Court of Appeal for Ontario

Date: 2019-06-13 Docket: C64303 Judges: Doherty, Watt and Pardu JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

James DiBenedetto Appellant

Counsel

Richard Litkowski and Jessica Zita, for the appellant Ian Bell and Christina Malezis, for the respondent

Heard: June 11, 2019

On appeal from: The convictions entered on April 13, 2017 and the sentence imposed on October 19, 2017 by Justice Theresa Maddalena of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Introduction

[1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of counts of:

i. production of methamphetamine; ii. possession of methamphetamine for the purpose of trafficking; and iii. possession of the proceeds of crime.

Sentenced to a term of imprisonment of five years, he appeals his convictions and seeks leave to appeal the sentence imposed upon him.

The Background Facts

[2] At trial, the case for the Crown consisted principally of the evidence gathered during warranted searches of a rural property and a residential property, coupled with evidence of police surveillance of activities taking place at both properties prior to the execution of the warrants. A portion of a barn on the rural property housed a meth lab. There was evidence linking the appellant to both properties.

[3] Investigators invoked the telewarrant procedure of s. 487.1 of the Criminal Code to obtain authorization to search both properties for methamphetamine, clandestine lab equipment, associated paraphernalia and tools of the trade and the proceeds of crime. The ITO alleged that there were reasonable grounds to believe that the appellant and Jason Barr were committing various offences involving the production of controlled substances.

The Appeal from Conviction

[4] At trial and in this court the appellant challenged the issuance of the telewarrants, thus the constitutionality of the searches conducted. To be more specific, the appellant says that the trial judge erred in three respects:

i. in failing to hold that issuance of the warrants was fatally flawed because the ITO affiant and issuing justice had failed to comply with the requirements of s. 487.1(2) of the Criminal Code; ii. in failing to grant leave to counsel for the appellant to cross-examine the ITO affiant; and iii. in finding that the ITO afforded a basis on which the warrants could have been issued.

[5] The appellant also contends that, even if the trial judge were correct in rejecting the challenges to the warrant or the warrant-issuing process, she erred in her assessment of the strength of the circumstantial evidence in this case, in particular as it related to the appellant's knowledge of and control over the meth lab at the rural property.

Ground #1: The Telewarrant Procedure

[6] The ITO affiant submitted a request to the telewarrant centre for warrants to search both properties. The warrants were granted, but expired before they could be executed. The next day, the affiant resubmitted the application to the telewarrant centre. A different justice denied the application because of "insufficient grounds".

[7] Later in the day of the refusal, the ITO affiant resubmitted the application after making corrections and adding contents to the ITO which had been rejected. The justice who received the ITO telephoned the affiant and sought identification of the parts of the ITO that contained the added contents. This call was not recorded, nor was the ITO affiant under oath. The "new" information was contained in identified paragraphs of the ITO.

[8] The appellant contends that s. 487.1(2) requires that the conversation between the ITO affiant and issuing justice pointing out the paragraphs added to the previously rejected ITO had to be under oath, recorded verbatim and a certified copy of the recording or a transcription of it filed with the court. Failure to do so, the appellant contends, fatally flawed the warrant-issuing process.

[9] The trial judge was satisfied that s. 487.1(2) was not applicable to what occurred here. We agree with the conclusion reached by the trial judge.

[10] The ITO was submitted by fax, which, for the purposes of s. 487.1(2), is a means of telecommunication that produces a writing. The subsection only requires "an information", that is to say, the ITO, to be on oath and recorded verbatim if it is submitted "other than" [by] a means of telecommunication that produces a writing". That is simply not this case. And at all events, the additional material was contained in the ITO. The mischief at which s. 487.1(2) is directed is not at work here.

Ground #2: The Refusal of Leave to Cross-Examine

[11] The second ground of appeal challenges the trial judge's decision refusing the appellant leave to cross-examine the ITO affiant.

[12] It is well-established that whether such cross-examination will be permitted lies within the discretion of the trial judge. To succeed, an applicant must demonstrate that there is a reasonable likelihood that the proposed cross-examination will elicit evidence that tends to discredit the existence of a condition precedent to the issuance of the enabling warrant. What is involved is a fact-specific assessment of the proposed subjects of cross-examination in the context of the ITO taken as a whole.

[13] The nature of the standard the trial judge is to apply in determining whether to exercise her discretion to grant leave to cross-examine the ITO affiant is also important when the decision is challenged on appeal. The decision is subject to deference and subject to appellate reversal only where the reviewing judge has applied the wrong standard or exercised her discretion unjudicially.

[14] In this case, the lengthy and careful reasons of the trial judge reveal no error in the standard applied, rather disclose a painstaking consideration and analysis of each of the more than four dozen issues upon which trial counsel for the appellant sought leave to cross-examine the affiant. We agree with the trial judge that the appellant failed to establish that the proposed cross-examination would elicit evidence tending to discredit the existence of any condition precedent to the issuance of the telewarrants.

[15] We defer to the findings of the trial judge that nothing improper occurred in the exchange between the ITO affiant and the issuing justice. Cross-examination on this issue could not have undermined any of the conditions precedent to the issuance of the warrants.

Ground #3: The Validity of the Search Warrants

[16] The appellant further argues that the trial judge erred in upholding the validity of the search warrants for the rural and residential properties. This complaint, reduced to its essence, challenges the weight the trial judge assigned or failed to assign to various aspects of the ITO, including information provided by five CIs, and to the prior rejection by another justice of the peace of an application for warrants on substantially the same grounds.

[17] In her role as reviewing judge, the trial judge was required to determine whether, considered as a whole, the ITO contained reliable information that might reasonably be believed on the basis of which the warrants could issue under s. 11 of the CDSA. In her assessment of the ITO, the trial judge acknowledged that the conclusory statements provided by the various CIs were not sufficient, on their own, to furnish the necessary reasonable grounds to permit issuance of the warrants. The trial judge, as she was required to do, examined the ITO as a whole. From its contents, and reasonable inferences she was entitled to draw from those contents, the trial judge was satisfied that the ITO contained reliable information that might reasonably be believed on the basis of which the conditions precedent to issuance of search warrants under s. 11 of the CDSA could be satisfied. We agree with her conclusion.

Ground #4: The Reasonableness of the Verdict

[18] The appellant also challenges the reasonableness of the findings of guilt entered at trial. He says that, considered as a whole, the circumstantial evidence adduced at trial cannot meet the requirements imposed by R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1001.

[19] In our view the evidence adduced at trial fully warranted the findings of guilt and convictions entered by the trial judge. The evidence linked the appellant to the rural property through ownership and physical presence, including association with Barr, the person physically in charge of the meth lab. There was also evidence, found in the appellant's residence, of the purchase of lab equipment and literature explaining the steps necessary to produce methamphetamine, as well as $50,000 in cash. As the reasons of the trial judge so effectively establish, the case against the appellant, charitably described, was overwhelming.

[20] The appeal from conviction is dismissed.

The Appeal from Sentence

[21] The appellant also seeks leave to appeal sentence. He says that the trial judge erred in two respects in imposing a net sentence of imprisonment for five years:

i. that she misstated the defence position on credit for onerous bail conditions, thus failed to give appropriate credit for those conditions in calculating the net sentence; and ii. that she failed to consider the appellant's rehabilitative prospects and to properly apply the principle of restraint when determining the quantum of sentence to impose on a first offender.

[22] Without more, the mere misstatement by the trial judge of the defence submission on the amount of credit to be awarded for onerous pre-trial release conditions does not entitle us to interfere with the sentence imposed. Absent a nexus between the alleged error and the sentence imposed such that the sentence imposed is demonstrably unfit, we are disentitled to interfere. We see no such nexus in this case. The credit the trial judge awarded for pre-disposition onerous bail conditions was appropriate in the circumstances of this case.

[23] Nor are we persuaded that the reasons for sentence reflect inadequate consideration of the appellant's rehabilitative prospects or the principle of restraint. The sentencing objectives that occupy positions of prominence in cases involving commercial production of dangerous drugs are denunciation and deterrence. To these objectives, rehabilitation must occupy a position of lesser importance. The sentence imposed here falls well within the range of appropriate sentencing dispositions for this mature, commercially-motivated offender.

[24] Although we would grant leave to appeal sentence, we dismiss the appeal from sentence.

"Doherty J.A."

"David Watt J.A."

"G. Pardu J.A."