Court File and Parties

Court of Appeal for Ontario Date: 2020-05-26 Docket: C64688 & C64907

Before: Feldman, Tulloch and Jamal JJ.A.

Docket: C64688 BETWEEN Her Majesty the Queen Respondent and Desiree McNeill Appellant

Docket: C64907 AND BETWEEN Her Majesty the Queen Respondent and John Waechter Appellant

Counsel: Ryan Heighton, for the appellant Desiree McNeill Andrew Menchynski, for the appellant John Waechter Brendan Gluckman, for the respondent Her Majesty the Queen

Heard: December 3, 2019

On appeal from the convictions entered on August 1, 2017 by Justice Robert J. Nightingale of the Superior Court of Justice, sitting without a jury, and from the sentence imposed on the appellant John Waechter on November 17, 2017.

Jamal J.A.:

A. Overview

1If a search warrant authorizes the police to seize and examine any cellphone found in a garage used as a hub for drug trafficking, must the police obtain a second warrant to examine a seized cellphone belonging to someone who was not a target of the investigation? That is a central issue raised in these appeals.

2The appellants, John Waechter and Desiree McNeill, appeal their convictions of jointly possessing heroin and crystal methamphetamine for the purpose of trafficking. The police had Waechter under surveillance for suspected drug trafficking. When they executed a search warrant at a garage in Cambridge, Ontario, they found Waechter, McNeill, and three other individuals inside, together with a large quantity of drugs.

3The search warrant expressly authorized the police to seize electronic devices from the garage and to examine them based on the drug offences under investigation. The police seized Waechter’s cellphone directly from him. They also seized what they later learned was McNeill’s cellphone from a coffee table near where she was sitting in the garage. A post-seizure examination of the phones revealed text messages confirming that both Waechter and McNeill were engaged in drug trafficking.

4At trial McNeill applied to exclude the evidence found on her phone because she claimed that the police breached her right to be secure from unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms. While McNeill conceded that the search warrant authorized the police to seize her phone, she argued that the police needed a second warrant to examine it, because Waechter, not McNeill, was the target of the investigation and only his privacy rights had been weighed by the justice who issued the warrant. McNeill was not even known to the police officers conducting the investigation when they obtained the warrant. The trial judge rejected this argument, admitted the evidence from McNeill’s phone, and convicted both McNeill and Waechter.

5McNeill now appeals the decision to admit the evidence from her phone, and both McNeill and Waechter appeal the reasonableness of their convictions.

6As I explain below, I have concluded that the police did not violate McNeill’s rights under s. 8 of the Charter when they examined her phone. The information to obtain (“ITO”) in support of the warrant contained sufficient information to permit the authorizing justice to find that there were reasonable and probable grounds to believe that any electronic devices found in the garage – including what turned out to be McNeill’s phone – would contain evidence of the drug trafficking offences under investigation. McNeill did not need to be a target of the investigation, and the police did not need to obtain a second warrant to examine her phone.

7I have also found no basis to challenge the reasonableness of the convictions. The trial judge, acting judicially, could have been satisfied of the guilt of McNeill and Waechter as the only reasonable conclusion available on the totality of the evidence.

8Waechter had also sought leave to appeal his sentence if this court found his convictions on some counts to be unreasonable. Because of my conclusion on the reasonableness of the convictions, I need not address this issue.

9I would therefore dismiss both appeals.

B. Background

The search warrant

10The Waterloo Police Service obtained a search warrant dated November 12, 2015 under s. 11(1) of the Controlled Drug and Substances Act, S.C. 1996, c. 19 (“CDSA”), authorizing a search of a detached garage located on First Avenue and a house on Cedar Street, both in Cambridge, Ontario, in relation to the offences of possession for the purpose of trafficking heroin and crystal methamphetamine.

11The warrant also authorized the police to search for and seize “Electronic Devices”. The warrant’s “Terms and Conditions” expressly authorized the police to conduct post-seizure examinations of those devices “based on the offences set out in this warrant”, in relation to the following data:

• Electronic Communications between September 1, 2015 and November 12, 2015;
• Incoming, outgoing, and missed call logs;
• Audio, video, and still photograph files;
• Any location services;
• Data related to the use, ownership, and access of the phone; and
• Data related to the configuration of the mobile phone, including internal and external system or program configuration.

The information to obtain the warrant

12The ITO, sworn by Constable Palubiski, set out the grounds of the police for seeking the warrant. Based on surveillance and information from five confidential informants, the police believed that Waechter was trafficking in heroin and crystal methamphetamine from a garage on First Avenue and that he was using his mother’s home on Cedar Street as a stash house to store drugs and cash. The key evidence described in the ITO can be summarized as follows:

• In the summer of 2015, the police began investigating Waechter for suspected drug trafficking at an address on Lowrey Avenue, Cambridge. The police had him under surveillance and believed that they saw him conduct drug transactions at or near this address. On September 1, 2015, the police executed a search warrant at the Lowrey Avenue address, arrested six people (none of whom was Waechter), and seized crystal methamphetamine, heroin, crack cocaine, and marijuana.
• In October 2015, five confidential informants told the police that Waechter was trafficking heroin and crystal methamphetamine from a trailer or garage at the First Avenue address. This information appeared to be corroborated by police surveillance in October and November 2015.
• In late October 2015, over two days, the police saw at least 18 people enter and leave the First Avenue garage after a short time inside. Some of these people were known to the police from past drug investigations as drug purchasers or addicts. As a result, the police believed that the people entering and leaving the garage were buying heroin and crystal methamphetamine from Waechter.
• The police also saw a woman frequenting the garage. They believed that she was Waechter’s drug courier who moved drugs and money between the garage and the suspected stash house on Cedar Street.
• Three of the confidential informants told the police that Waechter had one or more cellphones. They gave the police the numbers of two of these phones. Officer Palubiski stated that, in his experience, drug traffickers use electronic devices to conduct drug deals and to store information, including contacts, photographs, videos, and debt lists. He believed that Waechter used a cellphone for drug transactions.

The execution of the warrant

13On November 12, 2015, the police executed the search warrant at the garage and the Cedar Street residence. [1]

14The garage was cluttered and messy – a maze of furniture, piled drywall, and bicycles. A narrow passageway ran from the front of the garage to the back. Because of the clutter, it was hard to see the back of the garage from the front.

15The police found Waechter in the front of the garage with another individual (who had heroin on him and later pleaded guilty to possession for the purpose of trafficking heroin). In the back, in an area with two couches and some coffee tables, the police found McNeill (who was unknown to the officers) and two others (both of whom have since died). At the back of the garage the police also found most of the drugs seized, including:

• an open small black safe containing three bags of heroin (95.38 grams, 8.04 grams, and 13.44 grams), a bag of crystal methamphetamine (8.04 grams), empty Ziploc bags, and a weighing scale;
• a dark grey plastic bag containing two bags of heroin (101.77 grams and 100.82 grams);
• a container of heroin (2.56 grams); and
• a bag containing crystal methamphetamine (3.83 grams), a container of heroin (1.06 grams), and Ziploc bags containing marijuana (25 grams) and cannabis resin (1.03 grams).

16The street value of the heroin seized was between $34,600 and $97,000 and the street value of the crystal methamphetamine seized was between $1,024 to $1,281, depending on the weight at which they were sold.

17At the back of the garage the police also found a large plastic bag containing colostomy bags. When Waechter was arrested, he had a colostomy bag attached to him because of a medical condition. In the same area the police found Waechter’s bank statement and wallet, which contained his health card and $1,862 cash.

18The police also seized four electronic devices from the garage: Waechter’s cellphone (which he had on him); McNeill’s cellphone (which was on a coffee table in front of the couch where she was sitting, but was only confirmed as hers after it was forensically examined); a Samsung tablet; and an iPad.

19Post-seizure forensic examinations of McNeill and Waechter’s cellphones revealed text messages – including to each other – that undeniably confirmed that both of them were engaged in drug trafficking.

The voir dire ruling

20The trial judge dismissed McNeill’s application to exclude her text messages as evidence for an alleged breach of her rights under s. 8 of the Charter. He ruled that the ITO provided reasonable and probable grounds for the warrant, including its Terms and Conditions, which authorized the police to conduct a post-seizure examination of any electronic device found during the search based on the offences set out in the warrant. He also found that the police did not need to specifically identify McNeill as a target in the ITO, nor did they need to get a second warrant to search her phone. The trial judge therefore found no breach of s. 8.

21He added that, even had he found such a breach, he would have admitted the evidence under s. 24(2) of the Charter.

The trial decision

22The only issue at trial was whether McNeill and Waechter had constructive possession of the drugs; both conceded that, if they did, the quantity of drugs found confirmed that their possession was for the purpose of trafficking.

23Based on the totality of the evidence, the trial judge concluded that the only reasonable inference was that McNeill and Waechter jointly possessed the heroin and crystal methamphetamine found in the garage for the purpose of trafficking: (i) Waechter conceded, and his text messages confirmed, that he had been trafficking drugs from the garage before the search; likewise McNeill conceded, and her text messages confirmed, that she had been trafficking as recently as the morning of the search; (ii) the drugs were found near McNeill and in plain view, with Waechter’s colostomy bags and wallet nearby; (iii) Waechter was observed using what looked like a key to enter the garage and text messages between him and McNeill corroborated that he had a key to the garage; and (iv) the presence of others did not detract from the only reasonable conclusion that McNeill and Waechter were jointly in constructive possession of the drugs for the purpose of trafficking.

C. Analysis

24These appeals raise two main issues. The first issue arises only in McNeill’s appeal; the second issue arises in both appeals:

1. Did the examination of McNeill’s cellphone under the warrant violate s. 8 of the Charter?
2. Were the convictions of McNeill and Waechter reasonable?

25McNeill also argues that, if the examination of her cellphone breached s. 8 of the Charter, the evidence obtained from that examination should have been excluded under s. 24(2). Given my conclusion on the first issue, I need not address this argument.

Issue 1: Did the examination of McNeill’s cellphone under the warrant violate s. 8 of the Charter?

26McNeill’s challenge to the search warrant is narrow. She concedes that the warrant authorized the police to seize her cellphone, but claims that the police infringed her s. 8 Charter rights by examining it after it was seized. She submits that the warrant was unconstitutionally overbroad by purporting to authorize a post-seizure examination of any electronic device found during the search, because the issuing justice could not have been satisfied that there were reasonable grounds to believe that the examination of any electronic device in the garage would afford evidence of the offences. She also claims that the issuing justice did not consider her privacy interests when issuing the warrant because she was not a target – indeed, the investigating officers did not even know about her until they searched the garage.

27McNeill also notes that, in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, the Supreme Court held that the search of a computer requires specific pre‑authorization. To be consistent with Vu, she says that the police should have obtained a second warrant to forensically examine her phone, a two-step procedure mentioned in Vu itself. She also asserts, more broadly, that this is now constitutionally required whenever cellphones of unknown ownership are seized: a first warrant to seize a cellphone; and a second warrant to forensically examine it.

28As I will explain, I do not accept this submission. I will first address the standard of review of the issuance of the CDSA warrant. I will then explain why the issuing justice could find that the ITO provided reasonable and probable grounds to authorize a forensic examination of any electronic device found during the search of the garage, including McNeill’s cellphone; why the ITO did not need to identify McNeill specifically as a target; and why a second warrant or two-step procedure was not constitutionally required in this case.

(a) The standard of review for the issuance of the CDSA search warrant

29McNeill asserts that the warrant was unconstitutionally overbroad on its face by purporting to authorize the post-seizure examination of any cellphone found during the search of the garage. She also asserts that the date range (September 1, 2015 to November 12, 2015) in the warrant’s Terms and Conditions for the search of electronic communications was arbitrary and overbroad. These arguments require consideration of the standard of review for a facial challenge to a search warrant.

30As stated in R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 37, “[a] facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant” (emphasis in original). This requires the reviewing judge to consider: (i) the statutory threshold for issuing the warrant; and (ii) whether the issuing justice could have concluded that this threshold was met.

31Here, the warrant was issued under s. 11(1) of the CDSA. This provision provides that, on ex parte application, a justice who is satisfied by information on oath that there are reasonable grounds to believe that a controlled substance or any “thing” that will afford evidence of an offence under the CDSA is in a place may issue a warrant authorizing a peace officer to search the place for such controlled substance or thing and to seize it.

32The standard of “reasonable grounds to believe” does not require proof on a balance of probabilities, but rather only a credibly-based probability: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; Sadikov, at para. 81. The ITO must provide “reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search. … If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued”: Sadikov, at para. 81; see also R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.

33In making this evaluation, the issuing justice considers the ITO as a whole, in a common sense, practical, non-technical way, and may draw reasonable inferences from its contents: Sadikov, at para. 82; Vu, at para. 16. The record on a facial challenge is limited to the ITO: Sadikov, at para. 37; R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.

34A court later reviewing the issuance of a warrant does not substitute its opinion for that of the issuing justice. It instead asks whether “there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued”: Sadikov, at para. 84; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54. This involves the reviewing court asking “whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search”: Sadikov, at para. 84; Morelli, at para. 40.

35I now turn to apply this standard to the ITO in this case.

(b) Could the issuing justice have found that the ITO provided reasonable and probable grounds to examine any electronic device found in the garage?

36There is no debate that Vu requires the police to have specific, prior authorization to search a computer. The issue is whether the ITO provided constitutionally sufficient grounds to support the search of any electronic device found in the garage, including McNeill’s cellphone. In other words, was the warrant constitutionally sound? The answer is found in the record. To understand why this is so, it is worth recapping the salient parts of the Supreme Court’s ruling in Vu.

37In Vu, the Supreme Court updated the traditional legal framework for search and seizure to protect the unique privacy interests raised by computer searches, including searches of cellphones. Cromwell J., writing for the Court, ruled that computers are unlike physical receptacles, such as cupboards or filing cabinets, which can be searched under a search warrant authorizing the search of a place, without specific, prior authorization to search the particular receptacle. Computer searches create particular privacy concerns that call for specific prior authorization: at paras. 2, 39, 48, 51. These privacy concerns arise because of the immense amount of personal information that computers can store, often automatically generated and retained even after a user thinks it is destroyed, and often shared by different users and stored almost anywhere in the world: at paras. 40-45.

38Cromwell J. therefore held, at para. 2, that “[o]ne cannot assume that a justice who has authorized the search of a place has taken into account the privacy interests that might be compromised by the search of any computers found within that place.” Cromwell J. explained that this reality imposes a requirement of specific, prior authorization for computer searches, at para. 3:

In practical terms, the requirement of specific, prior authorization means that if police intend to search computers found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. If, in the course of a warranted search, police come across a computer that may contain material for which they are authorized to search but the warrant does not give them specific, prior authorization to search computers, they may seize the device but must obtain further authorization before it is searched. [Emphasis added.]

39The relevant principles from Vu were reiterated by this court in R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at paras. 158-59:

A computer search requires specific pre-authorization. What this means is that if police intend to search computers or mobile communication devices found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice, by information on oath, that they have reasonable grounds to believe that any computer or other mobile communication device they discover will contain the things for which they are looking: Vu, at paras. 3, 24.

It follows from this requirement of pre-authorization that the ITO must contain sufficient information to permit the authorizing justice to find that there are reasonable grounds to believe that any computers or communications devices they discover on execution of the search will contain what they seek: Vu, at paras. 3, 48.

40The trial judge here applied these principles in evaluating the constitutional and statutory sufficiency of the ITO. He found that the ITO contained sufficient credible and reliable evidence to provide reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found on any electronic devices in the garage. As he explained:

[T]he ITO in this case contains sufficient information to establish a reasonably grounded belief that a search of cell phones found in the garage premises would contain evidence relevant to establish the listed drug offences. The [affiant], Officer Palu[b]iski, described the basis for his belief regarding the participation of Mr. Waechter and his drug sales of heroin and crystal meth from reliable informants, recent surveillance confirming his being involved in drug sales and also confirmed the evidence from informants regarding the usage by Mr. Waechter of two phones both of which were likely cell phones to conduct his drug business.

41I agree that the ITO contained sufficient information to permit the issuing justice to find that there were reasonable grounds to believe that any electronic devices found in the garage would provide evidence of drug trafficking. In particular:

1. The police had Waechter under surveillance since the summer of 2015, believed that they had seen him engage in drug trafficking at another location, and had found evidence of drug trafficking during a search of that location;
2. Five confidential informants mentioned in the ITO told the police that Waechter was trafficking in heroin and crystal methamphetamine, four of whom also mentioned that he was trafficking from the First Avenue location;
3. During their surveillance the police had watched Waechter interact with known drug addicts in what appeared to be drug transactions, with many people going back and forth from the garage. They had also seen him engage with someone they suspected to be a female drug courier;
4. Three confidential informants advised the police that Waechter had one or more cellphones and gave the police the phone numbers; and
5. The officer who swore the ITO explained that, in his experience, drug dealers use cellphones to do drug deals, store contacts, and other drug-related information.

42Cumulatively, this evidence provided reasonable and probable grounds for the issuing justice to have authorized a post-seizure examination of any electronic devices found in the garage.

43McNeill also asserts that the date range in the Terms and Conditions of the warrant for the search of electronic communications – from September 1, 2015 to November 12, 2015 – was arbitrary and overbroad. She asserts that the ITO did not provide reasonable grounds to believe that relevant electronic evidence would be found as far back as September 1, 2015.

44I do not accept this submission. The end date, November 12, 2015, was when the warrant was executed at the garage. The earlier date, September 1, 2015, was when the police executed a search warrant at the Lowrey Avenue address, where the police believed Waechter had formerly trafficked and where they had found drugs and arrested six people. It could reasonably be assumed that after this date Waechter moved his drug trafficking activities elsewhere. Evidence related to the move and to Waechter’s new trafficking operation from the garage could reasonably be expected to be found in Waechter’s electronic communications in September 2015. The date range was therefore neither arbitrary nor overbroad.

(c) Did the ITO need to identify McNeill as a target?

45McNeill, however, says that the ITO needed to be more specific to justify a post-seizure examination of her phone. She asserts that the issuing justice did not consider her specific privacy interests at the time of issuing the warrant because the ITO never mentioned her. She was not a target of the investigation and was unknown to the investigating officers before they searched the garage.

46I do not accept this submission. The ITO did not need to mention McNeill or identify her specifically as a target for the warrant to authorize a search of her phone (though it should have done so had such evidence been available). McNeill’s argument reflects a misconception of the statutory requirement for the warrant and the reasonable grounds standard. The police did not have to link the electronic devices to any specific target, but rather to the offences under investigation. Section 11(1)(d) of the CDSA requires the police to demonstrate reasonable grounds to believe that the “thing” sought will afford “evidence in respect of an offence under this Act” (emphasis added). This provision does not require the police to show reasonable grounds to believe that the thing will afford evidence about a specific target or named suspect.

47Put another way, a search warrant is an investigative tool that should be used to unearth as much evidence as constitutionally possible about the suspected offence, rather than just evidence that incriminates a particular target because that can lead to prosecutorial “tunnel vision”. As Major J. explained in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at paras. 15, 24:

On a plain reading, the phrase “evidence with respect to the commission of an offence” is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an offence. The natural and ordinary meaning of this phrase is anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant.

It is important that an investigation unearth as much evidence as possible. It is antithetical to our system of justice to proceed on the basis that the police, and other authorities, should only search for evidence which incriminates their chosen suspect. Such prosecutorial “tunnel vision” would not be appropriate: see The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 1 (1998), per the Honourable F. Kaufmann at pp. 479-82. [Emphasis added.]

48Here, whether or not any electronic device found in the garage belonged to Waechter, the ITO provided evidence supporting a credibly-based probability that any electronic device, if found in the garage – a suspected hub of drug trafficking – would afford evidence of the drug trafficking offences identified in the warrant.

49This evidence included, in particular, information from multiple confidential informants that Waechter used cellphones to do drug deals; that Waechter was suspected of trafficking drugs from the garage; that many suspected drug purchasers (at least 18 of them over just two days in late October 2015) were seen going into and out of the garage for what were believed to be drug transactions; and that a suspected female drug courier was believed to be transporting drugs or cash to and from the garage.

50It is a reasonable inference that, if Waechter used cellphones to do drug deals, the cellphones of those with whom he conducted drug deals would also contain evidence of drug trafficking. Because the garage was a suspected drug trafficking hub, and nothing else, it was similarly reasonable to infer from the information provided that anyone inside the garage (to whom any of the seized cellphones would belong) was also involved in drug trafficking, whether as seller, buyer, supplier, or courier.

51This evidence was therefore sufficient to establish reasonable grounds to believe that the electronic devices of any persons in the garage would contain evidence of the offences under investigation, thereby justifying extending the warrant to cover any cellphone found in the garage, no matter whose. The evidence in the ITO was not limited to Waechter and the warrant did not target only him, but rather targeted the offences under investigation.

52The issuing justice was therefore not required to consider the specific privacy interests of McNeill, who was then unknown to the police. The issuing justice was, however, required to consider the privacy interests of the class of persons whose cell phones might be seized from the garage and examined in investigating the offences at issue. Here, in view of the information presented in the ITO, I am satisfied that the issuing justice did so.

(d) Were the police constitutionally required to seek a second warrant?

53Lastly, relying on Vu, McNeill asserts that the police were constitutionally required to seek a second warrant to examine her phone even if it was lawfully seized under the warrant.

54I do not agree with this submission.

55I first note that, for a search warrant to extend to computers, Vu does not require the police to specifically identify in advance each computer to be searched. The police do not even need to have reasonable grounds to believe that any computers will be found in the place. The police only need to have reasonable grounds to believe that “any computers they discover will contain the things they are looking for”. As Cromwell J. for the Court explained in Vu, at paras. 48-49:

Specific, prior authorization means, in practical terms, that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. They need not, however, establish that they have reasonable grounds to believe that any computers will be found in the place, although they clearly should disclose that if it is the case. …

If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant. [Emphasis added.]

56As I have discussed above, in my view, the ITO met this standard, and therefore provided constitutionally sufficient grounds to support the search of any electronic devices found in the garage.

57In support of her argument that the police needed a second warrant to search her phone, however, McNeill relies on Cromwell J.’s comments in Vu that, in some cases, authorizing justices “may find it practical to impose conditions when police first request authorization to search”, or “might prefer a two-stage approach where they would first issue a warrant authorizing the seizure of a computer and then have the police return for an additional authorization to search the device seized”: at para. 62. But I note that these comments are framed in terms of what an issuing justice may find “practical” or what they “might prefer”. They do not, on their face, impose a constitutional requirement.

58In this case, while the issuing justice could have authorized a seizure of any electronic devices from the garage and then required the police to return for a second warrant to search any such devices, this approach was not constitutionally mandated. That is because, as I have explained above, the ITO in this case contained sufficient information to permit the issuing justice to find that there were reasonable grounds to believe that any electronic devices found in the garage would provide evidence of drug trafficking. Because of the evidence in the ITO, a one-stage approach was constitutionally sufficient in this case.

59The search of McNeill’s cellphone was conducted in accordance with the Terms and Conditions of the warrant and the evidence obtained related to the offences specified in the warrant. This was not a case where the police lawfully searched an electronic device pursuant to a valid warrant for one offence and discovered evidence of another: see e.g., R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241. Different circumstances may require a further warrant to comply with s. 8 of the Charter.

Conclusion

60In conclusion, McNeill’s rights under s. 8 of the Charter were not infringed. In light of the information in the ITO, the warrant was not constitutionally overbroad for permitting the police to examine any cellphone found during the search of the garage. McNeill did not need to be named in the ITO as a target of the investigation for the warrant to authorize the police to examine her phone, nor in this case did the police require a second warrant to do so.

61In his reasons, the trial judge explained that even if he was wrong in finding no breach of McNeill’s s. 8 Charter rights, he still would have admitted the evidence under s. 24(2). Because I would find no breach of s. 8, I need not address s. 24(2).

Issue 2: Were the convictions of McNeill and Waechter reasonable?

62The trial judge found that the only reasonable inference from the totality of the evidence was that both McNeill and Waechter were guilty of the joint possession of heroin and crystal methamphetamine for the purpose of trafficking. Because neither McNeill nor Waechter had drugs in their personal possession, the trial judge relied on their joint constructive possession of the drugs in the garage. Constructive possession is where a person knowingly has anything in any place, “whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person”: Criminal Code, R.S.C., 1985, c. C-46, s. 4(3)(a)(ii). Joint possession is “where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession”, in which case “it shall be deemed to be in the custody and possession of each and all of them”: Criminal Code, s. 4(3)(b).

63As noted, in finding joint constructive possession the trial judge relied on the following evidence: (i) Waechter conceded, and his text messages confirmed, that he had been trafficking drugs from the garage before the search; likewise McNeill conceded, and her text messages confirmed, that she had been trafficking as recently as the morning of the search; (ii) the drugs were found near McNeill and in plain view, with Waechter’s colostomy bags and wallet nearby; (iii) Waechter was observed using what looked like a key to enter the garage and text messages between him and McNeill corroborated that he had a key to the garage; and (iv) the presence of others did not detract from the only reasonable conclusion that McNeill and Waechter were jointly in constructive possession of the drugs for the purpose of trafficking from the garage.

64Both McNeill and Waechter now argue that their convictions were unreasonable and unsupported by the evidence.

65An appellate court can set aside a verdict where the verdict is unreasonable, unsupported by the evidence, or both: Criminal Code, s. 686(1)(a)(i); R. v. Lights, 2020 ONCA 128, at para. 29. This may occur where a properly instructed jury or judge could not reasonably have rendered the verdict, or where the trial judge has drawn inferences or made findings of fact that are plainly contradicted by the evidence or incompatible with evidence that is not otherwise contradicted or rejected: Lights, at paras. 30-31; see also R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9.

66In evaluating the reasonableness of the verdicts, I am mindful of the limited grounds for appellate intervention in a wholly or largely circumstantial case such as this. It is not this court’s role to retry the case. Rather, it is the role of the trier of fact to decide whether the evidence, “when considered in light of human experience and the evidence as a whole and the absence of evidence, excluded all reasonable inferences other than guilt”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 69.

67The question for the appellate court is thus “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: Villaroman, at para. 55. It is fundamentally for the trier of fact to decide whether another way to view the case is reasonable enough to raise a doubt, and to draw the line that separates reasonable doubt from speculation: Villaroman, at paras. 56, 71; see also Lights, at paras. 36-39.

(a) McNeill

68McNeill argues that the trial judge erred in finding that the drugs found in the garage were in her constructive possession. She says that the trial judge conflated her knowledge of the presence of the drugs in the garage with the required element of her control over them. She also says that it was a reasonable inference that she was a low-level drug dealer who merely bought her drugs from Waechter. She says that she was just “a visitor to the garage, one of many”.

69When viewed through the lens of appellate review, I would not accede to McNeill’s argument. Her argument amounts to saying that she was simply in the wrong place at the wrong time, and ignores the totality of the evidence, including her presence close to the drugs in the open at the back of the garage; her text messages confirming that she was engaged in drug trafficking (including that very day); and her text messages to and from Waechter that suggested a joint trafficking operation. Nor did the presence of others in the garage undercut the trial judge’s basis to be satisfied that the only reasonable conclusion was that both McNeill and Waechter were drug trafficking from the garage, even though, as the trial judge noted, they were “perhaps” doing so “with others”.

70I therefore see no basis to interfere with McNeill’s conviction.

(b) Waechter

71In a similar vein, Waechter argues that the trial judge acted unreasonably in inferring his knowledge of the presence of the drugs at the back of the garage from the drugs being in “plain view”, as he was at the front of the garage, and anyway most of the drugs were hidden from sight. Waechter acknowledges that his text messages confirm that he was engaged in drug trafficking, but argues that the last such message from his phone was on November 2, 2015 – a full 10 days before the search. By contrast, he notes, McNeill continued sending messages related to drug trafficking until shortly before her arrest.

72I would not give effect to this argument. There was plenty of evidence on which the trial judge could be satisfied that Waechter’s guilt for possession of heroin and crystal methamphetamine for the purpose of trafficking was the only reasonable conclusion available on the totality of the evidence: Waechter’s colostomy bags were found near the drugs; his text messages confirmed that he had been drug trafficking from the garage; he had texted a drug purchaser that he was “staying in the garage”, and that the garage was “home”; and McNeill’s texts to Waechter likewise noted that she was locking “your [i.e., Waechter’s] door” to the garage and suggested that Waechter had a key to the garage (corroborating observations made during the police surveillance).

73The trial judge was also entitled to infer Waechter’s knowledge of the presence of the drugs at the back of the garage, and his control over them, even though he was at the front of the garage when the search began. The trial judge knew that the drugs were not in a “clear container or baggie”, but emphasized that “[t]here was no attempt to hide or obstruct the drugs or the drug paraphernalia from view”. In short, the trial judge found that the drugs were out in the open, in full view, a factor that he could consider as relevant to Waechter’s knowledge. He could certainly conclude that the only reasonable inference on the totality of the evidence was that Waechter was guilty as charged.

74I therefore see no basis to interfere with Waechter’s conviction either.

D. Disposition

75For these reasons, I would dismiss both appeals.

Released: May 26, 2020 M. Jamal J.A. I agree. K. Feldman J.A. I agree. M. Tulloch J.A.

Footnotes

1At the Cedar Street residence, the police seized a digital scale and Waechter’s cellphone bill.