



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bajich, 2019 ONCA 586

DATE: 20190710

DOCKET: C63781

Feldman, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kresimir Bajich

Appellant

Melanie J. Webb, for the appellant

Diana Lumba, for the respondent

Heard: June 6, 2019

On appeal from the conviction entered by Justice Lorne E.
    Chester of the Ontario Court of Justice on April 12, 2017, and from the
    sentence imposed on April 28, 2017.

van Rensburg J.A.:

Introduction

[1]

The appellant was convicted of three counts of
    possession of drugs for the purpose of trafficking. He received a custodial
    sentence of ten months, less three days presentence custody. He appealed his
    conviction and sentence. At the hearing of the appeal we dismissed the
    conviction appeal and allowed the sentence appeal with reasons to follow. These
    are our reasons.

Background Facts

[2]

After receiving identifying information from a
    confidential informant (CI), and conducting surveillance on the appellant for
    two hours, four officers arrested him for possession of cocaine, cannabis resin
    and oxycodone for the purpose of trafficking.

[3]

The appellant brought an application to exclude
    from evidence the drugs found on him during the search incident to arrest,
    claiming various violations of the
Charter of Rights and Freedoms
. The trial judge dismissed the application. During the trial proper,
    the parties entered into a second
voir dire
to
    consider the voluntariness of certain inculpatory utterances of the appellant
    to an arresting officer. The utterances were admitted as evidence at trial. The
    trial judge concluded on this and other evidence that the appellants possession
    of the drugs in question was for the purpose of trafficking. He rejected the
    defence evidence, including the testimony of the appellant that the drugs were
    for personal use only.

Issues and Analysis

[4]

The appellant raised three arguments on his
    conviction appeal.

(1)

Reasonable grounds for the appellants arrest

[5]

First, the appellant asserted that the trial
    judge erred in concluding that his arrest was legal, and in particular, that
    the arresting officer had reasonable grounds for the arrest.

[6]

The appellant argued that the information
    provided by the CI was not reliable. Little was known about the informant, and
    the information he provided was not detailed or compelling. It was not clear
    whether the information provided by the CI was first-hand or hearsay. The
    appellant submitted that the CIs information was little better than an
    anonymous tip. The appellant also asserted that the surveillance conducted by
    the police was not sufficiently confirmatory of the information provided by the
    CI, because the various observations of the appellant over the short two-hour
    period were not necessarily indicative of drug trafficking.

[7]

The appellant relied on the decision of the
    Court of Appeal of Alberta in
R. v. Quilop
,
    2017 ABCA 70, 49 Alta. L.R. (6th) 213, where a conviction for possession of
    cocaine for the purpose of trafficking was quashed following an arrest based on
    confidential information that the appellant was involved in trafficking cocaine
    and police observations over the course of two days which were equally
    consistent with lawful behaviour. The appellant in the present appeal asserted
    that, as in
Quilop
, while the arresting
    officer may have had a reasonable suspicion that he possessed drugs for the
    purpose of trafficking, the trial judge erred in concluding that his arrest was
    objectively justifiable.

[8]

I disagree.

[9]

Reasonable grounds to arrest require that an
    arresting officer subjectively have reasonable grounds on which to base the
    arrest, and that the grounds for arrest are justifiable from an objective point
    of view:
R. v. Storrey
, [1990] 1 S.C.R. 241,
    at pp. 250-251;
R. v. Canary
, 2018 ONCA 304,
    361 C.C.C. (3d) 63, at para. 21. Where, as here, the grounds are based on
    confidential source information, the court must consider whether the
    information provided was compelling, whether the source was credible and
    whether the information was corroborated by police investigation. The court
    must consider the totality of the circumstances, and weaknesses in one area may
    be compensated to some extent by strengths in the other two areas:
R.
    v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168.

[10]

A trial judges ruling that the police had
    reasonable grounds to arrest an accused is reviewable on a standard of
    correctness, while the factual findings underpinning any such ruling are
    entitled to deference:
R. v. Shepherd
, 2009 SCC 35, [2009] 2 S.C.R. 527,
    at para. 20.

[11]

I see no error in the trial judges assessment of
    the confidential information provided in this case, of the corroborating surveillance
    and, ultimately, of his conclusion on the whole of the evidence that the
    grounds supporting the appellants arrest were objectively reasonable. The
    trial judge examined the totality of the circumstances, which included the CIs
    information and the police observations. The evidence on the
Charter
    voir dire

consisted of the testimony of five
    police officers  the four who were involved in surveillance and were present
    at the bar when the appellant was arrested, and the CIs handler, Detective
    Constable Heron
.
The appellant did not testify
.
The trial judge concluded
    that it was not a close call, and that the arresting officer, Constable
    Richer, had both subjectively and objectively reasonable grounds to make the
    arrest and, by extension, to conduct the search incident to arrest.

[12]

The CIs information was communicated by Detective
    Constable Heron to Constable Richer. Constable Richer was informed sometime during
    the summer or fall of 2014 that the CI had provided information to the police
    on at least two occasions, resulting in arrests and charges, and that the
    informant had no prior criminal record for crimes of dishonesty. The CI named
    the drugs that the appellant was trafficking (cannabis, cocaine and
    prescription drugs), and where the deals were taking place (in the bathroom of
    the Stags Head Bar in Oshawa, around the bar area and outside the building).
    According to the CI, the appellant was known as Big Mouth Chris.

[13]

The appellant was observed for two hours in and
    around the Stags Head Bar by four officers, two of whom posed as bar patrons.
    Throughout the two hours, the appellant was texting and speaking on his cell
    phone. He went outside, approached a Jeep Liberty, and had a one minute
    conversation with the female driver, during which he put his hands into the
    vehicle. He went into the bathroom twice, on each occasion followed by another
    patron. He was also seen smoking outside, where he spoke with a female and
    counted a large amount of cash and coins. After one call, he was observed
    pulling out a pill vial and counting out the pills in his hand. He then
    approached and leaned briefly into a large white boom hydro truck. At that
    point, he was arrested.

[14]

Although he did not explicitly refer to
Debot
, the trial judge assessed the CIs information using the
Debot
criteria. There was no error in his conclusion that the CI was
    reliable, and that he provided detailed information. The information was
    corroborated in material respects by the police surveillance.

[15]

As for the surveillance, the appellants counsel
    argued that the investigation was insufficient because it was too short, the
    appellants nickname was not verified, and each specific interaction or activity
    in which he had been engaged in and around the bar was not in itself indicative
    of drug trafficking.

[16]

What is critical to the analysis of whether an
    arrest is objectively reasonable is not the number of incidents observed during
    police surveillance, but the nature of the information derived from the
    surveillance, taken in the context of the totality of the circumstances and
    weighed through the perspective of the experience of the arresting officer:
R.
    v. Anang
, 2016 ONCA 825, 367 C.R.R. (2d) 289, at para.
    22. The police need not corroborate every detail, nor do they need to confirm a
    tip to the extent of having observed the commission of the offence:
R.
    v. Rocha
, 2012 ONCA 707, 112 O.R. (3d) 742, at paras.
    22-23. The question is not whether there could be an innocent explanation for
    each of the activities or interactions observed by the police. Rather, when
    considering the objective reasonableness of the subjective grounds for arrest,
    the court must look to the totality of the circumstances, and not consider each
    fact in isolation:
R. v. Labelle
, 2016 ONCA
    110, at para. 10.

[17]

In this case, the overall pattern of the appellants
    conduct informed the trial judges conclusion that the surveillance evidence confirmed
    much of what was provided by the CI. In the words of the trial judge,

When viewing the
    totality of the circumstances including [the officers] actual observations,
    and comparing the totality with the specific information they received via
    Constable Richer at the briefing, who got his information from Detective
    Constable Heron, it is no longer a puzzle. The individual pieces of a jigsaw
    puzzle become a complete picture.

[18]

In
Quilop
,
    there was only a tip with no details other than that the appellant was involved
    in trafficking cocaine, followed by two brief observations of the appellant  over
    two days of surveillance  involved in incidents taking place in a matter of
    minutes, with no observations of the appellant handling drugs and where not
    much was observed: at para. 31. Here, by contrast, where the police
    surveillance was viewed in the context of the detailed information provided by
    a reliable CI, there was no error on the part of the trial judge in his
    conclusion that there were objectively reasonable grounds for the appellants
    arrest.

(2)

Did the Trial Judge err in his treatment of the
    officers evidence and the alleged inculpatory utterances of the appellant?

[19]

The appellants second argument was that, in
    concluding that the appellants possession of the drugs was for the purpose of
    trafficking, the trial judge subjected the defence and Crown evidence to uneven
    scrutiny. Counsel asserted that the trial judge uncritically accepted the
    police officers evidence, in particular Constable Richers evidence about the
    appellants inculpatory utterances, while pointing to discrepancies causing him
    to reject the defence evidence. The trial judge accepted Constable Richers
    evidence that, upon arrest, the appellant made several utterances including
    you got me, I needed this, its a wake-up call, that he had sold a few pills
    to the man in the boom truck, and that he was stupid for counting the pills in
    plain view outside the bar. The appellant admitted to saying you got me as a
    statement of fact when he was on the ground during his arrest, but testified
    that he did not think he had made the other statements.

[20]

In argument, the appellants counsel asserted that
    the trial judge ought not to have found Constable Richer credible and accepted
    his evidence about the utterances when they were not heard by any other
    officer, including Constable Scholtes, who was in the vicinity. Counsel focused
    on certain alleged inconsistencies in the police evidence on the
Charter
    voir dire

and at trial about the arrest and search
    of the appellant that were not addressed by the trial judge. In particular,
    Constable Scholtes testified at trial that he searched the appellant both
    inside and outside the bar, and that he believed the drugs in the appellants
    right pocket were found inside the bar, while on the
Charter voir
    dire
he had testified that there was no search of the appellant
    inside. For his part, Constable Richer testified in the trial proper that an
    initial pat-down search of the appellant was conducted inside the bar, during
    which he believed Constable Scholtes had seized the pills in the appellants
    pocket, and that a more thorough search and the appellants inculpatory
    utterances took place outside the bar. On the
Ch
arter

voir
dire
, Constable Richer had testified that he was not a hundred percent [sure]
    whether P.C. Scholtes seized [the drugs] inside or outside the bar. The
    appellants counsel argued that, if Constable Scholtess evidence was not
    consistent on one point, then his evidence ought not to have been believed when
    he testified that he saw the appellant counting cash and pills  two critical
    observations that informed Officer Richers decision to arrest. She argued that
    the trial judge erred by not having addressed these discrepancies in his
    reasons or having taken them into account in assessing credibility.

[21]

I would not give effect to this argument.

[22]

To successfully argue that a trial judge applied uneven scrutiny
    to Crown and defence evidence requires more than simply showing that the trial
    judge could have weighed the evidence differently and come to a different conclusion.
    The appellant must identify something in the record that makes it clear that
    the trial judge actually applied different standards in assessing the evidence:
R. v. O.N.
, 2017 ONCA 923, at paras. 4-5;
R. v. Howe
(2005),
    192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

[23]

In this case, the trial judge addressed the various discrepancies
    among the accounts of the four police officers in his
Charter
ruling. In
    his ruling on the statement
voir dire
, which was not blended with the
Charter
motion or the trial, the trial judge explained why he accepted the Crowns
    evidence and rejected the appellants. He found Constable Richer to be a good
    reliable witness, who gave his evidence in a straightforward manner and did
    not embellish. The officer made detailed, largely contemporaneous notes, which captured
    what the appellant said verbatim for parts of the statement. The trial judge also
    explained why, by contrast, he rejected the appellants contrary evidence about
    his statements  he had consumed five or six beers, a couple of shots, and
    three or four Percocets, he had a short-term memory problems, he made no notes,
    his answers were not straightforward or definitive and he embellished his
    evidence.

[24]

The trial judges reasons were responsive to the arguments that were
    made to him. The alleged discrepancy in Constable Scholtess evidence about
    whether the appellant was searched inside the bar was not drawn to the trial
    judges attention, nor was it put to the officer in cross-examination in the
    trial proper. In fact, after the
Charter voir dire
the appellant
    changed counsel. The transcript of the
Charter voir dire
in which the
    officer provided a different account of the timing of the search was not
    available at the statement
voir dire

or trial and was

only
    produced for the appeal. In any event, we agree with the Crown that nothing
    turns on this discrepancy and, furthermore, that the trial judges failure to
    address an inconsistency that was not put to him does not demonstrate that the
    trial judge applied different standards in assessing the Crown and defence
    evidence and making credibility findings.

(3)

Did the Trial Judge misapprehend the evidence
    and err in finding the appellant guilty of possession for the purpose of
    trafficking?

[25]

As his third ground of appeal, the appellant argued that
    the trial judge misapprehended the evidence and erred in concluding that his
    possession of the drugs seized on his arrest was for the purpose of trafficking.

[26]

The appellant testified that he was an addict
    and that the drugs that were found on him at the time of his arrest were for
    personal use. The appellant argued that the types and amounts of the drugs were
    consistent with personal use:  the oxycodone was found in a prescription bottle
    that was in his name; the amount of cash ($228) was not indicative of having
    received money from selling drugs; and the observations that were made of him
    were equally consistent with purchasing as with selling drugs. The appellant
    referred to the trial judges errors when he characterized the digital weigh
    scale found on the appellant as weigh scales, mentioned the presence of
    cellular phones when only one was seized and referred to the appellants numerous
    trips to the bathroom, when there were only two observed.

[27]

The appellants arguments invite this court to
    reweigh the evidence at trial, and, in particular, to focus on aspects of the
    evidence that support the defence that the drugs that were found on the
    appellant were for personal use only. The issue is not whether there were
    individual pieces of evidence that were equally consistent with personal use as
    with drug trafficking, but whether, in this circumstantial case, the trier of
    fact, acting judicially, could reasonably be satisfied that the appellants
    guilt was the only reasonable conclusion available on the totality of the
    evidence. It is for the trier of fact to decide if any proposed alternative way
    of looking at the case is reasonable enough to raise a doubt:
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras.
    55-56.

[28]

In this case, the trial judge considered and
    gave cogent reasons for rejecting the defence evidence. He referred to the
    appellants memory loss, his consumption of drugs and alcohol on the day of his
    arrest, his evasiveness and vagueness, his illogical explanations for why he
    was counting pills and money and carrying a scale and 13 empty dime bags, as
    well as the discrepancies between his evidence and that of the other two
    defence witnesses. Having rejected the appellants evidence, the trial judge
    considered the remaining circumstantial evidence and was satisfied beyond a
    reasonable doubt that the appellants possession of the drugs was for the purpose
    of trafficking. This evidence included: the observations of the appellant
    engaging in two short meets consistent with drug trafficking, his counting of
    money, the counting of pills immediately before the second meet, his
    inculpatory statements, including an admission that he sold pills to the man in
    the hydro boom truck, his possession of $228 in cash, 13 empty dime bags, a
    scale and a cell phone, and the evidence of a police drug expert about the indicia
    of trafficking and his opinion that the possession here was for the purpose of
    low-level trafficking.

[29]

Finally, we agree with the Crown that the errors
    in the trial judges recitation of the evidence did not play a central role in
    his reasoning process and do not affect the reasonableness of the verdict:
R.
    v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras.
    6-8.

The Sentence Appeal

[30]

Fresh evidence was admitted on consent of the
    Crown with respect to a serious medical issue that the appellant suffered after
    his release on bail pending appeal. Based on this evidence, the Crown consented
    to the sentence appeal. The custodial portion of the sentence accordingly was
    varied to time served (44 days after credit for pre-sentence custody), and the
    victim surcharge was set aside. All other terms and conditions of the sentence
    remain the same.

Disposition

[31]

For these reasons, the conviction appeal was dismissed
    and the sentence appeal was allowed as provided herein.

Released: KF July 10, 2019

K. van Rensburg J.A.

I agree. K. Feldman J.A.

I agree. Grant Huscroft J.A.


