COURT OF APPEAL FOR ONTARIO
Huscroft, Dawe and Pomerance JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Raphael Okezie
Appellant
Simon Kim, for the appellant
Jeremy Streeter, for the respondent
Heard: January 27, 2025
On appeal from the conviction entered on September 20, 2019, by Justice Peter G. Bawden of the Superior Court of Justice, sitting without a jury.
REASONS FOR DECISION
1The appellant appeals his convictions for firearm-related offences. He argues that the trial judge erred in dismissing his Charter challenge to the warrant that authorized the search of his home, where police found the illegal firearm.
2We dismissed the appeal without calling on the Crown to respond. These are our reasons.
3The trial judge initially allowed the appellant’s application to quash the warrant as facially invalid. The first iteration of the edited ITO, which had been redacted to protect confidential informant privilege, did not disclose any evidence identifying the appellant as the man seen in a video with a handgun in the waistband of his pants. The Crown subsequently provided additional information, including that of a confidential informant who identified the male in the videotape as the appellant, as well as corroboration of that information, and information confirming the reliability of the confidential informant. The trial judge then held that this less-redacted version of the ITO survived the facial challenge, and the appellant was convicted of the firearms offences.
4The appellant argues that although the police had reasonable grounds to believe that he was the man seen in the video with a handgun, they did not have reasonable grounds to believe that the police would find the gun if they searched his home and car. The appellant argues, in essence, that there was no case-specific information that supported the search.
5We do not agree.
6The test for the trial judge was whether, based on the evidence in the redacted ITO as a whole, the search warrant could have issued. This requires reliable evidence that might reasonably be believed, not proof on a balance of probabilities. Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, the reviewing judge’s decision is entitled to deference: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 81, 88-89.
7The inference that the appellant would likely store the firearm at his home or in his car was available as a matter of common sense, as in R. v. Kalonji, 2022 ONCA 415, 162 O.R. (3d) 283, at para. 30. The appellant did not know he had been videotaped with the gun four days earlier. It was therefore likely that the gun was still in his possession. As was found by the trial judge, in these circumstances, the issuing justice could reasonably infer that the appellant had stored the firearm in a comparatively private location, such as a home or car. We see no error in this approach.
8The appeal is dismissed.
“Grant Huscroft J.A.”
“J. Dawe J.A.”
“R. Pomerance J.A.”