Court of Appeal for Ontario

Date: 2022-10-03 Docket: C68657, C68663 & C68743

Before: Tulloch, Nordheimer and Harvison Young JJ.A.

Docket: C68657

Between: His Majesty the King, Respondent and Jamal Daye, Appellant

Docket: C68663

And Between: His Majesty the King, Respondent and Joshua Isaac, Appellant

Docket: C68743

And Between: His Majesty the King, Respondent and Raheem Saunders, Appellant

Counsel: Ashley Sewrattan, for the appellant, Jamal Daye Margaret Bojanowska, for the appellant, Joshua Isaac Peter Thorning, for the appellant, Raheem Saunders David Quayat and Erryl Taggart, for the respondent

Heard: September 8, 2022

On appeal from: The convictions entered by Justice James A. Ramsay of the Superior Court of Justice on January 22, 2020 (C68657, C68663 & C68743). The sentence imposed by Justice James A. Ramsay of the Superior Court of Justice on October 2, 2020 (C68663).

Reasons for Decision

[1] Messrs. Daye, Isaac and Saunders appeal from their convictions relating to drug offences. Mr. Isaac also seeks leave to appeal his sentence. The appellants raise a number of joint grounds of appeal and they raise some individual grounds of appeal. For the reasons that follow, the appeals from the convictions are dismissed. Mr. Isaac is granted leave to appeal his sentence and his appeal is allowed as set out below.

A. Background

[2] The police received information from three confidential informants that two individuals, whom the police subsequently identified as Daye and Isaac, were dealing drugs in Niagara Falls. Daye and Isaac were staying in a room in a local motel. They occupied room 115. The police set up surveillance on the motel. They undertook surveillance on Daye and Isaac for approximately a month. The police observed the two drive to various locations and meet with people for short lengths of time. In the opinion of the police, this conduct was consistent with Daye and Isaac being engaged in drug transactions.

[3] On the day of the arrests, the police observed the appellant Saunders and his girlfriend check into the same motel. They occupied room 215, which happened to be directly above the room occupied by Daye and Isaac. Later that day, all three appellants were observed driving between Niagara Falls, Welland, and St. Catharines. Saunders was driving. The police also observed Saunders going back and forth between rooms 115 and 215 on three occasions that day.

[4] The police obtained a search warrant for room 115, which they executed. Prior to executing the search warrant, Daye and Isaac were arrested. In the course of executing the search warrant, Saunders was found in the lobby of the motel by an officer from the Emergency Task Unit (“ETU”), who were assisting in the execution of the search warrant. The ETU officer had been told that a person associated with room 115 might be in the lobby. The ETU officer, upon entering the lobby, ordered Saunders and an employee of the motel to get on the ground for safety reasons. Saunders was detained and handcuffed after an officer found marijuana on his person.

[5] The police located drugs including cocaine, heroin adulterated with fentanyl, morphine and caffeine, and a significant sum of cash in room 115. Scales and other paraphernalia were also located.

[6] Based on the results of the search, and other information, the police then proceeded to obtain a search warrant for room 215. During the search of room 215, more adulterated heroin was found, along with identification belonging to Saunders.

B. The Grounds of Appeal

(1) The trial judge’s failure to engage s. 24(2) of the Charter upon finding a s. 10(b) Charter breach

[7] After the appellants were arrested and taken to the police station, there were delays in allowing the appellants to speak with counsel, which they had all asked to do. The trial judge found that the s. 10(b) Charter rights of the appellants had been breached by these delays and that those breaches were serious. The trial judge did not, however, conduct a s. 24(2) analysis on whether the evidence obtained through the search warrants should be excluded because the trial judge found that the evidence had not been obtained as a result of the s. 10(b) breaches.

[8] The appellants challenge the trial judge’s ruling on this issue. They contend that the s. 10(b) breaches were both temporally and contextually connected to the evidence. We disagree. First, the fact that two events happen around the same time does not make those events temporally connected for the purposes of this analysis. In this case, the arrest of Daye and Isaac occurred prior to the execution of the search warrant on room 115. It did not impact on the obtaining of the search warrant nor on the execution of it. Similarly, the arrest of Saunders occurred before the search warrant was obtained for room 215. The arrests, and the searches, are not temporally connected to the s. 10(b) breaches, which occurred much later, nor are they contextually connected. The trial judge was correct in his reliance on the decision of this court in R. v. Do, 2019 ONCA 482 with respect to this issue.

(2) The refusal to permit cross-examination of the affiant

[9] The trial judge refused to permit the appellants to cross-examine the officer who had sworn the Informations to Obtain (“ITOs”) with respect to both search warrants. The appellants say that cross-examination was required to permit them to make full answer and defence. They say that cross-examination would have gone to the central issue whether the search warrants could have been issued.

[10] The trial judge rejected the appellants’ contention that cross-examination would assist on the issue of whether the search warrants could have issued. He found that cross-examination would not accomplish anything “other than to amplify the record and support the issuance of the warrant”.

[11] In order to challenge the trial judge’s discretionary decision on this point, the appellants must demonstrate an error in principle, a material misapprehension of evidence, or an unreasonable finding: R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at para. 84. The appellants have not shown any of those prerequisites. Consequently, the trial judge’s discretionary decision is entitled to deference.

(3) The trial judge erred in determining that the search warrants could have issued

[12] The appellants contend that the trial judge erred by concluding on the record before him that the search warrants could have issued. We do not agree.

[13] With respect to room 115, there was a basis for the issuing justice to conclude that the information provided by the confidential informants was reliable. That information was coupled with the extensive surveillance evidence that strongly suggested that drug transactions were being conducted by Daye and Isaac. There is no basis for suggesting that the officers did not have a reasonable subjective belief, that was also objectively reasonable, for that conclusion.

[14] With respect to room 215, police observed Saunders with Daye and Isaac during the suspected drug transactions on the day that the search warrant for room 115 was executed. Saunders was also seen going back and forth between rooms 115 and 215. He was arrested for possession of marijuana and proceeds of crime after a search incident to investigative detention. The warrant for room 215 was not “based solely on suspicion and a police hunch” as the appellant contends.

[15] While we agree with the appellants that the affiant could have done a better job in the ITOs of providing the source for some of her information, in the circumstances of this case, that failure is not fatal. There was a sufficient foundation in the ITOs for the issuing justice to determine that the information provided was reliable and trustworthy for the limited purpose for which it was required, that is, to provide reasonable grounds for the issuance of the warrants.

(4) The trial judge erred in not finding that the s. 9 Charter rights of Saunders were breached

[16] Saunders contends that his arrest in the lobby of the motel breached his s. 9 Charter rights. He contends that there were no grounds to detain him for investigative purposes nor to arrest him.

[17] Again, we do not agree. First, the evidence shows that Saunders and a motel employee were initially detained as a safety measure as the execution of the search warrant began. Second, the officer who detained Saunders had information that he was connected to the motel room that was to be searched. In our view, that was sufficient to permit a detective, who very shortly appeared on scene, to detain Saunders for investigative purposes. The detective conducted a pat down search on Saunders and located marijuana and cash in his pockets. Saunders was then arrested.

[18] On this issue, we believe that Saunders confuses the requirement for an investigative detention and the requirement for an arrest. His presence in the lobby, together with the information about his connection to the room to be searched, was sufficient to justify his detention for investigative purposes. The fact that drugs were then found on him justified his arrest. There was no s. 9 Charter breach.

[19] We also do not accept that the subsequent s. 10(b) breaches can retroactively render the detention and arrest a breach under s. 9 of the Charter. We note that the appellant, Saunders, does not cite any authority for this proposition in circumstances as are present here.

(5) Saunders’ conviction was unreasonable

[20] The drugs in room 215 were found in a knapsack. Saunders contends that there was insufficient evidence to connect him to the knapsack given the presence and connection of his girlfriend to the room.

[21] The evidence in this case as it relates to Saunders was circumstantial. However, there were a number of factors that connected Saunders to the drugs found including that he knew Daye and Isaac who were dealing drugs; Saunders drove Daye and Isaac around on the day in question; Saunders went to room 115 on three occasions where drugs were available; Saunders’ identification was found in room 215; and the drugs found in the knapsack were similar to those found in room 115, particularly the heroin that was adulterated with fentanyl and caffeine.

[22] The trial judge drew the inference from these facts that the drugs in the knapsack were in the constructive possession of Saunders. The fact that those same drugs might also have been in the possession of his girlfriend does not preclude the conclusion that they were also in the possession of Saunders.

[23] The appellants suggest that there were reasonable inferences to be drawn from the evidence, other than that the drugs were in the possession of Saunders, but they fail to enunciate what those other reasonable inferences are. They also rely on this court’s decision in R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273. With respect, that decision is factually dissimilar, especially in terms of the number of individuals who had access to the common area where the duffel bag was found in Lights: at para. 105.

[24] Finally, we note that Saunders did not give evidence at trial. There is a well‑established principle that, when considering the reasonableness of a verdict, an appellate court is entitled to treat an appellant's silence as indicating that the appellant could not provide an innocent explanation of his or her conduct. This principle is set out in a number of cases: see, for example, R. v. Dell (2005), 194 C.C.C. (3d) 321 (Ont. C.A.), at para. 35.

(6) The trial judge erred in finding that Isaac’s s. 11(b) Charter rights were not breached

[25] After the pre-trial motions in this case were disposed of, Isaac was prepared to proceed to trial immediately. However, Daye and Saunders were not. Once a trial date that was available to all accused was set, the case was four months beyond the limit set in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[26] The delay in this case was not unreasonable given that there were three accused that the respondent was entitled to want to have tried jointly. While we agree that the prosecution’s desire for a joint trial cannot override the s. 11(b) rights of any one of the accused, it is nonetheless a factor in considering whether the delay is reasonable. As Moldaver J. said in R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 6: “[D]elay caused by proceeding against multiple co‑accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial.”

[27] There was no pattern of delay in this case by the other accused. There was this one instance where their availability diverged. The respondent was entitled to maintain the joint trial in those circumstances. We also note that Isaac never sought severance of his charges when this delay arose. The trial judge properly considered the delay in the setting of the trial date to be defence delay.

[28] Before leaving this issue, we would add that the consideration of this issue was very much complicated by certain ill-advised comments of the trial judge. When Crown counsel advised him that two of the accused would be bringing s. 11(b) motions, the trial judge responded, “[g]ood luck with that”. When the s. 11(b) motions were argued, the trial judge dismissed them without hearing from Crown counsel.

[29] It is not at all surprising, given those events, that Isaac submits that the result of his s. 11(b) motion was prejudged. That is certainly the impression that the trial judge gave in this case. That reality does not change the fact, however, that viewed fairly and objectively, the s. 11(b) motion could not succeed. That said, though, it would be much better, as a general proposition, if trial judges, who do not have fair, relevant, and necessary, observations to make, remained silent.

(7) Isaac’s sentence appeal

[30] Before the trial, Isaac agreed to a statement of facts that meant that the respondent did not have to separately prove its case against him. At the time of sentencing, the respondent acknowledged that Isaac’s adoption of the agreed statement of fact was tantamount to a guilty plea and should be treated as such for the purposes of sentencing.

[31] The respondent asked for a sentence of seven years for Isaac and nine and one-half years for Daye. The respondent submitted that a lesser sentence for Isaac was warranted because of his guilty plea. The trial judge sentenced both Isaac and Daye to six years minus credit for pre-sentence custody.

[32] In his sentencing reasons, the trial judge said that he saw “little difference” between Isaac and Daye. He found that they were “equal partners in the same enterprise”.

[33] It is clear that the trial judge failed to consider the very relevant factor that Isaac had, essentially, pleaded guilty. The failure to consider a relevant factor justifies appellate intervention. Thus, we must determine the appropriate sentence to be imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 43.

[34] The sentence to be imposed on Isaac should have been less than the sentence imposed on Daye, mainly because of the guilty plea but also because he was convicted of being in possession of less drugs. Given the six-year sentence imposed on Daye, we would substitute a sentence of four years for Isaac.

C. Conclusion

[35] The appeals against conviction are dismissed. We grant leave to Isaac to appeal his sentence, set aside the global six-year sentence imposed, and substitute a global sentence of four years, subject to the same credit for pre‑sentence custody. All ancillary orders remain the same.

M. Tulloch J.A.

I.V.B. Nordheimer J.A.

A. Harvison Young J.A.