Court of Appeal for Ontario

Date: 2018-07-11 Docket: C56809

Judges: Doherty, MacPherson and Rouleau JJ.A.

Between

Her Majesty the Queen Respondent

and

Michael Clairoux Appellant

Counsel

Diane Condo, for the appellant Sandy Thomas, for the respondent

Heard: July 4, 2018

On appeal from the conviction entered by Justice Jacqueline Loignon, of the Ontario Court of Justice, on February 27, 2013.

Reasons for Decision

Introduction

[1] The appellant appeals his conviction for possession of cannabis resin, a Schedule II substance, for the purpose of trafficking.

[2] The charges against the appellant came about as part of a broad investigation into drug trafficking, money laundering, intimidation and debt collection associated with the Hells Angels and a group of individuals called "Order, Respect and Loyalty" (ORL). During the course of that investigation, the police obtained two authorizations to intercept communications of the appellant and others as well as a number of search warrants including for the appellant's residence and a clubhouse he frequented.

[3] When the police executed the search warrants on the appellant's premises, they seized two digital scales, ziplock bags with particles of marijuana, a hash press, various containers with packaged marijuana and cannabis leaves, 652 grams of tetrahydrocannabinol, 958.4 grams of cannabis resin and 795.6 grams of cannabis marijuana.

[4] The appellant was charged with possession of the drugs for the purpose of trafficking, along with conspiracy to traffic, various criminal organization offences, and possession of the proceeds of crime. He was only convicted of possession of cannabis resin for the purpose of trafficking. The appellant was acquitted on the charge related to the 795.6 grams of cannabis marijuana, as he possessed a medical certificate permitting him to possess 1100 grams of marijuana.[1]

[5] At trial, the appellant challenged the sufficiency of the grounds for the two authorizations as well as the search warrants. He also alleged that the justice of the peace who issued the two search warrants was biased as there had been an indirect familial link and some resulting social contact between the justice of the peace and the appellant. There had, however, been no contact for a number of years.

[6] The trial judge rejected the challenges to the sufficiency of the grounds for the authorization and the warrants, but accepted that the relationship between the appellant and the issuing justice gave rise to a reasonable apprehension of bias. After carrying out a s. 24(2) analysis, the trial judge determined that the drugs and other items seized would nonetheless be admitted.

[7] The appellant restricts his appeal to the validity of the two search warrants, the trial judge's s. 24(2) analysis and the trial judge's finding that the cannabis resin was possessed for the purpose of trafficking.

The Validity of the Search Warrant

[8] The appellant argues that the trial judge erred in finding that the search warrant for the appellant's residence was validly issued. He argues that the Information To Obtain (ITO) did not contain any information to suggest that drugs or the other objects listed on the ITO could be found at the appellant's residence and that the affiant misled the issuing justice by stating in the ITO that the appellant was "directly involved in the large-scale trafficking of controlled substances". As conceded by the police affiant, they had never observed the appellant actually trafficking a controlled substance or being engaged in a drug deal.

[9] We reject this submission, which was considered and rejected by the trial judge. She explained that, read in the context of the remainder of the 67-page ITO, it would have been apparent to the issuing justice that the appellant's involvement was as a co-conspirator in the scheme to traffic drugs. The evidence contained in the ITO included the fact that the appellant had received a large sum of money from a target of the investigation and attended the stash house. The wiretaps also provided evidence that the accused had arranged drug buys and was involved with payments and debts. In our view, the trial judge's finding is reasonable and we see no basis to interfere. It is to be recalled that an ITO must be read as a whole and words and phrases are not to be improperly parsed and read in isolation.

[10] We also reject the appellant's submission that the ITO did not contain any information to suggest that evidence of the conspiracy would be found in the appellant's home. While there may have been insufficient grounds to believe that narcotics would be found, the ITO made it clear that the appellant was alleged to be part of a conspiracy to commit an indictable offence, namely, trafficking in controlled substances. His involvement was such that electronic messages, ledgers of drug debts or other evidence relevant to the existence of a criminal organization might be found.

The s. 24(2) Analysis

[11] The appellant argues that in her s. 24(2) analysis the trial judge understated the seriousness of the Charter-infringing state conduct. The appellant repeats his submission that the ITO lacked the foundation for the issuance of the warrant, and adds that the trial judge failed to acknowledge the seriousness of the appearance of bias on the part of the issuing justice. Had she given the appropriate weight to these factors, she would, at the balancing stage, have concluded that the seized drugs and other items ought to be excluded.

[12] We disagree. The search warrant was set aside because of a reasonable apprehension of bias on the part of the issuing justice. There was no evidence to suggest that the police had any knowledge of a familial or other connection between that justice of the peace and the appellant. Further, as we have explained, we do not agree with the appellant's submission that the ITO contained misstatements by the police affiant or that there was an inadequate basis for the issuance of the warrant. The police acted properly and in good faith throughout, which favours the inclusion of the evidence.

[13] The s. 24(2) analysis begins from the premise that the Charter breach at issue has already done harm to the administration of justice. The appearance of bias on the part of the issuing justice led to the finding that the warrant was invalid, and the search was therefore deemed warrantless. In considering whether the improperly obtained evidence should nonetheless be admitted under s. 24(2), the question is whether the admission of the evidence will do further damage: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 69-70.

[14] In our view, the admission of the evidence on the specific facts of this case would not do further harm to the administration of justice than has already been done. There was no basis to suggest that the issuance of the search warrant by the justice of the peace was made in bad faith or as the result of actual bias. In fact, as noted earlier, there were ample grounds for the issuance of the warrants. As found by the trial judge, the concern was the public perception that, in light of the relationship, there would be a reasonable apprehension of bias. A reasonable person informed of these circumstances, having regard to the good faith conduct of the police, the seriousness of the charges, the reliability of the evidence and its critical role in the Crown's case, would not find that the repute of the justice system would require the evidence to be excluded. We agree with the trial judge that, to the contrary, in these circumstances, the exclusion of the evidence could undermine public confidence in the justice system. The trial judge's discretionary decision, in balancing all of these factors, is entitled to deference: R. v. Bennett, 2017 ONCA 780, [2017] O.J. No. 5264, at para. 64.

Possession for the Purpose of Trafficking

[15] We also reject the appellant's submission that the appellant was allowed to possess cannabis resin pursuant to his medical marijuana licence and that the trial judge erred in finding that the possession of the resin was for the purpose of trafficking.

[16] The trial judge rejected the appellant's explanation for his possession of the cannabis resin as well as his explanation for being in possession of a hash press. Further, the appellant's medical marijuana certificate does not provide for possession of cannabis resin and there was no evidence at trial that the resin was possessed for medical purposes. The trial judge's finding that the appellant's possession was illegal is entitled to deference.

[17] As for the finding that possession was for the purpose of trafficking, the nature and quantity of the drugs and other materials seized from the appellant's residence amply supports the trial judge's inference of possession for the purpose of trafficking. Significantly, this finding made the fact that the appellant was holder of a medical marijuana certificate irrelevant. R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602, on which the appellant relies, therefore has no application.

Conclusion

[18] As a result, we dismiss the appeal.

"Doherty J.A."

"J.C. MacPherson J.A."

"Paul Rouleau J.A."

[1] The record indicates that the appellant's certificate in fact allowed for the possession of 1125 grams of marijuana.