



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chioros, 2019 ONCA 388

DATE: 20190510

DOCKET: C64836

Hourigan, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Chioros

Appellant

Mark C. Halfyard, for the appellant

Jen Conroy, for the respondent

Heard: May 8, 2019

On appeal from the
    conviction entered on November 14, 2017 by Justice Kelly A. Gorman of the
    Superior Court of Justice.

REASONS FOR DECISION

Introduction

[1]

In September 2015, the Saint Thomas police received an anonymous Crime
    Stoppers tip that the appellant was trafficking large amounts of cocaine in St.
    Thomas. The police conducted surveillance of the appellant over a two-month
    period and he was eventually arrested in London. On a search incident to arrest,
    the police discovered cocaine on his person and in his vehicle. As a result of
    this discovery, the police obtained a warrant to search the appellants home.
    That search revealed more cocaine and marijuana. The appellant was charged with
    possession of cocaine for the purpose of trafficking, possession of marijuana
    for the purpose of trafficking, and possession of oxycodone.

[2]

The appellants trial consisted primarily of a
Charter
application alleging breaches of his ss. 8 and 9 rights. The appellant submitted
    that the police had insufficient grounds to make an arrest and that the
    subsequent searches of the appellants person, car, and home were also
    unconstitutional. That application was dismissed and he was convicted on all
    counts.

[3]

The appellant makes two submissions on appeal: (i) the trial judge erred
    in finding that the
Debot
factors objectively supported the police
    officers subjective belief that he was dealing narcotics and would be in possession
    of narcotics; and (ii) the evidence obtained in the impugned searches should be
    excluded pursuant to s. 24(2) of the
Charter
.

[4]

These reasons explain why we are allowing the appeal. We find that the
    appellants
Charter
rights were breached, that the evidence should be
    excluded under s. 24(2), and that the convictions should be set aside and
    acquittals entered in their place.

Analysis

(i)

Debot
Factors

[5]

The Crime Stoppers tip was received by Cst. Spicer on September 3, 2015
    and included the appellants name and address. It also referenced the fact that
    he drove a silver Audi and the licence plate number of that vehicle. In
    addition, the tipster advised that there was a Harley Davidson motorcycle and a
    Ford Mustang in the driveway of the appellants residence. Cst. Spicer was able
    to confirm that day that the appellant resided at the address provided and that
    the silver Audi was registered to him.

[6]

The police commenced surveillance of the appellants residence on
    September 17, 2015. On that date, Cst. Spicer saw the appellant driving the
    Audi. The other two vehicles mentioned in the tip were never seen at the
    appellants residence, nor was the appellant ever seen driving either vehicle.

[7]

On September 23, 2015, Cst. Spicer observed the appellant driving with
    Jason Daniels. Cst. Spicer knew Mr. Daniels from high school. He believed that Mr.
    Daniels was a drug dealer when they were at school. In addition, he had been
    told by several sources, including credible informants, that Mr. Daniels was a
    drug dealer. Cst. Spicer testified that at the time Mr. Daniels was the subject
    of a drug investigation. However, Cst. Spicer did not know if Mr. Daniels had
    ever been convicted of drug related offences or arrested for same.

[8]

The police followed the appellant and Mr. Daniels to an apartment on
    Ross Street, where they entered unit 11. Cst. Spicer believed that this unit
    was occupied by Mr. Daniels. Cst. Spicer and Sgt. Johnstone saw a blue Sunfire
    arrive on the scene and a young man exit the vehicle. The young man went to
    same floor as unit 11, but was not observed entering the apartment or
    interacting with the appellant or Mr. Daniels. He left the building a short
    time later. The police ran the licence plate for the Sunfire and determined
    that it was registered to Jordan Blackman. Cst. Spicer testified that Mr.
    Blackman had been involved in a prior altercation with a known petty drug
    dealer.

[9]

The following day, September 24, 2015, the police observed the appellant
    pull his vehicle over and lift the hood. He examined the vehicle for a few
    minutes and then drove off. The officers saw him cut through a parking lot, do
    a U turn, and then continue down the street. Both Cst. Spicer and Sgt.
    Johnstone described these actions as counter-surveillance techniques.

[10]

Later
    that day, the officers observed the appellant arrive in the driveway of a group
    of high-rise apartment buildings on Windermere Drive in London. Each building
    had approximately 150 units. The appellant entered 655 Windermere Drive, but
    the officers did not see which apartment he visited. He was there for over an
    hour and was observed exiting the building carrying a bag that appeared to be
    weighted. Sgt. Johnstone obtained information from London Police that they had
    received an anonymous tip that a major drug dealer lived at 655 Windermere
    Drive and that his apartment was being used as a stash house.

[11]

On
    October 27, 2015, Cst. Spicer observed the appellant drive to the Ross Street
    building. Sgt. Spicer was subsequently informed by another officer that he saw
    the appellant, Mr. Daniels, and an unknown male outside of unit 11.

[12]

Cst.
    Spicer conducted surveillance of the appellants residence on November 2, 2015.
    He spotted a Ford pick-up truck in the driveway registered to Dwayne Bennett.
    Cst. Spicer testified that Mr. Bennett was a known drug dealer in the area.
    Neither Mr. Bennett nor the appellant were seen at the residence that day. The
    appellants father was observed to be there.

[13]

On
    November 5, 2015, the police observed the appellant return to 655 Windermere
    Drive. The appellant went inside the building. He did not appear to be carrying
    anything. He came out about an hour later carrying a bag. Again, the officers
    did not know which unit the appellant entered.

[14]

The
    police arrested the appellant shortly after he left the building. They searched
    him incident to arrest and found no drugs on his person. A small amount of
    marijuana and multiple cellphones were found in his vehicle at that time. A
    search at the police detachment located approximately 249 grams of cocaine in
    the appellants boxer shorts. A subsequent search of his home turned up 20
    grams of cocaine and 214 grams of marijuana.

[15]

The trial judge concluded that
that the Crime
    Stoppers tip was compelling, credible, and corroborated by the surveillance.
    She found no breach of ss. 8 or 9 of the
Charter
.

[16]

In
    our view, the trial judge erred in finding that the police had the requisite
    grounds to arrest the appellant and carry out the searches.

[17]

Pursuant
    to s. 9 of the
Charter
,
the police must have reasonable and
    probable grounds to believe that they have sufficient evidence of a crime to
    facilitate an arrest. When the grounds to arrest stem, at least in part, from a
    confidential informant, the court must conduct a
Debot
analysis and
    look at the totality of the circumstances to determine if the confidential
    information is sufficiently credible, compelling, and corroborated to support
    the arrest. Weaknesses in one area may be compensated by strengths in the other
    two:
R. v. Debot
, [1989] 2 S.C.R. 1140, at p.1168.

[18]

Given
    that this was an anonymous tip, there was no evidence regarding the tipsters
    credibility. Nor was there evidence regarding his reliability or motivation in
    providing the information. It was an error, therefore, for the trial judge to
    find the tip to be credible.

[19]

The tip was also not compelling. It consisted of a bald assertion that
    the appellant was engaged in drug dealing without any information regarding the
    details of his alleged activities, whether the tipster had firsthand knowledge
    of the alleged activities, or the currency of the information. It included
    readily available public information regarding the appellants address and car,
    along with information about some, but not all, of the vehicles that were
    sometimes parked in his driveway.

[20]

The trial judge further erred in finding that the tip was corroborated. There
    was no meaningful corroboration. At no time did the police observe the
    appellant engage in any drug activity. Nor did they witness him enter the
    apartment of the alleged major drug dealer. The counter-surveillance evidence
    might be considered to a modicum of corroboration. However, its significance is
    diminished by the fact that there were no alleged counter-surveillance moves on
    the second trip to
655 Windermere Drive
.
    The evidence regarding Mr. Daniels was uncorroborated by objective evidence,
    such as a police record. At its highest, it amounted to an assertion that the
    appellant associated with a suspected drug dealer.

[21]

In addition, we note that the trial judge made two factual errors in her
    corroboration analysis. First, she relied on evidence of surveillance of the
    appellant on November 4, 2015 that disclosed surveillance conscious driving by
    the appellant. It is not contested by the Crown that no such evidence was
    adduced at trial. Second, she relied on the fact that a Honda vehicle referred
    to in the tip was spotted in the appellants driveway. It is also undisputed
    that there was no reference to the Honda in the tip.

[22]

A proper balancing of the
Debot
factors leads inexorably to the
    conclusion that the police lacked sufficient grounds to effect an arrest. The
    arrest amounted to a violation of the appellants s. 9 rights and the searches
    that flowed from the arrest breached his s. 8 rights.

(ii)

Section 24(2) Analysis

[23]

The
Grant
test regarding the exclusion of evidence under s.
    24(2) requires the court to consider and balance: (i) the seriousness of the
Charter
-infringing
    state conduct, (ii) the impact of the breach on the
Charter
-protected
    interests of the accused, and (iii) societys interest in adjudicating the case
    on the merits:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at para.
    71.

[24]

With respect to the seriousness of the state conduct, this was not a
    close call. It should have been clear to the police that they had, at most,
    unconfirmed suspicions about the appellants possible involvement in drug
    dealing. Throughout their investigation, the police failed to undertake even
    the most rudimentary steps to verify information, including the extent of Mr.
    Danielss prior drug involvement, the source of the information about the
    apartment at 655 Windermere Drive being used as a stash house, and confirmation
    of whether the appellant ever visited that unit. The investigation was not
    time-sensitive and there was no reason why the police could not have
    investigated further in an effort to gather truly corroborative evidence. It is
    serious state misconduct when the police make a choice not to conduct a proper
    investigation, but instead choose to effect an arrest on a member of the public
    based on unconfirmed and unreliable information. This factor pushes in favour
    of exclusion of the evidence.

[25]

The impact of the breaches on the appellants
Charter
-protected
    rights was profound. He was detained against his will following a dynamic
    public takedown by the police. Searches were then undertaken of his person, his
    vehicle, and his residence. This factor also militates in favour of exclusion
    of the evidence.

[26]

It is conceded by the appellant that the drugs seized are reliable
    evidence and central to the Crowns case. Thus, the third factor favours the
    admission of the evidence

[27]

In our view, a balancing of the
Grant
factors results in the
    conclusion that the inclusion of this evidence would bring the administration
    of justice into disrepute. The court cannot be seen to endorse the type of
    misconduct engaged in by the police in this case.

Disposition

[28]

The appeal is allowed, the convictions are set aside, and in their place
    acquittals will be entered on all counts.

C.W. Hourigan J.A.

David M. Paciocco J.A.

A. Harvison Young J.A.


