R. v. Herdman, 2021 ONCA 294

Court of Appeal for Ontario

Date: 2021-05-04 Docket: C68137

Before: Doherty, van Rensburg and Thorburn JJ.A.

Between: Her Majesty the Queen, Respondent and Trevor Jesse Herdman, Appellant

Counsel: Cara Barbisan, for the appellant Michael Dunn, for the respondent

Heard: April 29, 2021 by video conference

On appeal from the conviction entered on June 17, 2019, and the sentence imposed on November 29, 2019, by Justice David L. Edwards of the Superior Court of Justice.

Reasons for Decision

[1]

Overview

This appeal was dismissed with reasons to follow. These are our reasons.

2The appellant appeals his conviction for three counts of the possession of stolen property, and one count each of possession of stolen property under $5,000, possession of cocaine for the purpose of trafficking, and failure to comply with a recognizance. He does not appeal his convictions for certain other offences. If successful in the appeal, he seeks to reduce the global sentence he received and is currently serving.

3There is only one ground of appeal. The appellant submits that the trial judge erred in dismissing his challenge under s. 8 of the Charter, to the validity of a telewarrant issued under the Criminal Code, which led to the seizure of stolen property and drugs from his residence.

4The appellant contends that, contrary to the conclusion of the trial judge, there were no reasonable grounds to believe that the power tools listed in the Information to Obtain (“ITO”) would be found at the place of the proposed search because the ITO was based on a tip from a confidential informant (“CI”) that did not meet the Debot criteria (R. v. Debot, [1989] 2 S.C.R. 1140).

[5]

Background and Investigation

The investigation of the appellant began when a CI told the police that the appellant had stolen an ATV. The CI provided the make and license plate number for the ATV, as well as its location (in a parking lot behind an apartment building on Cleveland St. in Thorold). The police searched the license plate and contacted the registered owner of the ATV, who, after checking his barn, told them that his ATV and a number of power tools (which he listed) had been stolen. The police attended at the Cleveland St. address where they saw the ATV and some of the missing power tools in the parking lot. They also observed the appellant drive past them slowly, then speed away. CPIC inquiries revealed that the appellant had a significant history of prior convictions, and that he was bound by a recognizance with a condition that he live either at the Cleveland St. address or another address, and was prohibited from driving. The property manager at the Cleveland St. address advised that the appellant was on the lease for apartment Unit 1 at the Cleveland St. address.

6Based on this information, the police applied for a telewarrant pursuant to s. 487.1 of the Criminal Code to search Unit 1 of the Cleveland St. address. The ITO listed the stolen tools as the items to be seized in the search and the suspected offences as break and enter and possession of stolen property.

7Upon execution of the warrant, the police seized 60.6 grams of cocaine, 21 oxycodone pills, and the remainder of the missing power tools from Unit 1. A subsequent search warrant was obtained and executed to search the appellant’s cell phone.

[8]

Analysis

The question for the trial judge, in considering the appellant’s Charter application, was not whether he would have issued the telewarrant, but whether it was open to the issuing justice to have done so. The question was whether the ITO, in its redacted form, disclosed reasonable grounds to believe that there was evidence respecting the commission of an offence at the location to be searched: R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20. This court will not interfere with a decision made in a Garofoli application absent an error in law, a misapprehension of the evidence or a failure to consider relevant evidence: R. v. Grant (1999), 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18, leave to appeal refused, [1999] S.C.C.A. No. 168. There is no such error here. Essentially, the appellant invites this court on appeal to reweigh the Debot factors.

9The trial judge properly found that the CI “rated low” in terms of credibility: confidential information about the CI had been redacted from the ITO, so that the only available information was that the CI “may or may not” have a criminal record and that, while the CI was believed to be truthful, the police had never before acted upon information that the CI had provided. The trial judge went on to consider whether the tip was compelling and corroborated. He reminded himself that the totality of the circumstances must meet the standard of reasonableness, and that strengths in one area may compensate for weaknesses in another: Debot, at p. 1168; Herta, at para. 34.

10Contrary to the appellant’s argument, there was no error in the trial judge’s conclusion that the information provided by the CI was “highly compelling” and “significantly corroborated”.

11Whether a CI’s tip is “compelling” depends on the quality of the information provided. A more detailed tip will be more compelling, as will a tip that is more recent: Herta, at para. 42; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at para. 18. In this case, as the trial judge observed, the tip was “specific regarding the person, item and time”; that is, that the appellant stole an ATV bearing a particular license plate number, and that the ATV could be found at the rear of the Cleveland St. address.

12As for corroboration, the trial judge identified the investigative steps that were taken by the police that confirmed the currency of the information provided by the CI, that the specific ATV identified by the CI had in fact been stolen and that it was located where the CI said it was, in a parking lot at the Cleveland St. address.

13In any event, the issue was whether reasonable grounds existed for the issuance of the search warrant. There was no question that the police had reasonable grounds to believe that an offence had been committed as the owner of the ATV confirmed that the ATV as well as various tools had been stolen. Whether there were reasonable grounds to believe that evidence would be found at Unit 1 of the Cleveland St. address depended on the entirety of the ITO, which contained not only the compelling and corroborated information from the CI, but also the other information provided by the police investigation: the fact that some of the tools were located in the same parking lot as the stolen ATV, confirmation that the appellant lived in a particular unit at that address, information about the appellant’s criminal record, including for possession of stolen property, and the appellant speeding away after he was seen by the police. Based on all the circumstances disclosed in the ITO, it was reasonable to believe that evidence of the offence, such as the other stolen tools, would be found in the appellant’s unit.

[14]

Conclusion

The appellant demonstrated no error in the trial judge’s determination of his Charter application. For these reasons the appeal was dismissed.