



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2015 ONCA 753

DATE: 20151106

DOCKET: C56480

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ha Thi Nguyen

Appellant

Kim Schofield, for the appellant

Peter M. Campbell, for the respondent

Heard:  October 6, 2015

On appeal from the conviction entered by Justice Roberts
    of the Superior Court of Justice, dated June 22, 2012.

By the Court:

[1]

Based on information provided by a confidential informant, augmented by police
    surveillance, police arrested the appellant and charged her with various
    drug-related offences under the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. A search of her Dodge Caravan, incident to arrest, revealed 11.48
    kilograms of marijuana in yard waste bags and another plastic bag. Relying in
    part on information obtained as a result of the arrest, the police then
    obtained a warrant to search the three residences the appellant visited while
    under surveillance. They found 13.551 kilograms of marijuana and 732.97 grams of
    ketamine cut with lidocaine at the appellants house on Autumn Hill Boulevard
    in Maple (the Autumn Hill residence).

[2]

At trial, the appellant unsuccessfully asserted that her arrest and the
    subsequent searches violated her s. 8 and 9
Charter
rights and the
    drugs should accordingly be excluded. She was convicted of three counts of
    possession for the purpose of trafficking and sentenced to a term of
    imprisonment of two years less three days, followed by three years of
    probation.

[3]

The appellant appeals her conviction. She argues that (1) the trial
    judge erred in concluding that there were objectively reasonable and probable
    grounds for her arrest and, (2) even if there were objectively reasonable and
    probable grounds for her arrest, there was no basis to support the inference
    that drugs were being stored at the Autumn Hill residence and therefore no
    basis for the issuance of the warrant to search the house. The appellant also
    applies for leave to adduce fresh evidence and appeal her sentence.

[4]

For the reasons that follow, we dismiss the appeal against conviction,
    we decline to receive the fresh evidence, and we grant leave to appeal sentence
    but dismiss the appeal.

The Arrest

[5]

An arresting officer must subjectively have reasonable and probable grounds
    to make an arrest and those grounds must be objectively justifiable:
R. v.
    Storrey
, [1990] 1 S.C.R. 241, at pp. 250-251.

[6]

Here, the validity of the appellants arrest depended upon information
    conveyed to the police by a confidential informant. The appellant does not suggest
    that the arresting officer did not have an honest, subjective belief that the
    appellant was in possession of drugs. However, she argues that the trial judge
    erred in her assessment of whether the officers grounds for arrest were
    objectively justifiable. Specifically, she asserts that the trial judge failed
    to properly evaluate the factors set out in
R. v. Debot
, [1989] 2
    S.C.R. 1140, namely whether the source was credible, whether the tip was compelling,
    and whether the information was corroborated by police investigation. In
    particular, she says the source was not credible and the tip was not
    compelling. She asserts that, in the totality of the circumstances, the
    officers belief was not objectively reasonable.

[7]

We disagree. The information provided by the informant, coupled with subsequent
    police surveillance, provided objectively reasonable and probable grounds for
    the appellants arrest.

[8]

We address the appellants assertions in turn.

(a) Credible source

[9]

The appellant argues that the trial judge wrongly characterized the
    informant as a reliable and accurate source of information for the following
    reasons: (a) while on two previous occasions the informant had provided
    information leading to drug-related arrests, there was no evidence that those
    arrests resulted in convictions; (b) there is no evidence that the informant
    was told that the consideration promised was contingent upon the information
    leading to fruitful results and that criminal consequences could result if he
    or she provided false information; and (c) the information was provided by
    telephone, which should have heightened the trial judges concerns about its
    reliability.

[10]

We
    reject these submissions.

[11]

The
    informant was not an anonymous tipster or an untested source. The informant was
    known to and carded by police and had no criminal record. As the appellant
    acknowledges, on two previous occasions the informant had provided information
    resulting in drug-related arrests.

[12]

Whether
    or not convictions had yet ensued as a result of those drug-related arrests
    does not detract from the reliability of the informant. Considerable time often
    elapses between an arrest and trial and, in any event, an arrest and seizure of
    drugs may not result in a conviction for any number of reasons unrelated to the
    reliability of the informant.

[13]

The
    appellant relies on
R. v. Ali
, 2014 ONSC 1615 to argue that the lack
    of evidence that the informant was told that his or her compensation was results-based
    and there could be consequences for the provision of false information is
    significant. The circumstances in
Ali

are distinguishable from
    the current case and, in any event,
Ali
does not stand for the
    proposition asserted by the appellant.

[14]

In
Ali
, the Crown conceded that the evidence supporting the informants credibility
    was weak. The informant had no track record and was induced by the promise of a
    monetary reward and consideration on outstanding charges.
The
    Crown acknowledged that the fact the informant was induced could have an effect
    on his credibility
, but asserted that such effects would be minimized by
    the fact that the informant was advised that he or she would receive consideration
    only if the information led to fruitful results and that criminal consequences
    could result if the information were false. The trial judge did not
    specifically adopt this assertion. She simply concluded that the weakness in
    the informants credibility was compensated for by the strength of the other
Debot

factors. In the current case, there are factors supporting the informants credibility
    that were not present in
Ali

 namely that the informant was
    known to and carded by the police and previously provided information leading
    to drug-related arrests.

[15]

Nor
    are we persuaded that, because the police spoke to the informant by telephone
    and were therefore unable to observe the informants demeanour as he or she spoke,
    the credibility of the tip is diminished. As we have said, the informant was a
    known and tested source.

(b) Compelling

[16]

The
    appellant argues that the trial judge failed to consider whether the
    information provided by the informant was compelling and, further, that it was
    not. She says the description of the target was not sufficiently detailed and
    it was unclear whether the informants information was recent.

[17]

We
    do not agree.

[18]

While
    the trial judge did not use the word compelling, she described the information
    provided:

[The target] referenced by a nickname, was a female Asian, who
    had told the confidential informant that she had an amount of marijuana for
    sale and then the female Asian drove her silver Dodge Caravan with the licence
    plate BBTT 163 to  [a home on] Epson Downs [Road], in Toronto, where she keyed
    her way into the front door, went into the house and returned promptly with
    marijuana, green in colour. The female Asian told the confidential informant
    that she had lots more marijuana if the confidential informant was interested.
    The confidential informant left [the home on] Epson Downs Road [the Epson
    Downs residence].

[19]

In
    the context of her reasons, it is clear that the trial judge found this
    information compelling. And, in our view, it was. The information was derived
    from the informants direct interaction with the appellant. It was far from
    bald conclusory statements or mere rumour or gossip:
Debot
, at para.
    62. The combination of the vehicle description, complete with licence plate,
    the specific address where the target sold the informant marijuana and the physical
    description of the target was highly compelling.

[20]

While
    the date the police received the tip and the date the informant met with the
    target were redacted from the Information to Obtain Search Warrant (ITO), the
    compelling nature of the information that was disclosed, coupled with the
    subsequent police surveillance, addressed any concerns arising from the absence
    of this information.

(c) Corroboration

[21]

The
    appellant challenges the sufficiency of the police surveillance in connection
    with the subsequent issuance of a warrant to search the Autumn Hill residence,
    and not her arrest. We agree with the trial judge that the informants tip was
    materially corroborated by subsequent police surveillance before the
    appellants arrest. That surveillance  triggered by the compelling particulars
    provided by the informant  also dispels any concerns about the currency of the
    tip. We recount the surveillance in some detail here to demonstrate this, and
    to provide context for the analysis of the appellants argument below that
    there was no basis for the subsequent issuance of the warrant to search the
    Autumn Hill residence.

[22]

On
    October 2, 2008, the police conducted surveillance on a person they described
    as female, Vietnamese, 5 feet 5 inches, of a slim build, wearing a black
    jacket, and whom they saw leave the Epson Downs residence and get into a silver
    Dodge Caravan with the licence plate BBTT 163.

[23]

The
    police followed her to a home on Clair Road in Toronto (the Clair Road residence),
    where they saw her exit her van, enter the residence carrying a yellow shopping
    bag, and momentarily exit, empty-handed.

[24]

The
    police then followed her to the Autumn Hill residence. They observed her drive
    into the driveway and touch something on the visor of her car and saw the
    garage door open automatically. They watched her get out of the Dodge Caravan,
    retrieve a recycling bin, which she placed in the garage, open the back hatch
    of the Dodge Caravan, retrieve a black gym bag and take it into the garage.
    They saw her exit the Autumn Hill residence shortly thereafter, get back into
    the Dodge Caravan and drive off.

[25]

The
    officers then saw her drive back to the Clair Road residence, park in the
    driveway and wait on the porch of the house while speaking on a cell phone. A
    short time later, they observed a Honda Accord pull into the driveway and an unknown
    Asian female exit the car and meet with the appellant. Shortly thereafter, they
    saw a small Suzuki car pull into the driveway and a second unknown female exit
    that car, open its rear hatch, and remove two large yard waste paper bags that
    seemed full. The appellant then placed these bags in the rear of the Dodge
    Caravan. The appellant then drove off.

[26]

With
    this information, the police stopped the van. The arresting officer smelled a
    strong odour of marijuana. He arrested the appellant.

The Search of the House

[27]

After
    arresting the appellant and finding 11.48 kilograms of marijuana in yard waste
    bags and another plastic bag in her Dodge Caravan, the police conducted a CPIC
    check. The check revealed that the appellants criminal record included a
    conviction on April 28, 2008  just six months before  for possession of 6.882
    kilograms of marijuana. The affiant then completed the ITO with respect to the
    three residences the appellant had visited while under surveillance. He relied
    on the information obtained from the informant, the surveillance, the arrest
    and the CPIC search to support his belief that, by entering these residences,
    he would locate quantities of marijuana. The justice of the peace issued the
    warrant.

[28]

In
    assessing whether a search warrant was validly issued, a reviewing judge does
    not substitute her view for that of the authorizing justice. The reviewing
    judge instead determines whether the justice of the peace issuing the search
    warrant could have granted the authorization, based on the reliable information
    contained in the record, as amplified on review. She does not set aside the
    authorization unless she is satisfied on the whole of the material presented
    that there was no basis for it: see
R. v. Araujo
, 2000 SCC 65, [2000]
    2 S.C.R. 992, at para. 51;
R. v. Garofoli
, [1990] 2 S.C.R. 1421, at pp.
    1452 and 1454;
R. v. Grant
, [1993] 3 S.C.R. 223, at p. 251.

[29]

The
    trial judge noted that the affiant should not have described the appellant as
    having quickly removed the black gym bag from the Dodge Caravan when she
    arrived at the Autumn Hill residence. That information had not been relayed to
    him over the radio. However, given the other substantial, corroborated
    information contained in the ITO, it was not reasonable to infer that it could
    have had any serious influence on the justice who issued the search warrant.

[30]

The
    trial judge concluded that, based on the confidential information and the
    surveillance, it was credibly probable that [the appellant] was storing
    marijuana in one or more of the three places where she was seen to have a
    connection, in particular, in one or both of the addresses, Epson Downs and
    Autumn Hill, where she was known to and seen to have direct access.

[31]

The
    appellant argues that this conclusion was not enough to support the issuance of
    a warrant to search the Autumn Hill residence. She says that the ITO needed to
    support the affiants belief that drugs would be found at that residence. She
    says that, while there was a nexus between the drugs and the Clair Road and
    Epson Downs residences, there was no nexus between the drugs and the Autumn
    Hill residence. She further submits that the evidence that drugs were stored at
    the Epson Downs residence made an inference that drugs were stored at the
    Autumn Hill residence unavailable. The appellant says that the police needed to
    have done more surveillance before arresting her in order to obtain a warrant
    to search the Autumn Hill residence.

[32]

We
    reject this argument.

[33]

The
    appellant was engaged in transactions involving large quantities of marijuana.
    She was observed leaving a yellow shopping bag at the Clair Road residence. She
    was later observed at the same residence picking up two large yard waste bags
    of what was confirmed to be marijuana. Another plastic bag containing marijuana
    was also found in the Dodge Caravan when she was arrested. In between her trips
    to the Clair Road residence, she was observed removing a black gym bag from the
    Dodge Caravan and taking it into the Autumn Hill residence, which appeared (and
    proved) to be her home.

[34]

It
    was a reasonable inference that drugs would be found at the Autumn Hill residence.
    That inference arises from the deposit of the gym bag at the Autumn Hill residence
    (whether or not it was done quickly); the large quantities of marijuana
    involved, which necessitated the storage of the drugs; and the evidence that
    the appellant had access to that residence. The information from the informant
    that there had been drugs at the Epson Downs residence does not make the
    inference that there were drugs at the Autumn Hill residence unreasonable.
    Drugs can be stored at more than one location.

Fresh Evidence and Sentence Appeal

[35]

The
    appellant does not argue that her sentence was unfit when imposed. Counsel for
    the appellant advises that the appellant has been on bail pending appeal for
    two and one half years, without incident. The appellant submits that this
    speaks directly to the trial judges finding that she had a strong risk of
    re-offending. She says that her conduct while on bail, together with the
    proposed fresh evidence that she has been employed at a friends salon and
    cared for her now eighteen-year-old autistic son during this time, renders the
    sentence imposed by the trial judge unfit. Counsel for the appellant urges that
    this court substitute a conditional sentence that would permit the appellant to
    continue to work and care for her son.

[36]

We
    do not see fit to receive the proposed fresh evidence. In imposing the sentence
    that she did, the trial judge specifically considered both that the appellant
    would soon be employed full-time in her friends salon and that the appellants
    autistic son was a significant responsibility  the very matters addressed by
    the proposed fresh evidence.

[37]

The
    sentence imposed by the trial judge, as counsel for the appellant concedes, was
    fit. The fact that the appellant has complied with the terms of her bail
    pending appeal is not a basis to interfere.

Disposition

[38]

We
    dismiss the appeal against conviction, we decline to receive the fresh
    evidence, and we grant leave to appeal sentence but dismiss the appeal.

Released:  AH NOV 06 2015

Alexandra Hoy
    A.C.J.O.

K.M.
    Weiler J.A.

G.
    Pardu J.A.


