



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Canary, 2018 ONCA 304

DATE: 20180327

DOCKET: C60708

Feldman, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruce Canary

Appellant

Paul Alexander, for the appellant

Ian Bell, for the respondent

Heard: February 5, 2018

On appeal from the convictions entered on February 20,
    2015 by Justice John R. McCarthy of the Superior Court of Justice, sitting
    without a jury.

Fairburn J.A.:


OVERVIEW

[1]

On June 11, 2012, in a parking lot in Vaughan, Ontario, an experienced
    drug investigator saw the appellant and another man move several bins from the
    trunk of one vehicle to another. This was followed by what appeared to be an
    exchange of cash. Arrests were made and seizures followed. The appellant was
    convicted of possession of a controlled substance for the purposes of
    trafficking and possession of the proceeds of crime.

[2]

The appellant appeals from these convictions. He maintains that the trial
    judge erred by dismissing his ss. 8 and 9
Charter
claims. He raises
    the following arguments:

(a) the
    arrest was unlawful and, therefore, the search incident to arrest was unlawful;

(b) even if the
    arrest and search were lawful, the police were required to return the items
    seized when they decided to unconditionally release him from the scene;

(c) the failure
    by the police to file a s. 489.1
Criminal Code
report to a justice as
    soon as practicable resulted in a s. 8
Charter
breach; and

(d) the
    verdict was unreasonable.

[3]

For the reasons that follow, I would dismiss the appeal.

GENERAL BACKGROUND

[4]

The police were conducting surveillance in an unrelated investigation on
    June 11, 2012. Sgt. Fuhrman was the commanding officer. He was making
    observations in a parking lot when he saw what he described as an unusual
    event unfold before him. At about 11:30 a.m., he watched as two men moved
    cylindrical bins from the trunk of one vehicle to another.

[5]

Sgt. Fuhrman was a highly experienced drug investigator. He had seen these
    types of bins in the past while investigating clandestine chemical drug labs.
    Sgt. Fuhrman testified that, in his experience, these types of bins could
    contain Class A precursors under the
Controlled Drugs and Substances Act,
S.C.
    1996, c.19 (
CDSA
). Accordingly, the officer positioned himself so that
    he could take a closer look. He was able to see that the labels on the bins
    were torn. He then watched as both men entered the vehicle into which the bins
    had been placed. While the men were in the vehicle, the licence plates of both
    vehicles were checked on CPIC and the checks returned clear.

[6]

When the appellant emerged from the passengers side of the vehicle, he
    was holding a brick shaped object contained in a translucent plastic bag. Based
    on Sgt. Fuhrmans past experience, including undercover drug deals he had been personally
    involved in, he believed that the bag contained cash. When he got closer, the
    officer was able to see a $20 bill through the translucent bag.

[7]

After a total of fifteen to twenty minutes of observation, Sgt. Fuhrman
    formed the belief that the men were trafficking in drugs. He decided to make
    arrests and asked Cst. Philp, who was positioned elsewhere in the parking lot,
    to provide backup. Both males were placed under arrest for possession for the
    purpose of trafficking and a search incident to arrest followed. Four bins and
    a box were found in the back of the vehicle in which the cash exchange had
    occurred. Large plastic bags were used to line the inside of the bins and box.
    They were full of pills. Zip ties were used to close the bags. It was later
    discovered that the pills  all 220,000 of them  weighed over one hundred
    kilograms in total. The translucent plastic bag in the appellants hand at the
    time of arrest contained $14,000 in $20 bills.

[8]

Even though Sgt. Fuhrman did not recognize the pills as a substance he
    had previously been exposed to, he testified that he continued to believe that
    he had just witnessed a drug trafficking offence. Although he was not a
    hundred percent for certain, based on [his] experience, that they were drugs,
    Sgt. Fuhrman testified that he believed that the pills were a prohibited
    chemical substance under the
CDSA
.

[9]

Sgt. Fuhrman decided only to seize the pills and cash at the time of
    arrest. As he did not recognize the pills, he decided that the next step was to
    submit them for analysis and determine their contents. He told the men that he
    was going to have the pills analyzed and, if they contained a controlled
    substance, the men would be summonsed to court. If the pills turned out to be
    an inert substance, the men were told that their property would be returned.
    The men were then released and permitted to go on their way.

[10]

The
    officers immediately proceeded to label and seal the seized property, after
    which they returned to their initial unrelated investigation. As noted by Sgt.
    Fuhrman, he was consumed at that time by the other investigation, but he felt
    that he had to deal with this situation because it happened right in front of
    him and was so blatant.

[11]

A
    sample of the pills were forwarded for analysis. On June 27, 2012, just over
    two weeks following the arrests, the police received certificates of analysis
    confirming that the pills contained Schedule IV controlled substances. On July
    3 and 4, 2012, the seized material was processed.

[12]

On
    July 12, 2012, 31 days following the arrest and just over two weeks after the
    certificates of analysis were received, a report to a justice was filed under
    s. 489.1 of the
Criminal Code
. Appendix A to the form for the report
    provided a brief summary of the seizures, making reference to the amount of
    cash and pills seized. Charges were laid and the appellant was summonsed to
    attend court.

THE APPLICATION TO EXCLUDE THE DRUGS AND
    MONEY

[13]

The
    appellant brought a
Charter
application to exclude the seized pills
    and money from evidence. He maintained that Sgt. Fuhrman had insufficient
    grounds to make the arrest. Even if the officers initial belief rose to the constitutionally
    required level of reasonable grounds, the appellant argued that, as the
    investigation continued, the grounds for arrest evaporated and this required
    the return of the property seized.

[14]

The
    trial judge dismissed the
Charter
application. He accepted the
    credibility of both Officers Fuhrman and Philp. He concluded that, through the
    eyes of an experienced drug enforcement officer, it would have been close to
    inescapable but to arrive at the conclusion that the appellant was involved
    in a drug transaction.

[15]

The
    trial judge accepted as a fact that Sgt. Fuhrman had made the observations
    testified to and that he continued to believe that he had witnessed a drug deal
    throughout the course of the arrest and in its aftermath. The decision to
    release the appellant when the officer did not recognize the pills was
    characterized as nothing more than a reasonable exercise of discretion, one
    that did not alter the nature of the arrest.

[16]

In
    the end, the trial judge determined that the arrest was based on reasonable
    grounds and that the search incident to arrest was lawful. The trial judge nevertheless
    went on to conduct a s. 24(2) analysis, concluding that, if he was wrong and
    there had been a
Charter
breach, he would have admitted the evidence
    in any event.

THE ISSUES

[17]

I
    will deal with the appellants arguments in the following order. I first
    consider whether the police had sufficient grounds to justify the arrest. As my
    answer to this question is yes, it drives my conclusion that the search
    incident to arrest was also lawful.

[18]

I
    then consider the appellants argument that the arrest was abandoned,
    resulting in the need for the police to return the seized property to the
    appellant. I conclude that the manner in which the police exercised their
    discretion at the scene did not require the return of the property seized
    incident to arrest.

[19]

I
    next consider the appellants argument that the police breached s. 489.1 of the
Criminal Code
by failing to file a return to a justice as soon as
    practicable and this constituted a s. 8
Charter
breach. This issue is
    raised for the first time on appeal and, as discussed later, there is an
    insufficient factual record to determine the matter now.

[20]

Finally,
    I consider the suggestion that the verdict was unreasonable, concluding that it
    was not.

THE ARREST AND SUBSEQUENT SEARCH

[21]

Where
    a peace officer believes on reasonable grounds that a person has committed an
    indictable offence, the officer may make a warrantless arrest: s. 495(1)(a) of
    the
Criminal Code.
There is both a subjective and objective component
    to the reasonable grounds inquiry. To fulfill the subjective requirement, the
    officer must hold an honest belief that the person committed an offence. The
    officer must subjectively believe that there are reasonable grounds to make
    the arrest:
R. v. Saciragic,
2017 ONCA 91, leave to appeal refused,
    [2017] S.C.C.A. No. 106, at para. 16.  To fulfill the objective requirement, the
    officers belief must be objectively reasonable in the circumstances known to
    the officer at the time of arrest:
R. v. Storrey,
[1990] 1 S.C.R. 241,
    at pp. 250-51;
R. v. Bush
, 2010 ONCA 554, 101 O.R. (3d) 641, at para.
    38;
Saciragic
, at para. 16. The objective inquiry asks whether a
    reasonable person, standing in the shoes of the police officer, would have
    believed that reasonable and probable
[1]
grounds existed to make the arrest:
Storrey,
at pp. 250-51.

[22]

When
    considering whether an officers subjective belief is objectively reasonable,
    the court looks at the objectively discernible facts through the eyes of a
    reasonable person with the same knowledge, training and experience as the
    officer:
R. v. Chehil,
2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47.
    Determining whether sufficient grounds exist to justify an exercise of police
    powers is not a scientific or metaphysical exercise, but one that calls for the
    application of [c]ommon sense, flexibility, and practical everyday
    experience:
R. v. MacKenzie,
2013 SCC 50, [2013] 3 S.C.R. 250, at
    para. 73.

[23]

The
    reasonable grounds standard does not require the establishment of a
prima
    facie
case or proof beyond a reasonable doubt. The test is met where,
    based on all of the circumstances known to the officer, credibly-based probability
    replaces suspicion:
R. v. Debot,
[1989] 2 S.C.R. 1140, at p. 1166;
Hunter
    et al. v. Southam Inc.
, [1984] 2 S.C.R. 145, at p. 167;
R. v. Dhillon,
2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 25;
R. v Muller,
2014
    ONCA 780, 122 O.R. (3d) 721, at para. 33.

[24]

Although
    the ultimate question as to whether there are reasonable grounds to arrest
    involves the application of a legal standard to a set of facts, reviewable on a
    standard of correctness, the trial judges factual findings are owed deference:
R. v. Shepherd,
2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20. In this
    case, the trial judge made critical findings of fact. He accepted the officers
    evidence and found Sgt. Fuhrman to be entirely compelling and reliable.

[25]

The
    trial judge properly took into account Sgt. Fuhrmans over 15 years investigating
    drugs and his work as an undercover drug officer. It was through the lens of that
    experience that Sgt. Fuhrmans observations had to be considered, including:

(i)

two vehicles parked in a remote part of a parking lot;

(ii)

no markers on the vehicles that might suggest that they were connected
    to a legitimate business;

(iii)

bins of a kind that he had previously seen in clandestine chemical drug
    labs containing Class A
CDSA
precursors, being moved from one trunk to
    another;

(iv)

labels ripped off of the bins, causing Sgt. Fuhrman to believe that the
    bins were not involved in what he described as a legitimate transaction;

(v)

a man emerging from a vehicle carrying a brick-like package in a plastic
    bag, looking similar to cash the officer himself had packaged for undercover
    drug deals in the past; and

(vi)

a noticeable $20 bill showing through the plastic bag.

[26]

Sgt.
    Fuhrman testified that these observations were consistent with other high-level
    drug transactions he had witnessed in the past. Indeed, he testified that he
    had never seen a transaction like this one that did not constitute a drug
    transaction.

[27]

Considering
    the totality of the circumstances, Sgt. Fuhrmans subjective belief that he was
    witnessing a drug transaction was objectively reasonable. There is no error in
    the trial judges conclusion that the officer believed he was witnessing a drug
    transaction and had objectively reasonable grounds to arrest.

[28]

The
    appellant argues that the trial judge failed to take into account innocent
    explanations for many of the facts relied upon to establish reasonable grounds
    for the arrest. For instance, the appellant maintains that legitimate
    trunk-to-trunk transactions can take place, as can cash transactions. He also notes
    that even Sgt. Fuhrman acknowledged that, from his previous exposure to the
    bins, he had found them to contain only Class A precursors and not actual
    prohibited substances.

[29]

In
    further support of his position that there were insufficient grounds to arrest,
    the appellant also points to what he says are numerous exculpatory factors,
    ones that he maintains undermined the objective grounds for arrest. For
    instance, he points to the fact that the CPIC check on the vehicles did not turn
    up anything of concern, that the transaction took place in broad daylight, and
    that the men demonstrated no surveillance-conscious behaviour, to underscore
    that there were insufficient grounds to arrest.

[30]

This
    argument disregards the correct approach to considering the objective
    reasonableness of the arresting officers subjective belief. Facts known to an
    officer at the time of arrest should not be considered within individual silos.
    The question is not whether each fact, standing alone, supports or undermines
    the grounds for an arrest. The question is whether the facts as a whole, seen through
    the eyes of a reasonable person who has the same knowledge, training and
    experience as the arresting officer, make the arrest objectively reasonable.

[31]

Considered
    together, the facts known to Sgt. Fuhrman well supported an arrest. The trial
    judge did not error in coming to this conclusion.

[32]

The
    appellant does not dispute that if the initial arrest was lawful, the search
    incident to arrest was also lawful.

[33]

A
    search incident to arrest rests on three components: (a) the arrest is lawful;
    (b) the search is truly incidental to the arrest, in the sense that it is
    connected to the arrest, either as a means by which to discover and preserve
    evidence connected to the arrest, protect safety, or protect against escape;
    and (c) the search is conducted reasonably:
R. v. Saeed,
2016 SCC 24,
    [2016] 1 S.C.R. 518, at para. 37;
R. v. Caslake,
[1998] 1 S.C.R. 51,
    at paras. 14, 19, 20.

[34]

I
    have already determined that the arrest was lawful. I also find that the search
    was truly incidental to arrest and conducted reasonably. Taking the money from
    the appellants hand and searching for the content of the bins was clearly
    connected to the purpose of the arrest. The arrest arose from these very items
    having been observed. There is no suggestion that the searches were done
    unreasonably. It follows, therefore, that a lawful search took place, incident
    to the lawful arrest.

THE ONGOING SEIZURE

[35]

The
    appellant submits that, even if this court finds that the initial arrest was
    lawful, the grounds for arrest disappeared when the police were unable to
    identify the pills as controlled substances. The appellant maintains that once
    the police were unable to identify the pills, the arrest was abandoned. By
    this submission, I take the appellant to mean that the grounds for arrest were
    undermined because the police no longer had reasonable grounds for the arrest. The
    appellant argues that the legal effect of the abandoned arrest was to require
    the police to return to the appellant and his friend the items that had already
    been seized. I disagree.

[36]

I
    begin with deference to the trial judges findings of fact. The trial judge
    explicitly accepted Sgt. Fuhrmans evidence that, although he did not recognize
    the pills located in the bins, the officer continued to believe that they contained
    a controlled substance: [Sgt. Fuhrman] maintained his belief that he had
    witnessed a drug deal throughout the course of the arrest and in its
    aftermath.

[37]

I
    see nothing that would cause this court to interfere with that factual finding.
    Indeed, it seems like an eminently reasonable conclusion that an experienced
    drug officer looking at 220,000 pills in plastic bags tied with zip ties, placed
    in the type of bins that the officer knew to be associated with clandestine
    chemical drug labs, passed in a trunk-to-trunk transaction, would maintain his
    belief that the pills contained a controlled substance. This belief takes on an
    added layer of reasonableness when one considers that the men involved had just
    exchanged a brick of cash contained in a plastic bag.

[38]

The
    appellant points to two facts that he says fundamentally undermine Sgt.
    Fuhrmans evidence that, following the arrest, he continued to believe that he
    had witnessed a drug trafficking offence: (a) the police conducted only a
    limited search incident to arrest; and (b) the police released the appellant
    from the scene without conditions. The appellant argues that if the police
    truly maintained their grounds for arrest, they would have seized his cell
    phone and, at a minimum, released him in accordance with s. 497(1) of the
Criminal
    Code
.

[39]

This
    argument seems to come down to a suggestion that the failure of the police to
    exercise their discretion at maximum tilt should serve to cast doubt on the
    reasonable grounds for an arrest. This is problematic reasoning. The police have
    broad discretion to exercise their powers in a manner commensurate with the
    circumstances at work. Discretionary decisions that serve to minimize
    intrusions into privacy, and maximize liberty interests, should be encouraged,
    not discouraged. I agree with the trial judge that the fact that Sgt. Fuhrman
    chose not to seize the appellants phone, or conduct a more thorough search incident
    to arrest, merely demonstrates a responsible discretionary call on the
    officers part. It is not
prima facie
evidence that he did not
    continue to maintain his grounds for arrest.

[40]

In
    addition, the decision to release the appellant from the scene was a
    responsible one. Sgt. Fuhrman told the appellant that if the analysis showed that
    the drugs contained controlled substances, the officer intended to summons the
    appellant to court. The fact that the officer did not issue an appearance
    notice or immediately move to have the appellant summonsed to court (both
    options under s. 497(1) of the
Criminal Code
), did not undermine the grounds
    for arrest.

[41]

The
    key fact is that, at the time that the pills and money were lawfully seized,
    the appellant was under lawful arrest. In these circumstances, it was open to
    the police to release the appellant, yet continue their investigation. The
    police were under no obligation to give the lawfully seized items back while the
    investigation continued:
R. v. Backhouse
(2005), 194 C.C.C. (3d) 1
    (Ont. C.A.), at para. 91. It would be undesirable to construct a rule that
    would require the police to commit to a greater intrusion into
Charter
interests,
    only to justify seizures that were lawfully made in the first instance. Accordingly,
    it is open to the police to release someone in the field, all the while
    maintaining a belief that the person committed an offence and that the items
    lawfully seized should be held.

[42]

This
    ground of appeal must also fail.

THE RETURN TO A JUSTICE

[43]

The
    appellant was arrested on June 11, 2012. The s. 489.1(1) report to a justice
    was filed thirty-one days later on July 12, 2012. This was about two weeks
    following receipt of the certificates of analysis, showing that the pills
    contained Schedule IV prohibited substances. The appellant maintains that his
    s. 8
Charter
rights were breached when the police failed to file the
    report to a justice as soon as is practicable
.

[44]

Where
    the police wish to keep something seized during the execution of their duties, s.
    489.1(1)(b)(ii) of the
Criminal Code
requires that they make a report
    to a justice as soon as is practicable. A report filed under s. 489.1(1)(b)(ii)
    allows the seized items to be dealt with in accordance with s. 490(1), which
    grants a justice the power to order the things seized detained or returned. The
    balance of s. 490 contains numerous provisions governing the continued detention,
    use, and return of seized property.

[45]

Section
    489.1(1) applies to seizures made both with and without prior judicial
    authorization:
Backhouse,
at para. 111. The provision fulfills an
    important purpose, providing the gateway to s. 490 of the
Criminal Code
:
R. v. Garcia-Machado,
2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15,
    55;
Backhouse,
at para. 112. Section 489.1 should not be conceptualized
    as a meaningless exercise in paperwork. Filing the initial report under s.
    489.1(1) is the act that places the property within the purview of judicial
    oversight. It provides for a measure of police accountability when dealing with
    property seized pursuant to an exercise of police powers. This provides an
    important measure of protection to the party who is lawfully entitled to the
    property, but also provides a measure of protection to the police who become
    the custodians responsible for the property seized. Allowing for this type of
    oversight is particularly important in the wake of warrantless seizures, ones
    where no prior authorization has been given, meaning the seizures are beyond
    the knowledge of the judicial system.

[46]

The
    appellant argues that thirty-one days to file a report under s. 489.1(1) is simply
    too long and that a s. 8
Charter
breach is obvious on its face.

[47]

There
    is an inherent flexibility built into the assessment of whether the police
    acted as soon as is practicable. Determining whether this requirement has
    been met is a necessarily fact-specific inquiry and one that should only be
    answered after a careful review of all of the evidence, including any
    explanations for why the report was filed when it was:
R. v. Kift,
2016
    ONCA 374, 349 O.A.C. 239, at para. 10.

[48]

The
    appellant did not raise the timing of the report as an actual
Charter
complaint
    in the court below and the
Charter
application was silent on the
    issue.  Instead, counsel argued that the delay between the seizure and the
    filing of the report was a fact that informed other
Charter
issues.
    When the court sought clarification on this position, counsel specifically
    disavowed any attempt to rely upon the thirty-one days to filing as a
    free-standing s. 8
Charter
breach.

[49]

Accordingly,
    the appellant seeks to raise this issue for the first time on appeal. There is
    an insufficient record for this Court to make this fact-sensitive inquiry on
    appeal because the evidentiary record is lacking in specifics. Although the
    officer who filed the report under s. 489.1(1) was asked a few questions about
    the timing of the report, he simply asserted that he had filed it as soon as
    practicable. In these circumstances, the court is without a complete factual
    picture to permit the effective and fair disposition of this issue:
R. v.
    Reid,
2016 ONCA 524, 132 O.R. (3d) 26, at para. 43. I would decline to do
    so.

UNREASONABLE VERDICT ARGUMENT

[50]

The
    appellant maintains that he is the subject of an unreasonable verdict. He argued
    before the trial judge that the certificates of analysis did not reveal the
    actual quantity of the prohibited substances contained in the pills. As such,
    he argued that the Crown was unable to establish anything more than trace
    amounts of prohibited substances in the pills and that this should leave a
    reasonable doubt about whether he knew he was in possession of a controlled
    substance.

[51]

The
    trial judge was satisfied beyond a reasonable doubt that the Crown had proven
    each element of the offence. He concluded on the basis of all of the evidence
    that the appellant must have known what was in the tubs that he was
    transferring and that it would defy common sense to find otherwise. The
    trial judge then reviewed evidence pointing toward that common sense inference,
    evidence that in his view made no other inference  possible.

[52]

Although
    the trial judge may have initially misstated the appellants position regarding
    the quantitative analysis, the matter was raised with him immediately following
    delivery of his reasons for judgment. In response, the trial judge said:

I have nothing further to add other than the fact that I found,
    in the entire circumstances of the transaction, given what has been admitted
    and given what has been found in the evidence and the exhibits and the fact
    that the money was exchanged in that quantity and the amount was exchanged,
    beyond a reasonable doubt that Mr. Canary had knowledge of what was in those
    vats

[53]

Against
    the factual backdrop of this case, the verdict was one that a properly
    instructed jury acting judicially could have rendered:
R. v. Biniaris,
2000
    SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37. This ground of appeal also fails.

CONCLUSION

[54]

I
    would dismiss the appeal.

Released: March 27, 2018

Fairburn J.A.

I agree K. Feldman
    J.A.

I agree David Brown
    J.A.





[1]

Storrey
was decided under the
    former s. 450(1)(a) of the
Criminal Code,
when the provision read as
    reasonable and probable grounds to believe. Section 495(1)(a) of the
Criminal
    Code,
R.S.C. 1985, c. C-46, removed the reference to probable grounds,
    changing the wording to: believes on reasonable grounds. As noted in
Baron
    v. R.,
[1993] 1 S.C.R. 416, at p. 446, the word probable adds nothing
    additional to the requirement of reasonableness.


