that a black
    male with a big beard known as J.J. sold crack cocaine.  The tipster told the
    police that J.J. drove a black Jeep and provided the licence plate number.  The
    confidential informant had been used in the past and he or she had given
    reliable information.

[6]

About a month later, the same police officer who had received the tip
    spotted the black Jeep in an area of St. Catherines known for drug activity and
    prostitution.  The driver parked the Jeep some distance from a building and
    then went inside.  The driver matched the description of J.J.  A few minutes
    later, the driver returned to the Jeep and drove off.

[7]

The officer called for back-up and began surveillance on the Jeep.  The
    Jeep next went to another building where it again parked some distance from the
    entrance.  The Jeep left a short time later.  The police followed the vehicle
    to a motel in Niagara Falls.  The motel was also in a known drug area.  The
    Jeep took a back way to the motel, which the police officers thought was
    consistent with the driver being surveillance conscious.  Once again, the
    driver parked some distance from the motel.  The driver went to a room, emerged
    a few minutes later and returned to his vehicle while talking on his cell
    phone.

[8]

At this point, the police decided to arrest the driver.  They blocked in
    the Jeep and proceeded to effect the arrest.  On arrest, the appellant was
    found with a cell phone and $100 on his person.  A search of the Jeep revealed
    three more cell phones, a knife and $1,175 in Canadian currency. At the police
    station, the appellant was strip searched.  The police located 20 grams of
    crack cocaine concealed in his underwear.

[9]

During the course of the arrest, calls came in to at least two of the
    cell phones.  A police officer answered three calls on one of the cell phones
    and one call on another.  In each instance, the call was brief.  Language was
    used that indicated that the caller was looking to purchase drugs.  In two of
    the calls, the callers expressly referred to J.J.

[10]

The
    police did not make any effort to locate and interview these four callers, even
    though three of the callers showed up on call display with either a name or a name
    and telephone number.  No efforts were made to obtain authorization to search
    the telephones to see if there was contact information in the phones that might
    match to these callers.  Further, the evidence from the police was that they
    had made efforts in the past to convince callers in such situations to be
    witnesses but they had never had any success in so doing.

The arrest and search

[11]

The
    trial judge correctly applied the test from
R. v. Debot
, [1989] 2
    S.C.R. 1140 in his consideration of the arrest and search based on the
    information provided by the confidential informant.  The trial judge concluded
    that the information provided was compelling, that the confidential informant
    had a measure of credibility and that the information provided was corroborated
    by the police surveillance of the appellants activities.

[12]

We
    do not see any error in the trial judges conclusions in this regard.  The
    information provided by the confidential informant was detailed, both with
    respect to the description of J.J. and also with respect to the black Jeep,
    including the licence plate number.  The informant had provided reliable
    information to the police in the past.  And the police surveillance of the
    appellant did provide corroboration for the information that the confidential
    informant had provided.

[13]

It
    is the cumulative effect of the three factors in
Debot
that is
    important.  On this point, it is worth repeating what Lamer J. said in
Debot
,
    at p. 1168:

Rather, I concur with Martin
    J.A.'s view that the "totality of the circumstances" must meet the
    standard of reasonableness. Weaknesses in one area may, to some extent, be
    compensated by strengths in the other two.

The drug calls

[14]

The
    other issue is the admission of the so-called drug calls.  This issue is
    largely determined by the decision in
R. v. Baldree
, 2013 SCC 35,
    [2013] 2 S.C.R. 520.  In that case, the court overturned the trial judges
    admission into evidence of a single telephone call that suggested that the
    accused was a drug dealer.  In doing so, however, the court was clear that it
    was not concluding that such evidence could never be properly admissible under
    the principled exception to the hearsay rule.  In his reasons, Fish J. said, at
    para. 70:

In concluding as I have, I take
    care not to be understood to have proposed a categorical rule for drug purchase
    calls. Although the call at issue here does not withstand scrutiny under the
    principled approach, this need not always be the case.

[15]

The
    court went on in
Baldree
to identify circumstances where the
    principled exception to the hearsay rule would permit the admission of this
    type of evidence.  In particular, the court identified the number of calls as a
    significant factor in that analysis.

[16]

In
    reaching his conclusion to admit the evidence, the trial judge undertook the
    type of analysis contemplated in
Baldree
.  He concluded that the
    evidence was reliable because of its connection to the information provided by
    the confidential informant and the observations made by the police of the
    appellants activities, all of which suggested drug dealing.  While the trial
    judge considered the necessity requirement to be more difficult, he concluded
    that it was made out because of the common sense reality that the callers would
    be unlikely, if located, to assist the police, coupled with the experience of
    the police officer in this case regarding the lack of cooperation of
    individuals in such circumstances.  The trial judge did note that the necessity
    requirement was not as strongly made out as the reliability requirement, but he
    also noted that any weaknesses in the former could be compensated by strengths
    in the latter.

[17]

In
    our view, the situation here mirrors the situation contemplated in
Baldree
at paras. 71-72.  As noted therein, the quantity of calls can suffice to
    establish reliability.  Here there were four separate calls, all of them
    clearly revealing efforts by the callers to purchase drugs.  As noted in
Baldree
,
    it would defy belief that all of these calls were erroneous or
    misunderstood.  This is the same conclusion that was reached by this court in
R.
    v. Bridgman
, 2017 ONCA 940, 138 O.R. (3d) 721 at para. 56 and in
R. v.
    Malcolm-Evans
, 2016 ONCA 28, at para. 7.

[18]

In
    a similar fashion, the number of calls can also satisfy the necessity
    requirement.  As Fish J. said in
Baldree
, at para. 72:

The Crown cannot be expected, where there are numerous
    declarants, to locate and convince most or all to testify at trial

[19]

The
    failure of the police to undertake any efforts to locate any of these callers
    risks undermining a conclusion that the threshold necessity requirement is made
    out.  However, that risk is avoided by the particular circumstances of this
    case, notably, the number of calls received, that they were received in a short
    time frame (i.e. within minutes of each other), the specific contents of the
    calls clearly being to purchase drugs, and the unchallenged evidence of the
    police witness that prior efforts to enlist drug callers as witnesses had
    proved futile.

Conclusion

[20]

It
    is for these reasons that the appeal was dismissed.

C.W.
    Hourigan J.A.

I.V.B.
    Nordheimer J.A.

Harvison
    Young J.A.


