COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2014 ONCA 454

DATE: 20140610

DOCKET: C56763

Doherty, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wesley Darian McDonald

Appellant

Erika Chozik, for the appellant

Tanit Gilliam, for the respondent

Heard and released orally: June 3, 2014

On appeal from the conviction entered on July 26, 2012 by Justice M.F. Woolcott of the Ontario Court of Justice.

ENDORSEMENT

[1] Mr. Litt, one of the owners of the building in which the appellant rented a unit, entered that unit to do an appraisal inspection. Mr. Litt found about 20 marihuana plants growing in the apartment. He took a photograph of the plants. He then contacted his employee and property manager, Mr. Overing, gave him the photo and instructed him to call the police. Mr. Overing did so, the police arrived and secured the area until a warrant could be obtained.

[2] Later that afternoon, the police obtained a telewarrant to search the appellant’s unit. They executed the warrant, recovered the marihuana plants and charged the appellant with producing marihuana and possession of over 3 kilograms of marihuana.

[3] There was only one issue at trial. The defence sought to exclude the marihuana plants from evidence under s. 24(2) of the Charter, claiming that the search violated s. 8 of the Charter. The trial judge rejected that submission and the appellant renews those arguments on appeal.

[4] The appellant submits that the informant deliberately misled the Justice of the Peace by identifying Mr. Litt as the source of the information relied on to obtain the warrant when in fact Mr. Litt did not speak to the police directly. Counsel concedes that the information described in the ITO as coming from Mr. Litt is all accurate and does reflect what Mr. Litt in fact saw and did. However, counsel submits that the informant should have made it clear that the information said to come from a statement of Mr. Litt in fact came to the police through Mr. Litt’s employee and not directly from Mr. Litt.

[5] In the circumstances of this case, we see no material distinction between the reliability of information about the contents of the unit in issue passed directly from Mr. Litt to the police with the confirming photograph and information passed from Mr. Litt with the photograph to his employee and agent with instructions that the employee and agent should contact the police. To the extent that the ITO is deficient in failing to indicate that the information came from Mr. Litt through his employee, the deficiency is immaterial. Consequently, the question of whether the deficiency is curable on a Garafoli hearing does not arise.

[6] Counsel referred briefly to other factual errors in the ITO. To the extent that there are any such errors, they are minor, if not picayune.

[7] Counsel did raise certain issues in respect of s. 487.1, but those issues were not pressed in oral argument and we will not address them in this endorsement. We are satisfied there was no breach of s. 8. We do not reach s. 24(2).

[8] The appeal is dismissed.

“Doherty J.A.”

“M. Tulloch J.A.”

“M.L. Benotto J.A.”