Court File and Parties

Court of Appeal for Ontario Date: 20210611 Docket: C68362

Before: Benotto, Trotter and Nordheimer JJ.A.

Between:

Her Majesty the Queen Respondent

and

Sara Fuller Appellant

Counsel: Sara Fuller in person Breana Vandebeek, as duty counsel Tanit Gilliam, for the respondent

Heard: June 8, 2021 by video conference

On appeal from the conviction entered on January 22, 2020 by Justice Jonathan C. George of the Superior Court of Justice.

Reasons for Decision

[1] Ms. Fuller appeals from her convictions on five counts of possession of drugs for the purpose of trafficking.

[2] The drugs were found in a basement apartment rented by the appellant after the police executed a search warrant for the residence as a whole. At the time, the police were looking for goods stolen during a break and enter robbery at another residence that had occurred a couple of months earlier.

[3] With respect to that break-in, a witness had observed a black Ford Explorer outside the residence. A male came out of the Ford Explorer and broke into the residence by kicking in the front door. The witness took a picture of the Ford Explorer. The break-in occurred on August 17, 2018. A number of items were taken from the residence, including a jewellery box, various different sets of earrings, and a ring.

[4] When the police began their investigation into the break-in, they discovered that the Ford Explorer had stolen licence plates affixed to the vehicle. A couple of weeks later, the same vehicle was observed at a gas station where gas was put into the vehicle and then the vehicle left without paying.

[5] On October 17, 2018, the police located the Ford Explorer at a residence. The vehicle was still at this address the next day. The police began the process to obtain a search warrant for that residence. However, after obtaining the search warrant, but before executing on it, the police discovered that the Ford Explorer was no longer at the residence. Rather, the next day, on October 19, the police located the Ford Explorer at a second residence, this being the residence where the appellant leased the basement apartment.

[6] The police obtained another search warrant for this second residence. The Ford Explorer, still bearing the stolen licence plates, was parked outside. The police executed the search warrant. In the process of the search, drugs were found in the basement apartment.

[7] The appellant challenged the issuance of the search warrant for the second residence. She submitted that there were insufficient grounds for its issuance. In particular, the appellant submitted that there was an insufficient basis to believe that the stolen goods would still be in the possession of the individuals who committed the break-in, two months after it had occurred and that there was an insufficient connection between the vehicle and the residence.

[8] The trial judge disagreed. While he said that he might have reached a different conclusion than the Justice of the Peace who issued the search warrant, he correctly stated that that is not the test. The trial judge found that there was enough information contained in the Information to Obtain to justify the issuance of the search warrant. In particular, he found that there was sufficient information for the police to form a reasonably grounded belief that the stolen goods would be found in the residence. As the trial judge said, “absolute certainty and definitive concrete knowledge is not what is required.”

[9] The trial judge did not directly address the staleness argument. However, we do not accept that the passage of two months was sufficient to invoke that basis for undermining the search warrant. Given the nature of the stolen goods, there was no compelling reason to believe that the goods would have been disposed of within that time frame. As the British Columbia Court of Appeal observed in R. v. Ballendine, 2011 BCCA 221, 271 C.C.C. (3d) 418, at para. 54:

Merely because information is "dated" does not mean it is "stale". While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor.

[10] The Information to Obtain set out a sufficient basis to believe that the stolen goods, or some of them, would still be in the possession of the person who committed the break-in. There was a direct connection between that person and the Ford Explorer. There is also a direct connection between the Ford Explorer and the residence, both from its presence in the driveway of the residence, and the presence of prior parking tickets for the vehicle, all related to the area in which the residence is located. Thus, it was open to the Justice of the Peace to conclude that there were sufficient grounds for the search warrant to issue for the residence in question. We do not see any error in that conclusion or in the trial judge’s conclusion upholding its issuance.

[11] In terms of the trial proper, the main objection raised by the appellant is the trial judge’s reference to the failure of the appellant to testify at the trial. While it would have been preferable if the trial judge had not engaged in that discussion, we are not satisfied that it constitutes an error that undermines the ultimate conclusion he reached regarding the guilt of the appellant. The trial judge identified the various pieces of evidence that would establish possession of the drugs by the appellant. His reference to the appellant’s failure to testify, in this circumstantial case, was only intended to demonstrate that there was no evidence that would establish a reasonable inference other than guilt, as discussed in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[12] The appeal is dismissed.

“M.L. Benotto J.A.”

“Gary Trotter J.A.”

“I.V.B. Nordheimer J.A.”