R v Bajich, 2019 ONCA 586

The Issue

Can confidential informant information be substantially relied upon to justify an arrest?

The Answer

If the information from the CI is sufficiently credible, compelling and corroborated it may be sufficient to support reasonable grounds for an arrest. Notably, with respect to corroboration, the evaluation is contextual. It is not the number of observations/information that determine if there is sufficient corroboration, but whether the observations/information are capable of rebutting innocent explanations.

The Details

Kresimir Bajich was dealing drugs out of a bathroom in a bar in Oshawa. Someone knew about it. They decided to tell the police. The information included that Bajich was dealing drugs, the type of drugs, the location and Bajich’s nickname, “Big Mouth Chris”. They did so as a confidential informant [CI]. The officer who received the information was advised that the CI had on at least two occasions provided information that resulted in arrests and charges and that the informant had no prior criminal record for crimes of dishonesty.

On the basis of this information the police set up at the bar and put Bajich under surveillance. During the surveillance, about two hours, Bajich was observed “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” [para 13]. Coupled with the CI information, the police viewed this to support grounds and Bajich was arrested.

At trial Bajich challenged that arrest, arguing that it violated section 8 of the Charter (insufficient grounds). The trial judge dismissed the Charter motion. Bajich was convicted and appealed. The Court of Appeal held that the trial judge did not err in reaching this conclusion. The CI information was sufficiently compelling, credible and corroborated. The police had grounds to make an arrest. In particular, the Court of Appeal noted the following in relation to corroboration:

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 (CanLII), 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 (CanLII), 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 (CanLII), at para. 10.