Court of Appeal for Ontario

Date: 2017-06-29 Docket: C60445

Judges: Strathy C.J.O., Benotto and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Andrew Daniels Appellant

Counsel

Breana Vandebeek, for the appellant Lisa Csele, for the respondent

Heard: June 21, 2017

On appeal from the conviction entered by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting with a jury, dated November 27, 2014.

Reasons for Decision

Background

[1] At the conclusion of the hearing of the appeal, we dismissed the appeal, with reasons to follow. These are those reasons.

[2] Acting on a tip from a confidential informant, the Toronto police obtained a telewarrant to search the appellant's apartment, which resulted in a seizure of drugs. The appellant was tried before a jury and found guilty of possession for the purposes of trafficking. He was sentenced to a 16 month conditional sentence. He appeals his conviction and seeks leave to appeal sentence.

[3] The appellant challenged the telewarrant on numerous grounds. The trial judge quashed the warrant on the narrow basis that the affiant had failed in the ITO to provide any explanation of why it was necessary to resort to the telewarrant procedure, rather than appearing in person before a justice of the peace. Notwithstanding the violation of s. 8 of the Charter, the trial judge admitted the evidence obtained from the search under s. 24(2).

Issues

[4] With respect to the conviction appeal, the appellant argues that the trial judge erred: (1) in restricting the appellant's cross-examination of the affiant of the ITO; (2) in finding there were reasonable and probable grounds to issue the warrant; and (3) in not excluding the evidence obtained in the search.

[5] With respect to the sentence appeal, the appellant argues that the sentence is unfit, and the trial judge erred in not granting him credit as a result of the Charter breach.

Conviction Appeal

Cross-examination of the Affiant

[6] The appellant argues that the trial judge made numerous errors in restricting the appellant's cross-examination of the affiant of the ITO, which restrictions frustrated the appellant's ability to argue there were not reasonable and probable grounds to issue the warrant.

[7] The main thrust of the appellant's argument is that there were numerous omissions and misrepresentations in the ITO, which called into question the extent to which the affiant provided full, fair, and frank disclosure. The appellant hoped to explore, through cross-examination, whether the affiant made deliberate misrepresentations, which would constitute an independent basis to quash the warrant, and would necessitate a fresh s. 24(2) analysis.

[8] Chief among the omissions was the failure to advise that the confidential informant had never before provided the police with information. Among the alleged misrepresentations were statements about: (i) police observations of the quantity and location of drug packaging in the hallway and stairwell outside the appellant's apartment, (ii) police observations of whether the smell of marijuana outside the appellant's apartment was fresh or burnt, and (iii) the confidential informant's physical description of the appellant.

[9] We do not agree that the trial judge made an error in refusing cross-examination on these matters. The decision of whether to permit cross-examination is discretionary. In making the decision, the trial judge must determine whether there is a reasonable likelihood that the cross-examination could undermine the basis upon which an authorizing judge could grant the order.

[10] The trial judge carefully considered each of the appellant's submissions, and assessed whether the information that could be obtained through cross-examination on these issues could have vitiated the warrant. He concluded no. The reasons given by the trial judge are in every respect a model of care and precision of thought. The trial judge painstakingly went through each proposed area of examination and explained, through logic and reference to the rest of the information contained in the ITO, how the proposed areas of examination were either far too speculative or otherwise incapable of undermining the order. We find no error.

Reasonable and Probable Grounds to Issue the Telewarrant

[11] The appellant argues further that the trial judge erred in rejecting several additional bases for quashing the telewarrant, and ought to have concluded that there were not reasonable and probable grounds to issue the warrant.

[12] It is well-settled that the question for the reviewing judge is whether the warrant could have been issued, not whether the reviewing judge would have issued it: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. Here, the trial judge concluded that the issuance of the warrant was "inevitable", notwithstanding the credibility issues attached to the confidential informant (due to his criminal record, lack of a history of providing credible tips, participation in drug sub-culture, and self-interest in providing information), and notwithstanding various technical drafting errors that were made in good faith.

[13] The trial judge was satisfied that the information was compelling and corroborated. The information received was not generic, but specific with respect to the types of drugs the informant claimed to have purchased from the appellant at his apartment, as well as the details such as drug storage location and quantities, and the name, address, and cell phone number of the supplier, as well as his physical description.

[14] With respect to corroboration, the trial judge noted that the police confirmed with building management the unit number and telephone number supplied by the informant. They attended outside the unit number and smelled a strong marijuana odour emanating from the apartment and filling the hallway. They also observed drug packaging in the hallway. Additionally, while in the apartment building, they were approached by a resident who volunteered that "the guy in 311" was a problem, and had "druggies" coming to the door at all hours, day and night.

[15] The trial judge concluded from all of the foregoing that there were ample grounds upon which the issuing justice could have issued the warrant, and he made no error in doing so.

Section 24(2) Ruling

[16] As stated above, the basis for the trial judge's conclusion that the search of the appellant's apartment infringed s. 8 of the Charter was the failure to justify the use of the telewarrant procedure. The trial judge found that this was not a sufficiently serious breach of the appellant's s. 8 rights to justify an exclusion under s. 24(2) of the drugs seized. The appellant has not identified any errors in the trial judge's analysis founded on that particular breach. Given that we do not give effect to the appellant's argument that the trial judge erred in not finding additional s. 8 breaches, we necessarily reject the appellant's s. 24(2) argument premised on those additional breaches.

Leave to Appeal Sentence

[17] The appellant was sentenced to a conditional sentence of 16 months, plus a probationary period of two years. The custodial portion of the sentence has been served, but the appellant seeks to have the probation order vacated on the basis that he ought to have been granted a sentence reduction for the s. 8 breach, and also because the sentence was harsh in the circumstances of the appellant's health issues and lengthy house arrest while on bail.

[18] There is no error in principle or other error that would permit a variation of sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. Leave to appeal sentence is refused.

Disposition

[19] The appeal of conviction is dismissed. Leave to appeal sentence is refused.

"G.R. Strathy C.J.O."

"M.L. Benotto J.A."

"B.W. Miller J.A."