Information from anonymous informant provided reasonable and probable grounds for arrest

Police Powers

Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton

Facts: A drug investigator received information from an anonymous informant that the accused would be travelling from Ottawa to North Bay that day to sell drugs. The information included the make, model, colour and licence plate number of the car in which the accused would be travelling.

The drug investigator, along with other officers, set up surveillance on the highway. In due course, they saw the car and stopped it. The accused was in the passenger seat. His uncle was behind the wheel of the car.

The accused was known to the police as a person involved in the illegal drug trade.

The police arrested the accused and read him his rights. They searched him and the vehicle. In the trunk of the car, they found baggies of marihuana, baggies of cocaine, some methamphetamine pills, a phone book with a debt list, and a piece of paper with the accused’s name, email address and passwords.

At trial, the accused sought the exclusion of the seized items on the basis that the police breached ss. 8 and 9 of the Charter. He argued that they lacked reasonable and probable grounds to arrest him, and so the warrantless search was unreasonable. Held: Application dismissed.

The trial judge concluded that the police had reasonable and probable grounds for the arrest. The drug investigator’s subjective reasonable grounds to arrest the accused for possession for the purpose of trafficking were objectively justified. The trial judge found that the test set out in R. v. Debot, [1989] 2 S.C.R. 1140, 1989 CarswellOnt 111, concerning police reliance on confidential information was met. The information provided by the anonymous informant was reasonably compelling. It provided detail, including about the vehicle in which the accused would be travelling. It went beyond what was publicly known or readily available. The source of the information was credible, because although the drug investigator did not know the anonymous informant, he knew the informant by voice. That person had provided information to the drug investigator on about 20 occasions in the past. Although the information previously provided did not result in investigations or arrests, that was because the information was “too close”. The officer feared that acting on it would identify the informant. The officer had been able to corroborate information provided by the anonymous informant in the past. The information given on this occasion was corroborated in that the vehicle described was located on the route the anonymous informant identified, and the accused was in the vehicle. Further, the accused was known to the police as having prior involvement in illegal drugs.

The trial judge also found that the search was truly incidental to arrest. Its purpose was to discover illegal drugs on the accused’s person or within his control.

Commentary: This case is an example of the application of R. v. Debot to a search based on confidential information obtained from an informant whose identity is not known to the police. In the absence of a history of police contact with the anonymous informant, it likely would have been difficult for the Crown to meet the Debot test. Because the drug investigator in this case had dealt with the anonymous informer before and had been able to corroborate information he or she previously provided, the test was satisfied even though little was known about the anonymous informant.

R. v. Hansen, 2016 ONSC 6789, 2016 CarswellOnt 17054 (Ont. S.C.J.)