COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2016 ONCA 544

DATE: 20160708

DOCKET: C59255

MacPherson, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jermaine Smith

Appellant

Michael Davies and Meaghan McMahon, for the appellant

Randy Schwartz, for the respondent Her Majesty in Right of Ontario

Nick Devlin, for the respondent Her Majesty in Right of Canada

Susan Chapman and Naomi Greckol-Herlich, for the intervener Criminal Lawyers’ Association

Heard: April 4 and 5, 2016

On appeal from the pre-trial ruling, dated September 27, 2012, the conviction entered on September 25, 2013 and the sentence imposed on May 9, 2014, by Justice Jacqueline V. Loignon of the Ontario Court of Justice.

MacPherson J.A.:

A. Introduction

[1] The appellant, Jermaine Smith, and his co-accused, Tristan Jones and Jafari Waldron, were convicted of several firearms trafficking and drug trafficking offences. The appellant was sentenced to five years’ imprisonment on the gun charges and seven months’ consecutive on the drug charges, less credit for 330 days of pre-trial custody.

[2] The convictions arose from a police investigation in Ottawa into the possession and trafficking of firearms. The principal issue on this appeal relates to the validity of the first Part VI wiretap authorization obtained by the police during their investigation and, specifically, the inclusion of the appellant as a secondary target (an “other known person”) in that authorization.

[3] The appellant also appeals his sentence on the basis of the totality principle.

[4] This appeal was heard together with R. v. Marakah, 2016 ONCA 542 and R. v. Jones, 2016 ONCA 543. The court has released three separate sets of reasons in these appeals.

B. Facts

(1) The parties and events

[5] Smith was charged with gun and drug trafficking charges as part of ‘Project Lancaster’ in Ottawa.[1] Smith was not the target of the Production Order and conceded on appeal that he did not have standing to challenge it.

[6] Smith was included as an “other known person” in the First Authorization for the interception of private communications by Roy J. of the Superior Court of Justice on November 13, 2010. The inclusion of Smith in this authorization was supported by three pieces of evidence: (1) a tip from a confidential informant; (2) four police observations of Smith with the co-accused Waldron over a five year period; and (3) Smith’s attendance to assist Waldron at a police traffic stop.

[7] On the application, all three accused – Jones, Smith and Waldron – challenged the First Authorization and what followed later, a Second Authorization and several search warrants. Smith’s position was that he should not have been named in the First Authorization.

(2) The application judge’s ruling

[8] The application judge began her ruling with a statement of two important principles:

[36] The sole function of the reviewing court is to assess the record that was before the authorizing judge, as amplified on review, and determine whether the authorization could have issued. Importantly, the review has nothing to do with whether the reviewing court would have issued the authorization. It is not a hearing de novo. (Garafoli, supra at para. 55)

[39] An authorization under Part VI of the Criminal Code of Canada may be issued where there exist reasonable and probable grounds to believe that (a) an offence has or is being committed and (b) that the authorization sought will afford evidence of that offence. (section 185 and 186 of the Criminal Code; R. v. Duarte 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30).

[9] Applying this test to Smith, the application judge framed the issue as:

[98] The principal issue with respect to this Applicant concerns the sufficiency of the information to support the conclusion that intercepting this Applicant’s communications would provide evidence of the commission of an offence.

[10] After reviewing the evidence relating to Smith (paras. 99-104), the application judge concluded:

[106] In my view, when considering the affidavit as a whole, there are reasonable grounds to believe that intercepting Mr. Smith’s communications would assist the investigation of an offence. Smith and Waldron have more than a simple association as evidenced by Smith being called to assist with a police traffic stop. There is compelling information associating Waldron with firearms offences. There is compelling information associating Smith with a firearm offence. In my view, there were objective grounds to believe that intercepting Smith’s private communications would yield evidence of the offences being investigated.

[11] The appellant appeals from this ruling. He also appeals his sentence.

C. Issues

[12] The issues are:

(1) Did the application judge err by upholding the inclusion of the appellant as an “other known person” in the First Authorization?

(2) Did the sentencing judge impose an unfit sentence?

[13] The appellant also raised several other issues with respect to the application judge’s findings on the s. 8 Charter challenge. These other grounds of appeal were dependent on the success of Jones’ appeal. This court dismissed Jones’ appeal. Accordingly, there is no need to consider those arguments on this appeal.

D. Analysis

(1) The inclusion of the appellant in the First Authorization

[14] The appellant submits that the factual information about him provided in the police affidavit – a tip from a confidential informant, four police observations of the appellant with the co-accused Waldron over a five year period, and the appellant’s attendance to assist Waldron at a police stop – were insufficient to justify his inclusion as an “other known person” in the First Authorization. Accordingly, the application judge erred by finding his inclusion was justified.

[15] I do not accept this submission. The test for naming a party as a “known” party in a Part VI authorization has a low threshold, as enunciated by Simmons J.A. in R. v. Schreinert (2002), 2002 CanLII 44932 (ON CA), 165 C.C.C. (3d) 295 (Ont. C.A.), at para. 43:

The threshold for naming a party as a “known” party is a low one. Police need not have reasonable and probable grounds to believe that the party is involved in the commission of an offence. Rather, it is sufficient if police know the identity of the party and have reasonable and probable grounds to believe that interception of that party’s communications may assist in the investigation of an offence: R. v. Chesson (1988), 1988 CanLII 54 (SCC), 43 C.C.C. (3d) 353 (S.C.C.), at pp. 365-367.

[16] The application judge was fully justified in determining that the inclusion of the appellant as an “other known person” in the First Authorization met this threshold. Her review of the evidence was, in my view, balanced. She said that the information in police occurrence reports about contact between the appellant and Waldron – four times in five years – “does not meet the required threshold”. She observed that there was a lack of information about the background of one of the informants, but was impressed with the evidence corroborating the information he provided. She also carefully assessed the nature of the relationship between the appellant and Waldron, a man about whom there was “compelling information associating [him] with firearm offences.”

[17] In summary, I see no basis for interfering with the application judge’s conclusion on this issue.

(2) Sentence appeal

[18] The appellant was convicted of seven offences. He received a five-year sentence for the firearm offences and a seven-month consecutive sentence for the drug offences, for a total sentence of five years and seven months. He was given credit for 330 days of pre-trial custody.

[19] The appellant contends that a global sentence of five years and seven months is too high – it violates the totality principle. He submits that the sentence should be reduced to five years. Essentially, his argument is that the sentence for the drug offences should be imposed concurrently as the offences were conducted over the same time frame. Other arguments as to sentence were advanced in the appellant’s factum, but were abandoned in oral submissions.

[20] An appellate court can interfere with a sentence only if the sentencing judge erred in principle, failed to consider a relevant factor, erred in her consideration of an aggravating or mitigating factor, or if the sentence is demonstrably unfit: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44 and 52.

[21] The sentencing judge in this case made none of these errors. The sentencing judge considered the totality of the circumstances and the difference between the firearm and drug sentences. In my view, the imposition of consecutive sentences and a global sentence of five years and seven months were both reasonable.

E. Disposition

[22] I would dismiss the appeal.

Released: July 8, 2016 (“J.C.M.”)

“J.C. MacPherson J.A.”

“I agree. J. MacFarland J.A.”

“I agree. H.S. LaForme J.A.”

[1] For a fuller factual description, see the reasons in the companion appeal: R. v. Jones, 2016 ONCA 543.