Court of Appeal for Ontario

Date: 2018-12-20 Docket: C63690

Judges: Pardu, Brown and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Zachary Edwards-Cyrus Appellant

Counsel

For the Appellant: Gregory Lafontaine, Carly Eastwood

For the Respondent: Maria Gaspar

Heard: December 19, 2018

On appeal from the conviction entered on February 7, 2017 by Justice J. Ritchie of the Ontario Court of Justice.

Decision

Pardu J.A.:

Introduction

[1] The appellant was convicted of various drug offences and of possession of the proceeds of crime. He argues that the trial judge erred in dismissing his application to exclude evidence found as a result of the execution of a search warrant, pursuant to s. 24(2) of the Charter. He alleges that the information to obtain the warrant (ITO) was not sufficient to support the issue of the search warrant.

Grounds to Obtain a Search Warrant

[2] While the ITO set out an ample basis to believe that the appellant was trafficking in drugs, the appellant submits that it did not provide a sufficient basis to permit a justice of the peace to conclude that evidence of the offence would be found at the appellant's residence, 1200 Weston Road, Toronto.

[3] Confidential Source #1 told police that "Smiley" sold heroin and cocaine. Confidential Source #2 said "Smiley" sold cocaine in powder form. Each of these sources said they had purchased cocaine from the appellant, and gave details of the transactions. Both identified the appellant by a nickname, "Smiley", and provided a physical description. Confidential Source #1 described "Smiley" as having a big smile and looking like a kid. He described him as around 23 years old, perhaps Somalian. Confidential Informant #2 described Smiley as a black male with a thick beard. Both sources looked at a photograph of the appellant and identified him as Smiley.

[4] Both sources indicated that the appellant trafficked in the Eglinton Avenue and Weston Road area.

[5] Confidential Source #1 had provided information to police on one occasion in the past which led to an arrest. Confidential Source #2 was an untested informant.

[6] Confidential Source #1 provided a cell phone number used to arrange drug purchases.

[7] Police confirmed that that cell phone number was associated with the appellant, and learned that he had outstanding drug charges. Most importantly, police called the number and arranged to purchase cocaine from the appellant near the Weston Road and Eglinton Avenue area.

[8] Confidential Source #2 told police that the appellant used a unit on the ground floor of Weston Road behind a pizzeria as a stash house and precisely described the location of that unit in the complex. Police verified that that address existed, and confirmed that the appellant did not in fact reside at another address with which he was associated. Surveillance showed the appellant walking at the rear of 1200 Weston Road with a dog two days before the warrant was issued.

Trial Judge's Decision

[9] The trial judge found that there was an ample basis for the issue of the warrant:

I considered all of the applicant's submissions respecting alleged omissions, inconsistencies and gaps in the ITO, and I found them to be of no import or consequence. In this case, it is what was to be found in the ITO that was significant – a strong accumulation of credible, compelling and corroborated information.

In my opinion, the issuing judge clearly had reasonable and probable grounds to believe that a search warrant for the premises at the rear of 1200 Weston Road would afford evidence of an offence, namely the existence of controlled substances, drug paraphernalia and other indicia of drug trafficking. Not only is this a case where the judge "could have granted the search warrant" based on the material before him, it is a most compelling case.

Analysis

[10] The test is whether there was sufficient credible and reliable evidence to permit a justice to conclude that there were reasonable and probable grounds to believe that an offence had been committed and that evidence of the offence would be found at the specified time and place of the search. (R. v. Sadikov, 2014 ONCA at para. 84, R. v. Morelli, 2010 SCC 8 at para. 40)

[11] Here the information provided by the confidential sources that the appellant was dealing in drugs was solidly corroborated. This suggests that the sources were providing reliable information. The information linking the appellant to 1200 Weston Road was not as compelling, but given the proven accuracy of other information provided by the sources, it would have been open to a justice of the peace to conclude that the information about the address targeted was reliable evidence that might reasonably be believed to support a conclusion that evidence would be found at the time and place of the search. As pointed out in R. v. Debot at page 1168, "weaknesses in one area may, to some extent, be compensated by strengths" in other areas.

[12] There is no basis to interfere with the decision of the reviewing judge, to which deference is owed. (Sadikov at para. 88 and 89)

[13] The appellant does not pursue his appeal of the dismissal of the s. 11(b) application.

[14] Accordingly, I would dismiss the appeal.

"G. Pardu J.A."

"I agree David Brown J.A."

"I agree Grant Huscroft J.A."

Released: December 20, 2018