CITATION: R. v. Soto, 2011 ONCA 828
DATE: 20111222
DOCKET: C52582
COURT OF APPEAL FOR ONTARIO
MacPherson, Juriansz and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Julio Soto
Appellant
Mariya Yakuseva, for the appellant
Randy Schwartz, for the respondent
Heard and released orally: December 16, 2011
On appeal from the conviction entered on March 12, 2010 by Justice Alison Harvison Young of the Superior Court of Justice.
ENDORSEMENT
[1] The appellant was convicted of four firearms offences. The firearm that led to these convictions was seized pursuant to a search warrant executed on March 17, 2009 at the appellant’s apartment residence.
[2] At his trial, the appellant made a s. 8 Charter challenge to the warrant that had authorized the search of his residence for drugs. Justice Harvison Young held that the search did not violate s. 8 of the Charter.
[3] The appellant contends that the trial judge erred in law when she held, relying upon a tip from a confidential informant that was neither compelling nor sufficiently corroborated, that the Information to Obtain a search warrant (the “ITO”) for the appellant`s residence established reasonable and probable grounds to believe evidence relating to possible drug offences would be found at the residence. Accordingly, the appellant submits, the search warrant was invalid, the search violated s. 8 of the Charter and the evidence of the loaded firearm seized pursuant to the warrant should be excluded pursuant to s. 24(2) of the Charter.
[4] We do not accept this submission. On her ruling, the trial judge reasoned:
While I agree that the high expectation of privacy in one’s home must always be kept in mind, I disagree with the conclusion that there was an insufficient nexus in this case. Officer Taylor’s information was that Mr. Soto was dealing cocaine. He saw Mr. Soto leave the building, get into the car, and then, as the ITO sets out, he and Officer Fitkin each observed what they believed to have been two hand-to-hand drug transactions. (That is, they each saw one.) As Mr. Soto had not stopped anywhere else along the way before these transactions, it is reasonable to believe that he would have had the drugs on his person when he left the apartment. [Emphasis added.]
[5] In our view, this reasoning is sound. In particular, the emphasized passage speaks to an obvious nexus among a person, drug and location, namely, if a person leaves his residence, then almost immediately engages in two drug transactions, it follows that there is a good chance that there are drugs in his residence.
[6] The appellant also submits that the trial judge erred by finding that the ITO was not drafted in a misleading, deliberately or otherwise, manner.
[7] The trial judge dealt comprehensively with this issue and concluded that “the Affiant did not deliberately attempt to mislead the court, nor did he display such a cavalier attitude that the Court cannot find that he acted in good faith”. In our view, this conclusion was entirely open to the trial judge on the record.
[8] Finally, the appellant asserts that the confidential informant’s tip was not sufficiently compelling to support the ITO.
[9] We disagree. The informant was a known credible source, he spoke directly to the police officer affiant, and the police sought and obtained other information to confirm many of the factual details provided by the informant.
[10] In her reasons, the trial judge said this:
At the end of the day, the point is that there were reasonable and probable grounds in the circumstances to think that Mr. Soto had drugs on his person when he left 11 Catford Road and got into the Lincoln, and a reasonable inference that, as a dealer, he would have a supply in the apartment.
In our view, this is succinct and sensible summary of the case.
[11] The appeal is dismissed.
“J.C. MacPherson J.A.”
“R.G. Juriansz J.A.”
“G.J. Epstein J.A.”