Court of Appeal for Ontario

Date: 2017-12-04 Docket: C62282

Judges: Epstein, Paciocco and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Ryan Christiansen Appellant

Counsel

Joseph Wilkinson, for the appellant

James D. Sutton and Christa Reccord, for the respondent

Heard: November 28, 2017

On appeal from: the conviction entered on December 1, 2015 by Justice Douglas C. Shaw of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Ryan Christiansen was convicted after a jury trial of two counts of possessing narcotics for the purpose of trafficking, and one count of possessing proceeds of crime, $21,500. The narcotics, oxycodone and cocaine, were seized under warrant from a leased unit, 105-212 Miles St. in Thunder Bay (the "Unit"). The money was discovered when a search warrant was executed at Mr. Christiansen's home.

[2] When the investigation commenced, the police suspected that Mr. Christiansen was engaged in drug trafficking in association with a co-principal, Mr. Tony Napolitano, out of a clothing store called "Limited Edition". Surveillance of the men ultimately linked Mr. Napolitano to the Unit, which he was renting and that he had attended on several occasions. On April 9, 2013, Mr. Christiansen was seen entering the Unit carrying a white box. A short time later he left carrying a different box.

[3] The police suspected that the Unit was Mr. Christiansen's and Mr. Napolitano's "stash" house. That same day they sought and obtained a general warrant pursuant to s. 487.01 permitting covert entry into the Unit.

[4] In the "Case Overview" of the Information to Obtain ("ITO") the affiant disclosed that the general warrant "is being sought to gather information that the evidence of trafficking is presently located inside the [Unit], to support the issuance of a Controlled Drugs and Substances Act (CDSA) Warrant to search." A general warrant was ultimately issued for that purpose. It authorized the location and observation of narcotics, as well as the recording of evidence and the seizure of samples.

[5] When they entered the Unit pursuant to the general warrant the police confirmed the presence of narcotics. Relying on these observations, they secured a CDSA s. 11 warrant authorizing the search and seizure of evidence at the Unit and then at Mr. Christiansen's home. This evidence led directly to Mr. Christiansen's convictions.

[6] Mr. Christiansen appeals his convictions. His grounds of appeal relate both to the jury charge and to the trial judge's decision upholding the general warrant.

[7] The challenges to the jury charge include the decision of the trial judge to leave Criminal Code s. 21(2) to the jury as an avenue of conviction. Mr. Christiansen says that s. 21(2) should not have been left with the jury because there was no air of reality in the evidence for "common purpose" liability that s. 21(2) provides for. Moreover, the trial judge failed to instruct the jury on the elements of s. 21(2). He simply read them the provision. This raised the prospect that jurors might have taken an impermissible path to conviction.

[8] The Crown concedes the trial judge erred in these respects.

[9] In disposing of this appeal, however, we need not determine the legal significance of these conceded jury direction errors, or resolve whether there were other mistakes in the jury direction, as claimed. Rather, we are allowing this appeal based on the improper use of the general warrant.

[10] General warrants under s. 487.01 authorize the use of investigative techniques, procedures or devices, or other things to be done, that would otherwise constitute unreasonable searches. Subsection 487.01(c) restricts general warrants to cases where "there is no other [legislation] that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done." The Supreme Court dealt with this legislative restriction in R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, [2013] S.C.J. No. 16. Justice Moldaver explained, at para. 80, that this requirement ensures that general warrants are to be used "sparingly" when the "investigative technique is truly different in substance from an investigative technique accounted for by another legislative provision." He explained that s. 487.01(c) serves to ensure that "general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous pre-conditions."

[11] In this case, the general warrant was issued, in substance, for the same investigative technique available under CDSA, s. 11, namely, to search the Unit. The police could not satisfy the requirements for a search under CDSA, s. 11 because they did not have reasonable and probable grounds to believe there was evidence at the Unit. In effect, the police used the general warrant for the impermissible purpose of circumventing the standards required for obtaining a CDSA s. 11 warrant.

[12] As a result, the trial judge erred in not quashing the general warrant. In our view, there was no basis in the ITO enabling a reasonable issuing judge to conclude that s. 487.01(c) was satisfied.

[13] The Crown appropriately concedes that if the general warrant is invalid, Mr. Christiansen's conviction cannot stand, for if a trial judge was to exclude the evidence obtained as a result of the general warrant, Mr. Christiansen's finding of guilt could not be sustained.

[14] We therefore allow the appeal, set aside the convictions against Mr. Christiansen, and order a new trial.

"Gloria Epstein J.A."

"David M. Paciocco J.A."

"I.V.B. Nordheimer J.A."