Court of Appeal for Ontario
Date: 2017-11-07 Docket: C61733
Judges: Simmons, van Rensburg and Nordheimer JJ.A.
Between
Her Majesty the Queen Respondent
and
Cat Tuong Nguyen Appellant
Counsel
Colin Wood, for the appellant Tanit Gilliam, for the respondent
Heard: November 3, 2017
On appeal from: the conviction entered on October 2, 2015 by Justice J. Woollcombe of the Superior Court of Justice, sitting without a jury.
Reasons for Decision
[1] Mr. Nguyen appeals from his conviction on various drug offences. The sole issue is whether the trial judge correctly concluded that a search warrant obtained by the police, and which led to the discovery of drugs in the appellant's home, was properly obtained. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide those reasons.
[2] The basic facts are that the police received tips from two confidential informants that Vincent Zmija was dealing drugs. The police commenced an investigation. They quickly linked David Stewart to Mr. Zmija. The police came to believe that Mr. Stewart was supplying drugs to Mr. Zmija.
[3] The police engaged in surveillance of Mr. Stewart. After a brief visit to Mr. Zmija's home, Mr. Stewart attended at an address on Paulander Drive in Kitchener. Mr. Stewart went into a particular unit at that address. A vehicle registered to the appellant was in the driveway of that unit.
[4] Mr. Stewart left the unit a very short time after he entered. He had a black backpack with him, both when he went into the unit and when he left the unit. He placed the black backpack in his vehicle. The police followed Mr. Stewart. Based on their accumulated knowledge from the investigation, the police stopped Mr. Stewart and arrested him on drug charges. In the black backpack, the police found 1/2 pound of marijuana and one ounce of cocaine.
[5] The police then sought a search warrant for the Paulander address. The search warrant was granted. The police executed the search warrant. They found the appellant sleeping in one of the bedrooms in the unit. The police also found a quantity of marijuana along with other drugs, including cocaine, three digital scales and four cellular telephones.
[6] The appellant contends that the search warrant was issued in breach of his rights under s. 8 of the Charter. The appellant contends that material misstatements and/or omissions were made in the ITO upon which the search warrant was obtained. More specifically, the appellant takes issue with the following:
The affiant of the ITO did not reveal that the vehicle in the driveway, while registered to the appellant, was registered to an address different from the Paulander address.
The affiant of the ITO did not accurately reflect the contents of the police interview conducted of Mr. Stewart, including that Mr. Stewart did not positively identify the appellant as the person from whom he had purchased the drugs.
There was no evidence that drugs would be found at the Paulander address.
[7] The trial judge considered each of these issues and concluded, correctly in our view, that they did not, either individually or collectively, invalidate the search warrant.
[8] Two basic principles apply to our review of the trial judge's decision. One is that the trial judge's factual conclusions are entitled to deference: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721 (C.A.). The other is that the test on a challenge to a search warrant is not whether the reviewing judge would have granted the warrant but, rather, whether there is any basis upon which the search warrant could have been issued: R. v. Garofoli, [1990] 2 S.C.R. 1421.
[9] We agree, as the trial judge did, that the registered address for the appellant's vehicle ought to have been included in the ITO. However, its omission is not material to the basis for the issuance of the search warrant. As the affiant explained, the search warrant was not directed at the appellant. It was directed at the address where the police drew the reasonable inference that Mr. Stewart had obtained his drugs. That reasonable inference also diminishes the importance that the appellant places on the fact that there was no evidence that there were drugs at the Paulander address. Admittedly, there was no direct evidence but that does not change the fact that a reasonable inference could be drawn that drugs would be found in the residence, given what the police had observed and given the drugs found in the possession of Mr. Stewart immediately after he left that address.
[10] We also agree with the trial judge that there was no material misrepresentation of the contents of the interview that the police conducted with Mr. Stewart. The impugned portion of the ITO states: "[f]urthermore, Stewart acknowledged the fact that he had just purchased the aforementioned cocaine and marihuana in Kitchener from his drug dealer just before being arrested by police".
[11] During his interview, Mr. Stewart was very careful in the manner in which he answered the officer's questions. Thus, while he did not identify the appellant as the supplier of his drugs, he did make it clear that he had only one supplier. The specific questions and answers are:
D/Cst – Well you bought off of him the one time. Well we know at least one time today, right:
STEWART – I've only got one guy. That's all I can say.
D/Cst – You only got one guy?
STEWART – Yeah.
D/Cst – And it's the guy that you got off today, right? It only makes sense, right?
STEWART – Logically.
[12] Later in the interview, Mr. Stewart said that he got $500 from Mr. Zmija "and then I went and saw my guy".
[13] Admittedly, Mr. Stewart did not specifically identify the appellant as his drug supplier. However, the interview read fairly and as a whole leads to the reasonable inference that Mr. Stewart had obtained his drugs from the Paulander address immediately before he was arrested. The police had followed Mr. Stewart to that address and after he left that address.
[14] In the end result, we agree with the trial judge's conclusion that there was no breach of the appellant's s. 8 Charter rights arising from the issuance of the search warrant. The appeal is consequently dismissed.
Janet Simmons J.A. K. van Rensburg J.A. I.V.B. Nordheimer J.A.