WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

DATE: 20221018

DOCKET: C70207

Tulloch, van Rensburg and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Dennis Rhodes Appellant

Counsel: Dennis Rhodes, acting in person Naomi Lutes, appearing as duty counsel Jeffrey Wyngaarden, for the respondent

Heard: October 3, 2022

On appeal from the convictions entered by Justice P.H. Marjoh Agro of the Ontario Court of Justice on October 14, 2021, and from the sentence imposed on October 27, 2021.

REASONS FOR DECISION

Background

[1] The appellant was convicted of three counts of voyeurism contrary to s. 162 of the Criminal Code, one count of prowling at night contrary to s. 177 of the Criminal Code, and one count of indecent act contrary to s. 173(1) of the Criminal Code. He was sentenced to 18 months imprisonment on each count concurrent less any pre-sentence custody to be followed by three years of probation. He appeals his convictions and seeks leave to appeal his sentence.

[2] On December 10, 2019, around 11:30 p.m., a woman called 911 to report a man prowling in her backyard; the man had been captured on home surveillance video at 11:23 p.m. that evening. While waiting for the police, she, along with another resident, reviewed the surveillance footage for the entire day. The same man appeared to be prowling on the property that morning, peering into a basement window, and placing his hands into his pants and masturbating.

[3] The two residents who viewed the video then saw the man captured on video getting into a black BMW sedan. All of this information was shared with the police who responded to the call. At 12:48 a.m., the appellant was arrested while in the driver’s seat of the BMW parked a short distance away from the residence. At the time of his arrest, the appellant was in possession of two cell phones. These phones were seized by the police.

[4] The appellant was taken to the station, but the BMW remained at the scene of the arrest. Prior to being taken to the station, the appellant requested that certain items, such as his wallet and money, remain in the vehicle for his wife to retrieve. The police acceded to this request. However, a decision was later made by the police to send an officer back to the scene to retrieve the wallet, cash, and “any other valuables” in the vehicle. The officer who conducted the search seized those items, and seized other items such as a health card belonging to a woman and a parking pass. A subsequent search of the wallet revealed identification belonging to a different woman.

[5] A search warrant was later obtained to search the two cell phones. The searches revealed multiple recordings, depicting women in various states of undress inside their homes. The recordings viewed by the police spanned from March 2017 to December 2019. A second search warrant was also obtained for the BMW. However, nothing else was seized that is relevant to this appeal.

[6] The appellant brought a pre-trial application claiming that his right against arbitrary detention and imprisonment, as guaranteed by s. 9 of the Canadian Charter of Rights and Freedoms, and his right to be secure against unreasonable search and seizure, as guaranteed by s. 8 of the Charter, were violated.

[7] Specifically, the appellant argued that there were no grounds to arrest him while he was seated in the BMW. He also submitted that there was no lawful basis to search the BMW and seize his wallet, cash, and the other items that the police found during that search. He requested that these items be excluded from the evidence. Finally, he brought a Garofoli application and argued that the information to obtain (ITO) used to acquire the warrant for the phones contained several statements that were “misleading” because they either misstated facts or omitted to mention other facts.

The Application Judge’s Reasons

[8] The application judge rejected the appellant’s s. 9 argument. She concluded that, in the totality of the circumstances, there was an objective basis for the officers to have had the subjective opinion enabling them to detain and then immediately arrest the appellant.

[9] However, the application judge found that there was a violation of the appellant’s s. 8 rights when an officer returned to the scene and searched his vehicle. She concluded that what occurred was not an inventory search of a vehicle as the police clearly determined they did not have lawful authority to seize or store the vehicle, and therefore did not have some responsibility to keep it or its contents safe. Ultimately, after balancing the three factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the application judge concluded that the seizure of the wallet, the money, and identification should be excluded from evidence under s. 24(2) of the Charter.

[10] In relation to the Garofoli application, the application judge concluded that while the ITO contained sloppy drafting, in the circumstances, the affiant of the ITO did not mislead the authorizing justice. She also concluded that, even if the erroneous statements or omissions were corrected, clarified, or excised, there would still be sufficient information capable of justifying a search warrant for the search of the phones and the vehicle.

[11] Following the application judge’s Charter rulings, the parties entered into an Agreed Statement of Facts upon which findings of guilt could be made. The appellant pleaded not guilty before the trial judge to preserve his right of appeal. The trial judge sentenced the appellant to an 18-month custodial sentence, concurrent on each charge, to be followed by 3 years’ probation.

Analysis

[12] The appellant appeals his convictions and seeks leave to appeal his sentence.

[13] First, in his notice of appeal, the appellant claims that the application judge erred in dismissing his s. 9 application by failing to resolve the inconsistencies in the evidence; by providing insufficient reasons to articulate why the officers had subjective grounds; and by finding that those grounds were objectively reasonable. During oral argument this ground of appeal was abandoned by the appellant through duty counsel. From our review of the record and the application judge’s reasons, this was an appropriate concession because there is no merit to this ground of appeal.

[14] Second, on behalf of the appellant, duty counsel argued that the application judge erred in the excision process during the Garofoli review by failing to apply the correct legal framework to the excision procedure. We disagree. In our view, the application judge did not err in her approach to excision. As a result of her decision to exclude the evidence seized from the vehicle during the initial search, the parties agreed that references to that information should be excised from the warrant. Accordingly, a redacted ITO was placed before the application judge for the purposes of the Garofoli review. The primary submission made by defence counsel during the Garofoli hearing was that the affiant of the ITO made several statements that were “misleading”. The application judge concluded that, notwithstanding sloppy drafting with regards to some details, there were reasonable grounds upon which the authorizing justice could have issued a warrant based on the ITO after the excisions had been made.

[15] We are satisfied that the application judge properly decided the ultimate question on the Garofoli application – whether, based on the record before the authorizing justice, as amplified on review, and with any necessary redactions, the authorizing justice could have granted the enabling order: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452. We see no error in the application judge’s approach to the review. Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, we owe deference to her findings and decline to intervene with her decision: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 89.

[16] Third, duty counsel argued that the ITO failed to set out a sufficient nexus between the search of the cell phone media and the alleged offences of prowling and voyeurism. Her primary submission was that there was no evidence set out in the ITO that a phone had been used in the commission of the offences, and therefore the crucial link that tied the phone to the offences set out in the warrant was missing. We do not accept this argument. As this court noted in R. v. Herta, 2018 ONCA 927, 370 C.C.C. (3d) 542, at para. 21, in reviewing the ITO for sufficiency, the application judge was required to take a “common-sense and holistic approach”. The ultimate question is whether the authorizing justice could have found that the content of the ITO in its redacted form, and the reasonable inferences that could be taken from it, gave rise to a credibly-based probability that evidence of the offences would be found on the phones. We think it would have been obvious to the authorizing justice that the search for digital media on the phone was squarely linked to the offences of voyeurism. We also believe that the search of the phone could have revealed the prior locations of the phone, which was relevant because the appellant was not arrested at the residence where the 911 call had been made. The location of the phone was also relevant to the offence of prowling. Lastly, the fact that the appellant possessed two phones provided a basis for the affiant to assert that a search of the phone might reveal relevant evidence as to the ownership of the phones.

[17] Finally, duty counsel has raised an issue that the manner of the search was unconstitutionally overbroad because the warrant purported to authorize the police to examine all digital media on the phones regardless of the temporal proximity of the media to the offence in December. We need not say more about this argument because it was not raised in the court below. The application judge did not have the benefit of hearing submissions on this point, nor was the Crown afforded any opportunity to respond by calling witnesses who conducted a search of the phones. In our view, the record is not sufficient to permit this issue to be raised for the first time on appeal: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 21-23.

Sentence Appeal

[18] The appellant argues that his sentence was excessive. The trial judge reviewed the appellant’s background, and the victim impact statements presented by the two residents who called 911 and discovered the video surveillance. Both detailed significant fear and anxiety as a result of the appellant’s actions.

[19] The trial judge carefully weighed the aggravating and mitigating factors and concluded that denunciation and protection of society were the main goals at play, as well as rehabilitation. Given the significant invasion of privacy, the trial judge concluded a custodial sentence of 18 months was appropriate. In our view, the sentence was fit and there is no basis to interfere with the trial judge’s balancing of the factors.