COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fortune, 2013 ONCA 421

DATE: 20130621

DOCKET: C54991

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Wilson Fortune

Appellant

Brad Greenshields, for the appellant

Sandy Thomas, for the respondent

Heard: May 17, 2013

On appeal from the convictions entered by Justice D. A. Harris of the Ontario Court of Justice on April 13, 2011.

ENDORSEMENT

[1] Justin Fortune (the appellant) appeals his convictions of possession of heroin for the purpose of trafficking and possession of the proceeds of crime.

[2] The appellant says that his convictions should be set aside and acquittals entered, or a new trial ordered, because the trial judge:

i. erred in concluding that the information to obtain (ITO) filed in support of an application for a telewarrant under s. 11 of the Controlled Drugs and Substances Act (CDSA) contained sufficient reliable evidence that might reasonably be believed on the basis of which the warrant could have issued; and

ii. failed to provide reasons sufficient for meaningful appellate review to explain his findings that the heroin in the appellant’s possession was “for the purpose of trafficking” and that the monies found in the appellant’s apartment were “proceeds of crime”.

Ground #1: The Sufficiency of the ITO

[3] The appellant contends that the ITO was required to raise a credibly-based probability that the proposed search would yield evidence of heroin in the appellant’s home. The ITO failed to meet this standard, the appellant says, rather could only give rise to a reasonable suspicion that heroin might be present, a standard that was not legally sufficient to sustain the issuance of the CDSA warrant. The appellant submits that, in essence, the ITO contained three components:

• the appellant’s reputation as a suspected heroin dealer

• the appearance of an alleged, but unconfirmed heroin supplier at the appellant’s home; and

• increased vehicular and foot traffic at the appellant’s home after the alleged heroin supplier left.

According to the appellant, neither alone nor in combination are these factors capable of establishing the credibly-based probability that heroin would be found by the proposed search.

[4] We disagree.

[5] The ITO included information from four different confidential informants, as well as an anonymous tipster, along with the results of various police investigations and physical surveillance of the appellant’s residence and activities contemporaneous with his arrest on August 26, 2009. The information contained in the ITO covered a period of about nine months, from December, 2008 until the end of August, 2009.

[6] The information provided by the informants included several heroin purchases from the appellant at his residence in both December, 2008 and in March, 2009. When making a purchase, one of the informants saw several pre-packaged “points” and “halfers” of heroin, along with other things associated with commercial traffic in heroin, in the appellant’s apartment. Each of the informants is a heroin user or addict with previous convictions and a familiarity with the drug trade in St. Catharines and surrounding area. At least two of the informants had provided information to police on prior occasions. The information they provided had resulted in the arrests of several people and the conviction of one of those arrested for a trafficking offence involving heroin.

[7] The ITO also contained information from another confidential informant and an anonymous tipster that the appellant and his girlfriend were selling heroin from their apartment in August, 2009. The information was consistent with information police had received from other sources and with police surveillance of the appellant’s residence on the day prior to and the day of the execution of the telewarrant. Shortly after a suspected heroin supplier met with the appellant, vehicular and foot traffic to the appellant’s residence increased with visitors remaining for only a few minutes.

[8] In our view, it was open to the justice of the peace to conclude from a consideration of the contents of the redacted ITO, together with reasonable inferences arising from that information, that there were reasonable grounds to believe that the appellant was trafficking in heroin from his residence on August 26, 2009, and that a search of the premises would yield the drug, assorted paraphernalia associated with trafficking, and the proceeds of trafficking activity.

[9] It follows, in our view, that the reviewing judge properly concluded that the ITO contained sufficient reliable information on the basis of which the telewarrant could have issued. The standard required by R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 52 was met. The search of the appellant’s home was constitutional and the items seized properly admitted in evidence at the appellant’s trial.

Ground #2: The Sufficiency of the Reasons for Conviction

[10] The second ground of appeal alleges that the trial judge’s reasons finding that the appellant had possession of the heroin found during the search “for the purpose of trafficking” and that the money found at various places in the appellant’s apartment was “proceeds of crime” were inadequate to permit meaningful appellate review.

[11] Once again, we do not agree.

[12] At the end of the case for the Crown, trial counsel for the appellant (not Mr. Greenshields) conceded that the evidence established that the appellant was in possession of the heroin as well as the currency alleged to be proceeds of crime found in the apartment. Counsel invited the trial judge to find the appellant guilty of simple possession of heroin.

[13] Trial counsel for the appellant contended that the Crown had failed to prove beyond a reasonable doubt that the appellant’s possession of heroin was “for the purpose of trafficking” and that the cash found around the appellant’s apartment was “proceeds of crime”.

[14] It is common ground that the trial judge misapprehended the nature of the concession of the appellant’s trial counsel. The trial judge’s reasons finding the appellant guilty as charged are as follows:

As I stated earlier, in light of my ruling, counsel for Mr. Fortune conceded that if I did not exclude the heroin, there was sufficient evidence for me to be satisfied beyond a reasonable doubt that Mr. Fortune was in possession of that heroin for the purpose of trafficking. That concession was amply supported by the evidence in this case, and I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Fortune was in possession of heroin for the purpose of trafficking and that he was in possession of proceeds of crime less than $5,000.

[15] The appellant acknowledges that the evidence adduced at trial was capable of supporting the disputed inferences of purpose and criminal origins and does not say that the trial judge’s conclusions were unreasonable.

[16] D/C Terry Thomson was qualified as an expert in the indicia of trafficking. Trial counsel for the appellant did not challenge the officer’s qualifications, but took issue with his conclusions on the controversial issues. The trial judge accepted the officer’s evidence which was based on the items found on the search of the appellant’s premises. Included were 4.39 grams of heroin, packaging materials including tin foil and nearly 6 dozen baggies, a scale, and over $3,000 in cash hidden at various places in the apartment. The appellant offered no evidence to the contrary.

[17] Despite their brevity, the reasons given by the trial judge permit meaningful appellate review in this case.

[18] In this case, the trial judge was not called upon to address troublesome principles of unsettled law. Nor to resolve confused and contradictory evidence on a key issue. In the end, this case was reduced to the drawing of inferences from the evidence as a whole. Evidence that was neither confused nor contradictory. Inferences about the purpose for which the appellant had 4.39 grams of heroin, trafficking paraphernalia, and a significant amount of currency in his possession. And inferences about the origins or character of that currency in light of the other items found in the appellant’s apartment.

[19] We are not to view the trial judge’s reasons on a stand alone, self-contained basis. We are to judge their sufficiency not only by what the trial judge said, but by what the judge said in the context of the record, the issues, and the submissions of trial counsel. Despite the trial judge’s misapprehension of the position of the defence, it is clear that the trial judge was satisfied that the evidence adduced at trial proved the essential elements of purpose and unlawful origins beyond a reasonable doubt. Acceptance of that evidence makes it apparent, without further elaboration, why the appellant was convicted: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at pp. 892-893, and pp. 897-898; and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 37.

Conclusion

[20] For these reasons, the appeals from conviction are dismissed.

“David Watt J.A.”

“M. Tulloch J.A.”

“P. Lauwers J.A.”