



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nicholls, 2022 ONCA 133

DATE: 20220216

DOCKET: C69491

Fairburn A.C.J.O., Doherty and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse Nicholls

Appellant

Carter Martell, for the appellant

Michael Dineen, for the respondent

Heard: February 8, 2022 by
    video conference

On appeal from the conviction entered and
    sentence imposed on December 10, 2020 by Justice M.A. Garson of the Superior
    Court of Justice.

REASONS FOR DECISION


[1]

The Stratford police were conducting a drug
    investigation. Based primarily on information provided by two confidential
    informants (C.I.) and surveillance on the evening of the arrest, the police
    arrested the appellant, believing he was in possession of narcotics. When the
    police searched the appellant incident to his arrest, they did not find any
    drugs, but they did find a partially loaded, concealed firearm in his computer
    bag. The appellant was charged with several firearm offences. He was ultimately
    convicted and, after credit for pretrial custody and other considerations, he received
    a net sentence of 3½ years. He appeals conviction and seeks leave to appeal
    sentence.

[2]

At trial, the appellant conceded he was in
    possession of the firearm. However, he argued the police did not have
    reasonable and probable grounds to arrest him, rendering his arrest arbitrary
    and contrary to s. 9 of the
Charter
. The appellant further argued that
    as his arrest was unlawful, the search was also unlawful and a breach of s. 8
    of the
Charter
. The appellant argued the weapon should be excluded
    from evidence under s. 24(2) of the
Charter
leading to acquittals on
    the charges.

[3]

The trial judge held that the police did not
    have reasonable and probable grounds to arrest the appellant. Both the arrest
    and the subsequent search of the appellant were unconstitutional. The trial
    judge held, however, that the appellant had failed to establish that the
    admission of the seized handgun into evidence could bring the administration of
    justice into disrepute. The trial judge declined to exclude the gun from
    evidence. Convictions followed.

Was the Arrest Unlawful?

[4]

The trial judge accepted that the arresting
    officer believed he had reasonable and probable grounds to arrest the appellant
    on drug charges. The trial judge went on, however, to hold, at paras. 49-50:

[49] However, objectively viewed, I am not
    satisfied that these grounds were reasonable. The information from the C.I.s
    was neither overly credible nor compelling and was subject to limited
    corroboration. The limited surveillance of and confirmed association between
    the applicant and the third party did not sufficiently elaborate the grounds
    held by the police to believe the applicant possessed C.D.S.A. substances that
    evening. More specifically, the circumstances known to the police at the time,
    coupled with the inferences they were entitled to draw based on their training
    and experience, were not enough to allow DC Serf to form the necessary grounds
    to arrest the applicant for possession of C.D.S.A. substances.

I wish to be clear. The police had some
    grounds to believe a criminal offence had taken place, but those grounds fell
    just short of the necessary standard when viewed objectively.

[5]

The appellant submits the trial judge correctly
    held the arrest and search were unlawful, but wrongly failed to exclude the
    evidence. The Crown argues that the admissibility of the evidence should never
    have been in play, as the arrest and therefore the search were lawful.

[6]

In support of the claim that the trial judge
    properly held the arrest was unlawful, the appellant submits the grounds relied
    on by the police came down almost entirely to the unsupported word of unproven
    and uncorroborated C.I.s, combined with what was, in reality, innocuous
    evidence of association between the appellant and a person the C.I.s described
    as a drug dealer. The appellant maintains that, at best, this evidence supported
    a suspicion that the appellant was involved in drug trafficking. Suspicion is
    not enough to justify an arrest. The appellant goes on to argue, correctly,
    that in the absence of a lawful arrest, the search which produced the gun was
    unreasonable.

[7]

The Crown contends the trial judge was wrong in
    holding that the totality of the circumstances known to the police did not
    provide reasonable and probable grounds. The Crown argues there was firsthand
    information from a C.I. that the appellant supplied drugs to the party with
    whom he was associating immediately before his arrest. The police also had
    firsthand information from a different C.I. that the party with whom the
    appellant was associating before his arrest was a drug dealer. The Crown
    contends that the movements of the appellant and the others in the several
    hours that they were under surveillance before the arrest added some additional
    support for the belief that the appellant was involved in drug dealing. The Crown
    contends that, on a proper application of the law governing arrest to the
    evidence, the police had reasonable and probable grounds to believe the
    appellant had in the past committed, or was in the course of committing,
    drug-related crimes.

[8]

We see no basis upon which to set aside the
    trial judges finding that the police did not have reasonable and probable
    grounds to arrest the appellant. The trial judge applied the correct legal
    principles. He made no material error in his review of the relevant evidence
    and no error in his fact-finding. His conclusion was not unreasonable. This
    court must defer to that finding.

Should the Evidence Have Been Excluded?

[9]

The trial judge followed the well-established
    three-part analysis first articulated in
R. v. Grant
, 2009, SCC 32. In
    the course of considering the seriousness of the state misconduct, the trial
    judge observed:

The seriousness of police conduct in these
    circumstances clearly falls at the lower end of the scale with minimal impact
    on the rights of the applicant.

[10]

In the above passage, the trial judge improperly
    mixed together the first and second factors to be considered in the
Grant
analysis. The first factor, the seriousness of the police conduct, is not
    concerned with the impact of the
Charter
breach on the rights of the
    accused. That impact is considered in the second
Grant
factor. The
    trial judges reference to the minimal impact on the accuseds rights is
    misplaced in his consideration of the first
Grant
factor.

[11]

In any event, the impact on the appellants
Charter
rights was far from minimal. The trial judge recognized that when he turned to
    the second factor in his analysis. When considering the impact of the
Charter
breaches on the appellants rights, the trial judge said:

This was [a] serious breach that undermined
    the applicants right to privacy, liberty and security of the person. I note
    the arrest and search took place when he was riding his bicycle on the road.

[12]

Considering the reasons as a whole, the trial
    judge properly addressed the factors relevant to the s. 24(2) analysis. He
    placed police misconduct at the less serious end of the police misconduct spectrum,
    while acknowledging the serious impact of the breaches on the appellants
    rights. The trial judge misspoke in his initial reference to the minimal
    impact on the rights of the applicant, but clarified any confusion when he was
    addressing the relevance of the impact of the breach on the appellants rights.
    Read as a whole, the reasons made it clear that the trial judge regarded the
    impact of the breach on the appellants rights as serious.

[13]

The trial judges assessment of the
    blameworthiness of the police conduct reflected his finding that, while the
    police did not have reasonable and probable grounds, the evidence relied on by
    them came close to meeting that standard. The appellant argues that this was an
    unreasonable finding by the trial judge. The appellant contends the information
    available to the police came nowhere close to reasonable and probable grounds
    and, that in acting on that evidence to arrest the appellant, the police misconduct
    was minimally negligent and cannot be said to reflect any good faith on their
    part. The appellant places the police misconduct significantly further toward
    the serious end of the police misconduct spectrum.

[14]

I see no error in the trial judges s. 24(2)
    analysis. This was, in some respects, a difficult record in the sense that
    there were gaps in the narrative and uncertainties as to exactly what some of
    the evidence meant. We think it was open to the trial judge to characterize the
    evidence as he did and to conclude the grounds were close to meeting the
    reasonable and probable grounds standard. Deference is owed to that finding:
R.
    v. Buchanan
, 2020 ONCA 245. Having regard to the facts as found by the
    trial judge, this case was not unlike many cases heard on a daily basis in the
    trial courts. The state misconduct provided some, but not strong, support for
    excluding the evidence. The impact of the breach on the appellants rights
    favoured exclusion. The third factor, societys interest in an adjudication on
    the merits, provided significant support for admitting the evidence, especially
    in light of the reliability of the evidence and its importance to the prosecution
    of a serious criminal charge. On this not uncommon constellation of the
    relevant s. 24(2) factors, trial judges are charged with the responsibility of
    balancing those factors in each case and determining whether the admission of the
    evidence would bring the administration of justice into dispute. When all
    proper factors have been considered, appellate courts must show deference to
    the balance struck by the trial judge:
Grant
, at para. 86.

[15]

The conviction appeals are dismissed.

The Sentence Appeal

[16]

The sentence appeal raises a single question.
    The appellant argues that the sentence of 6 months imposed on the concealed
    weapon charge should have been made concurrent rather than consecutive to the
    other sentences. There is no doubt the trial judge could have exercised his
    discretion and made the sentence concurrent. He did not explain why he chose to
    make the sentence consecutive.

[17]

The ultimate question on sentence, however, is
    the fitness of the total sentence imposed. Bearing in mind the seriousness of
    the offence, and the appellants horrendous criminal record, we see no error in
    the total sentence imposed. We would grant leave to appeal sentence, but would
    dismiss the sentence appeal.

Fairburn A.C.J.O.

Doherty J.A.

David M. Paciocco J.A.


