Court of Appeal for Ontario
Date: 2018-01-25 Docket: C61881 Judges: Watt, Brown and Miller JJ.A.
Between
Her Majesty the Queen Respondent
and
Brayan Victoria Appellant
Counsel
Breana Vandebeek, for the appellant
Christopher G. Walsh, for the respondent
Heard
November 21, 2017
On Appeal
On appeal from the conviction entered on December 10, 2015 and the sentence imposed on March 11, 2016 by Justice John T. Lynch of the Ontario Court of Justice.
By the Court
[1] After a trial before a judge of the Ontario Court of Justice, the appellant was convicted of three counts of possession of controlled substances – cocaine, MDMA and marijuana – for the purpose of trafficking, and single counts each of possession of a prohibited device and possession of the proceeds of crime.
[2] The trial judge imposed a total sentence of 3.5 years in the penitentiary, after awarding credit of 18 months for pre-disposition custody.
[3] The appellant appeals both conviction and sentence.
[4] At the conclusion of oral argument, we dismissed both appeals. We promised to provide reasons to explain our decision. What follows fulfills that promise.
The Background Facts
[5] The grounds of appeal advanced render a detailed recital of the circumstances of the offences unnecessary. A brief overview will suffice, with further details provided to the extent it is essential for an understanding of the grounds of appeal advanced and our decision on their merits.
[6] The appellant was tried jointly with his common law wife. The case for the Crown consisted almost entirely of evidence obtained by searches conducted under s. 11(1) CDSA warrants executed at the couples' residence and in a motor vehicle to which each had access. A third warrant executed at what police had termed a "safe house" yielded nothing of evidentiary value.
[7] At the outset of trial proceedings, the appellant and co-accused challenged the CDSA warrants on the basis that the information to obtain (the "ITO"), which was common to the warrants in issue, did not, indeed could not, establish the statutory and constitutional requirements for their issuance. As the initial step in their challenge, trial counsel (not Ms. Vandebeek) sought leave to cross-examine the author of the ITO (the "affiant").
The Motion for Leave to Cross-Examine
[8] The motion for leave to cross-examine the affiant extended for three days before Westman J. of the Ontario Court of Justice, who was scheduled to preside over the trial. Counsel sought leave to cross-examine the affiant on seven discrete but related grounds, two of which counsel abandoned during oral argument.
The Initial Ruling
[9] During the oral argument of the motion, Westman J. engaged and challenged trial counsel on the issues advanced as appropriate for leave to cross-examine the affiant. On February 27, 2015, at the conclusion of three days of oral argument on the motion, Westman J. said:
Okay, if you want a written ruling I'll do it, but having reviewed the law and expressed myself in our exchanges, the ruling will be that the application is denied in terms of the right to cross-examine the affiants, and so unless you want a written decision, I'll simply leave it at that.
[10] After a brief adjournment, counsel for the co-accused took up Westman J.'s invitation to provide written reasons. Proceedings were adjourned to April 10, 2015.
The Formal Ruling
[11] When proceedings resumed on April 10, 2015, Westman J. gave lengthy oral reasons in which he dismissed the defence motion to exclude evidence of the results of the searches conducted under the s. 11(1) CDSA warrants. Unfortunately, this motion had not yet been argued. The only motion argued at this point in the proceedings had been the motion for leave to cross-examine the affiant of the ITO. And it was that motion on which counsel had requested, and Westman J. had promised to provide, written reasons.
[12] The proceedings were adjourned to June 3, 2015 for formal commencement of the trial.
The Mistrial Motion
[13] On June 3, 2015, trial counsel for the appellant and co-accused asked Westman J. to declare a mistrial. The basis advanced was that dismissal of their s. 8 challenges to the searches and their motion to exclude the evidentiary fruits of those searches under s. 24(2), without having heard argument on either issue, gave rise to a reasonable apprehension of bias. The only way to remedy what had occurred, the submissions continued, was to terminate the proceedings before Westman J. and begin anew before another judge of the same court.
The Mistrial Ruling
[14] The parties made further submissions on the motion to declare a mistrial on June 4, 2015. At the conclusion of argument, Westman J. granted the motion and declared a mistrial.
The New Trial Proceedings
[15] On June 8, 2015, the parties appeared before Lynch J. who was to preside over the trial. The first order of business was to determine whether Lynch J. considered himself bound by Westman J.'s brief ruling refusing the defence leave to cross-examine the affiant of the ITO.
[16] After hearing argument, Lynch J. ruled that he was bound by Westman J.'s ruling refusing leave to cross-examine the ITO affiant. The parties then proceeded to make submissions on the motion to exclude evidence of the results of the searches.
The Section 8 Infringement Ruling
[17] On September 2, 2015, Lynch J. dismissed the motion to exclude evidence found during the searches authorized by the s. 11(1) CDSA warrants. The trial judge was satisfied that the ITO contained information on the basis of which the warrants could have been issued. It followed that the searches were not constitutionally flawed and the evidence obtained on their execution was admissible at trial. Trial counsel did not suggest that the searches were unreasonably executed.
The Trial Proceedings
[18] When proceedings resumed after Lynch J. had ruled on the constitutional integrity of the searches, the defence agreed to have the Crown read an agreed statement of fact that established the essential elements of each count with which the appellant was charged. The defence made no submissions. Lynch J. made findings of guilt on each count, entered convictions and later imposed sentence.
The Appeal from Conviction
[19] On the appeal from conviction, the appellant advanced three grounds of appeal. As I would paraphrase them, the appellant says:
i. that Lynch J. erred in deciding he was bound by the ruling made by Westman J. refusing leave to cross-examine the ITO affiant;
ii. that Westman J. erred in failing to grant leave to cross-examine the affiant of the ITO; and
iii. that Lynch J. erred in failing to find that the search warrants could not have been granted on the grounds disclosed in the ITO and, as a consequence, in failing to exclude the evidence found during the searches.
Ground #1: The Binding Effect of the Prior Ruling
[20] The initial complaint concerns the trial judge's decision about the effect of the prior ruling of Westman J. refusing leave to cross-examine the ITO affiant. To better understand this claim of error, some further background is helpful.
The Motion
[21] As proceedings began before Westman J., counsel for the co-accused sought leave to cross-examine the ITO affiant on seven issues:
i. The affiant's conclusion that 22 Cecile Drive was a "safe house (a location where illicit items are stored, away from detection to protect against robberies and seizures after police detection)";
ii. The affiant's belief that the appellant's vehicle had undergone a change in licence plate and registration as a technique to avoid police detection;
iii. The affiant's inclusion of information related to multiple confidential informants ("CIs") "believed to be reliable" but also a statement that he was not relying on their information in relation to the issuance of the warrant;
iv. The affiant's reliance on information from reports dated September 2010 and September 2011 regarding the appellant, provided by the Waterloo Regional Police;
v. The information provided by the sub-affiant, Oliver, where it is alleged that on November 24, 2013 the police witnessed the appellant exit 46 Cedarwoods Crescent and retrieve a bag which was then transferred to an unknown female;
vi. The information provided by the sub-affiant, Stolf, where he allegedly observed a "hand-to-hand" transaction involving the appellant on November 25, 2013; and
vii. The information provided by the sub-affiant, Magee, in regards to his alleged observation of the silver BMW in the driveway of 46 Cedarwoods Crescent along with a black Volkswagen.
During the course of argument, counsel abandoned issues v and vii.
The Ruling on the Motion
[22] During the three days of argument on the motion for leave to cross-examine the ITO affiant, Westman J. engaged counsel in discussions about the merits of each ground advanced and unhesitatingly expressed his views about their validity as the subject of proposed cross-examination.
[23] On the first issue – the "safe house" – Westman J. pointed out the accuracy of the underlying factual recital in the ITO and identified the nub of the appellant's complaint as his quarrel with the inference the affiant drew from the underlying facts. Trial counsel agreed that the inference that the affiant drew was reasonably available on the stated facts.
[24] The discussion of the second issue followed a similar course. The affiant had drawn an inference about the purpose behind the plate change. Trial counsel acknowledged the accuracy of the threshold facts, but contested the inference the affiant drew from them. Once again, Westman J. pointed out the availability of the disputed inference and queried whether questions about it were a proper subject of cross-examination.
[25] The third issue – the inclusion of the unverified CIs – faults the affiant for failing to follow up on the accuracy of the information and proposed cross-examination on that ground. But, as Westman J. observed to counsel, the affiant fully acknowledged the absence of any verification and did not rely upon it to establish the conditions precedent for the issuance of the warrant.
[26] The fourth issue – the reports from the Waterloo Regional Police Service – counsel agreed had been satisfied by a disclosure order made by Westman J.
[27] In connection with the final issue on which the appellant sought leave to cross-examine a sub-affiant – the characterization of an observation as a "hand-to-hand" drug transaction – Westman J. noted that, once again, the complaint had to do with the characterization of what occurred, not the accuracy of the observation. Counsel had the notes of the sub-affiant who witnessed the transaction. The proposed exploratory cross-examination would not advance the inquiry.
[28] At the conclusion of argument, Westman J. dismissed the motion for leave to cross-examine. Rather than giving a formal ruling, he relied on what he had said during his exchanges with counsel.
The Application of the Leave Ruling
[29] When counsel appeared before Lynch J. to recommence the trial proceedings, the Crown (not Mr. Walsh) sought an order under s. 653.1 of the Criminal Code that the rulings made by Westman J., including his refusal of leave to cross-examine the ITO affiant, were "binding" or applied to the second trial.
[30] Defence counsel agreed that the disclosure ruling applied, but not the ruling prohibiting cross-examination of the ITO affiant or the ruling rejecting the claim of s. 8 Charter infringement. The defence wanted to re-argue the motion for leave to cross-examine on the basis of the same material and on the same grounds. Defence counsel argued further that Westman J. had failed to provide a formal ruling on the leave issue, thus there was nothing available for incorporation under s. 653.1.
The Ruling under Section 653.1
[31] According to Lynch J., s. 653.1 creates a presumption in favour of preserving prior rulings when proceedings are recommenced after a mistrial has been declared. However, the presumption is rebuttable, provided a party opposed to preservation can satisfy the judge presiding in the later proceedings that "it would not be in the interests of justice" that the prior rulings be binding at the new trial.
[32] To determine whether the presumptive rule or its exception should control the result, Lynch J. considered several factors:
i. the existence or absence of new evidence;
ii. the existence or absence of new arguments;
iii. the merits of any new arguments that might be advanced;
iv. any prejudice created by the inability to relitigate the issues; and
v. the public interest in the timely and efficient trial of allegations of criminal offences.
[33] In this case, the trial judge was satisfied that when proceedings began afresh before him, no new evidence was to be tendered (indeed no evidence was adduced at all) or fresh argument to be advanced. It was to be, to borrow a redundancy, déjà vu all over again. The issue raised had been fully canvased in the prior proceedings. The conclusion Westman J. had reached on the motion for leave to cross-examine the ITO affiant had nothing to do with the argument presented or the determination made on the motion for a mistrial. The public interest in timely proceedings expeditiously conducted and the absence of any prejudice to the appellant favoured application of the presumptive rule. And so it was that Lynch J. decided that the earlier ruling refusing leave to cross-examine the ITO affiant would bind the parties when the trial proceedings began again.
The Arguments on Appeal
[34] In this court, the appellant acknowledges that the purpose of the presumptive rule enacted by s. 653.1 is to encourage the retention of prior rulings, thus to avoid the time and expense associated with relitigation of issues already decided, as well the prospect of conflicting decisions on the same issues and evidence. That said, the section plainly recognizes that circumstances will exist where incorporation of prior rulings is not in the interests of justice.
[35] The appellant says that the phrase "interests of justice" in s. 653.1 has not yet been the subject of appellate consideration. That said, its inclusion in other statutory provisions and common law rules signals the existence of a judicial discretion to be exercised on a case-by-case basis taking into account societal concerns, the interests of individual accused and the integrity of the criminal trial process.
[36] In this case, the appellant continues, the trial judge erred in deciding that it was not in the interests of justice to permit relitigation of the leave to cross-examine issue. The trial judge did not have the benefit of reviewing a transcript of the prior proceedings to assess the arguments advanced. Nor was there a formal ruling that reflected consideration of those arguments. The prior proceedings terminated because they were procedurally unfair. Procedural fairness includes a trial judge's obligation to provide reasons for evidentiary rulings. This failure of procedural fairness, according to the appellant, warrants departure from the presumptive application of prior rulings in later proceedings and requires a new trial.
[37] The respondent says that the trial judge not only acknowledged the presumptive effect of s. 653.1, but also was well aware of its rebuttable nature, the standard to be applied and the relevant factors to consider. The trial judge considered these factors and weighed them appropriately.
[38] Here, the respondent continues, the trial judge considered the cumulative effect of the absence of any new argument or evidence; the public interest in timely and efficient adjudication of allegations of criminal conduct; and the absence of any articulable prejudice to the appellant. In combination, these factors favoured adherence to the presumptive rule and defeated the appellant's efforts to dislodge it.
[39] The respondent adds that the mistrial ruling had nothing to do with the decision on the issue of leave to cross-examine the ITO affiant. The mistrial was grounded on the premature determination of an issue that counsel had not yet argued.
The Governing Principles
[40] To determine this ground of appeal requires the application of principles that govern the obligations of trial judges to provide reasons for evidentiary rulings and those that inform the interpretation of s. 653.1 of the Criminal Code.
[41] First, the obligation to provide reasons.
[42] It is the trial judge, and only the trial judge, upon whom we settle the obligation to provide adequate reasons for rulings on evidentiary and procedural issues. This obligation is not dependent upon a request from counsel for reasons: R. v. Czibulka, 2011 ONCA 82, 267 C.C.C. (3d) 276, at para. 38.
[43] Among the purposes served by the requirement for reasons are to explain the judge's disposition of the issue and to facilitate appellate review of the findings made at trial. The content of the duty to provide reasons is linked to their purpose. And the purpose varies with the context: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 24; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 24.
[44] Appellate courts adopt a functional approach to their review of the sufficiency of reasons. Our inquiry into sufficiency is not some abstract exercise, rather is directed at whether the reasons respond to the live issues raised, with due regard to the evidence adduced and the positions advanced by counsel on the issues: Dinardo, at para. 25. Appeals grounded on claims of insufficient reasons will fail unless the reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25.
[45] Reasons are not insufficient where the basis for the judge's conclusion is apparent from the record, even if it is not articulated in a formal, self-contained decision. Where the judge's reasons are deficient, it is our task to examine the record and to determine whether the reasons for the decision are, in fact, patent on that record: Dinardo, at para. 32; Sheppard, at para. 46; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20.
[46] The absence or inadequacy of reasons is not a free-standing ground of appeal. Our approach to claims of absent or inadequate reasons is contextual. We require an appellant to show not only a deficiency in the reasons, but also that this deficiency has caused prejudice to the exercise of his or her legal right to an appeal in a criminal case. Provided the reasons are sufficient to serve the purpose for which the duty is imposed, are reasonably intelligible to the parties and provide the basis for meaningful appellate review of the correctness of the decision, they fulfil the judge's duty: R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at paras. 31 and 38.
[47] The trial judge invoked s. 653.1 of the Criminal Code to bind the parties by the prior ruling refusing the appellant leave to cross-examine the ITO affiant.
[48] Section 653.1 of the Criminal Code came into effect on August 15, 2011. It provides:
In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.
The section appears in Part XX – Procedure in Jury Trials and General Provisions, but it is incorporated by reference in s. 572 to non-jury trials to the extent that it is not inconsistent with Part XIX – Indictable Offences – Trial Without Jury.
[49] Section 653.1 was part of the Fair and Efficient Criminal Trials Act, S.C. 2011, c.16. It represents a parliamentary determination to limit or minimize the consequences of a mistrial on court resources by restricting relitigation of certain issues determined in the prior proceedings.
[50] The section focuses on rulings relating to defined subject-matter which were made, or could have been made, before evidence on the merits was adduced in the prior proceedings. Although s. 653.1 does not use the language associated with presumptions, its effect is similar. Apart from cases in which it would not be in the interests of justice to do so, rulings made on any of the defined subjects bind the parties on the subsequent trial.
[51] To engage the presumptive effect of s. 653.1, the prior ruling must relate to:
i. disclosure;
ii. the admissibility of evidence; or
iii. the Charter.
Further, the ruling must be one that was made, or could have been made, before the introduction of evidence on the merits at the previous trial.
[52] To rebut the presumptive incorporation of prior rulings in subsequent proceedings, a party must demonstrate that "it would not be in the interests of justice" that the prior rulings bind the parties in the later trial. In accordance with general principle, the standard of persuasion imposed on the party opposed to the incorporation of the prior rulings is on a balance of probabilities.
[53] The phrase "the interests of justice" is not defined in or for the purposes of s. 653.1. Nor does the section list or otherwise describe any or all of the factors relevant to its application. That said, the phrase makes frequent appearances throughout the Criminal Code. It takes its meaning from the context in which it appears and is characteristic of the existence of a judicial discretion to be exercised on a case-by-case basis. The "interests of justice" take into account not only the specific interests of the parties, but also broad-based societal concerns: R. v. Bernardo, 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16.
[54] A canvass of precedent interpreting the inscrutable phrase "interests of justice", as it appears elsewhere in the Criminal Code or common law, as for example in ss. 591(3), (4.1) and (4.2) reveals that to determine where the "interests of justice" lie in any case requires a consideration of the cumulative force of all relevant circumstances. No single circumstance or factor is dispositive. Nor is the phrase equivalent to "the interests of the accused" or "the interests of the Crown". Otherwise, Parliament would have said so. Although the interests of the parties are important factors, so too are the interests of the public, including its interests in timely and efficient criminal trials, the effective use of limited court resources, finality and the integrity of the criminal trial process: R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, at paras. 250-251. See also, R. v. Cody, 2017 SCC 31, 349 C.C.C. (3d) 488, at paras. 37-38; and R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 79 and 82.
[55] In the absence of statutory guidance on the meaning to be assigned to the "interests of justice" in s. 653.1 or of an exhaustive or illustrative list of relevant considerations, relevant factors might include, but not be limited to:
i. whether any new evidence will be tendered on the proposed rehearing;
ii. whether any new arguments will be advanced on the proposed rehearing and the apparent merit, if any, of those arguments;
iii. the interests of the parties, including any articulable prejudice fostered or perpetuated by the inability to relitigate any issue previously decided;
iv. the public interest in the timely and efficient conduct of criminal trial proceedings and avoidance of unnecessary and duplicative proceedings;
v. any changes in the legal principles governing the ruling on which relitigation is proposed;
vi. the nature of the evidentiary record on the basis of which the prior ruling was made, as for example, viva voce testimony; agreed statement of facts; transcripts of testimony given elsewhere and any differences in the record proposed for relitigation;
vii. the nature of the issue(s) involved in the prior ruling and proposed relitigation;
viii. the possibility of inconsistent rulings; and
ix. any other circumstances relating to the balance of the subsequent trial proceedings that may have an impact on the continued applicability of the prior rulings.
See, for example, R. v. N.J.S., 2013 BCSC 2512, at para. 19.
The Principles Applied
[56] As we will explain, we did not give effect to this ground of appeal. We were satisfied that the trial judge properly applied the presumptive rule in s. 653.1 and did not err in holding that it was not in the interests of justice to permit relitigation of the motion for leave to cross-examine the ITO affiant in the subsequent proceedings.
[57] We begin from a stance of deference which is the trial judge's due on account of the discretionary nature of the decision that it was not in the interests of justice to permit relitigation of the prior ruling. We are unable to identify any error in law or in principle; any failure to consider a relevant factor or any consideration of an irrelevant factor in the trial judge's decision. Nor can we say that his decision under s. 653.1 is plainly unreasonable.
[58] Second, we are not persuaded that the trial judge erred by failing to direct relitigation of the motion for leave to cross-examine the ITO affiant on the ground that the prior ruling was cumbered by insufficient reasons. While the reasons provided at the end of submissions are conclusory and, standing alone, evasive of appellate review, it is plain from the record of the exchanges between the trial judge and counsel why the motion for leave to cross-examine failed. Thus the insufficiency of the reasons of the judge presiding in the earlier proceedings afford no ground for deviation from the general rule in s. 653.1.
[59] Third, neither the evidentiary predicate upon which the proposed relitigation was to be grounded, nor the argument to be advanced differed from that rejected by the judge at the previous trial. This is relitigation, pure and simple in the hope of achieving a different result, the very consequence Parliament sought to avoid when it enacted s. 653.1.
[60] Fourth, the referential incorporation of the prior ruling accords proper weight to the public interest in the effective and efficient use of limited court resources. To permit relitigation of the same issue, on the same grounds, on the same evidence in the hope of achieving a different result is to invest in forum shopping and turn the principles upon which s. 653.1 is founded on their head.
[61] Finally, to refuse to permit relitigation does not cause the appellant any prejudice. Incorporation of the prior ruling leaves it open to the appellant to argue that the reasons were insufficient to permit meaningful appellate review, as well as to submit that the search was constitutionally flawed and the evidence obtained ought to be excluded.
[62] In the end, we rejected this ground of appeal.
Ground #2: Error in Failure to Grant Leave to Cross-Examine
[63] The second ground of appeal is related to the first in that it challenges the correctness of the decision incorporated by the application of s. 653.1 – the refusal of leave to cross-examine the ITO affiant.
[64] In earlier paragraphs we briefly canvassed the reasons of Westman J. for refusing leave to cross-examine the ITO affiant. We see no need to repeat that discussion here, rather begin with a brief recapture of the arguments advanced in this court on the correctness of that decision.
The Arguments on Appeal
[65] The appellant begins with a reminder that the test to be applied to determine whether leave should be granted to permit cross-examination of an ITO affiant is not onerous. Leave should be granted where the proposed cross-examination will elicit testimony tending to discredit any condition precedent to the issuance of the warrant, or demonstrate the affiant's intention to mislead the authorizing justice.
[66] The appellant acknowledges that decisions about leave to cross-examine involve the exercise of judicial discretion. It follows, the appellant concedes, that we owe deference to the decision refusing leave. But, the appellant continues, deference gives way when the reviewing judge applies the wrong test, misapprehends relevant evidence or reaches a conclusion that is plainly unreasonable. And that is this case.
[67] In this case, the appellant says, Westman J. erred in conflating the test for review under R. v. Garofoli, [1990] 2 S.C.R. 1421, with that applicable to motions for leave to cross-examine the ITO affiant. While the areas proposed for a cross-examination might not have achieved ultimate success in having the search declared unconstitutional, they were nonetheless relevant to the reasonableness of the affiant's belief and his duty to make full, fair and frank disclosure of all material facts in the ITO.
[68] The appellant contends that the ITO contains unsupported opinions of the affiant and refers to confirmatory information from four additional CIs whose information was not itself confirmed, nor was the reliability of the CIs established. The ITO reflects a deliberate effort on the part of the affiant to obfuscate, the antithesis of the requirement of full, fair and frank disclosure of all material facts. Leave should have been granted to permit exploration of these issues in cross-examination. This error requires a new trial.
[69] Like the appellant, the respondent begins with a reminder about the standard to be met when an accused seeks leave to cross-examine an ITO affiant. But the respondent emphasizes the necessity for a nexus between the proposed cross-examination and the conditions precedent to the issuance of the relevant search authority.
[70] In this case, the respondent continues, trial counsel nowhere pointed to any issue on which leave to cross-examine was being sought that would tend to discredit any precondition to be met for the issuance of a s. 11(1) CDSA warrant. At trial, the appellant's essential complaint was about the affiant's opinions, inferences and conclusions drawn from various observations made by investigators or others. Complaints of this nature may be the subject of argument on a motion to review the issuance of a search authority, but are not fodder for cross-examination of the affiant.
[71] The respondent circles back to the standard that must be met before leave to cross-examine an ITO affiant may be granted. An applicant must show that the proposed cross-examination is reasonably likely to assist in determining whether the requisite grounds existed to issue the warrant. Here, the judge applied the proper test, did not misapprehend any material evidence and reasonably concluded otherwise. His decision is entitled to deference. Nothing more need be said.
The Governing Principles
[72] The principles that govern motions for leave to cross-examine an ITO affiant have their genesis in the reasons of Sopinka J. on behalf of the majority of the Supreme Court of Canada in Garofoli. Their constitutional integrity was affirmed in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343.
[73] It is well established that an accused against whom evidence of the results of an authorized search or seizure are tendered for admission in a criminal trial has no unqualified right to cross-examine the author of the material on the basis of which the search or seizure authority was granted. Leave is required: Garofoli, at p. 1465.
[74] Whether leave should be granted to cross-examine an ITO affiant is left to the reviewing judge. To obtain leave, an applicant must show that the proposed cross-examination will elicit testimony tending to discredit the existence of one (or more) of the preconditions to the authorizing authority: Garofoli, at p. 1465.
[75] In Garofoli, the majority concluded that the trial judge should have permitted cross-examination of the affiant. This was so because of the degree of reliance police had placed on the informant. The cross-examination could discredit the information provided by the informant. In turn, this could raise an inference that the police knew or ought to have known that the informant lied, thus compromise the police belief in the imminent commission of an offence: Garofoli, at p. 1466.
[76] The leave requirement imposed by Garofoli is neither more nor less than a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of relevant issues. Generally, the Garofoli test or standard for leave will allow just a narrow window for cross-examination. This is so because there is a similarly confined basis upon which the enabling authority can be set aside: Pires; Lising, at para. 40. Recall that the task of the reviewing judge is to determine whether, based on the material before the authorizing judge as amplified on the review, the authorizing judge could have granted the search or seizure authority: Garofoli, at p. 1452.
[77] The requirement of a nexus between the proposed cross-examination and Garofoli standard of review means that if the proposed cross-examination is unlikely to assist the reviewing judge in deciding whether there is a basis upon which the search authority could be granted, leave to cross-examine should be refused: Pires; Lising, at para. 40.
[78] Sometimes, the proposed cross-examination may be focused on the credibility of an informant whose information has been relied upon by the affiant. A proposed cross-examination directed to show only that some of the information relied upon by the affiant is false is unlikely to warrant leave unless it can also support an inference that the affiant knew or ought to have known that it was false: Pires; Lising, at para. 41.
[79] The Garofoli threshold for leave to cross-examine requires that an applicant show a reasonable likelihood that cross-examination of the affiant will elicit testimony of value to the issue framed for the reviewing judge – whether there is a basis upon which the authorizing judge or justice could have granted the order: Pires; Lising, at paras. 3 and 40. The applicant need not show that the proposed cross-examination will be successful in discrediting the conditions precedent for the authorization, only that there is a reasonable likelihood that the proposed cross-examination will assist the reviewing judge to determine a material issue: Pires; Lising, at para. 40.
[80] On the motion for leave to cross-examine the ITO affiant, the focus of the inquiry is on the reasonableness and honesty of the affiant's belief about the existence of the requisite grounds, and not on the ultimate accuracy of the information the affiant relies upon: R. v. Green, 2015 ONCA 579, 22 C.R. (7th) 60, at para. 34.
[81] A final point about motions for leave to cross-examine an ITO affiant has to do with the scope of appellate review of decisions on the issue. The decision to allow or refuse leave to cross-examine an ITO affiant involves the exercise of judicial discretion. Absent an error in principle, a material misapprehension of any evidence or an unreasonable decision, an appellate court will defer to the trial judge: Garofoli, at p. 1465; R. v. Shivrattan, 2017 ONCA 23, 35 C.R. (7th) 143, at para. 55.
[82] The search warrants at issue here were authorized by s. 11(1) CDSA. The discretion to issue a search warrant under that section becomes engaged when a justice is satisfied by an information on oath that there are reasonable grounds to believe that a controlled substance or precursor in respect of which the CDSA has been contravened, offence-related property, or anything that will afford evidence in support of a CDSA offence is in the place to be searched.
The Principles Applied
[83] For several reasons, we did not give effect to this ground of appeal.
[84] First, deference. Decisions on whether to grant leave to cross-examine an ITO affiant involve the exercise of judicial discretion. An applicant has no as-of-right entitlement to cross-examine the affiant. Absent an error in principle, a material misapprehension of any evidence, or an unreasonable finding, we are required to defer to the decision of the trial judge. The appellant's quarrel is with the result, not with the principles applied or the evidence considered. We cannot say that the conclusion to refuse leave to cross-examine was unreasonable.
[85] Second, to obtain leave, the appellant was required to show that the proposed cross-examination was likely to assist in the determination of the single question to be decided on the Garofoli review – whether there is a basis upon which the authorizing justice could issue the warrant. Cross-examination will only tend to discredit the existence of a precondition to the issuance of the warrant if it can show that the affiant knew or ought to have known that the information contained in the ITO was false. There was no evidence before the trial judge to suggest this was the case. The appellant's quarrel was with the inferences the affiant drew from the primary facts about which there was no dispute. Complaints about an affiant's inferences, like claims of omissions, inconsistencies or conclusory or inaccurate statements afford no basis for cross-examination.
[86] Third, to issue a s. 11(1) CDSA warrant, the justice had to be satisfied that there were reasonable grounds to believe that there was in each place to be searched:
i. a controlled substance or precursor in respect of which the CDSA had been contravened;
ii. anything in which a controlled substance or precursor was contained or concealed;
iii. offence-related property; or
iv. anything that would afford evidence of a CDSA offence.
To warrant leave, the proposed cross-examination had to tend to discredit one of these preconditions. The proposed subjects revealed no tendency to do so.
Ground #3: The Unreasonable Search
[87] The final ground of appeal against conviction focuses on the trial judge's rejection of the appellant's claim that the searches authorized by the s.11(1) CDSA warrants violated s. 8 of the Charter. For our purposes it is enough to briefly review the decision of the trial judge and the arguments advanced on appeal, before turning to the controlling authorities and applying them to this case.
The Ruling of the Trial Judge
[88] The argument on this issue at trial proceeded without reference to what had taken place in the prior proceedings ending in a mistrial.
[89] The trial judge began his reasons by identifying the several bases upon which the appellant claimed the warrants could not have been issued. The allegations were that the ITO:
i. failed to establish the necessary reasonable grounds;
ii. contained colourable use of innocuous observations;
iii. included unsupported conclusory statements; and
iv. failed to contain any information that corroborated essential elements of information received from the principal CI.
[90] In his determination of what constituted the record for review purposes, the trial judge redacted several portions of the ITO:
i. the reference to 22 Cecile Drive as a "safe house";
ii. the reference to four additional CIs because their reliability could not be determined;
iii. the reference to a change of licence plates on the BMW as a technique to avoid detection; and
iv. the characterization of a brief meeting observed by surveillance officers as a hand-to-hand transaction.
[91] The trial judge set aside the redacted portions of the ITO when he measured the cumulative effect of the evidence against the Garofoli standard. He examined the information provided by the CI, which included current direct observations of drug transactions in the appellant's residence, through the lens provided by R. v. Debot, [1989] 2 S.C.R. 1140. In the end, the judge was satisfied that there remained in the ITO sufficient reliable evidence that might reasonably be believed on the basis of which the warrants could have been issued.
The Arguments on Appeal
[92] The appellant accepts that the trial judge recited the proper standard of review applicable to the issue before him, but says that the judge erred in its application. In cases such as this, the appellant continues, which involve significant misleading information being submitted to the issuing justice in the ITO, the reviewing judge must take this into account in applying the Garofoli standard and errs when, as here, he fails to do so.
[93] The appellant also contends that the trial judge erred in considering not only the contents of Appendix 'D' to the ITO, but also the contents of Appendix 'C'. Appendix 'D' bears the heading "Confidential Informer Information", while Appendix 'C' is a summary of the police information. Even if the contents of Appendix 'C' could be relied upon, it is tainted by information from four other CIs of unascertainable reliability, and thus is valueless in the Garofoli analysis.
[94] The respondent begins with a reminder that decisions on a Garofoli review involve the exercise of judicial discretion and thus are subject to deference on appeal, absent an error of law or principle, misapprehension or failure to consider relevant evidence or a decision which is plainly unreasonable. None of these exceptions that would cast deference aside have been demonstrated here.
[95] The respondent says that the reviewing judge, as he was required to do, considered the ITO as a whole after excising the affiant's opinions and conclusions and putting aside information provided by four CIs of unascertainable reliability. What remained was current, detailed, firsthand information that the appellant was actively dealing drugs from his home and vehicle. Police surveillance and records confirmed his residence and use of the vehicle. Police surveillance also confirmed a meeting suggestive of drug dealing. The CI had no financial incentive to provide false information. This was sufficient to satisfy the Garofoli standard.
The Governing Principles
[96] The review is not a de novo hearing of the ex parte application. The parties occupy common ground about the standard to be applied on warrant review. The scope of review is narrow, proceeding from a presumption that the warrant is valid.
[97] The reviewing judge does not substitute, and should not be invited to substitute, his view for that of the issuing judicial officers: Garofoli, at p. 1452; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. Warrant review requires a contextual analysis of the entirety of the ITO, leaving aside redacted portions and including any amplification. A narrow focus on a portion of the ITO is inconsistent with the legal requirement that the issuing justice act judicially, which would include diligently and independently reviewing the entire ITO and considering its contents: R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 23. Indeed, such a narrow focus would seem incompatible with the standard of review set in Garofoli and affirmed in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.
[98] Without more, inaccuracies in an ITO are not a sufficient basis on which to ground a finding of bad faith, or an intent to mislead, much less to provide a basis on which to set aside a warrant: Araujo, at para. 54.
The Principles Applied
[99] We did not give effect to this ground of appeal. We have not been persuaded that there is any basis upon which to interfere with the discretionary decision of the trial judge, who stated and applied the proper standard of review to the whole of the ITO as redacted. The reasons reveal no misapprehension of evidence, consideration of irrelevant evidence or failure to consider material evidence. The decision is not plainly unreasonable.
[100] The appellant's principal complaints are with the inclusion of what he claims are inaccurate inferences and conclusory statements. The trial judge redacted these parts of the ITO, setting them aside in his evaluation of its adequacy to sustain issuance of the warrant. In a similar way, the trial judge excluded from consideration information provided by CIs whose reliability was unascertainable.
[101] Nor are we persuaded that the trial judge erred in considering the contents of both Appendix 'C' and Appendix 'D' in reaching his conclusion. The narrow focus advanced at trial and repeated on appeal is inconsistent with the duty imposed on the issuing justice at first instance, to diligently and independently review the ITO as a whole and consider the cumulative force of its contents in deciding whether to exercise his discretion to issue the warrant. Nor is it the entitlement of the reviewing judge to engage in a piecemeal approach to the evidence in applying the standard of review first articulated in Garofoli and confirmed in Araujo.
[102] Since we are satisfied that the searches did not infringe s. 8 of the Charter, we do not reach the issue of whether evidence of the results of those searches should have been excluded under s. 24(2) of the Charter.
[103] For these reasons, we dismissed the appeal from conviction.
The Appeal from Sentence
[104] The appellant also appeals against the sentence imposed upon him. The trial judge ordered that the appellant serve a sentence of five years in a penitentiary for the offences of which he was convicted. This resulted in a net sentence of imprisonment of 42 months when credit was given for pre-disposition custody and stringent terms of release.
[105] To explain our conclusion, we begin with brief references to the circumstances of the offence and of the appellant which are relevant for sentencing purposes, then follow with a canvass of the positions the parties advanced at trial and in this court, and a brief reference to the principles which inform our decision, concluding with our application of those principles to this case.
The Circumstances of the Offences
[106] The appellant was convicted of three counts of possession of controlled substances for the purpose of trafficking and single counts each of possession of the proceeds of crime and possession of a prohibited device.
[107] Police arrested the appellant in his motor vehicle. In the vehicle, the officers found more than one pound of marijuana in a vacuum sealed package, together with more than $4400 in cash and two BlackBerry cellular devices. A search of his home yielded several ounces of various controlled substances – cocaine, crack cocaine, MDMA and marijuana – as well as an empty handgun holster, a high capacity rifle magazine, 300 rounds of ammunition, several digital scales, mixing agents, a marijuana grinder, and nearly $8000. These items were found in different parts in the home, including the kitchen, various cupboards and closets, the master bedroom and a child's bedroom.
[108] Police analyzed the contents of the appellant's BlackBerry. From a review of about three months of BlackBerry Messenger conversations involving the appellant, police confirmed his discussions with others about the sale of Oxys (Oxycodone), MDMA, marijuana and cocaine, including the alteration of cocaine prior to sale. The appellant also sent messages showing him holding drugs and handguns.
[109] From the things seized and subsequent analysis of them, the inference is irresistible that the appellant was conducting an ongoing commercial drug enterprise from this home. The business involved several different controlled substances, as well as access to firearms and ammunition.
The Circumstances of the Offender
[110] When sentenced, the appellant was 26 years old and the father of three children, including one with his then common law wife and (former) co-accused. He claims a positive relationship with all the children. He has three prior unrelated convictions, including a failure to comply with a probation order. Prior to the imposition of the sentence under appeal he had never been sentenced to a term of imprisonment.
[111] After his release from custody, the appellant obtained his certificate as a Heavy Equipment Truck and Coach Technician and began his apprenticeship in that field. Although the appellant acknowledged prior alcohol abuse, he no longer drinks to excess. Apart from occasional marijuana use, the appellant denied any drug addictions or prior treatment for addiction.
Pre-Disposition Custody
[112] Prior to his release, the appellant was detained in custody for 276 days. The trial judge awarded credit of 414 days (276 x 1.5) for pre-disposition custody and a total credit of 18 months as a result of the combination of pre-disposition custody and onerous terms of release. With this deduction from a sentence of five years, the trial judge imposed a net sentence of 42 months.
The Sentencing Submissions at Trial
[113] At trial, the Crown (not Mr. Walsh) sought a sentence of imprisonment of five years, less credit for time spent in pre-disposition custody. Trial counsel for the appellant (not Ms. Vandebeek) contended for a suspended sentence and a lengthy period of probation.
The Reasons for Sentence
[114] Shortly after counsel concluded their sentencing submissions, the trial judge gave oral reasons for sentence.
[115] The trial judge rejected the defence request for a non-custodial sentence. He viewed denunciation and deterrence as the predominant principles of sentencing to be applied to commercial traffickers whose participation was motivated by the prospect of financial gain. The appellant was not an addict-trafficker, rather a person who made a conscious decision to traffic in significant quantities of several drugs for substantial financial gain.
[116] The trial judge questioned how much credit should be due the appellant for his rehabilitative steps. After all, he observed, those steps were of recent onset following apprehension and pre-trial detention, and well after the appellant had made the decision to engage in commercial trafficking. The trial judge said:
I certainly think that Mr. Victoria is to be credited for the addition he has made to his education, for maintaining employment, which as I have already indicated, I think was available to him earlier, and for maintaining contact with his three children. He is, as well, someone that his family support, but even with respect to the issue of the children, the Crown makes a valid point. This household in which Mr. Victoria was residing had turned itself into a drug business. That is apparent looking at the photographs filed as an exhibit. Bits of this business were scattered throughout the home. Scattered throughout the home as well were items relating to children, and in fact, as I look at the photographs, I see a child's pink, purple and blue knapsack full of cash. I see children's toys scattered around. I see drugs on the counter, bundles of money, bags of drugs. So, yes, Mr. Victoria is to be given credit for maintaining contact with his children, but those are the same children, at least two of them, he was prepared to place in jeopardy, in significant jeopardy, given what I think all courts can take note of, and that is the propensity for violence when significant amounts of drugs are involved.
Mr. Victoria is also to be given credit for the supportive nature of the letters that have been filed on his behalf, but they do not alter the offence itself, and as suggested today, sentences need to be fit and proportionate, and in this case, in my view, anything other than additional jail would not be fit and proportionate.
The Arguments on Appeal
[117] In this court, the appellant says that the trial judge erred in principle in minimizing and thus not giving proper effect to the appellant's rehabilitative efforts when determining the sentence he imposed. This error was material to the sentencing decision and had a direct impact on the sentence imposed, a disposition that was much harsher than a proper application of sentencing principles would warrant.
[118] The appellant contends that while out of custody prior to trial, he attended college, obtained a certificate as a Heavy Equipment Truck and Coach Technician and worked towards completion of his apprenticeship by taking full-time employment. He also enjoyed a positive relationship with his three children. Although not a first offender, his prior convictions were unrelated and did not attract a custodial sentence. At 26 years of age, he was a young offender whose first prison sentence should have been shorter in light of his rehabilitative steps and prospects.
[119] The trial judge's error, the appellant continues, was that he minimized the appellant's rehabilitative efforts as an important factor in determining a fit sentence. Rather than according the appellant's rehabilitative efforts and prospects significant weight in the sentencing decision, the trial judge criticized him for failing to begin his rehabilitative efforts earlier and to express remorse for his conduct. A failure to express remorse (especially when a conviction is under appeal) is not an aggravating factor. And rehabilitative efforts and potential are of abiding importance when determining the length of a first custodial sentence for a youthful offender.
[120] The respondent resists any suggestion of an error in principle, much less one that had an impact on the sentence imposed. The sentence imposed was well within the range of sentence appropriate for commercial drug trafficking at the level revealed here. Deference is due to the trial judge's decision. The appeal should fail.
[121] According to the respondent, the appropriate range of sentence on the cocaine count on its own is a penitentiary sentence of three to five and one-half years, with sentences in the upper bracket of that range – five to five and one-half years – not uncommon. The drugs and proceeds involved here were of significant quantities. This was an ongoing commercial enterprise involving a wide variety of drugs. And there is the added feature of ammunition and a high capacity magazine raising the prospect of that toxic mixture of guns and drugs and all that goes with it.
[122] The respondent reminds us about the wide latitude accorded to sentencing judges in their case-specific determination of a fit sentence. A mere disagreement with the weight the trial judge assigned the sentencing objective of rehabilitation, or with where within the applicable sentencing range the trial judge located the sentence, does not warrant appellate intervention unless the sentence imposed is demonstrably unfit. Simply put, that is not this case.
The Governing Principles
[123] No elaborate recital of sentencing principles is necessary to determine whether the sentence imposed warrants our intervention. However, brief reference to the applicable standard of review, as well as the relevance of sentencing ranges and the weighing of sentencing objectives, principles and mitigating factors is appropriate.
[124] We accord wide latitude to sentencing judges in their determination of a fit sentence. After all, they have the distinct advantage of having seen and heard any witnesses called at trial. This advantage puts them in the best position to determine a just and appropriate disposition consistent with the governing principles and mindful of the controlling sentencing objectives and relevant aggravating and mitigating factors.
[125] Sentencing ranges are primarily guidelines for sentencing judges. They are not hard and fast rules. Deviation from sentencing ranges, without more, is not synonymous with an error of law or an error in principle. Nor is the imposition of a sentence outside the range demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 58 and 60. The fact that a sentencing judge deviates from a range only merits appellate intervention where an error of law or of principle occurs and has an impact on sentence resulting in a sentence that is demonstrably unfit: Lacasse, at paras. 11 and 43.
[126] In a similar way, a sentencing judge's selection of a sentence within an appropriate sentencing range is equally discretionary, subject to appellate deference and does not, on its own, constitute a reviewable error: Lacasse, at para. 51. We are not entitled to intervene just because we would have located the sentence elsewhere in the category, but only if the sentence is demonstrably unfit, that is to say, an unreasonable departure from the fundamental principle of proportionality: Lacasse, at paras. 51 and 53.
The Principles Applied
[127] At the conclusion of argument, we were satisfied that there was no basis upon which we could interfere with the sentence imposed at trial.
[128] The sentence imposed – a penitentiary term of five years (less credit for pre-disposition custody) – falls within the range of sentence appropriate in cases such as this. In this respect, we consider that the circumstances reveal a significant ongoing commercial trafficking enterprise motivated by the prospect of substantial financial gain. Cocaine. MDMA. Marijuana. Precursors. Packaging and other paraphernalia. Significant quantities of cash.
[129] Among other aggravating features, we single out but two for special emphasis. The first has to do with the nature of the premises in which the commercial activity originated: the appellant's residence. Drugs, cash, and related drug paraphernalia, some in plain view and others secreted in a premises in which a child lived. The second relates to the presence of a holster, a high capacity magazine and 300 rounds of ammunition. The toxicity of the drugs-firearms pairing is well known.
[130] As to the complaint that the trial judge erred in principle by assigning too little weight to the appellant's rehabilitative efforts in determining the sentence he would impose, we observe that complaints about the weight assigned to mitigating factors only warrant appellate intervention if they result in a sentence that is demonstrably unfit. The sentence imposed here is not demonstrably unfit. It does not reflect any fundamental departure from the principle of proportionality, rather gives full effect to it.
[131] We also observe that this is not a case in which the sentencing judge failed to consider the appellant's rehabilitative steps in mitigation. That he or we might have weighed them differently is not synonymous with an error of law or of principle, much less an error that permits or warrants our intervention. The nature, extent and timing of the appellant's rehabilitative efforts were relevant considerations for the sentencing judge.
Conclusion
[132] For these reasons, we dismissed the appeals from conviction and sentence.
"David Watt J.A."
"David Brown J.A."
"B.W. Miller J.A."
