Court of Appeal for Ontario
Date: May 30, 2017
Docket: C61748
Judges: Watt, van Rensburg and Pardu JJ.A.
Between
Her Majesty the Queen Respondent
and
Rudolph Reid Appellant
Counsel:
- Ian R. Smith and Amy J. Ohler, for the appellant
- Tanit Gilliam, for the respondent
Heard: March 29, 2017
On appeal from: The conviction entered on May 4, 2015 and the sentence imposed on June 23, 2015 by Justice Nancy L. Backhouse of the Superior Court of Justice.
van Rensburg J.A.:
A. Introduction
[1] The appellant appeals his conviction for possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. He seeks leave to appeal his sentence of five years' imprisonment, less nine months' credit on account of restrictive bail conditions.
[2] For the reasons that follow, I would dismiss the appeal from conviction and sentence.
B. Background Facts
[3] The investigation of the appellant began when a confidential informant ("CI") told the police that he or she had purchased cocaine from the appellant (whom he knew as "Rocky") and his roommate Carl Morris ("Morris") and that the appellant was in possession of a gun. The police conducted surveillance at the address provided by the CI and observed a person that the police identified as the appellant at the address. Based on the CI's information and the surveillance evidence, the police applied for a telewarrant pursuant to s. 487.1 of the Criminal Code to search the appellant's residence for a handgun, identification and cocaine, as evidence in respect of an offence under s. 91(1) of the Criminal Code.
[4] The following day, after he was observed engaging in several hand-to-hand transactions suggestive of drug trafficking, the appellant was arrested and was found to be in possession of narcotics. The police then executed the search warrant, and discovered cocaine, a quantity of Canadian and U.S. currency and drug trafficking paraphernalia in the appellant's apartment. No gun was located in the search of the appellant or his residence.
[5] At trial, the appellant brought an application under s. 8 of the Charter to challenge the legality of the search warrant and the admissibility of the evidence obtained in the execution of the warrant (the "Garofoli application"). The Crown, after conceding that the Information to Obtain ("ITO") that was redacted to protect the CI's identity did not establish reasonable and probable grounds for issuing the warrant, resorted to the procedure now known as step six[1], which was first described in R. v. Garofoli, [1990] 2 S.C.R. 1421. The trial judge dismissed the Garofoli application.[2]
[6] The trial judge concluded that the evidence obtained through the execution of the search warrant was sufficient to establish the appellant's guilt beyond a reasonable doubt, and she convicted him of the two offences.
C. Conviction Appeal – Alleged Errors in the Garofoli Application
[7] The conviction appeal concerns the trial judge's disposition of the Garofoli application.
[8] A trial judge's decision on a Garofoli application is entitled to deference. An appellate court should not interfere with the trial judge's disposition of the 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; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 22, leave to appeal refused [2010] S.C.C.A. No. 84.
[9] The appellant alleges there were four such errors warranting intervention by this court.
(1) Reasonable and Probable Grounds with Respect to the Firearm Offence
[10] First, the appellant says that the ITO did not provide reasonable and probable grounds to believe an offence had been committed under s. 91(1) of the Criminal Code. The affiant of the ITO deposed that he believed the appellant was in possession of a handgun, based on the CI's information that he had seen the gun in the appellant's possession. The ITO did not, however, provide any evidence that the appellant's possession of the handgun was illegal. The ITO does not indicate, says the appellant, that the police took any investigative steps to determine whether the appellant had a valid firearm licence or certificate, or was prohibited from possessing a firearm by an order under the Criminal Code. The appellant refers to R. v. Ball, 2014 ONCJ 265, [2014] O.J. No. 2552, at para. 12 and R. v. Boussalas, 2014 ONSC 5542, 320 C.R.R. (2d) 64, at para. 37, as cases in which the police took investigative steps to determine whether the accused was in lawful possession of a firearm.
[11] I would not give effect to this argument.
[12] The appellant's illegal possession of the handgun could be inferred reasonably, if not inevitably, from the circumstances set out in the ITO. The appellant had a criminal record, which included offences that attracted a mandatory weapons prohibition under s. 109 of the Criminal Code. Further, it was reasonable to assume that the possession of a gun by the appellant in the context of his activities as a drug dealer would be illegal. In these circumstances, the trial judge committed no error in concluding that the ITO disclosed reasonable and probable grounds to believe the appellant was unlawfully in possession of a firearm.
(2) Denial of Leave to Cross-examine the ITO Affiant
[13] Second, the appellant asserts that the trial judge erred in refusing leave to cross-examine the affiant of the ITO on the Garofoli application.
[14] The appellant says that there were a number of topics on which cross-examination of the affiant ought to have been allowed: (i) the affiant's failure to include the CI's complete criminal record; (ii) the failure to note the date of the appellant's record for trafficking (which would have revealed a 12 year gap between the appellant's last conviction and the date of the investigation); (iii) the overstatement by the affiant that all of the CI's information had been corroborated; (iv) the bald statement that police surveillance showed acts indicative of drug dealing; (v) the affiant's resort to the telewarrant process when it may have been unnecessary; and (vi) the fact that the police did not seek a warrant in respect of Morris under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The appellant says that cross-examination of the affiant on any of these topics could have elicited evidence of sloppiness, conclusory reasoning and exaggeration by the affiant, from which it could be inferred that the police misled the issuing justice. He argues that leave should have been granted because all of the proposed areas of cross-examination went to the affiant's reasonable belief and could have discredited the grounds for issuing the warrant.
[15] To satisfy the test for leave to cross-examine the affiant of an ITO, "[a] basis must be shown by the accused for the view that cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds": Garofoli, at p. 1465; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 40; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 39. The trial judge must be satisfied that the proposed cross-examination is reasonably likely to assist in determining whether the necessary grounds existed for the issuance of the search warrant: R. v. Green, 2015 ONCA 579, 337 O.A.C. 72, at para. 34. The focus of the cross-examination, if leave is granted, is on the reasonableness and honesty of the affiant's belief as to the existence of reasonable and probable grounds, and not on the ultimate accuracy of the information relied on by the affiant: Pires, at para. 41; Green, at para. 34. A decision to refuse leave to cross-examine the affiant is discretionary and, absent evidence that the trial judge did not exercise his or her discretion judicially, is entitled to deference: Pires, at paras. 46-47; Green, at para. 52.
[16] The trial judge identified the correct test from Garofoli at para. 12 of her reasons. She then observed that weaknesses in the ITO were matters for argument on the Garofoli application, and that there was no evidence to support a claim that the affiant deliberately concealed relevant information or deliberately provided misleading information. She also adverted to the risk that cross-examination might reveal the identity of the CI. She concluded that the applicant had not established that the proposed cross-examination would elicit testimony tending to discredit the existence of one of the preconditions to the authorization of the search warrant.
[17] The appellant says the trial judge applied too onerous a test on the application to cross-examine by requiring him to show that the affiant deliberately concealed relevant information or misled the issuing justice to satisfy the test for leave. I disagree. The lack of evidence that the affiant deliberately concealed or provided misleading information was only one of the factors considered by the trial judge. It was, however, a valid factor. Cross-examination will only tend to discredit the existence of one of the preconditions to the authorization of the search warrant if it can show that the affiant knew or ought to have known the information in the ITO was false: Pires, at para. 41; Sadikov, at para. 40. There was no evidence before the trial judge to suggest that this was the case. Further, simply pointing to omissions, inconsistencies, or conclusory or inaccurate statements is not a sufficient basis to permit cross-examination: R. v. Ambrose (1994), 73 O.A.C. 135, at para. 7 (C.A.), leave to appeal refused, [1995] S.C.C.A. No. 28; Pires, at paras. 40-44. I agree with the trial judge that the proposed topics of cross-examination here largely dealt with alleged deficiencies apparent on the face of the ITO, which could be addressed through argument.
[18] I would not therefore interfere with the proper exercise of the trial judge's discretion in this case to refuse leave to cross-examine the affiant of the ITO.
(3) Conditions for the Telewarrant
[19] Section 487.1 of the Code provides for the issuance of a telewarrant, and requires the applicant's "belief that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant." In the ITO, the affiant justified the application for a telewarrant by stating that it was after 4:00 p.m., that the court house was closed and that a justice of the peace was not available in the jurisdiction. The ITO was submitted at 8:32 p.m.
[20] The trial judge concluded that the conditions for a telewarrant had been met. She referred to the decision of this court in R. v. Lao, 2013 ONCA 285, 305 O.A.C. 346, that "impracticable" under s. 487.1 of the Criminal Code is not the same as "inconvenient". She concluded that waiting until the following day to obtain a warrant risked failure of the exercise because the delay may have stale-dated the CI's information and because guns and drugs are easily transportable.
[21] The appellant asserts that the trial judge erred in finding that the conditions for a telewarrant under s. 487.1 of the Criminal Code had been satisfied and that her reasons for this decision were not supported by the evidence. The fact that the affiant requested three days to execute the search warrant suggests that it was not impracticable for the affiant to attend personally before a justice.
[22] I would not give effect to this argument. Since the trial judge made her decision in this case, the Supreme Court has released its decision in R. v. Clark, 2017 SCC 3, [2017] S.C.J. No. 3. In that case, an officer justified the impracticability of obtaining a warrant in person on the basis that he was "working a nightshift in the early morning hours and the Kelowna Court House is presently closed". The Supreme Court dismissed the appeal for the reasons given by Frankel J.A. in the B.C. Court of Appeal: 2015 BCCA 488, 330 C.C.C. (3d) 448. At para. 66, Frankel J.A. stated:
The telewarrant procedure was designed to make it possible for law enforcement officers to apply for a search warrant 24 hours a day, seven days a week. Whether the application is made in-person or by fax the reasonable-grounds standard must be met before a warrant can be issued. The impracticability requirement is concerned with whether it is practicable to make an in-person application at the time the application is brought; it does not require that an immediate need for a warrant be demonstrated. [Emphasis added.]
[23] Similarly, in this case, the affiant explained that the court house was closed when the application was made. Further, the trial judge reasonably concluded that waiting 12 hours to obtain a search warrant could have impacted the ability to execute the warrant. As in Clark, the onus is on the appellant to demonstrate that it was practicable for the affiant to have made an in-person application notwithstanding the fact that the court house was closed. The trial judge did not err in her conclusion that the "impracticability" requirement for a telewarrant had been met.
(4) Corroboration of the CI's Information
[24] The appellant contends that the trial judge's conclusion that the information provided by the CI was sufficiently corroborated was unreasonable. In particular, the police did not corroborate the information the CI gave them about Morris and the appellant living together and their "joint enterprise" selling drugs out of their home. The best the police could do was to place Morris as a resident of the home three years earlier. Surveillance did not show that Morris was connected to the target address or that he had the relationship with the appellant described by the CI. Further, the appellant asserts that the trial judge misapprehended the evidence in concluding that the CI's description of the appellant was "confirmed" by a police officer who identified the appellant while conducting surveillance at his home, even though there was no explanation of how the identification was made.
[25] The appellant asserts that the failure of the police to corroborate these details ought to have affected the assessment as to whether CI's information was sufficiently reliable and compelling to justify the issuance of a warrant.
[26] Again, I would not give effect to this ground of appeal.
[27] The trial judge considered and applied the test in R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168, which required her to consider whether the information from the CI was compelling, credible and corroborated. She acknowledged that the statement in the ITO that all the information provided by the CI had been corroborated was an overstatement and she excised this statement from the ITO. After outlining the information from the CI that the police had corroborated, the trial judge concluded that the issuing justice could reasonably have found that the information from the CI was corroborated. In coming to this conclusion, the trial judge noted that where the police receive compelling information from a known CI with a track record of reliability, "something less in the way of verification might suffice" (at para. 27).
[28] Indeed, the law does not require the police to corroborate every detail of a CI's tip. Rather, the totality of the circumstances must meet the standard of reasonableness and weaknesses in one area may, to some extent, be compensated by strengths in the other two: Debot, at para. 1168.
[29] In this case, there were reasonable grounds to justify the issuance of the search warrant sought based on the information in the ITO, taken as a whole. The CI provided detailed and firsthand information about the appellant. In particular, he or she described the handgun, when they last saw it and how many times they had seen it. The CI also provided very specific information regarding how often and how much cocaine he or she personally purchased from "Rocky" who lived at the appellant's address. As the trial judge correctly noted, the information provided by the CI was not commonplace or easily ascertainable. Furthermore, it was reasonably open to the issuing justice to find that the CI was credible, after considering the CI's track record of reliability and his or her motive for providing the information to the police. In these circumstances, the past reliability of the CI and the specific nature of the CI's information made up for the fact that not every aspect of the tip was corroborated.
D. Sentence Appeal
[30] The appellant seeks leave to appeal his sentence of five years' imprisonment, less nine months' credit for the three years he was under house arrest. He seeks a prison term of three years and nine months, less the nine months' credit.
[31] The appellant does not assert that the sentence he received was outside the appropriate range. Rather, he argues that the trial judge erred in principle in relation to certain "aggravating" factors and that, as a result of these errors, the trial judge imposed an inflated sentence.
[32] Specifically, the appellant contends that the trial judge erred in characterizing him as a mid-level drug dealer based only on the quantity of drugs seized, rather than on evidence of the actual amounts he trafficked, and in describing him as a career drug dealer when there was a 15 year gap between these convictions in question and his last drug conviction. The appellant also says, that the undue emphasis on his earlier record led the trial judge to conclude that there was little prospect of rehabilitation, which was contrary to the pre-sentence report. The appellant further contends that the trial judge erred in identifying his lack of remorse as an aggravating factor.
[33] I would not give effect to any of these arguments.
[34] The conclusion that the appellant was a mid-level dealer was open to the trial judge on the evidence. The appellant says the only evidence on this point was the expert report of an officer who provided the opinion that the quantities of narcotics and drug paraphernalia were "consistent with street-level trafficking and possibly mid-level sales". The trial judge, however, was entitled to arrive at her own assessment based on the evidence before her, which included: the amount of cocaine seized from the search of the appellant's person and his apartment (123.34 grams of powder cocaine and 151.98 grams of crack cocaine); the manner in which the drugs were packaged (pre-weighed in different baggies); the quantities of cash seized from the search of the appellant's person and the apartment (CDN$8425 and USD$1325 in total, which was organized in denominations with different coloured elastic bands); and the drug trafficking paraphernalia found in his home.
[35] The trial judge did not err in failing to give weight to the 15 year gap in the appellant's criminal record between his convictions. Although she did not mention the gap principle specifically, she was alive to the gap because both counsel raised it in their submissions. The trial judge also mentioned that the criminal record was somewhat dated but found that the appellant had not been deterred by his previous sentence.
[36] I agree with the appellant that the trial judge erred in referring to his lack of remorse as an aggravating factor. However, there is no indication that this error resulted in an increase in the sentence that otherwise would have been imposed. An error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor "will justify appellate intervention only where it appears from the trial judge's decision that such an error had an impact on the sentence": R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. The absence of remorse did not inflate or elevate the sentence and the sentence imposed is comparable to what similarly-situated offenders have received. See, for example, R. v. Bajada (2003), 173 C.C.C. (3d) 255 (Ont. C.A.), R. v. Boughner, [1999] O.J. No. 5449 (Sup. Ct.), aff'd (2002), 159 O.A.C. 316 (C.A.), R. v. Dodd, [2004] O.J. No. 6074 (C.J.), aff'd [2006] O.J. No. 282 (C.A.), R. v. Bryan, 2011 ONCA 273, [2011] O.J. No. 1581, and R. v. Murray, [2007] O.J. No. 3095 (Sup. Ct.), which were among the cases cited to the trial judge by the parties.
E. Disposition
[37] For these reasons I would dismiss the conviction appeal, grant leave to appeal the sentence but dismiss the sentence appeal.
Released: May 30, 2017
"K. van Rensburg J.A."
"I agree. David Watt J.A."
"I agree. G. Pardu J.A."
Footnotes
[1] Step six is the procedure set out by the Supreme Court in Garofoli to be followed when an ITO is redacted to protect informer privilege and where the redacted ITO does not disclose sufficient information to make out the reasonable and probable grounds required to support the issuance of the search warrant. In these circumstances, the court may consider the excised or redacted passages in an ITO and apprise the applicant of the nature of the information redacted from the ITO through a judicial summary. The court must be satisfied that the applicant, through the provision of a judicial summary, is "sufficiently aware of the nature of the excised material to challenge it in argument or by evidence": Garofoli, at p. 1461; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 24.
[2] The trial judge also dismissed the appellant's application alleging breaches of ss. 9, 10(a) and 10(b) of the Charter. There is no appeal from these rulings.
