R. v. Hebert, 2002 CanLII 45033 (ON CA)

DATE: 20020903
DOCKET: C35808

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. SYLVIO HEBERT (Appellant)

BEFORE: DOHERTY, SIMMONS and ARMSTRONG JJ.A.

COUNSEL:
Nicholas A. Xynnis, for the appellant
M. Pistyner, for the respondent

HEARD: August 23, 2002

RELEASED ORALLY: August 23, 2002

On appeal from the conviction entered and sentence imposed by Justice Robert P. Boissoneault on February 7, 2001.

E N D O R S E M E N T

1[1] We agree with the trial judge’s conclusions that the search warrant was valid and that it was executed in a reasonable manner.

2[2] The fact that the copy of the warrant in the possession of the officers who executed the warrant did not contain the time after which the warrant could be executed could not affect the validity of the warrant or render the manner in which it was executed unreasonable. The copy was faxed to the executing officers who noted the omission of the time on the top of the second page. They confirmed by telephone call that the warrant could be executed after 11:00 a.m. The warrant was executed after 11:00 a.m.

3[3] In our view, the defect in the copy of the warrant had no effect on the way it was executed and in no way compromised the accused’s privacy interests or any right he may have had to know the contents of the warrant had he been present when it was executed. The manner in which the warrant was executed was not rendered unreasonable, by what we regard as a minor defect in the copy of the warrant in the possession of the officers who executed it.

1[4] The other issues with respect to the search warrant were raised in the context of a “Garofoli” application. A review of the information used to obtain the warrant as amplified by the evidence adduced at trial does not support the contention that the officer who swore the information deliberately misled the court. At most, it suggests that the officer could have been more precise in identifying which officer directly provided information to him. However, since the affiant swore that all of the officers provided reliable information to him, the failure to identify a particular officer was not significant. Ultimately, the path of the information to the affiant was made clear on the evidence at trial. On that record, the Justice of the Peace could have granted the warrant.

2[5] The failure to fully detail the criminal records of the three confidential informants in the information sworn to obtain the warrant is not fatal to the validity of the warrant. There is no suggestion that the partial details provided to the Justice of the Peace were inaccurate or that further specifics with respect to the criminal records would have impacted in any way on the decision to grant the warrant.

3[6] The information provided by the confidential informants and the officers’ reasons for believing that information were sufficient when considered in their totality to justify the issuing of the warrant. There was some confirmation of material aspects of the information provided by the informants in the other parts of the information. The appellant did live where the informants said he lived and he did have a record for drug trafficking.

4[7] It was also argued that the conviction on the trafficking charge was unreasonable. While this was not the strongest case of trafficking, there was physical evidence and expert evidence based on that physical evidence capable of supporting the trial judge’s conclusion that the appellant’s possession of the cocaine was for the purpose of trafficking. The reasons reveal no misapprehension of the evidence and there is no basis upon which we can interfere with that conclusion.

5[8] The conviction appeal is dismissed.

6[9] The sentence imposed was entirely appropriate given the extensive record of the appellant. The contention in this court that the trial judge should have granted a conditional sentence loses force when it is noted that no such request was made at trial. In any event, this was not a case for a conditional sentence. The sentence appeal is dismissed.