Court of Appeal for Ontario

Date: 2019-01-11 Docket: C62890

Judges: Watt, van Rensburg and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Alexandru Soltan Appellant

Counsel

Daniel C. Santoro and Zahra Shariff, for the appellant

Jennifer Epstein, for the respondent

Heard

November 6, 2018

Appeal Information

On appeal from the conviction entered by Justice Marvin A. Zuker of the Ontario Court of Justice on July 4, 2016.

Reasons for Decision

[1] Nature of the Appeal

This is a conviction appeal. The appellant was unsuccessful at first instance in his challenge, under s. 8 of the Charter, to the validity of a search warrant issued under the Controlled Drugs and Substances Act, leading to the seizure of drugs and other items. The appellant was convicted of various offences, including possession for the purpose of trafficking a number of drugs.

[2] Grounds of Appeal

The appellant advances one ground of appeal with two parts. He argues that the trial judge's reasons, both in refusing leave to cross-examine the affiant on the information to obtain the search warrant (the "ITO") and in concluding that the ITO could reasonably support the issuance of the warrant, were insufficient to permit appellate review.

[3] Standard for Reviewing Sufficiency of Reasons

The inadequacy of reasons is not a free-standing ground of appeal. An appellate court must look beyond deficient reasons and determine whether the reasons for the decision are patent on the record. A functional approach is thus required in the review of the sufficiency of reasons, and requires an examination of the evidence and of the submissions of the parties: see R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at paras. 44-46; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 42-43.

[4] The Information to Obtain

The ITO in this case was based primarily on information provided by a confidential informant ("CI"), who personally knew the appellant. The CI informed the police that the appellant was dealing a variety of drugs from a particular apartment unit, where he said the appellant lived. The CI provided details as to the types and quantities of drugs he had seen in the appellant's apartment, and he said that the appellant was never out of drugs. The ITO stated that the CI was immersed within the criminal subculture, had provided accurate and reliable information to the police, and was motivated by an incentive he or she would receive upon the success of the investigation.

[5] Cross-Examination Application

The appellant's trial counsel sought leave to cross-examine the affiant on two issues: (a) whether the CI had a track record of providing reliable information, or whether the statement that he had "provided information to the [p]olice which has led to active drug investigations" simply meant that the CI had provided information in the subject investigation; and (b) whether the CI had a criminal history which had not been disclosed, and whether the issuing justice was therefore misled by the statement that the CI had "no known history of any charges or allegations relating to deceit, obstruct or public mischief". The ITO contained information as to whether or not the CI had a criminal record, but this section of the ITO was redacted in the proceedings before the trial judge to protect the identity of the CI.[1]

[6] Crown's Position on Cross-Examination

Crown counsel opposed the cross-examination on the basis that it did not meet the test that there was a reasonable likelihood that cross-examination of the affiant would elicit testimony tending to discredit the existence of one or more of the preconditions to the issuance of the search warrants: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 40; R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1465. In the course of argument, Crown counsel also submitted that, even if the information respecting the CI's proven reliability were removed from the ITO, the information provided by the CI would meet the Debot criteria that it was sufficiently compelling, credible, and corroborated to justify the issuance of the warrant: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168.

[7] Trial Judge's Oral Reasons

The trial judge provided oral reasons declining the request to cross-examine the affiant. The appellant says that the oral reasons are insufficient to permit appellate review.

[8] Court's Assessment of Trial Judge's Reasons on Cross-Examination

We disagree. The trial judge correctly articulated the test for cross-examination of an affiant of an ITO. He then identified the areas defence counsel wished to pursue in cross-examination. Unfortunately, toward the end of his reasons, the trial judge appears to have moved into considering the issue on the Garofoli application – when he stated that he was "satisfied in the totality of the circumstances that the information provided by the informant was sufficiently confirmed by the police" and that "on a review of the ITO, [he was] satisfied it was reliable evidence that might reasonably be believed on the basis of which the authorization could have [been] issued".

[9] Sufficiency of Reasons in Context

We agree, however, with the respondent that the trial judge ultimately considered and turned his mind to the proper criteria, and in fact determined that the cross-examination that defence counsel proposed (which was limited to two areas, and not the seven possible topics identified by appellate counsel) would have made no difference to the outcome of the Garofoli application, as there was sufficient other information in the ITO to support the warrant. While the trial judge's reasons are imprecise and unfocussed, when read in the context of the record and the submissions on the live issues before him, they demonstrate that the judge seized the substance of the matter when he dismissed the motion to cross-examine the affiant of the ITO: see R.E.M., at paras. 42-43. In this case, the substance of the matter was whether the cross-examination of the affiant on the proposed areas could elicit information that would undermine the existence of grounds for the issuance of the warrant. Given the compelling and precise information contained in the ITO and the parties' submissions on this question, the inadequacy of the judge's reasons does not prejudice the appellant's exercise of his right to appeal.

[10] Standard of Review

Absent an error in principle, a material misapprehension of the evidence, or an unreasonable decision, the trial judge's determination of this issue is entitled to deference: Garofoli, at p. 1465; R. v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d) 299, leave to appeal refused, [2017] S.C.C.A. No. 93, at para. 55.

[11] Cross-Examination on CI's Track Record

The reviewing judge was entitled, in the exercise of his discretion, to refuse leave for the appellant's cross-examination on the CI's track record. It was open to the judge – and we would not interfere with his conclusion – to find that the CI's credibility and the reliability of the information the CI provided could be considered without permitting cross-examination on this issue. Nor do we see how cross-examination on whether the affiant meant that the CI had been proven reliable on prior occasions or simply during the subject investigation would have assisted the judge. The affiant's statement that "[t]he CI in this investigation has provided information to the [p]olice which has led to active drug investigations and proved to be accurate, credible and reliable" is not, in our view, reasonably open to the interpretation advanced by the appellant – that the affiant was talking only about the current investigation and not any prior investigation.

[12] Cross-Examination on CI's Criminal Record

As for the proposed line of questioning on the CI's criminal record, there was no reasonable prospect that the issuing justice would have been misled by comments about the CI's history of charges, and accordingly the extent to which this may have affected the reliability of the information the CI provided. As already noted, information about whether the CI had a criminal record, although redacted from the ITO in the application before the trial judge, was available to the issuing justice.

[13] Challenge to Trial Judge's Reasons on Garofoli Application

As for the appellant's challenge to the trial judge's reasons for dismissing the challenge to the search warrants, the appellant argues that trial counsel's arguments were unfairly curtailed on the Garofoli application because the judge had effectively already determined the application on its merits when he denied the appellant leave to cross-examine the ITO's affiant.

[14] Court's Assessment of Garofoli Application

We do not give effect to this ground of appeal. The appellant's argument is not borne out by the record. The trial judge heard argument on the Garofoli application, which included some of the same arguments that had been made in the motion to cross-examine, as well as additional arguments, including that the CI's information was stale and therefore unreliable. The trial judge provided reasons for denying the application, which mostly summarized the parties' submissions. When these reasons are considered in the context of the record, however, they demonstrate that he grasped the issue he was to determine, that he considered and understood the arguments that were made, and that he disposed of the application after identifying and applying the proper test.

[15] Sufficiency of Information for Warrant

In this case, the information provided by the CI was specific and based on first-hand knowledge. The defence acknowledged that the information was compelling. The CI had provided credible and reliable information to the police in the past, and many of the details provided by the CI in this case were corroborated by the police investigation. The information provided by the CI met the Debot criteria and, together with all of the other information that was before the issuing justice, justified the issuance of a warrant.

[16] Disposition

The appeal is therefore dismissed.

"David Watt J.A."

"K. van Rensburg J.A."

"David Brown J.A."

Footnote

[1] This information was available in the draft judicial summary prepared by Crown counsel in anticipation of the application moving to "step six" under Garofoli.