COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lapple, 2016 ONCA 289

DATE: 20160420

DOCKET: C58641

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Lapple

Appellant

Dirk Derstine and Janani Shanmuganathan, for the appellant

Melissa Insanic and Nick Devlin, for the respondent

Heard and orally released: April 11, 2016

On appeal from the conviction entered by Justice Bruce Durno of the Superior Court of Justice, dated February 20, 2013.

ENDORSEMENT

[1] The appellant was convicted of conspiracy to import cocaine, importing cocaine and possession of cocaine for the purpose of trafficking. His factual guilt was not in dispute. He was party to the importation into Canada of 43 kilograms of 90 per cent pure cocaine from Peru. At trial, the appellant brought three pre-trial motions. He argued that:

• the search of the container by the customs officials contravened his rights under s. 8 of the Charter;

• the judicial authorization to intercept his telephone calls should not have been granted, rendering interceptions made pursuant to that authorization a violation of s. 8; and

• the search warrants should not have been granted, rendering the searches of the appellant’s premises and his car conducted under the authority of those warrants a violation of his s. 8 rights.

[2] The appellant argued that cumulatively those violations justified the exclusion of the incriminating evidence at trial.

[3] All three arguments were rejected by the application judge and all three arguments are renewed on appeal. We, too, reject those arguments.

I

the search of the container by the customs officials

[4] The application judge’s reasons are reported at 2011 ONSC 6549. We need not repeat the facts set out in those reasons.

[5] Sections 99(1)(a) and (e) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) read:

99. (1) An officer may

(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts; or

(e) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any goods, examine the goods and open or cause to be opened any package or container thereof.

[6] Section 99(1)(a) of the Act authorizes the examination of goods, and the opening of packages and containers containing goods by customs officials prior to the release of those goods.

[7] In oral argument, counsel submitted that the reach of s. 99(1)(a) ended when the actions of the customs officers interfered with the integrity of the container or its contents. He submitted that interference with the integrity of the package occurred when the customs officers drilled a small hole into the wooden bottom of one of the crates inside the container and struck cocaine.

[8] We reject this submission. Nothing in the language of s. 99(1)(a) of the Act supports the distinction counsel urges. Furthermore, that distinction is untenable in light of the clear language of s. 99(1)(a) which permits the opening of crates and containers containing goods and the examination of those goods, including the taking of samples of the goods. Clearly, the authorized conduct involves interference with the integrity of not only the container, but the contents of the container.

[9] The actions of the customs officers taken before the goods were released by customs were justified under s. 99(1)(a) of the Act. The constitutionality of the section is not challenged.

[10] These reasons are, of course, restricted to the facts of this case, particularly the nature of the container examined and the commercial context in which it came under the control of Canada Customs.

[11] We need not address s. 99(1)(e). However, for the sake of completeness, we add that on the totality of the circumstances known to the customs officials, there were ample grounds to support the reasonable grounds to suspect criterion set out in s. 99(1)(e). This ground of appeal fails.

II

the wiretap authorization

[12] The application judge’s reasons are reported at 2011 ONSC 7302.

[13] The appellant submits that the investigative necessity requirement in s. 186(1)(b) was not met in the affidavit filed in support of the application for the authorization.

[14] The authorizing judge was satisfied that the requirement was met. The application judge was engaged in a limited review of the authorizing judge’s decision. He had to be satisfied that the authorization could have been granted on the material contained in the affidavit.

[15] The application judge was aware that para. 22 of the affidavit contained a factual error. He was also satisfied that the affidavit nonetheless supported a finding of investigative necessity. The key passage from his reasons is at para. 19 of those reasons:

I am satisfied that on the facts of this case and the history described by Officer Johnson, it would be reasonable to expect that others would be involved. It is unlikely that Mr. Lapple (even along with his wife) was acting on his own to import 43 kgs of cocaine from Peru, secrete it in wooden packaging, and then distribute it to end users in Brampton. Officer Johnson had the experience to say that the warrants would assist “to help police identify, arrest and prosecute the individuals involved in organizing, shipping and distributing this drug shipment”. It was open to the authorizing judge to rely on that information and to find investigative necessity.

[16] We see no error in the application judge’s analysis. On that analysis, the authorization stands and the interceptions were lawful.

III

the search warrants

[17] The application judge’s reasons rejecting the s. 8 claim as it related to the search warrants are found at 2011 ONSC 6550.

[18] The appellant submits that the Justice of the Peace went beyond identifying errors in the officer’s affidavit in support of his application for the search warrants and effectively instructed the officer as to the changes he should make in the affidavit so that it would justify the issuing of the search warrants. Counsel submits that the conduct of the Justice of the Peace created an appearance of bias in favour of the Crown.

[19] Counsel places heavy reliance on R. v. Gray (1993), 81 C.C.C. (3d) 114 (Man. C.A.). In her submissions, counsel urged the court to draw a line between comments by a Justice of the Peace that identify problems with an affidavit filed in support of search warrant application and comments by a Justice of the Peace that suggest or provide solutions to the problems identified by the Justice of the Peace. She argues that the former are proper while the latter are improper and demonstrates bias.

[20] In our view, the distinction urged by counsel, while possibly helpful in assessing a bias claim in some situations, cannot be the ultimate test. As with other bias claims, the outcome should turn on whether a reasonable observer, fully informed of all of the relevant facts, would view the conduct of the Justice of the Peace as giving rise to a reasonable apprehension of bias: see R. v. Clark, 2015 BCCA 488, 330 C.C.C. (3d) 448, leave to appeal granted, [2016] S.C.C.A. No. 32. That test was no doubt met on the facts in R. v. Gray, a very different case than this one. That test is not met on the facts of this case. The search warrants stand and the searches were lawful.

[21] The appeal is dismissed.

“Doherty J.A.”

“David Watt J.A.”

“Bradley W. Miller J.A.”