



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dawkins, 2021 ONCA 235

DATE: 20210414

DOCKET: C67433

Hourigan, Zarnett and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyrone Dawkins

Appellant

Mark C. Halfyard, for the appellant

Andrew Hotke, for the respondent

Heard: In writing

On appeal from the convictions entered
    on October 26, 2018, by Justice Richard E. Jennis of the Ontario Court of
    Justice.

REASONS FOR DECISION

Introduction

[1]

An officer of the Hamilton Police Service
    stopped the vehicle Tyrone Dawkins was driving and arrested him for driving while
    his licence was suspended. A search of the vehicle produced a loaded handgun
    under the drivers seat. Mr. Dawkins was re-arrested for possession of an
    unauthorized firearm.

[2]

Defence counsel argued that the traffic stop was
    unconstitutional because it breached ss. 8 and 9 of the
Canadian Charter of
    Rights and Freedoms
. Two weeks before the trial, Mr. Dawkins received updated
    disclosure that the stop was motivated, in part, by information from a
    confidential informant. The arresting officer, P.C. Cercone, had deliberately
    omitted this information from his notes, original will-say, and synopsis.

[3]

The matter proceeded as a single day
Charter
application and turned largely on the credibility of P.C. Cercone. Defence
    counsel at trial (not Mr. Halfyard) initially argued that the officers
    deliberate omission subverted the trial process, and that the trial judge
    should exercise his residual discretion to grant a stay of proceedings. However,
    after the parties had filed written submissions and the trial judge requested
    further oral submissions, defence counsel clarified that he was solely seeking
    a stay on the basis of a s. 9
Charter
breach and not in relation to the
    late disclosure or another reason related to trial fairness.

[4]

The trial judge ruled that the officer was
    credible and dismissed the defence application. He dedicated only one paragraph
    of his reasons to his credibility assessment of the officer. The defence
    subsequently conceded the Crown's case, and Mr. Dawkins was convicted of
    multiple firearms offences. The parties agreed on a joint sentencing
    submission, which the trial judge accepted. Mr. Dawkins was sentenced to 7.5
    years in custody, less 1.5 years pre-sentence credit.

[5]

On appeal, Mr. Dawkins argues that the trial
    judge provided insufficient reasons for finding that P.C. Cercone was credible.
    These reasons explain why we are not persuaded by that argument and accordingly
    dismiss the appeal.

Facts

[6]

On February 25, 2018, at approximately 11:49
    p.m., P.C. Cercone was conducting what he described as routine patrol of a
    location known to police as an illegal gambling establishment in Hamilton. He
    ran CPIC checks on the licence plates of some of the cars in the parking lot,
    including a grey Ford Escape.

[7]

At approximately 12:30 a.m. on February 26,
    2018, P.C. Cercone observed a male and a female exiting the establishment. The
    officer recognized the male as the appellant, Mr. Dawkins, from a police
    database photo. P.C. Cercone observed Mr. Dawkins and the woman enter the grey
    Ford Escape, which turned out to be registered to a different individual.

[8]

The delayed disclosure revealed that P.C.
    Cercone had information from a confidential source that Mr. Dawkins may be in
    possession of contraband. At trial, P.C. Cercone testified that he also had
    information that Mr. Dawkins was driving a silver SUV. P.C. Cercone ran a
    CPIC check on Mr. Dawkins before pulling him over and was aware that he was a
    suspended driver.

[9]

P.C. Cercone followed the vehicle after it
    exited the parking lot. Two minutes later, he stopped it and radioed for
    backup. P.C. Cercone told Mr. Dawkins that he stopped the vehicle because it
    was swerving. The officer later acknowledged that he lied to Mr. Dawkins about
    the reason for the stop to buy time for other officers to arrive at the scene.
    He thought that advising Mr. Dawkins of the real reason for the stop  i.e.,
    that P.C. Cercone suspected that Mr. Dawkins was driving while suspended 
    would heighten his fear level and jeopardize officer safety. P.C. Cercone
    testified that he was aware that Mr. Dawkins had prior firearms-related
    convictions and was subject to a weapons prohibition order.

[10]

After a second officer arrived on the scene,
    P.C. Cercone arrested Mr. Dawkins for driving while his licence was suspended.
    P.C. Cercone testified that he searched the vehicle, starting with the drivers
    seat, for documents related to the suspended licence and for public safety
    reasons. He noticed that the backseat was messy and that there was loose
    paperwork on the rear seat behind the driver and on the floor. As P.C. Cercone
    searched the backseat area, he located the handgun under the drivers seat.

[11]

On the
Charter
application, P.C.
    Cercones evidence was that he engaged in a dual-purpose stop and search: the
    first purpose was pursuant to the
Highway Traffic Act
, R.S.O. 1990, c.
    H 8, for the offence of driving while suspended; and the second purpose was
    based on the confidential informants tip regarding potential contraband.

[12]

P.C. Cercone did not mention the confidential
    informant in his notes, original will-say, or synopsis. He explained that at
    the time of the arrest, he had only been a police officer for two years and had
    never dealt with a confidential informant. P.C. Cercone stated that he was
    concerned that any hint of involvement of a confidential informant could
    jeopardize the sources identity.

[13]

The officer also testified that he had several
    conversations about his non-disclosure with his superiors, beginning sometime in
    February or March. On his superiors' advice, P.C. Cercone did not disclose
    anything further and decided to wait for instructions from the Crown's office.
    The Crown met with the officer in August 2018 and was advised for the first
    time about the non-disclosure. P.C. Cercone subsequently amended his will-say
    on or around August 10, 2018, to reference the confidential informant. The
    revised will-say was disclosed to the defence on or around August 15, 2018,
    approximately two weeks before trial.

[14]

The trial judge heard the evidence of P.C.
    Cercone on August 29, 2018. He adjourned the matter to October 26, 2018, and
    requested written submissions. Then, on October 26, 2018, the trial judge
    invited further oral submissions on issues arising from the written
    submissions. Defence counsel clarified in oral submissions that he was only
    seeking a stay for the alleged breach of Mr. Dawkins s. 9
Charter
rights and had abandoned his request for a stay based on late disclosure or any
    other reason related to trial fairness.

[15]

The defence's position was that P.C. Cercone's
    evidence was a fictional account of what happened and that the officer had concocted
    the reasons for the late disclosure because there were not sufficient grounds
    to stop Mr. Dawkins' motor vehicle and detain him. In contrast, Crown counsel
    argued that the traffic stop was justified by the
Highway Traffic Act
and P.C. Cercones objectively reasonable belief that Mr. Dawkins had committed
    the offence of driving while suspended. The Crown noted that it was not relying
    upon the confidential informants tip as a justification for the stop or
    arrest.

[16]

Counsel agreed about the central importance of
    P.C. Cercones credibility. The defence conceded that if he were found to be
    credible, then its
Charter
application would fail. Similarly, the
    Crown acknowledged that it could not make out its case if P.C. Cercone were
    found to be prevaricating.

[17]

The trial judge dismissed Mr. Dawkins
Charter
application. He summarized his reasons for accepting P.C. Cercones evidence in
    one paragraph as follows:

Albeit unusual, it accords with common sense
    and logic given his lack of experience as a police officer at the time and
    especially given his lack of experience with a confidential informant, it makes
    sense that given a mistake in disclosure could have grave if not fatal
    consequences. His testimony was uncontradicted and was not shaken or weakened
    in cross-examination. In my view, he was forthright and direct in his answers
    to questions and did not attempt to embellish.

[18]

The trial judge noted that, although the delay
    in disclosure was "somewhat concerning," defence counsel did not
    point to any prejudice occasioned to Mr. Dawkins, and did not request an
    adjournment. Moreover, the trial judge found that P.C. Cercone did not act in
    bad faith; his actions were coloured by a perceived risk to his safety. As
    well, the trial judge reasoned that the evidence was not exculpatory, nor could
    the Crown rely upon it due to its invocation of informant privilege.
    Ultimately, the trial judge found no basis for a stay of proceedings and
    dismissed the application.

Analysis

[19]

Mr. Dawkins raises a single issue on appeal:
    whether the trial judges reasons were sufficient regarding P.C. Cercones
    credibility, which was the central issue on the
Charter
application and
    was dispositive of the case. Mr. Dawkins submits that the trial judge should
    have more thoroughly examined the officers credibility with respect to his
    explanations for the failure to mention the confidential informant in the
    initial disclosure, for the lateness of the amended disclosure, and for the
    circumstances of Mr. Dawkins stop and search.

[20]

Mr. Dawkins argues that, despite the central importance
    of the officer's credibility to the disposition of his
Charter
application and the case, the trial judge's reasons on the issue are limited to
    a single paragraph that was largely boilerplate. He notes that beyond the trial
    judge's finding that the officer was inexperienced, the trial judge simply
    observed that the witness was uncontradicted, direct, and did not embellish his
    testimony. Mr. Dawkins submits that the trial judge was obliged to analyze the
    problems with the officer's evidence to satisfy the parties and this court that
    he correctly understood the credibility concerns.

[21]

In considering these submissions, it is helpful
    to have regard to several well-established principles that arise from the
    jurisprudence regarding the sufficiency of a trial judges reasons:

(i)

Reasons serve various functions, including
    explaining to the parties, the public and the appeal court why the trial judge
    decided a case in a particular way:
R. v. Victoria
, 2018 ONCA 69, 359
    C.C.C. (3d) 179, at paras. 43 46.

(ii)

Appellate courts take a functional approach when
    considering appeals grounded on claims of insufficient reasons. The sufficiency
    of reasons must be assessed having regard to the evidence, the submissions, and
    the live issues before the trial judge:
R. v. M. (A.)
, 2014 ONCA 769, 123
    O.R. (3d) 536, at para. 16;
Victoria
, at para. 44.

(iii)

A ground of appeal asserting insufficient
    reasons will fail unless the reasons are so deficient that they foreclose meaningful
    appellate review:
Victoria
, at para. 44;
R. v. T.C.
, 2020
    ONCA 469, at para. 24.

(iv)

A trial judge's credibility findings are
    entitled to significant deference unless they cannot be supported on a
    reasonable view of the evidence. Appellate courts must be mindful that it is
    often difficult to express such findings with precision:
R. v. Dinardo
,
    2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26;
R. v. Radcliffe
, 2017
    ONCA 176, 347 C.C.C. (3d) 3, at para. 23, leave to appeal refused, [2017]
    S.C.C.A. No. 274; and
R. v. Slatter
, 2018 ONCA 962, 369 C.C.C. (3d)
    112, at para. 102.

[22]

Context is essential in considering the
    sufficiency of the trial judge's reasons. As a result of the defence counsel's
    abandonment of the request for a stay based on the late disclosure, the only
    issue before the trial judge was whether the defence established, on a balance
    of probabilities, that the traffic stop was arbitrary. Given that the defence
    called no evidence, the trial judge was not obliged to resolve conflicting testimony.
    Instead, the trial judges task was limited to an assessment of whether P.C.
    Cercones testimony was credible.

[23]

The trial judge articulated reasons supporting
    his credibility finding, including that P.C. Cercone was not shaken on
    cross-examination and did not embellish his evidence. The trial judge also
    found that his explanation regarding the late disclosure was consistent with
    common sense and logic. Those reasons support the credibility finding made by
    the trial judge. While Mr. Dawkins argues that further elaboration was
    required, trial judges are not required to articulate credibility findings with
    scientific precision. This is especially true in situations, as in this case, where
    a trial judge is not analyzing conflicting evidence.

[24]

The defence theory proffered an alternative
    version of events that was wholly incompatible with P.C. Cercones testimony.
    There was no evidence adduced to support that theory. Instead, the theory was
    put to P.C. Cercone through a general attack on his credibility in cross-examination,
    and all insinuations about fabrication were denied by the officer. In finding P.C.
    Cercone credible, the trial judge rejected the defence theory.

[25]

The Crown concedes, and we agree, that the trial
    judge could have said more about why he rejected the defence theory. However,
    it is also important to note that there is evidence that contradicts the
    defence theory. For example, while P.C. Cercones notes do not mention the
    confidential informant, they did include information that he said came from the
    source regarding the fact that Mr. Dawkins was driving a silver SUV. This
    information's inclusion is inconsistent with the defence theory that the
    confidential informant was created later to defeat the
Charter
application, which was asserted after the officer's notes were originally
    disclosed. Thus, when the reasons are viewed in the context of the evidentiary
    record, it becomes apparent why the trial judge rejected the defence theory.

[26]

Mr. Dawkins also offers several criticisms of
    P.C. Cercone's testimony, including submissions that his evidence regarding why
    he made the traffic stop and why he did not disclose the information about the
    confidential informant earlier do not make sense. In our view, these alleged
    problems with the officers testimony, when considered in the evidentiary
    record context, do not detract from the officers credibility. For example, the
    officer offered logical explanations regarding why he lied to Mr. Dawkins about
    the reason for the traffic stop and why he did not reference the confidential
    informant in his notes, original will-say, or synopsis. The trial judge then adequately
    explained why he accepted those explanations.

Disposition

[27]

For the foregoing reasons, the appeal is
    dismissed. We note in closing that the issues of the propriety of the initial
    failure to disclose the existence of the confidential informant and the
    falsification of the original disclosure were not before us on this appeal.
    Nothing in these reasons should be considered an endorsement of the Hamilton
    Police Services conduct in that regard.

C.W.
    Hourigan J.A.

B.
    Zarnett J.A.

S. Coroza
    J.A.


