Court of Appeal for Ontario
Weiler, Tulloch and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kareem Remey
Appellant
Zachary Kerbel, for the appellant
Melissa Adams, for the respondent
Heard and released orally: June 4, 2015
On appeal from the conviction entered on April 24, 2013 and the sentence imposed on April 24, 2013 by Justice Paul L. Bellefontaine of the Ontario Court of Justice.
ENDORSEMENT
1The appellant appeals his conviction on two counts of possession of a firearm without a license; two counts of possession of cocaine for the purpose of trafficking; two counts of possession of a firearm while prohibited; and obstructing a police officer.
2The charges against the appellant arose from the investigation of an individual who identified himself as “Chris Walker” to a police officer during a July 2010 traffic stop. The police observed that the driver had four cellular telephones and was attempting to hide large amount of cash in the car. Information from a confidential informant led police to believe this person was a drug dealer using an apartment on Town Center Court (the “Apartment”) as a stash house. Further investigation led police to believe Chris Walker was an alias used by the appellant. The police applied for a general warrant authorizing covert searches of the Apartment. The general warrant was executed on January 17 and 20, 2011. During these searches the police found cocaine packaged for sale, a digital scale, cooking utensils covered with crack cocaine residue, $1,460 cash, and the appellant’s passport. Six months later, the police obtained a search warrant for the Apartment under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as amended, which was executed in June 2011. Police found a rifle in an ottoman in the living room, a small quantity of marijuana, and an Ontario driver’s license in the name of Chris Walker bearing the appellant’s photograph.
3The grounds of appeal relate to the trial judge’s dismissal of the appellant’s s. 8 Charter application. He challenges the validity of the trial judge’s conclusion that the searches conducted at the apartment in January and June 2011 complied with s. 8 of the Charter, and that the general warrant complied with s. 487.01(3) of the Criminal Code.
4The appellant says that once the reviewing judge had excised certain information from the ITO (information to obtain), there was insufficient evidence for a warrant to issue under s. 487.01(1). The trial judge acknowledged that the confidential informant who had provided certain information to the police about the appellant’s alleged activities, was not reliable, and that it was necessary to consider the extent to which the information he provided had been confirmed. One of the five factors the trial judge took into consideration in upholding the issuance of the warrant was as follows (referring to police surveillance of the appellant on December 17 2010):
… it would be reasonable for the issuing justice to accept the officer’s opinion the Dec 17th meeting with Paul Anderson was corroborative of the specific information provided by the confidential human source that Mr. Remy would be receiving drugs and then going to Durham to traffic in drugs that day. Mr. Remy, with a significant record for trafficking in narcotics and drugs, proceeds directly from Toronto to Oshawa [which it is conceded is in the Durham region] where he is lost in the shopping centre parking lot.
5The appellant submits that the trial judge’s acceptance of the police officer’s opinion that the appellant was engaged in drug trafficking on December 17 was unreasonable. As a result, there was insufficient confirmation of the confidential informant’s information that a drug deal would take place that day. The appellant points out that there was no time of day or location given as to where the meeting would take place (although the police knew the location from their surveillance). The other participant was not identified, and the informant’s means of knowledge was not indicated.
6While these are important factors that go to the assessment of the weight to be attached to the confidential informant’s information they are not exhaustive. There were many other factors present that satisfied the reviewing judge of the strength and reliability of the confidential informant’s information. An important indicator of the informant’s reliability was that, after the meeting on December 17, the course of events that followed was as the confidential informant said it was to be. The reviewing judge properly took this into account in accepting the police officer’s opinion. The reviewing judge’s acceptance of the police officer’s opinion as one of five factors in his ruling was not unreasonable. Considered in light of the totality of the circumstances, there was an evidentiary basis to support the issuance of the warrant. This ground of appeal is dismissed.
7The second argument raised by the appellant is that the terms of the general search warrant were too broad and it was therefore facially invalid. The appellant submits that the warrant did not include reasonable terms and conditions respecting the search of the appellant’s computers and thus the search warrant was therefore invalid as not meeting the requirements of s. 487.01(3). In our opinion the warrant did contain terms and conditions respecting its execution which the reviewing judge found to be sufficient. The specific example respecting computers now raised before us does not appear to have been raised before the trial judge, which is understandable having regard to the fact that no computers were searched. We will not consider it now. The appeal is therefore dismissed.
“K. M. Weiler J.A.”
“M. Tulloch J.A.”
“K. van Rensburg J.A.”