COURT OF APPEAL FOR ONTARIO
Tulloch, Lauwers and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Martin White
Appellant
Counsel:
Martin White, acting in person
Mark Halfyard, duty counsel
Victoria Rivers, for the respondent
Heard: July 5, 2022 by video conference
On appeal from the convictions entered by Justice Nancy S. Kastner of the Ontario Court of Justice on March 16, 2020.
REASONS FOR DECISION
1The appellant was convicted of two counts of possession of a Schedule I substance (cocaine) for the purpose of trafficking (Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2)) and two counts of possession of a Schedule I substance (cocaine and heroin) (s. 4(1)).
2The appellant appeals his convictions. He submits that the trial judge erred in dismissing his application under s. 8 of the Charter to exclude the drugs seized from his car and his home. These reasons explain why we dismiss this appeal.
Background
3The case originated as an investigation into a shooting outside a bar in a Brampton plaza. In the early morning hours of August 4, 2018, a plaza security camera recorded a black Acura arrive at the plaza. A “skinny black male” got out of the vehicle and walked towards the bar. A few hours later gunfire was exchanged between two people outside the bar. Security video appeared to show someone, who the police believed to be the same male, fire a gun, get into the Acura, and drive away.
4The police ran the plates from the Acura. It was registered to the appellant at a Brampton address, 2.2 kms from the bar. Later that day, and about seven hours after the shooting, the police found the Acura parked in the driveway at this address. They did not see the driver. A while later, the police saw the appellant get into the Acura and drive away. The car was stopped and the appellant was arrested.
5The police prepared an Information to Obtain (“ITO”) two search warrants for the Acura and the residence. An officer downloaded the security video onto a USB key. But he was unable to get the video to play. He returned to the plaza and recorded the video on his phone as it was played. This secondary recording was viewed by the affiant. He referenced the video in the ITO, but said nothing about its quality (which everyone at trial agreed was poor). The police applied for search warrants using the telewarrant procedure. Search warrants for the appellant’s house and Acura were issued. The drugs were seized as a result of these warrants.
The Voir Dire
6The appellant challenged the sub-facial validity of the warrant in support of his application under s. 8 of the Charter. He advanced three arguments which resulted in the trial judge making minor excisions.
7First, he submitted that the affiant intentionally misled the Justice of the Peace on the issue of identity of the shooter by not describing the poor quality of the video or by not providing the Justice of the Peace with a copy.
8The trial judge held that the failure to include a copy of the video did not amount to failure to provide full and frank disclosure. ITO’s often merely summarize documents or real evidence. Given that the police reasonably used the telewarrant process, she found no fault with their failure to transmit the video. To the extent that this may have been an error, it was inadvertent and not intentionally misleading. She further held that the affiant’s assertion that the person in the video “matched” the description of the appellant may have been an overstatement. It may have been better to say “consistent with” or “not inconsistent with” the appellant’s appearance, but this characterization was inconsequential.
9Second, the appellant contended that the affiant improperly separated conflicting information about the identity of the shooter. The affiant included information obtained from an eyewitness who said the shooter was 5’4” tall. This was at odds with police sources that the appellant was between 5’11” to 6’1”. These conflicting height estimates were separated by four paragraphs in the ITO.
10The trial judge found that it was not necessary for the affiant to specifically point out the height discrepancy. Both pieces of information were in the ITO and the information was not presented in an unfair manner.
11Third, the appellant contended that the ITO contained irrelevant and prejudicial information that encouraged propensity reasoning and was designed to confuse the Justice of the Peace. The ITO included a full CPIC printout relating to the appellant that included numerous entries reflecting withdrawn charges and discharges. The trial judge found that “[this] was an error.” She excised these entries. The trial judge took the same approach to references in the ITO about the appellant’s residence and firearms that were sourced to police databases. She excised one of these three entries as irrelevant.
12The trial judge found that the warrant would still have issued. Alternatively, she held that, if s. 8 of the Charter was infringed, the evidence should not be excluded under s. 24(2).
Issues on Appeal
13The appellant submits that the trial judge erred in finding that, after excision, the warrant still would have issued. This argument is intertwined with the further submission that the video of the shooting, which was played at the voir dire, was of such poor quality that it undermined the two main pillars of the ITO – the accuracy of the description of the shooter and the proposition that the shooter got into the Acura following the shooting. We do not accept these submissions.
14Search warrants, once issued, are presumed to be valid: R. v. Cusick, 2019 ONCA 524, 146 O.R. (3d) 678, at para. 43. The standard at the search warrant stage is credibly-based probability (not proof on a balance of probabilities, nor proof beyond a reasonable doubt): Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167. The reviewing judge must determine whether, based on the entire record before the issuing judge (subject to amplification and/or excisions on review), there is "at least some evidence that might reasonably be believed on the basis of which the authorization could have issued": R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51 (emphasis in the original). The trial judge properly applied these principles.
15The trial judge was satisfied that the affiant drew reasonable inferences that the shooter in the video was the appellant and that he fled from the scene, using the same car in which he arrived, a car registered in his name, which he was seen driving later that same day, just 2.2 kms away from the bar. This provided the credibly-based probability sufficient to issue the warrants.
16The appellant submits that the discrepant information concerning the height of the shooter was fatal to the issuance of the warrants. We disagree. The trial judge viewed the eyewitness’ evidence in perspective, noting that the estimate was made in stressful circumstances. Moreover, this witness had more to offer in terms of her observations of the movements of the shooter in the aftermath of the incident. This fed the inference that the shooter drove away in the Acura.
17Relatedly, the appellant submits that the trial judge erred by using the amplification evidence on the voir dire to support the issuance of the warrant. In his testimony, the affiant confirmed his belief that the shooter was 5’11” to 6’1”. The trial judge, having looked at the video, said: “Viewing the video would tend to show the shooter was taller. His head is over the height of the vehicles in the lot, including the van.”
18The appellant contends that the use of amplification evidence in favour of supporting a warrant is only permissible to correct minor or technical errors that were made in good faith; it may not be used as after-the-fact justification for a warrant improperly issued: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 41. However, as this court held in R. v. Duncan, 2021 ONCA 673, at para. 14:
Amplification of an affidavit is a flexible remedy. A motion judge has a broad discretion. In exercising that discretion, the nature of the defect in the affidavit is important. If the affiant acted honestly and in good faith in preparing and presenting the affidavit, amplification or excision of parts of the affidavit must be considered by the motion judge.
The court also held that amplification is not limited to errors or omissions in the affidavit that are so minor as to have little, if any, relevance to the ultimate legality of the authorization: para. 15. See also R. v. Feizi, 2022 ONCA 517, at paras. 7-9.
19The trial judge found there was no intention to mislead. It was trial counsel for the appellant who insisted that the trial judge view the video on the voir dire. Importantly, the trial judge’s observations of the video were not used to bolster the grounds for issuing the warrants; her reference to the video was in response to the submission that there was a failure to provide full and frank disclosure.
20Moreover, it is not clear that this case involved an “error” at all. The ITO included discrepant height estimates. Notwithstanding his belief that the appellant was taller, the affiant was obliged to include the eyewitness account. There was no error in the trial judge’s reliance on his testimony or the video on this narrow issue. Her exercise of discretion in this regard is entitled to deference.
21In the circumstances, it is not necessary to address s. 24(2) of the Charter.
Disposition
22The appeal is dismissed.
“M. Tulloch J.A.”
“P. Lauwers J.A.”
“Gary Trotter J.A.”
