Confidential source’s information justifies search and seizure: Ontario Court of Appeal

The totality police knowledge during an arrest for drug trafficking – including a confidential source’s information and the subsequent police investigation – met the reasonable and probable grounds search threshold, the Ontario Court of Appeal has ruled.

The Ontario Provincial Police, acting upon a tip from a confidential source, conducted surveillance at an address in Peterborough, ON. The appellant in R. v. Williams, 2022 ONCA 596, whose appearance matched the physical description that the informant gave, arrived at the address and left in a rental car with two others. He made brief stops at a motel and three other locations that police associated with drug activity.

While the appellant and his co-accused were at a gas station, police officers arrested them without a warrant and searched their vehicle. Police seized a black satchel with multiple clear baggies containing powder cocaine, crack cocaine, and heroin mixed with fentanyl, as well as cash and various personal items.

The appellant and his co-accused received convictions for two counts of possession of a controlled substance for the purpose of trafficking. On appeal, the appellant argued that his arrest and the search were unlawful because the information that police knew at the time of the arrest fell short of reasonable and probable grounds.

No improper search and seizure

First, there were no violations of s. 8 – respecting searches and seizures – or s. 9 – relating to arbitrary detention – of the Canadian Charter of Rights and Freedoms, the appellate court ruled. The information that the confidential source provided was compelling, given the following:

• the amount of detail on the description of the accused and the alleged offence
• the fact that the information had significant corroboration
• the fact that the source had first-hand knowledge.

The trial judge correctly instructed himself about the subjective and objective aspects of the reasonable and probable grounds standard. He properly considered whether the informant was credible, whether the information was compelling, and whether the police investigation corroborated the information, the appellate court held.

Next, the judge found that the qualifications that the detective constable of the Peterborough Police Service’s drug enforcement unit expressed regarding the information had not been communicated to the supervisor of the officer of the Ontario Provincial Police who received the tip.

According to the appellate court, this factual finding did not undermine the trial judge’s conclusion that there were reasonable and probable grounds, considering the other information available to police during the arrest.

Lastly, the appellate court saw no errors in the jury instruction. The judge correctly instructed the jury on the law relating to constructive possession and joint possession and on the use of circumstantial evidence and how that connected with the issues of possession.

The appellant contended that the trial judge failed to instruct the jury about sunglasses in the satchel and that police placed them there. The appellate court said that the sunglasses were not a sufficiently central issue requiring a specific instruction. Trial counsel for the appellant did not object either to the reference to the sunglasses in the co-accused’s closing address or to the lack of mention of the sunglasses in the final instruction.