Court of Appeal for Ontario
Before: Miller, Dawe and Wilson JJ.A.
Between
His Majesty the King Respondent
and
Christopher Janisse Appellant
Counsel: Ravin Pillay, for the appellant Ian Bell, for the respondent
Heard: February 9, 2026
On appeal from the convictions entered by Justice Katherine B. Corrick of the Superior Court of Justice, on April 26, 2022, with reasons reported at 2022 ONSC 2566 and from the sentence imposed on October 25, 2022 with reasons reported at 2022 ONSC 4526.
REASONS FOR DECISION
1The appellant sought to reopen his trial for offences related to drug trafficking. The trial judge dismissed the application. He appeals from that decision. We dismissed the appeal with reasons to follow. These are our reasons.
Factual overview
2A 2019 police investigation into the appellant culminated in the execution of three search warrants.
3Police installed a tracking device on the appellant’s car, authorized by a tracking warrant granted on June 6, 2019. Police later obtained two general warrants based on information obtained from the June 6 tracking warrant and through further surveillance of the appellant. One warrant authorized covert entry into a condominium unit on the 6th floor of 105 The Queensway, where the police believed the appellant was storing drugs. The unit was leased to someone who was not known to associate with the appellant.
4Between June 4 and June 27, police observed the appellant accessing the unit 12 times. No one else was observed accessing the unit over this time, and there was only one active key fob associated with the unit. On several occasions the appellant was observed driving into the underground parking garage, taking the elevator to a floor either above or below the 6th floor and taking the stairs to the 6th floor unit. He was observed, on various occasions, carrying backpacks, duffle bags and gym bags.
5Police entered the unit for the first time on June 19, on the authority of a general warrant issued that same day. They saw two large floor safes in the hallway leading to the bedroom. In one safe, they found 9.732 kg of cocaine packaged in nine bricks, as well as other paraphernalia related to drug trafficking. In the other safe they found 1.949 kg of fentanyl, 36 g of crystal methamphetamine, drug trafficking paraphernalia and ammunition. On a second search on June 21, the contents were unchanged except that one brick of cocaine had apparently been removed from the first safe.
6The appellant was arrested in the unit on June 27, 2019, while handling bricks of cocaine. Police seized 15 kg of cocaine and two kg of fentanyl. They also seized $96,920 from a hidden compartment in the appellant’s car.
Proceedings below
7At trial, the appellant brought an application for exclusion of evidence under s. 8 and s. 24(2) of the Canadian Charter of Rights and Freedoms. The focus of the challenge was the tracking warrant. The appellant argued that the Information to Obtain (“ITO”) did not satisfy the requisite statutory preconditions, and that all tracking information obtained had to be excised from the subsequent ITOs used to obtain the subsequent general warrants. The subsequent warrants were said to be invalid and the evidence obtained inadmissible.
8The application was dismissed, and on the basis of an agreed statement of facts, the appellant was convicted on April 26, 2022 of possession for the purpose of trafficking and possession of the proceeds of crime.
The application to reopen
9On August 26, 2022, the appellant brought an application before the trial judge to reopen the trial. The basis for the application was a Charter ruling by Nakatsuru J. in a related proceeding. The appellant argued that the ruling constituted fresh evidence of police misconduct and that justice required the reopening of the trial of the appellant so the appellant could launch a fresh challenge to the general warrant.
10On October 4, 2022, the trial judge dismissed the application as an attempt to retry the case using a different strategy.
Analysis
11In R. v. Downes, 2022 ONSC 4308, two accused were charged with drug and firearms offences as part of the same investigation that led to the appellant’s arrest. In that proceeding, Nakatsuru J. excluded evidence against Downes on the basis that Detective Constable John De Sousa, the sub-affiant who made surveillance observations in support of the warrants that led to the arrests of both accused, was not a credible witness and had deliberately misled the issuing justice with respect to his observations of Downes allegedly meeting with the appellant in a parking garage. In short, D.C. De Sousa was not in a position to have observed what he said he observed. Justice Nakatsuru also found that D.C. De Sousa had deliberately failed to seize CCTV security videos that would have shown he was not in the parking garage as he described. These actions amounted to a subversion of the issuing process for the Downes search warrants.
12It is significant that Nakatsuru J. excluded evidence obtained from the warrants against Downes, but not against his co-accused Medeiros.1 Medeiros was unable to “hitch his wagon” to the subversion finding, Nakatsuru J. said, because that finding did not “touch the grounds used in support of the search warrants attacked by Mr. Medeiros.”
13Similarly, the trial judge in this matter found that the misconduct that was the subject of the fresh evidence application was not relevant to the defence that Mr. Janisse had actually advanced at trial. Accordingly, it was not capable of affecting the result. At trial, the appellant did not challenge the general warrant directly. He only attacked the tracking warrant. And he had admitted through the agreed statement of facts that he had met in the parking garage with Downes. The trial judge made no error in concluding the proposed fresh evidence could not have affected the sufficiency of grounds for the general warrant and was an attempt to relitigate on different grounds. The decision not to reopen was a reasonable exercise of judicial discretion.
14Furthermore, as the trial judge also noted, the first of the Palmer criteria for admitting fresh evidence was not met because the evidence could have been adduced with due diligence: Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759. The relevant evidence was not Nakatsuru J.’s conclusion about the truth of D.C. De Sousa’s statement on the ITO, but rather the evidence of D.C. De Sousa itself. This evidence could have been adduced by the appellant in exactly the same manner as it was later adduced in R. v. Downes. The appellant, who admitted to being present in the parking garage and thus had knowledge of what transpired, could have cross-examined D.C. De Sousa about whether the meeting took place as the officer described. But given the appellant’s admission of the substance of what D.C. De Sousa had claimed to observe, neither Nakatsuru J.’s credibility findings about D.C. De Sousa or the evidence of D.C. De Sousa itself would have had much probative value.
DISPOSITION
15The appeal is dismissed. The sentence appeal is dismissed as abandoned.
“B.W. Miller J.A.”
“J. Dawe J.A.”
“D.A. Wilson J.A.”