



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Amare, 2015 ONCA 673

DATE: 20151006

DOCKET: C59440

Strathy C.J.O., MacPherson J.A. and Speyer J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Dawit Amare

Appellant

Najma Jamaldin and Paul Genua, for the appellant

Sarah Shaikh, for the respondent

Heard: September 28, 2015

On appeal from the conviction entered on July 10, 2014
    and the sentence imposed on October 15, 2014, by Justice S. Casey Hill of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of possession of the
    drug MDMA (commonly referred to as Ecstasy) for the purposes of trafficking. He
    was sentenced to a term of four years imprisonment.

[2]

On
the
    afternoon of May 21, 2010, the appellant was arrested at gunpoint after his
    Pathfinder motor vehicle was stopped by police on Dixon Road in the northwest
    area of Toronto.  The appellant was the driver and sole occupant of the Pathfinder
.

[3]

A
search
    of the rear storage area of the vehicle resulted in the finding of a large red
    suitcase. The suitcase contained nearly 100,000 Ecstasy tabs sealed in plastic
    bags. The suitcase also contained several sealed vacuum bags of a white powder.
    It was originally thought by the police to be cocaine. Analysis of the powder
    determined the powder was MDMA, which is the constituent element of Ecstasy.
    The powder weighed 1.9 kilos.  Evidence at trial indicated the value of the
    drugs exceeded $300,000.

[4]

At trial, the appellant sought the exclusion of
    the seized drugs asserting that his s. 8 and s. 9
Charter
rights were contravened. The appellant's trial counsel argued:

(i)

there were no reasonable and probable grounds for  his arrest; and

(ii)

because
    his arrest was arbitrary, the warrantless search incident to arrest was
    unlawful and in breach of his right to be secure against unreasonable search
    and seizure.

[5]

In addition to the
Charter
issue, the appellant's defence was that he had no knowledge or
    control of the drugs seized.

ANALYSIS:

THE
CHARTER
ISSUE

[6]

The
validity
    of the appellant's arrest depended upon information conveyed to the police by a
    confidential informant. It was conceded that, based on the information
    disclosed to police by the confidential informant, the arresting officers had
    an honest, subjective belief that the appellant had committed a criminal
    offence. The contentious and pivotal issue at trial, as it is in this appeal,
    was whether the police had an objective basis to believe the appellant committed
    a criminal offence
.

[7]

The
trial
    judge extensively summarized the governing principles with respect to the existence
    of reasonable and probable grounds for the appellant's arrest.  As the
    underpinning for the grounds to arrest the appellant depended on the
    information given to the authorities by the confidential informant, the trial
    judge identified the
Debot
factors (how compelling was the tip, how
    credible the source, how much was the tip corroborated) and determined that, on
    a totality of circumstances approach, the arrest of the appellant was
    objectively reasonable.  The trial judge ruled that, on a subjective and
    objective basis, reasonable grounds existed justifying the appellant's arrest. 
    He further ruled that the police did not act unreasonably in carrying out the
    gunpoint arrest and immediately moving to a valid warrantless search for the
    presence of illegal drugs. In the result, he found there was no breach of the
    appellant's s.8 and s.9
Charter
rights
.

[8]

On appeal, the appellant submits the trial judge erred in his
    determination that objectively discernable facts existed to support his finding
    that there were reasonable and probable grounds for the appellants arrest. 
    Counsel argues that the information coming from the confidential informant had
    a thin or sparse evidentiary basis in respect to each of the three
Debot
factors.  She contends that the trial judges analysis lowered the
    requisite standard from reasonable and probable grounds to arrest to one of
    reasonable suspicion to detain
.

[9]

We
do not agree. First, the information
    from the confidential informant was compelling. As a result of this
    information, the police were alerted to expect a drug deal on May 21, 2010.  In
    accordance with this tip, the police had precise details of the target vehicle
    carrying the drugs including the make of the vehicle and its license number. In
    addition, as a result of the tip the police expected the Pathfinder to be
    travelling in the geographic area of Kipling Avenue and Dixon Road in Toronto
    in tandem with a gold Maxima vehicle. We note that the colour discrepancy 
    gold and not silver  was minor and was taken into account by the trial judge.
    Moreover, as found by the trial judge, the incremental updating of information
    to the police by the confidential informant supported the inference that the
    informant was speaking from a position of real time and direct sourcing not
    rumour or gossip or fabrication
.

[10]

Second, with
respect to the credibility
    of the confidential informant, it is of importance to note that the
    confidential informant was neither an anonymous tipster nor an untested source.
    The confidential informant worked with his police handler for about a year.
    While the information he provided to the police did not lead to any charges or
    arrest, the confidential informant provided authorities with the names of
    persons involved in organized drug trafficking. Significantly, the confidential
    informant had established a track record for providing accurate information
    that was unique, and without error or exaggeration. Finally, the trial judge
    found it was in the interest of the informant to provide accurate information
    in order to receive compensation and avoid potential prosecution for misleading
    the police
.

[11]

Third,
there existed corroboration to
    support the confidential informants information. The police surveillance
    located the target vehicle with the reported license number in the same
    northwest area of Toronto identified by the confidential informant. The driver
    of the Pathfinder, as reported, was black. As well, the target vehicle was
    travelling in tandem with a Maxima vehicle
.

[12]

In
his analysis, the trial judge
    recognized that greater informational detail with respect to the identity of
    the participants in the drug trafficking enterprise, as well as the type of
    narcotic involved, might have been helpful.  He also took into account that the
    anticipated drug deal did not take place because the police exercised their
    discretion to affect an arrest in order to avoid the risk of losing the target
    vehicle
.

[13]

In
summary, the trial judge correctly
    recognized that the
Debot
factors do not each form a separate test. He
    grounded his decision on a totality of circumstances approach. We see no error
    in his findings.  We would not interfere with the trial judges holding that
    reasonable and probable grounds existed for the appellants arrest
.

THE FINDING OF GUILT

[14]

As
previously noted, the drugs were found
    in the rear compartment of the appellants vehicle. He was the driver and the
    sole occupant. The appellant testified on his own behalf, denying he had any
    knowledge or control over the illegal drugs. The trial judge gave detailed
    reasons for rejecting the appellants evidence as entirely unworthy of belief.
    He found the appellants testimony included confusion, improbabilities and
    inconsistencies and went on to itemize twelve specific problematic areas of
    his testimony. A review of the appellants testimony entirely supports the
    trial judges finding. There is no merit to this ground of appeal
.

APPEAL AGAINST SENTENCE

[15]

As
noted, the appellant had in his
    possession a very large quantity of ecstasy with a projected street value of
    $300,000. Based on the amount of MDMA involved, a finding that this was a large
    scale drug operation is warranted. The trial judge accurately noted that the
    most pressing factors relating to sentence in cases involving the commercial
    distribution of illicit drugs are the protection of the public, general
    deterrence and denunciation. Taking into consideration the harmful
    characteristics of the drug, the fact that it was destined for sale within the
    community, and the size and value of the drugs, we are of the view that the
    sentence of four years imprisonment was neither harsh nor excessive
.

[16]

In the result, the appeal against conviction and
    sentence is dismissed.

G.R.
    Strathy C.J.O.

J.C.
    MacPherson J.A.

C.M.
    Speyer J. (
Ad Hoc
)


