R. v. Shedden, 2022 ONCA 25

R. v. Shedden, 2022 ONCA 25

Court and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2022-01-13 Docket: C68829

Coram: Paciocco, Nordheimer and Sossin JJ.A.

Between: Her Majesty the Queen, Respondent And: Matthew Shedden, Appellant

Counsel: Andrew Furgiuele and Elina Korchagina, for the appellant Thomas Lemon, for the respondent

Heard: January 11, 2022 by video conference

On appeal from: The convictions entered by Justice Bernd E. Zabel of the Ontario Court of Justice on January 7, 2020.

Reasons for Decision

1Mr. Shedden appeals his convictions for various drug offences. The convictions turn on the validity of a search warrant that the police obtained. The appellant challenged the search warrant at trial, but that challenge was unsuccessful. He now appeals from that decision. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide those reasons.

2The police received information from two confidential informants that the appellant and another individual were dealing large quantity of drugs, specifically cocaine. The police set up surveillance on both individuals. During this surveillance, the police observed multiple interactions involving the appellant that were consistent with drug transactions. In between many of these transactions, the police observed the appellant return to a specific address (the “residence”) for brief periods of time. However, all of the actual transactions occurred either in the appellant’s automobile or in close proximity to it.

3The police obtained a search warrant based on this information. The search warrant included the residence. When the police executed the search warrant on the residence, they located cocaine, oxycontin, methamphetamine and marijuana. They also found a quantity of cash.

4The charges against the appellant were based solely on the results of the search warrant. When the challenge to the search warrant failed, convictions on the offences immediately followed.

5In his challenge to the search warrant, the appellant contended that there was no evidence that drugs would be found at the residence. More specifically, the appellant said that neither confidential informant had mentioned the residence in their information and thus the police were left with only their surveillance observations. The appellant contends that those observations could, at best, raise a suspicion that there might be drugs in the residence, but they could not rise to the level of the requisite reasonable and probable grounds.

6On the motion to challenge the search warrant, the appellant led evidence from his mother that she was a resident of the residence. The appellant contended that the police ought to have known this fact, or at least to have discovered it, and have included it in the Information to Obtain the search warrant, as it would have cast a different light on the reason why the appellant might visit the residence.

7In the course of the challenge to the search warrant, two problems arose. The first problem was that counsel for the Crown (not counsel on this appeal), in his oral submissions, incorrectly submitted to the trial judge that the test for the granting of a search warrant was reasonable grounds to suspect, not reasonable grounds to believe. The second problem was that the trial judge provided exceedingly brief, and entirely conclusory, reasons for his rejection of the Charter challenge to the search warrant.

8The appellant argues that the trial judge applied the incorrect standard when assessing the sufficiency of the warrant. In the alternative, the appellant submits that the reasons are legally insufficient because those reasons do not resolve a live issue in the case about the legal standard to be used. He argues that it cannot be presumed that the trial judge knew and applied the law correctly because comments he made suggest that he adopted the Crown’s erroneous oral submission that only reasonable suspicion was required.

9We need not resolve these issues. Even if we were to assume that the trial judge applied the wrong test, or failed to provide legally sufficient reasons related to the test, this does not mean that his conclusion was not the correct one. Consistent with the approach taken in cases such as R. v. West, 2020 ONCA 473, 392 C.C.C. (3d) 271, at para. 24, and R. v. Cusick, 2019 ONCA 524, 146 O.R. (3d) 678, at para. 41, even if the trial judge applied the wrong standard, this court is entitled to consider the record and decide whether there was a basis on which the search warrant could issue. We reject the appellant’s submission that this court should not make an independent determination regarding the issuance of the search warrant but, rather, should send the matter back for a new trial. While there may be cases where the factual circumstances would require that result, this is not one of them. There are no factual disputes or credibility issues. The written record, upon which the sufficiency of the warrant depends, is settled and it is straightforward.

10The record in this case amply sustains the conclusion that the search warrant was validly granted with respect to the residence. It was not required, in order to obtain the search warrant, that the presence of drugs in the residence be established to a certainty. It was only required that there be reasonable grounds to believe that drugs would be found. The available information provided those grounds based on reasonable inferences that could be drawn from the observed conduct of the appellant. That conduct included what the police believed were 14 drug transactions committed over three days during which the appellant made at least nine visits to the residence. It was an entirely reasonable inference to be drawn, from those facts, that the appellant was using the residence as his “stash” house. The reasonableness of that inference is not avoided, or precluded, by adding the knowledge that the appellant’s mother resided in the residence.

11It is for these reasons that the appeal was dismissed.