Court of Appeal for Ontario

Date: 2019-11-07 Docket: C64029

Judges: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Kyle Aulenback Appellant

Counsel

Mark Halfyard, for the appellant

Jennifer Conroy and Geoffrey Roy, for the respondent

Heard

November 4, 2019

Appeal Information

On appeal from the conviction entered on June 29, 2017 by Justice Louise L. Gauthier of the Superior Court of Justice, with reasons reported at 2016 ONSC 6523.

Reasons for Decision

[1] Conviction and Sentence

The appellant was convicted of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He was sentenced to imprisonment for one year. He appeals his conviction.

[2] Facts

On November 5, 2013 the police conducted surveillance on the appellant. They followed him as he drove a car from Sudbury to Toronto. Shortly after the appellant entered an apartment building in Toronto, he left the building with a backpack and commenced his return trip. The police eventually pulled the vehicle over and discovered a large quantity of cocaine, a cutting agent, brass knuckles, an expandable baton, and $350 in Canadian currency.

[3] Authorizations Sought

Months earlier, on August 1, 2013, a police officer swore an information to obtain ("ITO") seeking a production order under s. 487.012(3) of the Criminal Code, R.S.C. 1985, c. C-46, as it read at the time, to obtain details relating to the appellant's rental of two cars. On October 30, 2013 the same police officer swore a second ITO seeking further production orders, tracking warrants, and production of telephone records: Criminal Code, ss. 492.1 and 492.2. In both ITOs, the affiant relied upon information provided by two confidential informants (CIs).

[4] Application to Quash and Trial Judge's Decision

The appellant applied to quash both authorizations, arguing that the ITOs were deficient in the way they addressed the information provided by the CIs. In thorough reasons, the trial judge applied the well-known factors in R. v. Debot, [1989] 2 S.C.R. 1140 and concluded that there were reasonable grounds upon which the issuing judge could have granted the orders that were sought: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.

[5] First Ground of Appeal: Misapplication of Legal Test

The appellant submits that certain language in the trial judge's reasons suggests that she misapprehended the test under s. 487.012(3) and applied a standard of reasonable suspicion, rather than reasonable grounds to believe.

[6] Court's Analysis of First Ground

We disagree. When read as a whole, it is clear from the trial judge's reasons that she applied the correct statutory test under s. 487.012(3): see R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at paras. 61-62.

[7] Second Ground of Appeal: Application of Debot Factors

The appellant submits that the trial judge erred in her application of the Debot factors. At trial, the appellant focused on the fact that the affiant asserted, without elaboration, that the information provided by the CIs was "based on personal knowledge". The trial judge agreed with the appellant that "personal knowledge" does not equate with "firsthand knowledge". However, the trial judge held that this did not render the assertion bald and conclusory. She found that there was "texture and detail to the information" provided by the CIs.

[8] Trial Judge's Findings on Reliability and Corroboration

The trial judge recognized that, based on their past track records, both CIs had proven themselves to be reliable. Further, the trial judge found that the lengthy investigation conducted by the police provided the type of corroboration required in the circumstances.

[9] Holistic Balancing Under Debot

In conducting the balancing required under Debot, the trial judge appreciated that she was tasked with considering the totality of circumstances and that weakness in one area may be compensated to some extent by strengths in the other two areas: Debot, at p. 1168.

[10] Dismissal of Second Ground

We see no error in the trial judge's findings, analysis, or her ultimate conclusion. We dismiss this ground of appeal.

[11] Third Ground of Appeal: Disclosure of Confidential Informant Handler Notes

After the trial judge dismissed this application, the appellant brought a further application seeking disclosure of the notes recorded by the handler of the two CIs. The appellant claimed that these handwritten notes were relevant to his constitutional challenge to the legality of his roadside detention and search. In separate reasons, the trial judge dismissed the application, finding that the notes could only be relevant to the "personal knowledge" issue, one that she had already decided: 2016 ONSC 6840.

[12] Court's Analysis of Third Ground

We see no error in the trial judge's ruling. First, we fail to see how the handler's notes were relevant to the lawfulness of the warrantless search of the appellant's vehicle. Second, the trial judge had already resolved the "personal knowledge" issue, and in a manner favourable to the appellant. Re-litigating this issue would serve no purpose. We also note that, after this application was dismissed, the appellant abandoned his challenge to the legality of the vehicle search.

[13] Dismissal of Third Ground

We would dismiss this ground of appeal.

[14] Final Order

The appeal is dismissed.

David Watt J.A.

Grant Huscroft J.A.

Gary Trotter J.A.