R. v. Day, 2014 NLCA 14
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[34] The arrest of Mr. Day was based on an investigation prompted by a tip received from an informant. The value of informants to the enforcement of criminal law in this country has long been recognized and respected (R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, pp. 993-994; and R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, para. 9). However, informant information can be variable in its reliability, and care must be taken by the police not to act on it precipitously or cavalierly. This was recognized by the Supreme Court in Debot; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421; and R. v. Greffe, 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755. In Garofoli, a case concerning reasonable and probable grounds to justify a search, Sopinka J. quoted with approval Lamer C.J.’s adoption of Martin J.A.’s statement in R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3rd) 207 (Ont. C.A.), a case involving the lawfulness of a warrantless arrest, as the test for assessing confidential informer’s information:
I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search …. Highly relevant … are whether the informer's ‘tip’ contains sufficient detail to ensure that it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance.
[35] Justice Sopinka went on to say, at page 1456, that “[h]earsay statements from an informant can provide reasonable and probable grounds to justify a search” but warned that evidence of a tip from an informer by itself is insufficient to establish reasonable and probable grounds. He concluded at page 1457 that “[t]he reliability of the tip is to be assessed by recourse to ‘the totality of the circumstances’ ”, and said “[t]here is no formulaic test as to what this entails. Rather, a court must look to a variety of factors including: 1) the degree of detail of the ‘tip’, 2) the informer’s source of knowledge, and 3) indicia of the tipster’s reliability”.
[36] The phrase “totality of the circumstances” originated in Debot, a case concerning reasonable and probable grounds to arrest without a warrant. At page 1168 of Debot, Wilson J. had identified for consideration the three factors Sopinka J. set out in Garofoli, and stated that she did “not suggest that each factor forms a separate test. Rather, … [it is] the ‘totality of the circumstances’ [that] must meet the standard of reasonableness.”
[37] In R. v. Lewis (1998), 1998 CanLII 7116 (ON CA), 38 O.R. (3d) 540 (C.A.), the Ontario Court of Appeal considered the meaning of the phrase “totality of the circumstances” in the context of a warrantless arrest and search. At paragraph 22 of the decision, Doherty J.A. states that “the totality of the circumstances approach is inconsistent with elevating one circumstance to an essential prerequisite to the existence of reasonable grounds.” See also R. v. Burke, 2011 NBCA 51, 374 N.B.R. (2d) 255 and R. v. Goodine, 2006 NBCA 109, 307 N.B.R. (2d) 178, in which the New Brunswick Court of Appeal interpreted the phrase in the same manner.
[38] Debot directs that police must attempt to confirm details in an informant’s tip. However, in doing so, it is not necessary to confirm each and every detail, although the level of verification required may be higher in cases where the informant’s own credibility cannot be assessed (page 1172). Both Garofoli (paragraph 67) and Debot (pages 1168 to 1171) stress that the credibility of the informant and the source of his or her information are very important.
[39] In considering the reliability of a tip, it is important to restate that the police need only reasonable grounds, not more. In Storrey, the issue was whether the police had reasonable and probable grounds for arresting Mr. Storrey without a warrant. The Court observed the importance of requiring the police to have such grounds and the need to reasonably balance “the individual’s right to liberty and the need for society to be protected from crime” at pages 249 to 250, but stated that the police need not establish more than reasonable and probable grounds. By way of explanation, the Court quoted from page 329 of Dumbell v. Roberts, [1944] 1All E.R. 326 (C.A.) as follows:
The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanours, provided always they have reasonable grounds for their suspicion, is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably.
[40] In Storrey, the Court found that the police had established both their subjective belief in grounds for arresting Mr. Storrey, and that their subjective belief was justifiable from an objective point of view, making the warrantless arrest of Mr. Storrey lawful. Storrey also decided that the professed intention of the police to continue an investigation after an arrest does not invalidate an otherwise lawful arrest. In Storrey, the police had stated their intention to continue to investigate the case after they arrested Mr. Storrey – to conduct an identification line-up, among other things – and Mr. Storrey had argued that this professed intention invalidated the lawful arrest. The Court rejected Mr. Storrey’s argument, stating at page 254,
… it has long been the rule in Canada … that the police can continue their investigation subsequent to an arrest. The essential role of the police is to investigate crimes. That role and function can and should continue after they have made a lawful arrest. The continued investigation will benefit society as a whole and not infrequently the arrested person.
[41] This Court considered the reliability of an informant’s tip in the context of Crown appeals relating to the existence of grounds for warrantless arrests in Warford and in R. v. McCabe, 2008 NLCA 62, 280 Nfld. & P.E.I.R. 250. In Warford, the police had received a tip from an informant that Mr. Warford had received a shipment of cocaine and would be selling it in the area that day. The informant’s tips had proved reliable on six prior occasions. The tip included details that Mr. Warford drove a black pickup truck and that he would be leaving his residence late in the evening and driving to a night club where he would be selling the cocaine. The police had additional information, received independently of the tip, that Mr. Warford had previously sold cocaine in Labrador.
[42] The police verified Mr. Warford’s address and the vehicle he drove and conducted surveillance on his residence. They observed him leaving his home at 11 p.m. and driving in his truck towards the nightclub. They arrested him, and a search of his person yielded six packets of cocaine valued at $810. The trial judge found that the search of Mr. Warford was not lawful because there were no reasonable grounds for it and that Mr. Warford’s section 8 Charter right was breached, and he excluded the evidence.
[43] Welsh J.A. for this Court assessed both the subjective and objective grounds for arresting Mr. Warford and found that both prongs of the Storrey test were satisfied. With regard to the objective prong, she applied the Garofoli test, and found that the tip came from a proven reliable source, the police had verified some details of the tip (Mr. Warford’s address, the type of vehicle he drove, and that he was driving toward the nightclub), and that there was independently received information that he had previously been selling cocaine in Labrador. She concluded that “in the totality of the circumstances”, a reasonable person in the position of the police would conclude there were reasonable and probable grounds for arresting Mr. Warford. Welsh J.A. went on to find that the search was lawfully conducted incident to Mr. Warford’s arrest and that there was no reason to exclude the evidence.
[44] In McCabe, the police had received a tip that Mr. McCabe would be driving a car containing marihuana which he planned to sell. The police arrested Mr. McCabe and frisked him. Seeing nothing visible in the vehicle, the police moved the car to an abandoned parking lot and arranged for a police dog to search it. The dog found a quantity of drugs in the sleeve of a coat which was on the rear seat of the car.
[45] The trial judge found that the information received by the police did not provide them with reasonable and probable grounds to search the vehicle. He decided that the detention of Mr. McCabe was lawful, but the search of his vehicle was not because there was nothing found on Mr. McCabe and nothing visible in the car to prompt further search. The trial judge concluded that the police dog search of Mr. McCabe’s car violated his section 8 Charter right, and he excluded the marihuana evidence under subsection 24(2) of the Charter. Mr. McCabe was acquitted and the Crown appealed.
[46] Barry J.A. for this Court agreed with the trial judge that Mr. McCabe had not been arbitrarily detained (Charter, section 9), but found that the trial judge had failed to consider whether the warrantless search by the police dog was a lawful one incident to Mr. McCabe’s arrest. Barry J.A. applied the Garofoli test to the evidence, and determined that Mr. McCabe’s arrest was lawful, stating at paragraph 26 that “it is the indicia of the informer’s reliability from past performance, combined with some slight confirmation from Constable Bill’s other investigative sources, that provides the main basis for finding that, both subjectively and objectively, reasonable grounds for arrest existed.”
[47] Barry J.A. went on to conclude that because Mr. McCabe’s arrest was lawful, and because the search of his vehicle was conducted for the valid purpose of securing evidence, the search of Mr. McCabe’s vehicle was a lawful one incidental to his arrest, and there had been no breach of Mr. McCabe’s section 8 Charter right and therefore no basis on which to exclude the evidence.
[55] In many ways the grounds in this case are like those in Warford: the informant’s reliability was unassailable, some details ‒ like the accused’s address and the type of vehicle he drove ‒ were verified, and there was some independently received information that both Mr. Warford and Mr. Day had been involved with drugs on a prior occasion. The informant information in Warford was more detailed in that it specified that Mr. Warford would be going to a nightclub that evening to sell cocaine, whereas the information in this case was that Mr. Day was actively selling drugs. However, in this case, the informant information was arguably more reliable, in that it came from a very reliable source, and from the informant’s first-hand knowledge, the latter being one of the three Garofoli factors which was not present in Warford. McCabe also compares favourably to this case in that the informant was very reliable and there was some independent confirmatory information. The reliability assessment of the McCabe tip does not appear to have been as strong as it is in this case, yet the Court found that the grounds for arrest satisfied the Garofoli and Debot criteria.
[56] The trial judge’s decision that the grounds for arrest were not reasonable was based on her view that nothing had been done to elevate the grounds beyond mere suspicion. With respect, I must disagree. As noted above, the tip provided detail, which the police verified to the extent they reasonably could (see Warford, paragraph 27), and they gained supportive information from a second informant and from their own system checks. The source of Source B’s tip was first hand and there were strong indicia of his or her reliability. Source A’s reliability was also very strong. In her brief analysis of whether the grounds for arresting Mr. Day were objectively reasonable, the trial judge failed to consider the information from police system checks suggesting Mr. Day was involved in drug trafficking in the past and most importantly, she failed to consider the reliability of Source B and the fact that the source of his or her information was firsthand.
[57] Accordingly, the trial judge erred in law by failing to apply the correct legal principles set out in Storrey, Debot and Garofoli to the evidence. Had she applied the law as set out in the jurisprudence, and followed by this Court in Warford and McCabe, she would have concluded that, in the totality of the circumstances the belief in grounds for arresting Mr. Day was objectively justifiable. The tip itself provided detail beyond a bald conclusionary statement that Mr. Day was trafficking in drugs, some of the details were corroborated, the reliability of Source B was very high and his or her source was first hand, and additional investigation and surveillance served to support the belief in grounds.
[58] In summary, application of the correct law to the evidence in this case clearly shows that Constable Emberley had a subjective belief in grounds to arrest Mr. Day and that his grounds were objectively reasonable.
