COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mangat, 2012 ONCA 415

DATE: 2012-06-18

DOCKET: C51297

Juriansz, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kuldeep Mangat

Appellant

Counsel:

Ravin Pillay, for the appellant

Lisa Csele, for the respondent

Heard: May 28, 2012

On appeal from the judgment of Justice Anne-Marie Hourigan of the Superior Court of Justice, dated September 3, 2009.

ENDORSEMENT

[1] The appellant appeals his conviction on a number of drug and weapons charges. He also appeals his sentence.

[2] The appellant concedes that the police, on the basis of telephone intercepts, had an adequate basis to suspect that the unknown user of the cell phone with the number, 416-917-1674, was trafficking in heroin and that there was heroin at the unknown user's home.

[3] The police determined, by a reverse number inquiry, that the phone was registered to Kuldip Singh of 20 Herdwick St. in Brampton. Police occurrence records revealed that the appellant, Kuldeep Singh Mangat, lived at that address.

[4] The police executed a search warrant at that address on July 30, 2007, and seized three handguns, ammunition, and a quantity of heroin and opium. The appellant was at home during the search.

[5] At trial, the appellant brought a Charter application to exclude the seized items. In support of the Charter application, he sought leave to cross-examine the police officer who prepared the ITO. Leave was denied and the Charter application was dismissed.

[6] The appellant was convicted of possession of a loaded firearm without a licence, careless storage of ammunition, possession of prohibited ammunition, possession of a .25 calibre firearm, possession of a .32 calibre firearm, possession of heroin for the purpose of trafficking, and conspiracy to traffic in heroin. He was sentenced to ten years and nine months imprisonment, after receiving credit for fifteen months of pretrial custody.

Conviction Appeal

[7] On appeal, the appellant submits that the trial judge erred in dismissing both his application for leave to cross-examine the police officer and his Charter application to exclude the evidence.

[8] In the ITO, the police officer affirmed that he believed “that given the similarity in the name of the registered owner of cellular number 416-917-1674 to the spelling of the name at the address query of the cellular phone that they are one and the same person, and that heroin would be found at his home.”

[9] The theory of the defence was that the affiant had not been frank and had attempted to mislead the issuing justice by omitting a crucial fact from the ITO. The basis of that theory was that in an earlier application for a wiretap, the affiant had stated that in his experience, those involved in the drug trade commonly use cell phones registered to third parties or to fictitious names. He had not included this observation in the application for that warrant to search the appellant’s residence.

[10] The appellant argued that the omission of this observation from the ITO was deliberate and intended to inflate the strength of the grounds in support of the ITO.

[11] The trial judge considered that it was not unreasonable to suggest on a common sense basis that someone uses a phone registered in their own name. She stated that the simple omission of the self evident statement that some persons use phones registered to others was not enough to raise the issue of mala fides on behalf of the affiant. Consequently, she held there was no air of reality to the suggestion that the police officer had made deliberate omissions to mislead the issuing justice and dismissed the application to cross-examine.

[12] The decision to grant leave to cross-examine is a discretionary one that should not be interfered with, except in cases where the discretion has not been exercised judicially.

[13] In our view, the appellant seeks to make too much of the affiant's earlier statement. The omission of that statement is not enough in the circumstances of this case to establish a reasonable suspicion that the affiant was attempting to mislead.

[14] We are satisfied the trial judge committed no error in dismissing the application to cross-examine.

[15] The appellant submits that the trial judge committed further errors by confounding the application to cross-examine with the challenge to the warrant and the Charter application. We do not agree. In remarking that “the Affiant was not deliberately misleading the issuing Justice;” and that “there was no deliberate omission of this information and that one cannot import any degree of mala fides into the fact that this information was not included by the Affiant”, the trial judge was responding to the defence's submissions advanced on the cross-examination application, by finding that the defence had not succeeded in putting the affiant's credibility into issue.

[16] These statements did not prejudge the Charter application, though after the application to cross-examine was dismissed, there was little prospect of the Charter application's success.

Sentence Appeal

[17] On the sentence appeal, the appellant is simply mistaken that the trial judge failed to consider the appellant’s co-operation in expediting the proceeding. She specifically stated that though the appellant should not be given the benefit of entering a guilty plea, “there should be some credit given for the expeditious manner this matter was conducted.” The appellant has not raised an error of principle on which this court could review the sentence imposed.

Conclusion

[18] The appeal is dismissed.

[19] Leave to appeal sentence is granted, but the appeal against sentence is dismissed.

“R.G. Juriansz J.A.”

“David Watt J.A.”

“Alexandra Hoy J.A.”