CITATION: R. v. Young, 2007 ONCA 714

DATE: 20071018

DOCKET: C45019

Court of Appeal for Ontario

FELDMAN, ARMSTRONG and LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

MAURICE YOUNG

Appellant

Michael W. Lacy for the appellant

Nicholas Devlin and Jason J. Wakely for the respondent

Heard: October 1, 2007

On appeal from the conviction entered on February 17, 2006 by Justice Michael Robert Dambrot of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

FELDMAN AND LANG JJ.A.:

[1] The appellant, Maurice Young, appeals his convictions of possession of cocaine and marihuana for the purpose of trafficking. He has already served his sentence. The appellant requests that this court quash the convictions and either direct that acquittals be entered or order a new trial. In support of his appeal, the appellant brings an application to admit fresh evidence in affidavit form.

[2] On May 22, 2002, members of the Toronto police executed a search warrant in the basement apartment of 16 Roseneath Gardens in Toronto. Inside, the police recovered 9.3 grams of crack cocaine and 253 grams of marijuana, as well as other drug paraphernalia. In the apartment bedroom, the police located a black day timer and a knapsack including receipts and bills in the name of Maurice Young. An electronic digital scale and lists of names and amounts of money consistent with the appearance of drug debt lists were also recovered. The day timer included several noted reminders to “walk the dogs”. Six pit bull puppies were found in the apartment. Documents in the name of Hugh McPherson were also found. However, this individual had been in jail for ten months at the time the search warrant was executed.

[3] At trial, the judge drew the inference that the day timer, knapsack and their contents were the property of the appellant. The trial judge accepted the evidence of Constable Bazmi, who testified that he had observed the appellant leaving the apartment prior to the execution of the search warrant and had also observed a man walk up to the residence and leave minutes prior to the appellant’s departure. From this evidence, the trial judge drew the inference that a sale of drugs had likely occurred.

[4] The trial judge concluded that Mr. McPherson was the tenant of the apartment and had given control of the premises and its contents to the appellant while he was in jail, likely to care for his dogs. He rejected the defence submission that knowledge and control were not satisfied since most of the drugs and paraphernalia were not in “plain view”. In his view, the appellant’s knowledge and control of the premises extended to the drugs. In support of this finding, the trial judge referred to those items of drug paraphernalia which were in plain view, including a small spoon with traces of cocaine, scales, a calculator and exacto knives. The trial judge also noted that .24 grams of the cocaine was found wrapped in clear plastic in plain view on the kitchen counter. From this evidence, the trial judge drew the inference that the accused was in possession of the drugs.

[5] At trial, the defence conceded that if the appellant was found in possession of the drugs, then his possession would be for the purpose of trafficking because of the quantity seized and the drug paraphernalia recovered. Based on his finding and the concession by the appellant, the trial judge found the appellant guilty of both counts in the indictment.

[6] On the appeal, the appellant pursued a fresh evidence application which was based on the Crown’s late disclosure at the opening of trial of the fact that McPherson was in jail at the time the search warrant was obtained and executed. The issue arises in the following circumstances. When the police obtained the search warrant to search the Roseneath premises, the affiant swore that the informant had observed two males at the premises, the appellant and Mr. McPherson. He also deposed that the information provided by the source, which included information about drugs and firearms, was current.

[7] Mr. Lafontaine, who represented the appellant throughout these proceedings, together with his junior, were aware from other proceedings that Mr McPherson had been incarcerated from July 2001 and remained incarcerated when the search warrant was obtained and executed. Thus, Mr. Lafontaine knew that the information to obtain the search warrant was not accurate.

[8] However, when disclosure was first made, it was clear that the Crown was not aware that Mr. McPherson was in jail at the relevant time. Mr. Lafontaine made a tactical decision not to pursue an attack on the search warrant through a s. 8 Charter challenge, but instead to defend the appellant on the basis that, because the Crown believed McPherson was also an occupant of the apartment at the relevant time, it would have difficulty in proving the requisite degree of possession and control by the appellant of the drugs that were found during the search.

[9] There is no suggestion that this was not an appropriate defence strategy.

[10] As it transpired, Mr. Lafontaine was unable to conduct the trial on the scheduled date and briefed his junior to do so. During the week before the scheduled trial date, Mr. Lafontaine attempted to negotiate a resolution of the charges on the basis that the Crown would have difficulty proving the necessary possession by the appellant. In that context, the Crown re-examined the evidence with the police and, on the morning of trial, the Crown learned that Mr. McPherson had been incarcerated at the time of the offences and disclosed that information to the junior lawyer.

[11] The junior lawyer had not been briefed about the decision not to pursue the Charter challenge, a decision that was based on the desire not to disclose to the Crown that Mr. McPherson was in jail and not in the Roseneath premises at the time of the offences. When the trial judge asked the junior lawyer whether he was surprised by the information in the disclosure, he replied that he was not.

[12] After receiving the late disclosure, the junior lawyer did not seek an adjournment and proceeded with the trial on the merits. The appellant was convicted.

[13] In preparing for the appeal, Mr. Lafontaine determined, because of the late disclosure, that he was deprived of the opportunity to choose his defence strategy on a fully-informed basis and therefore sought to bring the issue before this court on the appeal. In the process of developing the fresh evidence, the Crown learned and disclosed to the defence that the police had in fact known of Mr. McPherson’s incarceration one week after execution of the search warrant, but had not informed Crown counsel.

[14] The appellant argued, in reliance on R. v. Dixon (1998), 122 C.C.C. (3d) 1 (S.C.C.) and R. v. Teillefer (2003), 2003 SCC 70, 179 C.C.C. (3d) 353 (S.C.C.), that there was a reasonable possibility that the Crown’s non-disclosure and late disclosure affected the overall fairness of the trial process on the basis that there were “reasonably possible avenues of investigation that were closed to the appellant as a result of non-disclosure [here, late disclosure]”. See Dixon, para. 34. The appellant says that he could have sought to cross-examine the affiant of the affidavit to obtain the search warrant to impugn the currency of the informant’s information and therefore its veracity and on that basis to have successfully challenged the search warrant.

[15] However, in our view, although there was clear non-disclosure/late disclosure by the Crown, this could not have affected trial fairness in the circumstances of this case. Mr. Lafontaine had all the information he needed to challenge the search warrant had he elected to do so and had he believed that to be a fruitful avenue to pursue in the appellant’s defence. He was clearly not precluded from following that avenue of investigation by the Crown’s non-disclosure. Rather, he chose not to do so in order to capitalize on his belief that the Crown did not know about Mr. McPherson’s incarceration, and to pursue the defence that the Crown would not be able to prove possession.

[16] On the evidence before us, Mr. Lafontaine and his junior have not suggested, had Mr. Lafontaine been at the trial and received the disclosure at that time, that he would then have sought to change tactics to challenge the search warrant because that would have been a fruitful avenue to pursue. The highest it was put was by the junior in his affidavit who stated “I have every confidence that had it [the disclosure] been provided to our office before Friday, January 27, 2006, Mr. Lafontaine would have reacted to the shift in the Crown’s case by rethinking the defence that would be advanced and by relying on s. 8 of the Charter where it had previously seemed more harmful than helpful to do so.” Importantly, the affidavit did not suggest that the Charter challenge would have had a better chance of success once the disclosure was made.

[17] In that regard, even if the information with respect to Mr. McPherson were excised from the affiant’s affidavit, the balance of the affidavit supported the issuance of the search warrant. This was no doubt why Mr. Lafontaine elected not to pursue the Charter challenge initially, knowing as he did, that the informant had provided false information.

[18] Mr. Lafontaine made a reasonable tactical decision based on the disclosure and information he had, and elected to pursue a defence that relied on his belief that the Crown was misinformed about the true situation. In that circumstance, the appellant cannot now argue that the late disclosure about the Crown’s knowledge of Mr. McPherson’s whereabouts affected trial fairness in the sense of preventing Mr. Lafontaine from taking steps otherwise available to him.

[19] At one point in the appeal it was suggested that this fresh evidence application should have been brought on the basis of ineffective assistance of defence counsel. We do not agree. In our view, defence counsel made tactical decisions appropriate to the circumstances, presumably on instructions and on the basis that they were in the best interests of the appellant.

[20] We therefore reject the fresh evidence application and would not order a new trial on that basis.

[21] Although the appellant did not pursue the other grounds of appeal in oral argument, he continues to rely on his written submissions contained in his factum. The appellant argues that the trial judge used a day timer and a Rogers’ bill with the appellant’s name, and other documents found in the apartment, as proof that the appellant had the requisite degree of control of the apartment and therefore its contents, rather than for the limited circumstantial value allowed by R. v. Emes (2001), 157 C.C.C. (3d) 124 (Ont. C.A.). In our view, this submission cannot succeed. The trial judge made proper use of the documentary evidence.

[22] As the Crown acknowledges, the trial judge made an error in finding that the white powdery residue on the spoon and in beakers in the apartment was cocaine, although it was never analyzed. The trial judge’s conclusion about the nature of the substance was supported by other paraphernalia that was found in plain view in the kitchen, as well as the appellant’s admission that .24 grams of crack cocaine were found in plain view in the kitchen. We agree with the Crown that in these circumstances, the trial judge’s error was harmless. We also reject the submission that the verdict was unreasonable.

[23] Accordingly, the appeal is dismissed.

Signed: “K. Feldman J.A.”

“Susan E. Lang J.A.”

“I agree Robert P. Armstrong J.A.”

RELEASED: “KNF” October 18, 2007