Court of Appeal for Ontario

Date: 2018-09-19 Docket: C62421

Judges: Pepall, Lauwers and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Baktazh Balouch Appellant

Counsel

Mark Halfyard, for the appellant Ian Bell, for the respondent

Heard and released orally: September 19, 2018

On appeal from: the conviction entered on April 4, 2016 and the sentence imposed on July 20, 2018 by Justice Jane E. Kelly of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of two counts of possessing heroin for the purpose of trafficking. One count relates to the seizure of heroin from the appellant when he was arrested and the second count relates to a larger seizure of heroin from an apartment he was associated with. The appellant received a global sentence of nine years less 48 days for pre-trial custody.

[2] Two search warrants issued during the investigation, one for the appellant's car (the "car warrant") and one for an apartment the appellant was associated with (the "apartment warrant"). The appellant claimed at trial that his s. 8 Charter rights had been breached because there were insufficient grounds to support the warrants. The trial judge disagreed and dismissed the Charter application.

[3] In this court, the appellant abandons his objection to the car warrant, but continues to maintain his objection to the apartment warrant. He argues that the trial judge erred in failing to conclude that the grounds in support of the apartment warrant amounted to anything more than suspicion that drugs would be found in the apartment. He contends that the trial judge's error is reflected in her reference to the fact that it was "reasonable to infer [the drugs] might have been stored" at that location [emphasis added].

[4] If this court concludes that there was a s. 8 Charter breach, the appellant maintains that the evidence should be excluded under s. 24(2), he should be acquitted in relation to the count arising from the apartment seizures, and his sentence should be reduced accordingly.

[5] We disagree that the trial judge erred in dismissing the s. 8 application.

[6] In his able submissions, Mr. Halfyard does not dispute that the trial judge accurately summarized the test for reviewing an information in support of a search warrant. Rather, he challenges her application of the test to the facts in this case.

[7] The trial judge gave careful reasons for why she concluded that there were sufficient grounds upon which the warrant could issue. We see no error in her view that the information to obtain the warrant ("ITO") contained credible and reliable facts upon which an issuing justice could find reasonable grounds to believe that the appellant was trafficking in drugs and that evidence respecting that offence would be found in the apartment searched.

[8] The trial judge specifically acknowledged that the appellant was not seen leaving the "specific apartment unit", but from the "underground parking lot" associated with the apartment building. She concluded, however, that she could not "ignore" the totality of the evidence in the ITO, leading to the "reasonable inference that [the appellant] had been inside [the] apartment … before doing so." That was a reasonably available inference. The trial judge was correct to look to the totality of the information in coming to her decision. There was credible and reliable information that the appellant was trafficking in drugs from his car, that his car was associated with the apartment building and seen leaving there on three occasions, two of which were followed by conduct consistent with drug trafficking. There was also information that he was associated with the apartment searched because it was his mailing address and that of his father. In these circumstances, it was open to the trial judge to conclude that there were sufficient grounds contained within the ITO upon which the apartment warrant could issue. We owe deference to that finding.

[9] As for the trial judge's reference to the fact that drugs "might have been stored" in the apartment, nothing turns on her use of the word "might". Her reasons clearly demonstrate she was aware of the threshold test for issuance. Indeed, in the very same impugned paragraph, the trial judge referred to the fact that there was a "reasonable inference that evidence of criminal activity would be found in the apartment" [emphasis added]. Read in context, the trial judge clearly understood that credibly based probability was the threshold test that had to be met and she was satisfied that it had been met.

[10] Having concluded that the trial judge did not err in finding no s. 8 breach, there is no need to conduct the s. 24(2) analysis. Nor is there a need to consider the sentencing issue as it only arises if the appellant succeeded on his first ground appeal.

[11] The conviction and sentence appeals are dismissed.

"S.E. Pepall J.A." "P. Lauwers J.A." "Fairburn J.A."