COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Prosser, 2016 ONCA 467

DATE: 20160614

DOCKET: C59645

Sharpe, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Calvin Prosser

Appellant

David Butt, for the appellant

Shawn Porter, for the respondent

Heard: June 7, 2016

On appeal from the conviction entered on June 5, 2014 and the sentence imposed on November 5, 2014 by Justice Janet Wilson of the Superior Court of Justice, sitting without a jury.

By the Court:

[1] The appellant was convicted after a trial before a judge of the Superior Court of Justice sitting without a jury of two firearms offences, possession of the proceeds of crime and possession of cocaine for the purpose of trafficking. The guns, money and drugs were found during a warranted search of the apartment the appellant occupied with his mother and grandmother.

[2] At trial, the appellant sought to exclude the evidence of the firearms and drugs on the basis that the search of the apartment and seizure of the items was unreasonable. The submission was that the ITO disclosed insufficient grounds to justify the issuance of the warrant. The trial judge held that the ITO was sufficient to satisfy the preconditions necessary for the issuance of the warrant. Absent a constitutional infringement, s. 24(2) of the Charter was not engaged, thus could not be invoked to exclude the seized items as evidence at trial. The trial judge went on to hold that even if she had found a breach of s. 8, she would nonetheless have admitted the evidence.

[3] In this Court, the appellant contends that the trial judge erred in two respects in concluding that the ITO provided a proper evidentiary basis upon which the trial judge could conclude that the warrant could have been issued. He submits that the trial judge erred in finding:

i. that the police had reasonable and probable grounds to believe that the firearms and drugs would be found in the premises to be searched – the appellant’s apartment; and

ii. the carelessness of the author of the ITO could not afford a basis or ground for undermining the search warrant.

The Background Facts

The ITO

[4] To situate the claims of error in their appropriate setting, a brief description of the contents of the ITO and the procedure followed at trial is necessary.

[5] The substance of the information in the ITO came from two confidential informants involved in the drug culture. Each provided recent personal information about a drug dealer known on the street as “Ghost”. Sometimes, “Ghost”, who was identified as the appellant, trafficked from a motor vehicle which one of the informants described by colour, make and model. Both said “Ghost” also carried a firearm.

[6] One informant had contact with “Ghost” at 45 Wynford Heights Crescent. The other informant, who had seen “Ghost” with a firearm, said that “Ghost” lived in the Wynford Drive area. Neither informant provided an apartment number for “Ghost” or said that they had seen drugs or firearms at the appellant’s apartment. Police confirmed with the building superintendent that the appellant lived in apartment 1409 at 45 Wynford Heights with his mother and grandmother. A car of the same colour, make and model as described by the informant was located in the parking space assigned to the appellant’s apartment. An officer, standing outside the entrance door to the apartment, heard both male and female voices inside.

The Voir Dire

[7] Prior to trial the Crown provided trial counsel for the appellant with a heavily redacted copy of the ITO. The Crown conceded that, on the basis of the material contained in the redacted ITO, the warrant could not have been issued.

[8] On the motion to exclude evidence for a breach of s. 8 of the Charter, Crown counsel invoked step six of R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 and provided defence counsel with a judicial summary of the redacted parts of the ITO. That summary included the following:

CI1 and/or CI2 provided timed, personal information that Calvin Prosser is in possession of a firearm that is linked to the address of 45 Wynford Heights.

CI1 and/or CI2 provided timed, personal information that Calvin Prosser is in possession of illicit substances that are linked to the address of 45 Wynford Heights.

[9] The trial judge was satisfied that the summary was sufficient to permit the appellant to challenge the excised materials (thereby the basis for the warrant) by argument or evidence.

[10] Defence counsel was granted leave to cross-examine the author of the ITO and did so. Counsel took the position that the summary failed to meet the requirements of step six. On the hearing, it became clear that neither informant had provided any firsthand information about drug dealing or firearms in apartment 1409 at 45 Wynford Heights Crescent. It also appeared that the ITO had failed to include the criminal record of one of the informants.

[11] At the conclusion of the voir dire, the trial judge found no infringement of s. 8 and admitted the evidence of the guns, drugs and money found on execution of the search warrant at the appellant’s apartment.

The Appeal from Conviction

Ground #1: The Adequacy of the ITO

[12] On appeal, Mr. Butt for the appellant submits that the ITO filed in support of the warrant, as amplified on review, fails to disclose a basis upon which the issuing justice could conclude that there was a reasonable probability that firearms would be found in the appellant’s residence. He invites us to follow the lead of the British Columbia Court of Appeal in R. v. Le, 2014 BCCA 166. He contends that, contrary to Le, the trial judge held that the ITO need not disclose reasonable grounds to believe that the evidence sought in this case, contraband consisting of firearms and drugs, would be found at the place of the proposed search.

[13] For several reasons, we decline to give effect to this ground of appeal.

[14] First, and fundamentally, reading the trial judge’s reasons as a whole, as we are required to do, we are not persuaded that the trial judge held that the ITO need not disclose reasonable grounds to believe that the evidence sought would be found at the place of the proposed search. The more apt characterization of the trial judge’s reasons is that she rejected the appellant’s submission that the information provided by the confidential informants had to shoulder the entire burden of establishing a reasonably grounded belief that the evidence sought would be found in the apartment.

[15] Second, the requirement that the ITO contain information that permits the issuing justice to conclude that there are reasonable grounds to believe that there is anything in a building, receptacle or place that will afford evidence of the commission of an offence is a precondition to the issuance of a warrant to search that place and seize those things is found in s. 487(1)(b) of the Criminal Code and s. 11(1)(d) of CDSA.

[16] To determine whether this precondition has been established, the issuing justice is to consider the ITO as a whole, not one piece at a time, because each piece of evidence colours other pieces of evidence revealing a fuller and truer picture only through a consideration of the evidence as a whole: Re Church of Scientology & The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at p. 502; Le, at para. 36. The examination of the information as a whole is to be carried out in a practical, non-technical and common sense basis. The issuing justice is also permitted to draw inferences.

[17] Third, neither the statutory enactments nor the common law requires that information from a CI be the exclusive source or bear the entire burden of establishing the necessary evidentiary foundation for a finding of a reasonably grounded belief of the presence of the evidence sought in the place proposed to be searched. To be sure, information from an informant services this requirement in many instances. But it is not a legal requirement any more than we demand that a single item of evidence prove an essential element of an offence. The confidential informants provided information that the appellant was in possession of a firearm and illicit substances at 45 Wynford Drive. The ITO indicated that the police had determined that the appellant resided in apartment 1409 and located his car in the parking area. That was sufficient to establish a reasonably grounded belief that the evidence sought would be found in place of the proposed search. This information distinguishes this case from Le where the ITO contained no information that linked the drug dealing to the address of the accused, the premises police sought to search under the warrant.

[18] Fourth, the issuing justice and reviewing judge were both entitled to rely upon the opinion of the author of the ITO about the practices of drug dealers in connection with the storage of drugs, firearms and assorted paraphernalia. That these opinions, if proffered at trial, would fall foul of the prohibition against anecdotal evidence adumbrated in R. v. Sekhon, 2014 SCC 15, at para. 50, is beside the point. The contents of an ITO need not be compliant with the rules of evidence applicable at trial. After all, neither issuance of a search warrant nor a Garofoli review hearing is intended to test the merits of any of the Crown’s allegations in respect of the offence. That is done at the trial: R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 30.

[19] Finally, we are not at all persuaded that the reviewing judge considered the ITO author’s opinion as dispositive of the likelihood of the items sought being in apartment 1409. When the ITO was submitted to the issuing justice, its author did not know where the appellant would be when he was to be arrested. As a result of this uncertainty, police also obtained a warrant to search the appellant’s car. The opinion was an item of evidence relevant to the affiant’s subjective belief and was also relevant to the reasonableness of that belief. It was open to the reviewing judge to take it into account in deciding whether the search warrant could have issued on the material before the issuing justice.

Ground #2: The significance of carelessness in the ITO

[20] The appellant further contends that the trial judge erred in holding that the carelessness of the author of an ITO cannot vitiate the warrant.

[21] Once again, we do not agree.

[22] The trial judge, sitting on review, recited the governing authorities that make it clear that the existence of fraud, non-disclosure and misleading evidence are neither conditions precedent to review nor dispositive of whether the enabling authority could have been granted: Garofoli, at p. 1452. Each is a factor to consider. Nothing more and nothing less.

[23] The trial judge carefully analyzed the credibility of the author of the ITO who was cross-examined on the motion. The trial judge considered the error, as well as the author’s explanation for it. She reached a conclusion she was entitled to reach. Her reasons for doing so do not reflect error and are entitled to deference.

[24] It is also important not to lose sight of the trial judge’s task as the reviewing judge. She was not there to conduct a de novo hearing or to decide what she would have done had the warrant been sought from her. She was there, as she appreciated, to determine whether, based on the record before the issuing justice, as amplified on review, the warrant could have been issued: Pires; Lising, at para. 8. This ground of appeal fails.

The Appeal from Sentence

[25] The appellant also challenges the fitness of the sentence imposed upon him, a term of imprisonment in a provincial reformatory of 22 months followed by a period of probation of two years. He seeks a reduction in the length of the carceral portion of the sentence and invites us to consider ordering its service in the community.

[26] The appellant does not suggest that the sentence was unfit when imposed. Quite the contrary. He acknowledges that it was fit, reflecting a proper consideration and weighing of the relevant circumstances of the offence and of the offender, as well as the applicable sentencing objectives, principles and factors, both aggravating and mitigating.

[27] The appellant asks us to consider his conduct since conviction and his release pending appeal. For 18 months the appellant was bound by restrictive terms including house arrest. These terms duplicated those on which he had been released prior to trial. He has matured as he has grown older. He worked steadily and did well.

[28] Until last weekend, the appellant had completed several years of release on strict terms without incident. He is now charged with a Criminal Code and a provincial offence as a result of being found in possession of a stolen licence plate for a motorcycle and operating a motorcycle without insurance. He was released by the investigating officer on these charges. Thus far at least, he has not been charged with breach of his recognizance.

[29] The appellant received substantial credit for his onerous release terms when the trial judge imposed sentence at the conclusion of the trial. The sentence imposed, in our view, was lenient in light of the serious offences of which he was convicted. We do not consider the further restrictive conditions of release warrant a further reduction of an already lenient sentence or its conversion to a sentence to be served in the community.

Conclusion

[30] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is also dismissed.

Released: June 14, 2016 (“R.J.S.”)

“Robert J. Sharpe J.A.”

“David Watt J.A.”

“David Brown J.A.”