R. v. Cole, 2019 ONCA 516

Court of Appeal for Ontario

Date: 2019-06-20 Docket: C63997

Judges: Juriansz, Watt and Hourigan JJ.A.

Between

Her Majesty the Queen Respondent

and

Shamar Cole Appellant

Counsel

Marianne Salih, for the appellant Amanda Hauk, for the respondent

Heard: May 23, 2019

On appeal from the conviction entered on December 14, 2016 by Justice Michael G. Quigley of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Introduction

1On July 20, 2014, the police obtained three telewarrants to search for cocaine at an apartment on Tuxedo Court, Toronto; in a 2008 Mercedes; and in a 2004 Nissan Maxima. The next day, police arrested the appellant in the Nissan Maxima near the entrance to the underground parking lot of the Tuxedo Court residence. They seized a key to the Mercedes, which was found on the appellant's person. Both cars and the apartment were searched. Nothing was found in the Nissan, but there were 272.88 grams of crack cocaine in the trunk of the Mercedes. In the apartment, the police found 2.45 grams of crack cocaine.

2The appellant was convicted of possession of cocaine for the purpose of trafficking. The trial judge rejected the appellant's Charter challenge based on deficiencies in the Information to Obtain the Telewarrants ("ITO"). The ITO relied on information provided to police by a confidential informant. The appellant submitted that while the ITO was sufficient to support a warrant for the search of the apartment unit, it was not sufficient to authorize a search of the cars. The trial judge agreed, finding that the appellant's s. 8 rights were violated. However, the trial judge did not exclude the evidence under s. 24(2).

3On appeal, the appellant argues that the trial judge erred by: (i) characterizing the breach as technical; (ii) failing to consider the impact of misleading information in the ITO regarding the apartment; (iii) failing to consider the impact of the police's unlawful resort to a telewarrant; and (iv) incorrectly balancing the Grant factors to include the evidence.

4For the reasons that follow, we are not persuaded by any of these submissions and dismiss the appeal.

Analysis

(i) Technical Breach

5The appellant submits that the application judge erred in characterizing the breach as technical, because the ITO was insufficient to support the car warrants. The ITO indicated that, according to the confidential informant, the appellant used his cars in drug transactions. The appellant argues that the failure to disclose the basis of the confidential informant's conclusions in relation to the cars constituted a serious and significant deficiency in the ITO, which was aggravated by the failure to meaningfully corroborate those conclusions. It was, the appellant submits, an error for the trial judge to rely on the strength of the information about the apartment to overcome this deficiency in a "bootstrapping" fashion. Further, the trial judge is also said to have erred in considering the police misconduct as having been conducted in good faith because it was a clear violation of well-established rules. In the appellant's view, the seriousness of the breach strongly favoured exclusion of the evidence.

6We note that the trial judge found a breach of s. 8 on the basis that the affiant failed to articulate his subjective belief about the grounds to issue a warrant with respect to the vehicles. The breach, as found by the trial judge, did not relate to whether sufficient grounds to issue the warrant actually existed.

7The Crown submits that there was no breach. Regardless of whether the trial judge erred in finding a breach, there is no question that the police had ample grounds to obtain a warrant with respect to the vehicles. In this regard, it is important to look at the ITO as a whole. We have reviewed the unredacted ITO and it is clear that the confidential informant provided credible and compelling information about the appellant's drug activities, including the use of his vehicles to deliver drugs. Further, the police took adequate steps to corroborate that information.

8In our view, if there were a breach in this case it was minor in nature and would fall at the low end of the spectrum of state misconduct. Accordingly, the trial judge did not err in categorizing the breach as technical.

(ii) Misleading Information

9In the redacted ITO, the affiant included the following information:

On July 20th, 2014 at 7:26 pm, Police Constable Diane PARKER #10824 walked by address 215-40 Tuxedo Court, Toronto to obtain visual confirmation of the address. PARKER is currently employed by the Toronto Police Service as a Police Constable and is assigned the 43 Division's Neighbourhood Safety Unit. PARKER advised there were three look-outs in the lobby and two in each stairwells. By look-outs PARKER meant there were persons at the mentioned locations to look-out for police and alert unsuspecting criminals in the building.

10The appellant submits that this information in the ITO about the "lookouts" observed in the building where the searched apartment unit was located was misleading because the information suggested a connection with the unit for which there was no evidence. According to the appellant, the trial judge erred in failing to consider the misleading information in his analysis.

11We do not give effect to this argument. Properly understood, the impugned information was not misleading because there was no suggestion that the lookouts were tied to the appellant or his apartment. The reference to P.C. Parker's observations relate to "unsuspecting criminals in the building." No mention is made of the appellant or the specific unit occupied by the appellant.

(iii) Unlawful Resort to Telewarrant

12The appellant submits that the resort to a telewarrant was unlawful because it was not impracticable for the police to appear personally before a justice of the peace. He argues that there was no urgency to the application, and notes that the trial judge admonished the officer in court for his choice to apply for a telewarrant. According to the appellant, this impropriety aggravated the breach and, under the s. 24(2) analysis, militated in favour of exclusion of the evidence.

13At trial, the appellant raised this issue but explicitly abandoned it before it was litigated. Consequently, there is an insufficient record before this court to consider the issue, as the Crown did not call evidence to explain the circumstances surrounding the police's resort to the telewarrant process. As the necessary factual record is missing, the appellant does not meet the test for raising a new issue on appeal. Further, we are satisfied that no miscarriage of justice will result from refusing to entertain an issue that the appellant chose to abandon at trial.

(iv) Grant Balancing

14The appellant argues that the evidence should have been excluded under the analysis set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He submits that the breach was serious and it was not made in good faith. Further, he argues that in spite of a reduced expectation of privacy in cars, the impact on his rights was serious, as two of his cars were searched without any authority. According to the appellant, the third factor should not be accorded disproportionate weight when the first two weigh heavily in favour of exclusion.

15We do not accept this submission. Where, as here, a trial judge makes no legal error or palpable and overriding factual error and considers the proper factors, his or her s. 24(2) analysis is afforded significant deference: Grant, at para. 86.

16In any event, we agree with the trial judge's conclusion. The breach was minor and made in good faith. The impact on the appellant's rights was relatively low, because there is a reduced privacy interest in cars. Finally, the evidence was highly reliable and central to the Crown's case. A proper balancing of the Grant factors results in the inclusion of the evidence.

Disposition

17For the foregoing reasons, the appeal is dismissed.