



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhillon, 2016 ONCA 308

DATE: 20160428

DOCKET: C59630

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Beant Dhillon

Respondent

Rick Visca, for the appellant

Alan D. Gold and Melanie J. Webb, for the respondent

Heard: January 8, 2016

On appeal from the acquittals entered on October 27, 2014
    by Justice Clayton J. Conlan of the Superior Court of Justice, sitting without
    a jury, with reasons reported at 2014 ONSC 6287.

Tulloch J.A.:

A.

Introduction

[1]

The respondent was acquitted of three counts of possession of heroin and
    methamphetamine for the purpose of trafficking. The Crown invited acquittals
    after the respondent successfully applied to have evidence excluded on the
    basis that his right to not be arbitrarily detained or imprisoned under s. 9 of
    the
Charter of Rights and Freedoms
was infringed. The Crown now
    appeals the acquittals, on the basis that the trial judge erred in his
Charter
ruling.

[2]

Beginning in April 2011, police received information from three
    confidential informants that the respondent was trafficking heroin and crystal
    methamphetamine. The police investigated and began surveillance of the
    respondent in May.

[3]

At the time of the investigation Constable Whitlock was working in the
    drug unit with Peel Regional Police, where he had several years experience in
    drug investigations. On October 19, 2011, Constable Whitlock and several other
    police officers set up surveillance outside the respondents Brampton
    residence. Constable Whitlock testified at the
voir dire
that he saw
    three encounters that day that he believed were drug transactions. In all
    three, the respondent left his home and entered the front passenger seat of a
    vehicle that had pulled up in front of his house or into his driveway. The
    first car, a Nissan SUV, was stopped by police shortly after leaving the
    respondents residence. The driver fled the car on foot, and was arrested by
    police. He was carrying approximately $3,000 in cash.

[4]

At 1:53 p.m., while the respondent was in the passenger seat of a silver
    Ford in his driveway, police intervened and arrested him. Police found 9.3
    grams of heroin near his feet in the car. They then entered the home believing
    exigent circumstances required them to secure the residence to preserve
    evidence and ensure officer safety. There were five adult women and one young
    child in the home. A search warrant was issued and executed later that day.
    Police found 46.8 grams of heroin and approximately 300 grams of
    methamphetamine in a bedroom.

[5]

The trial judge found that Constable Whitlock, subjectively, had
    reasonable and probable grounds to arrest the respondent. However, these
    grounds were not objectively reasonable. The judge held that the tipster
    information was not credible, it was not compelling, and there was little
    material corroboration of the trafficking allegations. After finding a s. 9
    violation, he excluded the evidence found in the silver Ford and the respondents
    home under s. 24(2) of the
Charter
.

[6]

The Crown appeals the trial judges decision on the following grounds:

1. The trial
    judge erred in considering the alleged violations of a third partys rights
    under the
Charter
;

2. The trial
    judge erred in finding that there were insufficient reasonable grounds to
    arrest the respondent; and

3. The trial
    judge erred in excluding evidence seized from the vehicle and the residence.

[7]

The only issue I will address is whether there were reasonable grounds to arrest the respondent. As the respondent acknowledges, if the Crown succeeds on this issue, it is dispositive of this appeal. I conclude that, even without the information related to the arrest of the Nissan driver, the police had reasonable and probable grounds to arrest the respondent. On this ground alone, I would allow the appeal. I therefore do not find it necessary to address the Crown's other grounds of appeal.

B.

Background

(1)

The Confidential Informant Information

[8]

The information provided to police by three confidential informants is
    central to this case. Constable Whitlock testified about when and from whom he
    received this information. The Information to Obtain (ITO) the warrant to
    search the respondents residence also describes the confidential sources and the
    information they gave to police. Constable Barbara swore the ITO.

[9]

Constable Barbara received information from the first confidential
    informant (C.I. 1) in April 2011. Both he and Constable Stafford informed
    Constable Whitlock about this informant on May 10, 2011. C.I. 1 told police
    that a man by the name of Beant Dhillon trafficked in moderate amounts of
    drugs, namely heroin, from his residence at 21 Alfonso Dr. in Brampton. The
    informant told police that the man was known as Bunt, is of South Asian descent,
    and is associated with a larger group of South Asian men who are involved in
    organized criminal activity. C.I. 1 also alleged that the respondent was
    involved in stealing tractor trailer loads. The ITO stated that C.I. 1 knew the
    respondent and had knowledge of his actions, but the length of time during
    which C.I. 1 was familiar with the respondent was redacted.

[10]

The date on which Constable Mullinder received information from a second
    informant (C.I. 2) is unknown. C.I. 2 told Constable Mullinder that an East
    Indian man known as Bunt deals heroin and crystal methamphetamine from his
    residence at 21 Alfonso Crescent in Brampton. Bunt is approximately 30 years
    of age and drives a white BMW. The informant purchased heroin from Bunt. The
    informant also told police that Bunt usually sells from inside his garage or
    from locations near his residence, and retrieves the heroin from his residence.
    Other information, including the price the informant paid for the brown heroin
    and for how long C.I. 2 had been purchasing heroin from Bunt, was redacted
    from the ITO.

[11]

At some point before October 19, 2011, Constable Whitlock was approached
    and provided information from a third confidential informant (C.I. 3). The
    informant told him that an East Indian male named Bunt Dhillon is an active
    heroin and crystal methamphetamine dealer. Bunt lived on Alfonso Crescent in
    Brampton with his family. He said that Bunt is the mans nickname and that
    his real name was something similar. He also described Bunt as having a
    large, muscular build, and being in his early 30s. He said that Bunt drives
    an older style white BMW with an unknown license plate. C.I. 3 said that Bunt
    sold heroin for certain amount per gram that was redacted in the ITO. The
    informant had purchased heroin from Bunt at the Alfonso Crescent residence.
    The informant said that Bunt would usually come out of his residence and get
    into the informants vehicle in the driveway to complete the transaction.

[12]

Notably, none of the three confidential informants had been used by
    police in the past. The first was said to be reliable and accurate in the ITO,
    but there is no reason given to support this assessment. Confidential
    informants 2 and 3 were both described as being deeply entrenched in the drug
    sub-culture. No assertion was made about their reliability or credibility.
    However, both were said to understand that if they lied or embellished, they
    would not receive consideration and could face criminal charges.

[13]

During the
voir dire
, counsel for the respondent attacked the
    independence of the informants. Constable Whitlock testified that he was sure
    C.I. 1 and C.I. 3 were different people and that C.I. 2 and C.I. 3 were also
    different people. The trial judge determined that it was unknown whether these
    three tipsters were independent of one another as their information could have
    been parroting of what they all had heard together.

(2)

The Police Investigation

[14]

The police initially searched the respondent on various databases. They
    discovered that Beant Dhillon resided at 21 Alfonso Crescent in Brampton. He
    was in his late 30s in 2011. He had no prior convictions but was arrested and
    eventually acquitted in relation to stolen property and firearms charges.

[15]

The police began surveillance on the respondent. In May 2011, they
    observed the respondent driving a white BMW. A database check revealed that it
    was a 2001 BMW registered to another person who resided at the respondents
    home. The respondent was seen driving the white BMW on other occasions.

[16]

The ITO describes numerous days of surveillance. On May 10, 2011, the
    affiant, Constable Barbara, observes two encounters between the respondent and
    two other men, that he believed were drug transactions. There was no testimony
    about this surveillance at the
voir dire
, and there is little
    information supporting the affiants opinion.

[17]

Constable Whitlock testified that he observed the respondent during the
    afternoon on May 10, 2011 and August 8, 2011. He saw nothing suspicious on May
    10. On August 8, he saw the respondent drive from his home to a nearby plaza.
    He got into the front seat of another vehicle that was parked at the plaza and
    remained there for 13 minutes. He then returned to his car and left. Constable
    Whitlock described this incident as strange and suspicious, but due to the
    length of time that the respondent spent inside the other car, it was probably
    not a drug transaction.

[18]

The police set up surveillance at the respondents residence on October
    19, 2011, commencing at 10:55 a.m. A Nissan SUV arrived at the residence at
    1:02 p.m. The respondent entered the passenger seat and the vehicle pulled
    away.

[19]

One minute later, a black Ford truck stopped at the bottom of the
    driveway at the residence. The driver went to the front door of 21 Alfonso Crescent
    and waited. At 1:06 p.m., the respondent was observed walking back towards his
    home. He spoke with the black Ford driver and then entered his residence. Four
    minutes later, he exited his house and Constable Whitlock believed he was
    holding something small cupped in his left hand. He entered the passenger
    seat of the black Ford and returned to his house empty-handed two minutes
    later. The trial judge viewed the surveillance video from this meeting and was
    unable to conclude whether or not the respondent was carrying something in his
    left hand when he entered the black Ford.

[20]

Meanwhile, police pursued the Nissan SUV. Their attempt to arrest the
    driver resulted in a foot chase. On arrest, the driver was found in possession
    of approximately $3,000 in cash and a cell phone. Constable Whitlock was
    informed of the circumstances of the arrest shortly after 1:12 p.m. He was
    concerned that the driver may have had a chance to contact the respondent.

[21]

Constable Whitlock continued to observe 21 Alfonso Crescent. He
    requested backup. At about 1:40 p.m., a silver Ford vehicle entered the
    driveway of the home. The respondent exited the residence and entered the
    passenger seat of the silver Ford. Constable Whitlock ordered his arrest,
    believing he had reasonable grounds to do so.

C.

Discussion

(1)

The Standard of Review

[22]

The trial judges factual findings are entitled to deference. Whether
    the factual findings of the trial judge amount at law to reasonable and
    probable grounds is a question of law and is reviewed on a standard of
    correctness:
R. v. Shepherd
, 2009 SCC 35, [2009] 2 S.C.R. 527, at
    para. 20.

(2)      The Sufficiency of the Grounds to Arrest the
    Respondent

[23]

Section 495(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46,
    allows a peace officer to make an arrest without a warrant when he or she
    believes, on reasonable grounds, that the person has committed or is about to
    commit an indictable offence.

[24]

The trial judge accurately summarized the general understanding of
    reasonable and probable grounds as articulated in
R. v. Storrey
,
    [1990] 1 S.C.R. 241, at pp. 250-251. An arresting officer must subjectively
    have reasonable and probable grounds on which to base the arrest. Further,
    those grounds must be objectively justifiable to a reasonable person placed in
    the position of the officer.

[25]

The standard does not require that the police demonstrate anything more
    than reasonable and probable grounds. They are not required to establish a
prima
    facie
case for conviction before making the arrest. The standard is met at
    the point where credibly-based probability replaces suspicion. Of course, the
    totality of the circumstances is to be considered.

[26]

Although the trial judge correctly articulated the law, he erred in his
    consideration of the totality of the circumstances. In my view, he considered
    the confidential informant information and the observations of the police in
    isolation and improperly discounted the informants information due to their
    weak credibility. When viewed with the police investigation and surveillance,
    the information provided by the informants was sufficiently compelling and
    corroborated to overcome the credibility concerns.

Constable Whitlock had Subjective Reasonable and Probable Grounds to Arrest

[27]

With respect to the subjective grounds to arrest, Constable Whitlock
    testified that his decision was based on a combination of the confidential
    informant information and the observations on October 19, 2011. The suspicious
    circumstances from that day included: the drivers of the vehicles did not enter
    the residence, the brief nature of the meetings, that the meetings occurred in
    cars and not in public view, there were several within less than an hour, the
    large amount of currency found on the Nissan driver, and the respondents hand
    being cupped as he approached the black Ford truck.

[28]

Constable Whitlock testified that he made his decision to arrest the
    respondent after learning about the Nissan drivers arrest. But he later said
    that he had grounds to arrest the respondent even without the information about
    the police pursuit of the Nissan driver. The trial judge accepted the latter
    evidence but noted the inconsistency. I agree that Constable Whitlock
    subjectively had reasonable and probable grounds to arrest the respondent.

The Grounds to Arrest were Objectively Reasonable

[29]

The main issue is whether these grounds were objectively reasonable. In
    my opinion, even without the information about the arrest of the Nissan driver,
    they were.

[30]

In circumstances where confidential informant information is at issue,
    the Supreme Court of Canadas comments in
R. v. Debot
, [1989] 2 S.C.R.
    1140, apply. One must weigh whether the informant was credible, whether the
    information predicting the commission of a criminal offence was compelling, and
    whether the information was corroborated by police investigation:
Debot
,
    at p.1168. The totality of the circumstances must meet the standard of
    reasonableness.

[31]

First, the credibility of the three informants was obviously weak. They
    were all untested. C.I. 1 was said to be reliable and accurate, but no support
    was given for this assessment. There was no claim that the other two informants
    were credible or reliable. There was no information about whether they had
    criminal records, though C.I. 2 and C.I. 3 were described as being deeply
    entrenched in the criminal sub-culture.

[32]

I would note though that the information was not derived from anonymous
    tips. Police knew the informants, and the second and third informants were
    informed of potential criminal consequences if they lied or embellished the
    information they provided.

[33]

The lack of indicators of credibility and reliability does not mean that
    the confidential informant information has no evidentiary value. It can still
    contribute to the reasonable grounds to arrest if it is compelling and
    corroborated. As Wilson J. explained in
Debot
at pp. 1170-1171, where
    the police rely on an untried informant, the quality of the information and
    corroborative evidence may have to be such as to compensate for the inability
    to assess the credibility of the source.

[34]

The trial judge found the confidential informant information to not be
    compelling. I disagree. The information was fairly detailed and specific. It
    described various personal characteristics of the respondent, the types of
    drugs being trafficked, where the transactions occurred, and how they were
    carried out. All the informants identified the respondents Alfonso Crescent
    residence as the hub. Two of the confidential informants identified the precise
    address.

[35]

C.I. 1 was said to know the respondent personally, though no details
    were provided. C.I. 2 and C.I. 3 were described as customers of the respondent.
    They had first-hand knowledge of the trafficking. This relationship helps to
    alleviate the concern that they were just perpetuating rumours or gossip.

[36]

The second and third informants described the manner in which the
    transactions occurred in slightly different ways. C.I. 2 said Bunt usually
    retrieved the drugs from his residence and sold them from inside his garage or
    locations near his residence. C.I. 3 said Bunt would usually come out of his
    residence and enter the informants vehicle in the driveway. A common thread is
    that the purchasers would not enter the residence, and the transaction would
    occur near the residence  either in the garage, locations near the residence,
    or the informants car while parked outside.

[37]

On the other hand, with the exception of C.I. 1, who spoke to Constable
    Barbara in April 2011, the currency of the information is unknown.

[38]

In these circumstances, I would describe the informant information
    predicting the trafficking of heroin and crystal methamphetamine by the
    respondent from 21 Alfonso Crescent as moderately compelling.

[39]

With respect to corroboration, the consistency of the information from
    the three informants should be given some weight. There was significant overlap
    in their description of the respondents nickname and name, approximate age,
    ethnicity, residence, vehicle, types of drugs in which he trafficked, location
    at which the transactions occurred, and, as described above, certain
    similarities in the manner in which the transactions would occur. These
    consistencies increase the significance and reliability of the informant
    information and distinguish this case from circumstances in which there is only
    one anonymous or untried informant.

[40]

The trial judge found little corroborative value in the police
    investigation. Again, I disagree. Police confirmed the accuracy of specific
    information during their investigation. This included: the respondents name,
    though not his nickname; the colour, make, and age of the respondents vehicle;
    the respondents ethnicity; the respondents address; his approximate age; and
    that he had been arrested but not convicted in relation to the possession of
    stolen property. Police confirmation of these details, as in
R. v. Caissey
,
    2007 ABCA 380, 227 C.C.C. (3d) 322, at para. 25, affd 2008 SCC 65, [2008] 3
    S.C.R. 451, tends to substantiate the reliability of the informants
    information.

[41]

Not only was there corroboration of personal characteristics, there was
    some indication that the criminal activity alleged was indeed occurring. As
    this court stated in
R. v. Lewis
(1998), 38 O.R. (3d) 540, at pp.
    547-548, there is no need to confirm the very criminality of the information
    given by the tipster, but there must be more than corroboration of innocent or
    commonplace conduct when the police are relying on an untested informant.

[42]

Here, there were three brief meetings within one hour, all of which
    occurred outside the respondents residence in various cars. This behaviour
    must be considered in light of the knowledge and experience that Constable
    Whitlock brought to the investigation. Constable Whitlocks experience and
    conclusions about these meetings helps inform the inferences that can be drawn
    when assessing the objective reasonableness of the grounds to arrest.

[43]

He testified that these meetings were consistent with drug transactions
    in that they were very brief, took place outside of public view but not inside
    a residence, and were numerous and within quick succession of each other. His
    observation of the respondents hand being cupped as he left his residence and
    entered the black Ford increased his suspicion and the inference that a drug
    transaction ensued in the vehicle.

[44]

Further, the sequence of events conformed sufficiently to the pattern
    predicted by C.I. 2 and C.I. 3 as to remove the possibility of innocent
    coincidences: see
Debot
, at p. 1172;
R. v. Whyte
, 2011 ONCA
    24, 266 C.C.C. (3d) 5, at paras. 30-31. Again, three brief meetings took place
    in the cars of those who showed up at the respondents residence while the
    vehicles were either parked in the driveway or directly outside the residence,
    or within a brief time, drove away. This corroborated the confidential
    informant information of C.I. 3, in particular on the manner in which the
    respondent engaged in drug transactions.

[45]

In the totality of the circumstances, regardless of the information
    about the arrest of the third party Nissan driver, the police had subjectively
    and objectively justifiable reasonable and probable grounds to arrest the
    respondent. Accordingly, there was no violation of the respondents rights
    under s. 9 of the
Charter
.

D.

Conclusion

[46]

I would therefore allow the appeal and set aside the acquittals.

Released: EAC  APR 28 2016

M. Tulloch J.A.

I agree. E.A. Cronk
    J.A.

I agree. K. van
    Rensburg J.A.


