



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Anang, 2016 ONCA 825

DATE: 20161104

DOCKET: C60560

Weiler, Blair and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Anang

Appellant

Richard Litkowski and Nate Jackson, for the appellant

Maria Gaspar, for the respondent

Heard: September 23, 2016

On appeal from the conviction entered by Justice Brian P.
    OMarra of the Superior Court of Justice on March 20, 2015, and from the
    sentence imposed on June 17, 2015.

ENDORSEMENT

Overview

[1]

Mr. Anang was convicted of possession of heroin for the purpose of
    trafficking and sentenced to four years imprisonment. He appeals from that
    conviction. He also seeks leave to appeal and, if leave is granted, appeals
    from the sentence imposed.

[2]

With respect to his conviction, the appellant submits that the trial
    judge erred:

(i)

by concluding (based on a weak
    tip from a confidential informant, coupled with two otherwise non-criminalised incidents)
    that his arrest was lawful and, therefore, that the search incidental to arrest
    was also lawful and not in breach of his rights under s. 8 and s. 9 of the
Canadian
    Charter of Rights and Freedoms
, when the evidence did not support a
    finding that the police had an objective basis for believing they had
    reasonable and probable grounds for arrest;

(ii)

by failing to exclude the
    evidence that was seized incidental to the arrest pursuant to s. 24(2) of the
Charter
;
    and,

(iii)

by applying an uneven level of
    scrutiny to the evidence of the Crown, in comparison to that of the appellant,
    and misapprehending the evidence at trial.

[3]

With respect to sentence, the appellant submits that a sentence of four
    years imprisonment was unduly harsh in the circumstances and that the trial
    judge erred by:

(i)

relying too heavily on the
    dissenting reasons of Charron J.A. in
R. v. Zamani
(1999), 125 O.A.C.
    358 (C.A.);

(ii)

failing to explain why he
    determined that four years was an appropriate sentence as opposed to some
    lesser penitentiary period; and,

(iii)

placing too much emphasis on the
    aggravating factors.

[4]

We would not give effect to the foregoing submissions.

Background

[5]

Plainclothes members of the Toronto Police Service arrested the
    appellant at gunpoint on November 27, 2012. At the time he was driving alone in
    a Ford Focus in which the police found significant amounts of cash, a black
    leather shoulder bag containing large amounts of heroin, various drug-related
    paraphernalia, and some canisters containing heroin secreted in a false
    bottom.  There was a total of 75 grams of heroin with an estimated street value
    of approximately $18,000.

[6]

The arrest occurred following an investigation that had been triggered
    some time before by a tip from a confidential informant who provided
    information to the police that possibly linked the appellant to the selling of
    heroin. After a search of police data banks, the police connected the appellant
    with an apartment on Goreway Drive in Mississauga and with two vehicles, a BMW
    and a grey Ford Focus.

[7]

On November 27, the police were conducting surveillance at the Goreway
    Drive address when they observed the appellant driving away in the grey Ford
    Focus.  Within a short period of time thereafter they observed two incidents
    that preceded the arrest.

[8]

The first (the CIBC incident) occurred after the surveillance officers
    followed the appellant to a CIBC parking lot and witnessed an individual come
    out of the CIBC building carrying a black bag, approach the front passenger seat
    and re-enter the CIBC building carrying a black bag. One of the surveillance
    officers (but not both) observed a red object sticking out of the black bag
    when the individual exited the bank but did not see a red object sticking out
    of the bag the individual carried when he returned to the bank. The second
    incident (the Summerfield Crescent incident) occurred shortly thereafter when
    the officers followed the appellant to an address on Summerfield Crescent where
    another exchange occurred in the driveway at those premises. Another individual
    came out of the residence carrying  according to one officer  a small green
    object in his hand, entered the car on the passenger side and, a minute or so
    later, exited the passenger side and re-entered the house.

[9]

The appellant reversed out of the driveway and drove away. His car was
    stopped a short distance away and he was arrested at gunpoint. The police
    conducted a search of the vehicle incident to the arrest and discovered,
    amongst other things, the items referred to above, including the heroin and
    cash.

[10]

The
    arrest was ordered by the supervising officer, Detective Kay, who was not
    present during the surveillance operations but who had been receiving ongoing
    live reports of the observations of the various surveillance officers. 
    Detective Kay had been a member of the Toronto Police Service for approximately
    24 years and, at the time, was a detective in the Major Crime Unit.  He had
    been a member of the drug squad for seven years and estimated that he had been
    involved in probably a thousand surveillance operations during that time alone.

[11]

On
    the
voir dire
Detective Kay acknowledged that, taken in isolation,
    neither the CIBC incident nor the Summerfield Crescent incident, would have
    provided grounds for arrest, although he found the former incident odd and
    the latter consistent with a drug transaction in which the dealer was operating
    from a standard territory of the drug dealer, namely the dealers car.
    However, taking the two incidents together with the other information he had through
    the confidential informant and the officer who obtained the information from
    the confidential informant about a heroin dealer connected to the Goreway
    address trafficking from his vehicle, he believed he had reasonable and
    probable grounds for the arrest he ordered.

Discussion

Was the
    Arrest Unlawful?

[12]

The
    appellant submits that the trial judge erred in finding that there was
    sufficient evidence that the arrest was objectively reasonable (he does not
    contest that the police had a subjective belief that they had reasonable and
    probable grounds for the arrest).

[13]

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

[14]

The
    trial judge accurately summarized the law relating to the arrest of a person
    without a warrant in accordance with s. 495(1)(a) of the
Criminal Code
. 
    He was alive to the requirement that an arresting officer must not only
    subjectively believe that he or she has reasonable and probable grounds for the
    arrest, but that those grounds must also be justified on an objective basis, as
    seen from the perspective of a reasonable person standing in the shoes of a
    police officer with comparable experience to that of the arresting officer. See
R. v. Storrey
, [1990] 1 S.C.R. 241, at p. 249-50;
R. v. Tran
,
    2007 BCCA 491, 247 B.C.A.C. 109, at para. 12. He also recognized that police
    officers may form the grounds for arrest based on information received from
    other sources, and, importantly, that in assessing the objective grounds for
    the arrest, the court must take into account the totality of the circumstances
    relied upon by the arresting officer. See
R. v. Debot
, [1989] 2 S.C.R.
    1140;
R. v. Lawes
, 2007 ONCA 10, at para. 4.

[15]

In
    assessing the totality of the circumstances that Detective Kay  an officer
    whose prior investigations had involved over a thousand drug surveillance
    operations, including the surveillance of drug dealing from a car rather than a
    specific premise  had formed his grounds for arrest based on, the trial judge
    noted (reasons, para. 35):

The arrest in this case was based on the following information
    received by Sergeant Kay:

1. Unspecific information received indirectly from a
    confidential source that the applicant was possibly trafficking in heroin from
    a car. The respondent conceded that this information is close to the level of
    an anonymous tip.

2. The activity observed in the C.I.B.C. parking lot. The
    applicant remained in his car while another man, carrying a black bag, exited
    the bank and approached the passenger side of the car. Surveillance officers
    saw the man place the bag inside the applicants car and very shortly
    thereafter walk away from the car with a black bag. Sergeant Kay viewed this as
    an odd incident but not grounds to arrest the applicant.

3. The second incident shortly thereafter at the residence on
    Summerfield Crescent. The applicant parked his vehicle in the driveway. A man
    came out of the house with something small and green in his hand.  He entered
    the car by the front passenger door. One or two minutes later, the man exited
    the car and walked back to the house.

[16]

After
    reviewing all of this evidence, the trial judge found that, having regard to
    [t]he totality of circumstances, there were objective grounds to believe that
    the applicant was involved in a drug transaction.

[17]

In
    submitting that the trial judge had erred in coming to this conclusion, Mr.
    Litkowski focused his careful submissions on the weaknesses relating to the
    information obtained by the police from the confidential informant. He argued
    that the tip was a pivotal part of the police officers decision to arrest and
    that the trial judge erred in failing to address the questions that need to be
    considered in weighing such evidence, namely (i) whether the information
    received was compelling; (ii) whether the source was credible; and (iii)
    whether the information was corroborated in other respects by the police:
Debot
,
    at p. 1168 and 1172.  He submits that there was little, if any, evidence to
    respond to these issues. The tip itself was lacking in detail. The tipster was
    untested and unproven. The information emanating from him or her was not
    reliable or compelling. For that reason, Mr. Litkowski argues, the trial judge had
    an obligation to assess the evidence surrounding the CIBC and Summerfield
    Crescent incidents with enhanced scrutiny  seeking robust corroboration 
    which he failed to do.

[18]

We
    would not give effect to this ground of appeal.

[19]

The
    Crown conceded, and the trial judge proceeded on the basis that the information
    emanating from the confidential informant was weak and that the tip was more
    or less equivalent to an anonymous tip. It was accepted, therefore, that the
    tip did not provide a compelling source of information.

[20]

That
    said, we accept the Crowns submission that, although the confidential source
    information was not compelling or credible enough on its own to justify an
    arrest, it was sufficiently persuasive to warrant further investigation. Taken
    with the information then obtained by the police tying the appellant to the
    Goreway address and the grey Ford Focus he was driving, it provided at least an
    initial tableau of information against which the surveillance officers
    observations of the CIBC incident and the Summerfield Crescent incident could
    be assessed, based on the arresting officers experience.

[21]

Mr.
    Litkowski drew our attention particularly to
R. v. Dezainde
, 2014 ONSC
    1420, a decision of the Superior Court that is the source (at para. 143) of his
    robust corroboration submission. That case involved a similar bare-bones
    tip that the accused was trafficking in heroin from his vehicle together with
    surveillance information over two days involving the observations of about
    eight brief encounters similar to those in the present case. The trial judge in
Dezainde
concluded that the sheer number of incidents formed a pattern
    of conduct that in its totality provided an objective basis for the arrest. He
    commented, however, that if there had only been the tip and one stop or even
    two stops, reasonable grounds would not have existed (para. 144). Mr. Litkowski
    argues that
Dezainde
demonstrates the kind of case  whereas the case
    at bar does not  where the surveillance information [bridged] the gap between
    a mere hunch or suspicion, and reasonable grounds to believe that the Appellant
    was trafficking in heroin (FAP, para 43).

[22]

Each
    case falls to be determined on its own facts, however. In our view, determining
    whether there were objective grounds for an arrest is not a mathematical
    exercise involving the counting of the number of surveillance incidents
    (although more presumably makes the case stronger). Rather it is the nature of
    the information derived from the surveillance, taken in the context of the
    totality of the circumstances and weighed through the perspective of the
    experience of the arresting officer that informs the decision. The trial judge
    in
Dezainde
himself noted that at some point (and I need not
    determine where) in the eight stops found in the truncated summary, any thought
    of innocent coincidence disappears. A pattern of conduct emerges. (para. 144).

[23]

The
    fact that the trial judge here made a similar finding based on a smaller number
    of surveillance incidents is not fatal to his determination that, on the
    totality of the circumstances, objective grounds for the appellants arrest
    existed.  In our view, the record supports his determination and we see no
    error in his finding that Detective Kay had an objective basis, having regard
    to the totality of the circumstances, sufficient to ground the arrest.

Section
    24(2)

[24]

In
    any event, even if the trial judge did err and the arrest was unlawful because
    it violated the appellants
Charter
rights, we would not interfere
    with the trial judges finding that the evidence seized as a result of the
    search incidental to the arrest should not be excluded pursuant to s. 24(2) of
    the
Charter
.

[25]

A
    trial judges decision whether to exclude or not to exclude evidence obtained
    as a result of a
Charter
breach is discretionary and entitled to
    considerable deference:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353,
    at para. 86.

[26]

Here,
    the trial judge properly approached his assessment of the evidence in
    accordance with the instructions of the Supreme Court of Canada in
Grant
,
    at para. 71. A court is to assess and balance the effect of admitting the
    evidence on societys confidence in the administration of justice having regard
    to (i) the seriousness of the
Charter
breach, (ii) the impact of the
    breach on the appellants
Charter
-protected interests, and (iii)
    societys interest in the adjudication of criminal charges on their merits. As
    the Supreme Court concluded, [t]he courts role on a s. 24(2) application is
    to balance the assessments under each of these lines of inquiry to determine
    whether, considering all the circumstances, admission of the evidence would
    bring the administration of justice into disrepute.

[27]

That
    is precisely the exercise the trial judge conducted.

[28]

With
    respect to the first inquiry, he found that the police had acted on the basis
    of an honest belief and that their conduct could not be characterized as either
    deliberate or egregious even if it had violated the appellants s. 8
Charter
rights. Admitting the evidence would not undermine public confidence in the
    administration of justice. This factor favoured admission.

[29]

The
    impact of the breach, if there were one, was serious however. The appellant had
    been arrested at gunpoint in public. The second inquiry favoured exclusion.

[30]

In
    examining the third factor  societys interest in an adjudication on the
    merits  the trial judge concluded that the evidence (the heroin and cash
    seized in the vehicle) was both reliable and essential to the Crowns case. In
    view of these considerations and the seriousness of the crime, there was a
    significant interest in an adjudication on the merits. The third factor
    favoured admission.

[31]

Having
    conducted these inquiries, the trial judge then conducted the required balancing
    exercise and concluded, after weighing all factors, that the admission of the
    evidence would not, on balance, bring the administration of justice into
    disrepute. He ruled it admissible.

[32]

The
    appellant raises a number of arguments against this finding. Mr. Litkowski
    argues that the violation was serious given the frailties of the tip and the
    tipster, and that courts must be careful not to associate themselves with
    police conduct that is the result of negligence, recklessness, wilful blindness
    or bad faith. He highlights the trial judges finding that the breach had a
    serious impact on his
Charter
rights, and argues that the trial judge
    placed a disproportionate emphasis on the importance of the evidence and the
    seriousness of the crime without giving sufficient consideration to the
    publics interest in a system of justice that is beyond reproach.

[33]

Essentially
    the appellants submissions on this issue invite us to re-weigh and re-assess
    the factors playing into the
Grant
inquiry in a manner that supports
    his view of the evidence. He raises arguments that no doubt were raised before
    the trial judge and which could, perhaps, have been accepted by him. But the
    trial judge came to another conclusion based on his assessment of the
Grant
factors and after having conducted the very type of balancing exercise mandated
    in
Grant
. W
e see no
    error in law or principle in his determination that the evidence should not be
    excluded under s. 24(2), nor do we see any palpable and overriding error of
    fact.

[34]

Accordingly,
    even if the police had lacked an objective basis for arresting the appellant
    and the arrest was therefore unlawful, we would not interfere with the trial
    judges conclusion that the evidence seized should not be excluded.

The
    Trial Proper

[35]

The
    appellant makes two submissions regarding the trial judges reasons on
    conviction. He says, first, that there was a significant disparity in the
    level of scrutiny applied [by the trial judge] to defence and Crown evidence. Secondly,
    he argues that the trial judge misapprehended his evidence with respect to the
    location of the black bag containing the heroin in his vehicle when he first
    became aware of the bag.

[36]

We
    would not give effect to either of these submissions.

[37]

There
    is no basis for concluding that the trial judge engaged in an uneven scrutiny
    of the evidence. He carefully considered the evidence of the appellant as he
    was required to do, and demonstrated in his equally careful review of the
    Crowns case that he was alive to any inconsistencies in the police evidence
    (particularly the difference in the officers recollections with respect to the
    red object seen in the black bag in the hands of the individual exiting the
    CIBC branch and the fact that only one of the surveillance officers reported
    seeing the green object in the hand of the individual involved in the
    Summerfield Crescent incident).

[38]

As
    Doherty J.A. observed in
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont.
    C.A.), at para. 59, the argument that a trial judge has applied a different
    level of scrutiny in assessing the evidence of the accused and the Crown is a
    difficult argument to make successfully:

To succeed in this kind of argument, the appellant must point
    to something in the reasons of the trial judge or perhaps elsewhere in the
    record that make[s] it clear that the trial judge had applied different
    standards in assessing the evidence of the appellant and the [Crown witnesses].

[39]

There
    is nothing in the trial judges approach to his assessment of the evidence here
    that would meet that high threshold for reversible error.

[40]

Nor
    are we persuaded that the trial judge misapprehended the evidence regarding the
    location of the black bag in the vehicle when the appellant found it, or that,
    if the trial judge did, it would have made any material difference in his
    assessment of the appellants evidence.

[41]

In
    his evidence in chief, the appellant said that the bag was located on the floor
    in the back seat of the car when he first found it. In cross-examination, he
    suggested that the bag was on the back seat. The trial judge said that he did
    not accept the appellants evidence that the bag was on the floor of the car
    when he drove away on the morning of the arrest. The trial judge found, based
    on the evidence of the officers, that it was sitting, open, on the front seat
    when he was stopped and arrested by the police.

[42]

To
    the extent that the trial judge may have been mistaken about the appellants
    evidence regarding the initial location of the bag, however, we are satisfied
    that any such mistake was not material to his ultimate finding that the
    appellant had knowledge of the drugs contained in the bag because the bag was
    found, opened, beside him on the front passenger seat. The trial judges
    ultimate reasoning for his finding was that it was unlikely
someone else
with knowledge of the valuable contents of the bag would have left it lying
    around, open in the back seat area of the car. This was an inference he was
    entitled to draw.

Sentence

[43]

In
    arguing that the appellants sentence of four years imprisonment is overly
    harsh, Mr. Jackson makes three points in particular. First, he submits that the
    trial judge erred by relying solely on the dissenting reasons of Charron J.A.
    in
Zamani
, whereas the majority in that case upheld a reformatory
    sentence of two years less a day in circumstances similar to the present case.
    Secondly, although he concedes that a four year sentence is not outside the
    applicable range, he argues that it was incumbent on the trial judge to explain
    why he chose a sentence of four years as opposed, say, to one of two years, and
    that he failed to do so. Finally, he contends that the trial judge overly
    emphasized the aggravating factors in the circumstances without sufficient
    regard to the mitigating factors operating in the appellants favour.

[44]

We
    are not persuaded there is any basis for interfering with the sentence imposed.
    A trial judges sentencing decision reflects a distinctly individualized
    exercise and is subject to a highly deferential standard on review. [A]bsent
    an error in principle, failure to consider a relevant factor, or an
    overemphasis of the appropriate factors an appellate court will not intervene
    unless the sentence is demonstrably unfit or clearly unreasonable:
R. v.
    L.M.
, 2008 SCC 31, [2008] S.C.R. 163, at para. 14;
R v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. In our view, the trial
    judge made none of the proscribed errors and the sentence is neither demonstrably
    unfit nor clearly wrong. Indeed, it is well within the range.

[45]

It
    is the case that the trial judge placed some emphasis on the four year sentence
    that Charron J.A. would have imposed in dissent in
Zamani
whereas, on
    the particular facts of that case, the majority refused to interfere with a sentence
    of two years less a day. However, the majority in
Zamani
was quite
    clear in stating its view that the offence of trafficking in heroin almost
    always attracts a significant jail term and usually calls for a penitentiary
    term and that it would have been open to the judge to impose a sentence of
    three or four years on the facts.

[46]

Nor
    do we accept that a trial judge is required to give a detailed explanation of
    why he or she arrived at one number (say, 3 ½ years), as opposed to another
    (say, 2 or 2 ½ years), apart from justifying why the sentence is fit in the circumstances
    of the case, having regard to all the principles of sentencing.

[47]

Finally,
    the appellant submitted that the trial judge over-emphasized the aggravating
    factors in the case  particularly the quantity and value of the heroin  in
    determining the sentence. We disagree. The trial judge carefully outlined both
    the mitigating and aggravating factors and balanced them in arriving at his
    conclusion that four years imprisonment was an appropriate sentence. He did
    not err in this regard.

Disposition

[48]

For
    the reasons above, we dismiss the appeal as to conviction. Leave to appeal
    sentence is granted, but the sentence appeal is dismissed as well.

K.M. Weiler J.A.

R.A. Blair J.A.

K.
    van Rensburg J.A.


