Court of Appeal for Ontario

Date: 2017-06-02 Docket: C62378

Judges: Cronk, Blair and van Rensburg JJ.A.

Between

Her Majesty the Queen Respondent

and

Scott Charles Pasian Appellant

Counsel

Jonathan Dawe, for the appellant

Anya Weiler and Carolyn Otter, for the respondent

Heard

May 29, 2017

Appeal Information

On appeal from the conviction entered on February 26, 2016 and the sentence imposed on May 26, 2016 by Justice A. Mitchell of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Conviction Appeal

[1] The appellant appeals his conviction for various drug trafficking offences and offences in connection with the storage and possession of a firearm. He also seeks leave to appeal his sentence.

[2] The conviction appeal challenges the application judge's Charter ruling. [1] After finding that the information to obtain ("ITO") was insufficient to support the warrant for the search of the house located on Prosperity Court, the application judge refused to exclude the drugs and other evidence seized in the search, under s. 24(2).

[3] The appellant says the application judge made two reversible errors that affected the conclusion in his s. 24(2) analysis, that the first branch of the Grant inquiry (R. v. Grant, 2009 SCC 32, 2 S.C.R. 353) favoured admission of the evidence.

[4] First, the appellant argues that the application judge failed to take into consideration in the s. 24(2) analysis, his earlier findings that the ITO had omitted material facts (specifically observations of the appellant's attendances at other addresses during the two days of surveillance recounted in the ITO), and included unsubstantiated claims about the appellant's background from police databases, which the application judge characterized as "prejudicial and of marginal relevance."

[5] We disagree. The application judge's conclusion that the omission of observations suggesting the potential for an alternate stash house, and the inclusion of the police database material, were not false or deliberately misleading or evidence of bad faith, is entitled to deference.

[6] Although characterized by the application judge as "prejudicial and of marginal relevance", the information from the police databases situated the appellant in the drug subculture, and could assist in understanding the short transactional meetings with people in parking lots that were observed in the police surveillance. Earlier in his reasons, in dealing with the s. 8 breach, the application judge observed that this information may have provided the affiant with the subjective grounds for belief the appellant was involved in drug-related activity and were included for the sake of completeness.

[7] On a fair reading of the application judge's reasons as a whole, he did not overlook the deficiencies in the ITO in dealing with the Grant test, but considered them when he concluded there was no bad faith, use of false or deliberately misleading information or disregard by the police of the Charter rights of the appellant.

[8] Second, the appellant contends that the application judge erroneously characterized the evidence seized from the house as "discoverable," which affected his conclusions under both the first and the second branches of Grant. The appellant says the application judge engaged in speculation when he noted that the police "might have been able to acquire sufficient grounds to justify the search if they had continued their investigation further".

[9] Evidence is "discoverable" for the purpose of s. 24(2) when it "could have been obtained through lawful means had the police chosen to adopt them". Discoverability will have no impact on the inquiry where it cannot be determined with any confidence whether evidence would have been discovered in the absence of the Charter breach: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 70. It is an error to engage in impermissible speculation in assigning weight to discoverability as a factor: R. v. MacMillan, 2013 ONCA 109, at para. 63.

[10] The application judge's characterization of the evidence as "discoverable" was based on the fact that, before the warrant was issued, and just preceding his arrest, the appellant was observed leaving the Prosperity address and without making any stops, engaging in an apparent hand-to-hand drug transaction. This observation provided the nexus between the Prosperity residence and the appellant's drug trafficking the application judge considered to be missing from the ITO. The application judge's conclusion respecting discoverability of the evidence was based on fact, not speculation.

[11] For these reasons, the conviction appeal is dismissed.

Sentence Appeal

[12] The appellant seeks leave to appeal his net sentence of imprisonment of five years (four years and nine months after credit for restrictive bail conditions).

[13] First, the appellant says that the trial judge erred by imposing a concurrent sentence for careless storage of a firearm that exceeded the statutory maximum sentence for a s. 86(1) offence (two years' imprisonment for a first offender). This is conceded by the Crown. The sentence for the s. 86(1) offence accordingly is reduced on consent of the Crown to one year imprisonment, concurrent to the other sentences.

[14] Second, the appellant contends that the trial judge erred by inferring solely on the basis of the quantity of seized cocaine, that he was a mid-level dealer.

[15] We see no such error. The evidence supported the trial judge's conclusion beyond a reasonable doubt that the appellant was a mid-level drug dealer. The cocaine in the Prosperity residence consisted of almost a quarter kilogram of cocaine divided between several bags and included a large block of powder cocaine. It was conceded that the value of the cocaine was approximately $23,000. Further, the appellant had quantities of three different controlled substances in his room, as well as a loaded semi-automatic firearm. The evidence supported the trial judge's inference that the appellant was operating as a "mid-level" dealer.

Disposition

[16] For these reasons, the conviction appeal is dismissed, leave to appeal sentence is granted and the sentence appeal is allowed in part, in accordance with paragraph 13 of these reasons. In all other respects, the appellant's sentence remains the same.

E.A. Cronk J.A.

R.A. Blair J.A.

K. van Rensburg J.A.

[1] The issues on the conviction appeal arise from a ruling made on a pre-trial Charter application heard by Justice Andrew Goodman, reported at 2015 ONSC 1557.