COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Prosser, 2016 ONCA 617

DATE: 20160805

DOCKET: M46781 (C59645)

Weiler J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Calvin Prosser

Applicant

David Butt, for the applicant

John Neander, for the respondent

Heard: August 4, 2016

ENDORSEMENT

[1] The applicant, a young man, seeks his release from custody pending the determination of his application for leave to appeal to the Supreme Court of Canada pursuant to s. 679(1)(c) of the Criminal Code.

[2] On June 14, 2016, this court dismissed the applicant’s appeal against conviction for trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and the following offences under the Criminal Code: possession of a loaded prohibited firearm (s. 95(1)), possession of a firearm without a licence (s. 92(2)), possession of proceeds of crime (s. 354(1)). While leave to appeal sentence was granted, the court also dismissed the appeal from sentence of two years and six months in the penitentiary. See R. v. Prosser, 2016 ONCA 467.

[3] The applicant submits that he meets the criteria for granting judicial interim release, namely, that the application for leave to appeal is not frivolous, that he will surrender himself into custody in accordance with the terms of the order granting his release and that his detention is not necessary in the public interest. In addition, the applicant points out that if his release is not granted, his application for leave to appeal will essentially be rendered moot because he will be eligible for parole on October 15, 2016, before the Supreme Court is likely to decide whether or not to grant leave. The Crown acknowledges that this is a factor to consider.

[4] The Crown opposes the application primarily on the public interest ground. The Crown points out that during the eighteen month period the applicant was on bail pending his appeal to the Court of Appeal, he was charged with another offence not long before the hearing of his appeal. More importantly, where the conviction has already been affirmed on appeal and the first two grounds for granting release have been met, the court has factored into the public interest requirement the likelihood of leave being granted and the fact that leave to appeal to the Supreme Court is granted sparingly. See R. v. Drabinsky, 2011 ONCA 647, [2011] O.J. No. 4491 (C.A.) at para. 11, Doherty J.A. in chambers; R. v. Fundi [2012] O.J. No. 1556 (C.A.) at para. 14, Hoy J.A. in chambers.

[5] In his application for leave to appeal, the applicant raises two grounds of appeal. They are: (1) whether police anecdotal opinion evidence provides reasonable and probable grounds necessary to issue a search warrant to enter a dwelling home, and 2) whether special advocates should be allowed to participate in a challenge to a redacted search warrant (step 6 of R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421).

[6] The applicant acknowledges that the second ground of appeal, which was not raised at trial, would not be sufficient to warrant granting judicial interim release. Having regard to R. v. Reid, [2016] O.J. No. 3554, 2016 ONCA 524, and the similar factual background to this case, I agree.

[7] In respect of the first ground of appeal, the applicant submits that the decision of this court conflicts with the decision of the Court of Appeal in R. v. Le, 2014 BCCA 166, 2014 B.C.C.A. 166.

[8] The Crown acknowledges that there is a factual similarity between the two cases but submits this Court appropriately distinguished Le on the facts and that no conflict exists that would give rise to an issue of national importance. He submits that in all the circumstances the appellant’s prospect of obtaining leave is so remote that the public interest favours enforceability of this Court’s decision and the application should be dismissed.

[9] Both Le and Prosser involve a review of the sufficiency of a warrant to search a residence where the live issue is whether the information to obtain (ITO) has set out sufficient grounds that the items sought are at the residence. In Le, the court effectively agreed that the police cannot obtain a search warrant for a residence based on the proposition that, because the accused is trafficking in drugs, there must be drugs at his home. The Prosser court distinguished Le on the facts, one of which was that the confidential informants provided information that the appellant was in possession of a firearm and illicit substances at his apartment building, 45 Wynford Drive, in Toronto but did not give the exact apartment in which he resided. The police established that he resided in apartment 1409 based on information obtained from the superintendent of the building and located his car in the parking area. The court held at para. 17 of its reasons that, considering the ITO as a whole, the information was sufficient to establish a reasonably grounded belief that the evidence sought would be found in the place of the proposed search. It commented:

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.

[10] However, the fourth and last reason the Prosser court gave for dismissing the appeal was that the issuing justice and reviewing judge were entitled to rely upon the opinion of the affiant as to the practices of drug dealers in connection with the storage of drugs and firearms.

[11] Having regard to all the circumstances, I am satisfied that the appellant has shown that his continued detention pending the determination of his application for leave to appeal is not necessary in the public interest and I hereby grant the application on the terms submitted in the draft order.

[12] I am indebted to counsel for their well-prepared and well-argued motion.

“Karen M. Weiler J.A.”