



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Palmer, 2018 ONCA 974

DATE: 20181203

DOCKET: C62111

Rouleau, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Palmer

Appellant

Catriona Verner, for the appellant

Katie Doherty, for the respondent

Heard and released orally: November 27, 2018

On appeal from the conviction entered on January 11, 2016
    and the sentence imposed on January 18, 2016 by Justice Julie A. Thorburn of
    the Superior Court of Justice, without a jury.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice, sitting
    without a jury, the appellant was convicted of two counts of each of three
    offences: robbery; aggravated assault; and discharge firearm with intent to
    wound.

[2]

The offences arise out of a robbery of a Toronto bank during which a
    bank employee and a customer, who confronted the robbers inside the bank and
    pursued them as they fled, were shot and wounded.

[3]

The appellant, who has served his sentence, appeals his convictions on
    the ground that his initial arrest on unrelated charges was constitutionally
    flawed, and that evidence linking him to the bank robbery should have been
    excluded because it was the product of constitutional infringement.

[4]

The relevant facts may be briefly stated.

The Factual Background

The Bank Robbery

[5]

On April 21, 2013, two men entered a Toronto bank to commit a robbery.
    One man, Lenroy Jackson, was armed with a gun. He held customers and staff at
    gunpoint. The second man, said to be the appellant, vaulted the counter. He
    looked for money in the tellers drawers. The manager directed this man to the
    decoy bags of Canadian currency. The robber then took them and vaulted back
    over the counter.

[6]

A customer confronted the man with the decoy bags. The confrontation
    occurred, it would appear, on the customers side of the counter. Jackson
    jumped off the counter and fired a shot at the customer. The bullet missed the
    customer and struck a bank employee seated on the floor behind the counter.

[7]

The robbers fled the bank pursued by the customer who had confronted the
    unarmed robber inside. Jackson shot the customer. Both robbers fled in a stolen
    vehicle found later the same day. Forensic identification officers located the
    appellants fingerprint on the exterior of the rear drivers side window.

The Tip

[8]

The following day, a police officer from Peel Regional Police received a
    tip from an informant that Sean would be leaving a specific Brampton address.
    Sean had crack to sell. The crack was concealed in Seans rectum. He would
    likely leave the residence on foot.

[9]

The officer who received the tip knew only one drug dealer who used the
    name Sean. He also knew the address from which Sean was to leave as a crack
    house. Sean was the appellant.

The Arrest and Searches

[10]

Police
    proceeded to the area of the address provided by the informant. About ten minutes
    later, Sean walked out. He headed down the street on foot. The officers
    arrested him and patted him down. They found a two and one-half inch folding
    knife. He was charged with carrying a concealed weapon and taken to the police
    station. There, officers seized a cellphone from his backpack and money,
    including three bills with dye on them from the bait money taken during the
    robbery. The appellant was also strip-searched. Police found no drugs.

The Toronto Police Service Contact

[11]

Before
    releasing the appellant on a promise to appear on the weapons charge, the
    arresting officer checked CPIC. He learned that the appellant was a person of
    interest to Toronto Police Service. Contact with the Toronto Police Service
    confirmed this interest. Toronto officers subsequently attended and arrested
    the appellant on charges relating to the bank robbery as he was being released
    on the Peel charges. Prior to his release on the Peel charge, the appellant was
    asked to provide his address and a telephone number, apparently to complete the
    release form. He did so. Although a Promise to Appear in Form 10 requires an
    address, it does not require a telephone number.

The Grounds of Appeal

[12]

In
    this court, the appellant contends that the trial judge erred in deciding that
    the initial arrest of the appellant was lawful in the sense that the arresting
    officer had reasonable grounds to believe that the appellant had committed or
    was about to commit an indictable offence. In the event that this ground of
    appeal succeeds, the appellant then says that certain evidence, including but
    not only, the bait money taken from the bank and found in the appellants
    possession on arrest, should have been excluded, rather than admitted at his
    trial.

The Arrest Issue

[13]

The
    appellant acknowledges, as did counsel at trial, that the arresting officer had
    the necessary subjective grounds to arrest the appellant. Thus, what remains
    for us to determine is whether the evidence adduced at trial disclosed
    objectively reasonable grounds for the appellants arrest.

[14]

The
    trial judge was satisfied that the arresting officer had the essential
    objective grounds to arrest the appellant. She expressed and applied the proper
    legal standard. She did not misapprehend any evidence material to her conclusion.
    We agree with her decision.

[15]

We
    approach this decision mindful that the trial judge need only have been
    satisfied that the grounds for arrest were objectively reasonable in the
    circumstances known to the officer at that time. The benchmark is a reasonable
    person standing in the shoes of the officer at the time of arrest with the
    officers knowledge, the officers experience and the officers training. It is
    that person who must be able to conclude that the grounds existed. And this
    conclusion must take into account all the circumstances known to the officer, a
    determination that eschews piecemeal analysis and microscopic scrutiny of
    individual items shorn of their context.

[16]

In
    our assessment, we are mindful of the fact that little is known about the
    informants background or reliability. That said, the information provided was
    current and specific about place; about type; about storage of drug; and about
    method of transportation. In addition, this appellant was known as a drug
    dealer. The only one who used the name Sean. And the place described from
    which he was leaving was a known crack house. While the officer could not
    supply information about the antecedents and reliability of the confidential
    informer, it is commonplace that the
Debot
factors are not mandatory
    conditions precedent to permit reliance on confidential informer information in
    support of search or arrest authority. Further, deficiencies in one factor may
    be compensated by strengths in others.

[17]

In
    the end, we are satisfied, as was the trial judge, that the appellants arrest
    was not constitutionally infirm. It was based on reasonable grounds, thus not
    arbitrary. In light of our conclusion on this issue of constitutional
    infringement, we do not reach the admissibility question framed by s. 24(2) of
    the
Charter
.

[18]

The
    appeal from conviction is dismissed. The appellant, having served his sentence,
    did not pursue that appeal. Leave to appeal sentence is refused.

Paul Rouleau J.A.

David Watt J.A.

Grant Huscroft J.A.


