Court and Parties

COURT OF APPEAL FOR ONTARIO

Date: 2020-04-27 Docket: C65667

Judges: Watt, Pardu and Roberts JJ.A.

Between:

Her Majesty the Queen Respondent

and

Matthew Wawrykiewycz Appellant

Counsel: Gregory Lafontaine and Saul Moshé-Steinberg, for the appellant Kevin Wilson and Alexia Bystrzycki, for the respondent

Heard: February 25, 2020

On appeal from the convictions entered on May 3, 2018, with reasons reported at 2018 ONCJ 199, and the sentence imposed on June 22, 2018, by Justice Marcella Henschel of the Ontario Court of Justice.

Pardu J.A.:

A. Overview

[1] The appellant was convicted of various drug-related offences following the execution of search warrants. He argues that the trial judge erred in finding that the Information to Obtain (“ITO”) was sufficient to support the issue of the warrants and submits that the evidence ought to have been excluded pursuant to s. 24(2) of the Charter. He also appeals his sentence.

B. Factual Background

[2] Police received information that a suspicious young male was frequenting a Walton Drive address in Aurora. They discovered the appellant lived there and that he was on bail for weapons and drug trafficking offences. Police began surveillance of the appellant. Over the following months, they observed him going to a storage locker rented in someone else’s name and engaging in what appeared to be a drug transaction. On one occasion, police took swabs of the exterior door handle of the appellant’s car. The swabs were subjected to ion scan testing. They tested positive for cocaine.

The Information to Obtain the Search Warrants of February 8, 2017

[3] Based on this surveillance, on February 8, 2017, DC McGregor swore an ITO to obtain search warrants. The ITO contained the following information:

• In November 2016, the appellant was on bail for two sets of offences in Toronto, including weapons trafficking and possession for the purpose of trafficking. One set of offences was committed while on bail for the other. The conditions of release required the appellant to reside at the Walton residence and remain inside from midnight until 6:00 a.m. unless accompanied by his father or surety. On November 9, 2016, the appellant’s father said he had not seen his son in two days, but that he believed his son had been granted a bail variance allowing him four-day periods away from home.
• A Toronto judge concluded that the appellant’s Charter rights had been violated in the course of a search relating to the Toronto charges, but that the evidence would be admitted nonetheless. There was an agreed statement of facts and it was anticipated that the appellant would be convicted of both sets of Toronto charges on his next court date. A copy of the Toronto judge’s Charter reasons was attached as an exhibit to the ITO.
• The police observed the appellant going into a storage unit in Mississauga on five occasions in November 2016, December 2016, and January 2017. The appellant drove a Lexus to the unit and attended other addresses afterward. On February 3, 2017, the police installed hidden cameras at the storage facility. The footage showed the appellant frequently attended the storage unit over the course of several days, often arriving and leaving empty-handed. No one else was filmed attending the storage unit. The appellant was seen paying for the unit, but it was rented in the name of another individual whom police confirmed had not, in fact, rented it.
• On January 27, 2017, the appellant attended a Walmart in Toronto. An officer overheard a conversation between the appellant and another male in which they said “cheap”, “crack”, “stepped-on”, and “passcode”.
• On January 28, 2017, when the appellant went inside a restaurant, officers took a swab from the exterior driver’s side door handle. The door handle was cleaned, and a second swab taken as a control sample. The appellant left the restaurant and conducted what police believed to be a drug transaction in an IKEA parking lot, with an unknown man getting in the Lexus briefly with a bag, which appeared emptier when he left the car. After, the appellant attended the storage unit. Later, the appellant entered a Toronto address, and officers obtained a third swab from the door handle. All three swabs tested positive for cocaine. In the ITO, the affiant said the control sample may have tested positive because the door handle was not adequately cleaned, or due to the texture/nature of cocaine or the door handle, or because there was so much cocaine saturation that residue remained.
• DC McGregor said he did not rely on any information gathered through a tracking device he placed on the appellant’s Lexus in December 2016. Although he was granted a warrant, upon review DC McGregor concluded the original affidavit included bias that outweighed the facts presented.

[4] However, the bail conditions cited in the ITO had been varied and were no longer accurate in one regard: the appellant was allowed to be out between midnight and 6:00 a.m. for work purposes if he had written permission from his surety indicating his whereabouts and the timeframe of his absence from his residence. A copy of any such written permission was to be retained by his surety.

Execution of Search Warrants

[5] Based on the above information, warrants were issued for the appellant’s bedroom, storage unit, and Lexus. On February 9, 2017, police executed the warrants and seized the following:

• Storage unit: cocaine (736g), mixed cocaine and methamphetamine (194g), methamphetamine (60g), cutting agents, cocaine press, ammunition (107 rounds), other drug paraphernalia
• Appellant’s bedroom: $100,000 in cash
• Lexus: cocaine (2.86g), cutting agent

C. Decision at Trial

[6] The appellant brought an application to exclude the seized evidence. The trial judge concluded that after excision and amplification, the ITO supported the warrants’ issuance. She dismissed the appellant’s application.

[7] The trial judge correctly set out the test for assessment of the ITO, citing R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 8:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but rather than being a pre-requisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[8] The trial judge summarized the application of the test as follows:

It must also be kept in mind that what the ITO must establish is a reasonably grounded belief that the offence of possession for the purpose of trafficking had been committed and that the search of the storage facility unit, Lexus, and the applicant’s home would afford evidence of the offence. The informant must establish reasonable grounds to believe that these statutory preconditions have been [sic: met]. The informant is not required to establish the statutory preconditions beyond a reasonable doubt, or even to establish a prima facie case. Reasonable grounds exist at the point that “credibly based probability replaces suspicion”.

The trial judge addressed the appellant’s arguments in turn.

[9] There was in fact a bail variance, but its terms allowed the appellant to be out past curfew for work purposes with written permission from his surety. The trial judge found the ITO was not invalid simply because the affiant attached the wrong recognizance conditions. She was not persuaded the affiant acted in bad faith; rather, he may have been unable to find the latest recognizance because it misidentified the date of the charges. Moreover, the warrants would have issued even if the proper recognizance had been attached. The affiant needed to show reasonable grounds to suspect drug possession, not that the appellant had breached the surety or curfew conditions of his bail.

[10] Evidence of the appellant’s Toronto charges did not have to be excluded from the ITO simply because they were not yet “proven”. However, evidence from the investigations did need to be excluded in this case because the Toronto judge concluded that the evidence was obtained in violation of s. 8: the police entered a hotel room without giving the occupants the chance to comply with a request to leave. The trial judge questioned the appropriateness of the rule requiring automatic excision of unconstitutionally obtained evidence from an ITO. If unconstitutionally obtained evidence can be relied on to convict the accused when admitted under s. 24(2), it seemed incongruous that it could not form a basis for the issuance of a search warrant. She concluded however that she was bound by R. v. Grant, [1993] 3 S.C.R. 223, to excise the evidence obtained in the Toronto investigations which resulted from Charter violations. In the instant case, police attached the judgment setting out those breaches of s. 8 of the Charter to the ITO.

[11] Following excision of the factual details resulting from the earlier Charter violations, the trial judge gave limited weight to the outstanding charges:

…[W]hat remains in respect of the outstanding charges is the fact that the applicant was alleged to have committed multiple charges of possession for the purpose of trafficking and other related offences with offence dates of December 29, 2013 and February 18, 2014, and that it was anticipated that “there will be a finding of guilty registered on Wawrykiewycz’s next court date of February 14, 2017”. Although the excision of the underlying facts significantly limits the weight that can be placed on the outstanding charges, in my view the fact of the outstanding charges and the expected outcome of those charges, has some value, albeit very limited, and can be considered as a part of the information as a whole in assessing whether the justice could have issued the warrants. In my view, even if no weight were placed on the outstanding charges, there remained sufficient reliable evidence that provided a basis upon which the issuing justice could have issued the warrants.

[12] The trial judge also ruled that the ion scan swab results did not need to be excised. The trial judge concluded that while the swabs constituted a search, they were authorized under the ancillary powers doctrine, derived from R. v. Waterfield [1963] 3 All E.R. 659. Analogizing to R. v. Chehil, 2013 SCC 49, which involved sniffer dogs and luggage, and R. v. MacKenzie, 2013 SCC 50, which involved sniffer dogs and vehicle perimeter searches, the trial judge concluded that a warrantless exterior car swab based on reasonable suspicion was acceptable for the following reasons:

• The swabbing was minimally intrusive, narrowly targeted, and contraband-specific.
• The impact on privacy was even lower than with dog sniff cases because swabbing provides no information about the interior of a vehicle.
• There was no potential for embarrassment or delay to the appellant.
• The police had an important purpose (i.e., investigating cocaine trafficking).
• Covert swabbing is an important investigative tool that allows police to test for the presence of illegal drugs without risking disclosure of the investigation.

[13] The trial judge found that while the affiant should have included information about the reliability of such swabs – particularly given the positive result from the control sample – there was no evidence of bad faith. The affiant disclosed and listed possible reasons for the positive control sample. His failure to mention false positives as a possible explanation was not reason enough to excise the test results or give them no weight. Considered as part of the evidence as a whole, the ion scan test results did not require a more detailed explanation before the issuing justice.

[14] Thus, after excision and amplification, the ITO still contained information about the ion scans and the appellant’s trips to the storage unit, IKEA, and Walmart. This was sufficient to support the warrants’ issuance.

[15] The trial judge found that even if she was mistaken that the warrants were lawfully obtained, the evidence was still admissible under s. 24(2). She considered the factors from R. v. Grant, 2009 SCC 32, as follows:

Seriousness of police conduct

• To the extent any deficiency in the grounds arose from the need to excise information relating to the Toronto charges, the breach was not serious. First, although the Toronto judge found a s. 8 breach, he found the seriousness was tempered because the Toronto police acted in good faith and believed they were acting pursuant to law. That evidence was admitted under s. 24(2) of the Charter. Second, the evidence sought to be excluded was linked only indirectly to the Charter infringing conduct: see R. v. Lam, 2015 ONSC 2131, at para. 76.
• If the ion scan swab violated s. 8, it was not a serious breach. The police acted in good faith and fully disclosed their actions in the ITO. Nor did they act in blatant violation of the law: at the time, the law was not clear whether such a swab constituted a “search” and whether prior judicial authorization was required.
• Although erroneous information was included about the appellant’s bail conditions, this was an honest mistake and was not material to the warrant’s issuance. The appellant was in breach of his bail conditions under either version of his recognizance.
• Ultimately, the searches were conducted with prior judicial authorization based on full disclosure to the issuing justice. The searches were conducted by officers who believed they were acting with lawful authority.

Impact of the breach

• While the appellant had a high expectation of privacy in his home, favouring exclusion, his privacy interest in the storage unit and Lexus door handle were significantly lower, favouring inclusion.
• None of the searches impacted the appellant’s liberty interests or human dignity.
• Even if the Lexus swab violated s. 8, it only involved the exterior door handle, yielded focused and narrow information that was not highly personal, and the appellant was not present when it was taken and did not suffer stigma or embarrassment.

Society’s interest in adjudication on the merits

• This factor strongly supported admission. Excluding the drugs and paraphernalia would “wholly gut the Crown’s case”.
• The search yielded physical, highly reliable evidence. Cocaine and methamphetamine are drugs that have extremely serious consequences within the community, and the charges were of a serious nature.

[16] The trial judge rejected the appellant’s request to consider the tracking warrant as evidence of police misconduct in her s. 24(2) analysis. Even if the Information to Obtain the tracking warrant did not support the issue of that warrant, DC McGregor fully disclosed his concerns about the tracking warrant, and provided a copy in an appendix to the search warrant ITO. Moreover, he did not rely on any information obtained from the tracking warrant in obtaining the search warrants.

[17] Balancing the Grant factors, the trial judge held that a reasonable person would not find admitting the evidence would bring the administration of justice into disrepute. The ITO was not carelessly drafted, materially misleading, factually incomplete, or premised on negligent or incompetent police investigation or bald conclusory statements.

[18] The appellant also advanced a s. 9 argument, but the trial judge dismissed it in light of her conclusions on the s. 8 issue.

[19] After the appellant’s application to exclude evidence was dismissed, he was convicted based on an agreed statement of facts.

D. Did the trial judge err in finding the search warrants were properly issued and that the appellant’s s. 8 rights were not violated by their issuance?

Appellant’s Position

[20] The appellant argues that the trial judge mischaracterized his argument as a “piecemeal dissection” which analyzed each piece of evidence in isolation. In reality, the appellant pointed to multiple issues which – taken together and in context – mean the warrants were not properly issued. Further, the judge misapprehended key aspects of the evidence, as follows:

Bail Conditions

[21] The ITO referred to bail conditions which had been superseded by a subsequent variation. The trial judge’s finding that this was an honest mistake was unsupported by the evidence. The appellant alleges that the trial judge offered speculative excuses that this resulted from a typographical error in the bail variation, or that it was harder for police to obtain this information than it was for counsel’s assistant. In fact, the police could have obtained it through exactly the same means that counsel’s assistant did. The evidence suggests the police did not make good faith efforts or were negligent.

[22] The trial judge also supposedly erred when she found the bail condition error did not impact the warrant’s issuance. While the search warrants were issued to investigate gun and drug trafficking, the entire investigation only started because the police suspected a bail violation. Had the issuing justice been provided with the correct bail conditions, they would have called into question the need to continue surveillance of the appellant, and therefore the validity of the warrants.

Toronto Charges

[23] The trial judge found that even without the information about the Toronto charges and the tracking warrant, there was enough information in the ITO to issue the warrant. However, the Toronto charges permeated the ITO. By the affiant’s own admission, the tracking warrant ITO was based on bias rather than factual information. The trial judge failed to acknowledge and consider the prejudicial impact of including this information in the ITO.

Swab Evidence & Ion Scan Testing

[24] The information related to the swab of the appellant’s Lexus was an unconstitutional warrantless search and should have been excluded from the ITO. The trial judge erroneously focused on the purpose of the swabs and found that the possibility of obtaining DNA evidence was irrelevant to the appellant’s reasonable expectation of privacy. The trial judge should have applied the reasoning in R. v. Wong, 2017 BCSC 306, and concluded the warrantless swabbing was an unreasonable search and seizure. A vehicle swab involves a much greater privacy interest than a dog sniff because of the potential collection of biological information. The trial judge should not have applied the reasonable suspicion standard from sniffer dog cases like R. v. A.M., 2008 SCC 19.

[25] Alternatively, the trial judge erred in finding the police had reasonable suspicion of drug offences at the time of the vehicle swab. She did not properly consider the totality of the circumstances, including the “very limited value” of the appellant’s outstanding charges, and the “significantly limited” value of the Walmart conversation. The surveillance officer barely overheard the conversation and missed the most significant words indicating a drug transaction. Finally, the judge explained away the affiant’s failure to inform the issuing justice of the possibility of a false positive from the swab. The affiant simply provided reasons why the control swab may have given an accurate positive result. The issuing justice may have been left with an inaccurate impression of the reliability of the swab tests.

Respondent’s Position

[26] The respondent argues that the trial judge correctly found that after amplification and excision, the ITO contained sufficient information to issue the warrants. The responses to the appellant’s arguments are as follows:

Failure to Attach the Most Recent Recognizance Does Not Invalidate the ITO

[27] The trial judge properly noted that a mistake does not always indicate bad faith. Listing potential reasons for the officers’ mistake did not amount to improper speculation on the part of the trial judge, and her passing comments have no bearing on the correct analysis she provided. Attaching the updated recognizance would have had no impact on the warrants. In the earlier release document, the appellant was permitted out past curfew in the presence of his father or surety; in the later one, he was permitted out past curfew for work purposes with written permission from his surety. When police spoke with the father, he reported that he had not seen his son for two days, and there was no evidence that the appellant’s surety gave permission to break curfew for work purposes, or that the appellant was working.

[28] Nor does the ITO’s sufficiency depend on whether the police’s initial suspicion of a bail violation proved correct. First, the police also suspected that the appellant was trafficking in narcotics, and initiated their investigation with this in mind as well as curfew violations. Second, baldly characterizing police error as negligence does not establish a reversible error, especially given the trial judge’s rejection of the assertion that the police acted in bad faith. The police’s initial reasons for investigation (or even negligence during the investigation) do not bear on the ultimate question of whether the ITO contained sufficient information to issue the warrants.

The Judge Properly Handled the Toronto Charges

[29] The appellant’s argument that including the fact of the Toronto charges was “overly prejudicial” is flawed in two ways. First, the job of a reviewing judge is to determine whether the ITO contained sufficient information upon which the issuing justice could have issued the warrants – not to speculate about the improper influence that excised evidence may have had on the issuing justice. Second, the trial judge actually did consider the prejudicial impact, noting that DC McGregor did not emphasize the underlying facts of the Toronto charges, disclosed the s. 8 violation found by the Toronto judge, and provided the Toronto judge’s reasons.

The Judge Correctly Found the Ion Scan Swab Was Not an Unlawful Search

[30] While Wong is factually similar, the trial judge was not bound by a Supreme Court of British Columbia decision. In finding the search was justified on the lower threshold of reasonable suspicion the trial judge noted the appellant’s reduced expectation of privacy, the minimal intrusiveness of the search, and the lack of harm to the appellant’s dignity or autonomy. The presence of DNA on a swab does not expose intimate biographical information because such DNA is meaningless without an ability to decode it: see R. v. Tessling, 2004 SCC 67, at para. 28. That decision, which concerned the use of Forward Looking Infra-Red (“FLIR”) technology, noted that reasonableness must “be determined by looking at the information generated by existing FLIR technology” rather than its theoretical capacity. It was open to the judge to conclude there was no bad faith or material non-disclosure in the affiant’s failure to mention the possibility of a false positive.

Analysis

[31] I agree with the trial judge’s conclusion that the police reference to an outdated bail document was immaterial to the issue of whether grounds to search for drugs existed. That police attention was initially drawn to the appellant because they thought he might be violating his bail terms is irrelevant to that issue.

[32] I largely agree with the trial judge’s conclusions as to the sufficiency of the ITO.

[33] The trial judge gave very limited weight to the Toronto charges, and the police made full disclosure of the Charter violations associated with those charges. Moreover, police made full disclosure of the flaws associated with the earlier tracking warrant and did not rely on any evidence resulting from that investigative technique. Police made full disclosure of the positive control sample from the swab of the door handles and gave three possible explanations for it. The issuing justice was able to assess this evidence and evaluate its significance. The justice of the peace also would have been able to assess the degree of detail given about the drug-related conversation.

[34] However, I part company with the trial judge on the issue of whether swabbing the door handles of a vehicle in a public parking lot, and analysis of those swabs using special equipment, requires prior judicial authorization. I do not agree that this search is analogous to a sniffer dog search, and that it may therefore be conducted without a warrant if there is reasonable suspicion that the target is involved in a drug-related offence. As I shall explain, in the circumstances of this case, the swabbing of the door handles of the car the appellant was driving required prior judicial authorization.

[35] This issue turns on a question of law: Does swabbing the door handles of a vehicle in a public parking lot, and analyzing those swabs using special equipment, require prior judicial authorization, or is a reasonable suspicion legally sufficient? Questions of law, and the application of the law to a given factual matrix to determine whether a legal standard is met, attract a correctness standard: see R. v. Le, 2019 SCC 34, 434 D.L.R. (4th) 631, at para. 23. While the underlying facts are reviewed for palpable and overriding error, the parties do not attack the factual findings of the trial judge on this issue. Therefore, her ultimate legal conclusion that swabbing and analysis of the door handles is a search that does not require prior judicial authorization is reviewed on a correctness standard.

[36] Whether the appellant had a reasonable expectation of privacy in the material collected from the door handle of a car he parked in public is a normative, value-laden inquiry. The essential question is what degree of state intrusion into personal, territorial, and informational privacy can be tolerated without prior judicial authorization. As observed in R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 14, “[p]rivacy analysis is laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.” Elsewhere, the Supreme Court has observed, “At the same time, social and economic life creates competing demands. The community wants privacy but it also insists on protection. Safety, security and the suppression of crime are legitimate countervailing concerns.”: see Tessling, at para. 17.

[37] The degree to which police make physical contact with property is one factor to be considered in the totality of the circumstances. In Patrick there was an element of trespass by police, as they had reached over a property line to seize bags of garbage. Binnie J. noted at para. 45, “that while territorial privacy is implicated in this case, the physical intrusion by the police was relatively peripheral, and viewed in context, it is better considered as part of the totality of circumstances in a claim that is preferably framed in terms of informational privacy.” (emphasis in original).

[38] In A.M., the fact that sniffer dog searches do not require physical contact with targeted property was relevant but not determinative: see para. 81. In some circumstances the degree of physical intrusion constituted by the search may be important, such as when police search through the contents of a purse or backpack. In others, the degree of physical intrusion may have little relation to resulting invasions of privacy.

[39] Too narrow a focus on whether there was a trespass to a chattel, and the extent of interference with use of that chattel, could obscure the privacy interests at stake, as here, where the trial judge focused on the fact that the taking of the swabs had no impact on the appellant’s use of the car and was not known to him. She emphasized that the taking of the samples was itself nonintrusive, did not intrude into private places or embarrass the appellant, and did not affect his dignity, integrity, or autonomy.

[40] Here the appellant had some expectation of privacy in the vehicle. Although the vehicle was owned by his father, he was using it and had the ability to regulate access to it, and there is no suggestion he abandoned his privacy interest. By parking the vehicle in a public lot, he would reasonably expect that others, including police, would make observations of the car. Police could legitimately observe physical damage to the car, or evidence on its exterior such as blood spatter, without prior judicial authorization.

[41] I would not conclude that any physical contact by the police with the car is necessarily a violation of a reasonable expectation of privacy. An officer might, for example, place a hand on the hood of a car to determine whether it is warm, that is, to determine whether the vehicle has recently been driven. This evanescent contact is not far beyond the casual contact patrons of a parking lot might incidentally have with other vehicles.

[42] However, I would hold that taking samples of residue left by a suspect’s hands on the handles of a vehicle, and subjecting those samples to chemical analysis, is an intrusion for which a warrant should be required. This investigative technique can reveal “intimate details of the lifestyle and personal choices of the individual.”: see R. v. Plant, [1993] 3 S.C.R. 281, at p. 293. These swabs presumably revealed whether the appellant had handled cocaine. I also agree with the observations in Wong, at para. 27, that privacy concerns are heightened because the swabs may also provide DNA samples for analysis by police, even if that is not why they were initially collected, or what they were used for. Patrick concerned police searches of a suspect’s curb-side garbage. Though the police were searching for evidence of drug offences, the potential for collection of DNA was also relevant to the privacy analysis: see para. 30. The court also expressed scepticism of the notion that privacy concerns are diminished because the search was targeted at contraband: see Patrick, at para. 32; see also A.M., at para. 73.

[43] This is unlike the emanations of heat released into the public sphere in Tessling. By themselves, such heat emanations revealed little about the occupants of the home and concerns mainly centered on the technology’s theoretical capacity to invade privacy. In the present case, while the swabbing was only carried out for the limited purpose of testing for the presence of cocaine, the technological capacity exists to subject swabs to other privacy-compromising analyses. In contrast, in Kang-Brown the odors were released into the public sphere and detected by a sniffer dog; no physical contact with the backpack was required, no samples were taken, and a sniffer dog generally cannot disclose non-targeted private information. As the Supreme Court observed in A.M., at paras. 74, 83:

[T]he fact that the “sniff” only communicates the presence of contraband and does not disclose the nature or existence of other personal belongings is not without significance.

[T]he dog’s communication capacity is limited to a positive alert or a failure to react at all. Unlike a wiretap or a physical search, the police do not obtain a lot of information about a suspect that is not relevant to their specific drug inquiry. While the suspect has a privacy interest in the place where the drugs are concealed, the fact that the sniff will disclose nothing except the presence of illegal drugs in that private place is a factor weighing in favour of moving the balance point to the reasonable suspicion standard.

[44] Here, though the vehicle was in public view, any residue left by the appellant’s hands was not observable to a passerby and was in this sense private. As the trial judge concluded, the appellant had an objective and subjective reasonable expectation of privacy in the car, and more particularly, in the residue left by his hands on the handles of the car he was using.

[45] Given the privacy interests in the material transmitted from the appellant’s hands to the door handles, and given the degree of intrusion, sampling, and analysis, this is not a search for which reasonable suspicion could substitute for prior judicial authorization, as was the case in Kang-Brown. This was a warrantless search which was presumptively unreasonable: see R. v. Collins, [1987] 1 S.C.R. 265; Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145. The presumptive requirement for prior judicial authorization remains. The onus rests on the Crown to demonstrate that the warrantless search was reasonable. Here there was no evidence about the accuracy or functioning of the ion scan equipment. A review of the jurisprudence suggests that its use has largely been confined to border searches. This was not a case of bodily residue or DNA left on abandoned personal property, or on public property, or on someone else’s property. There is no suggestion that exigent circumstances existed to justify the warrantless search.

[46] However, even if the evidence of the swabbing of the door handles and the analysis of those swabs were excised from the information to obtain, there remained a sufficient basis upon which the search warrants could have been obtained.

[47] The appellant was on bail for two separate sets of drug offences and breach of recognizance, and was expected to be convicted on his next court appearance. He had engaged in what appeared to be a drug transaction and was overheard participating in what sounded like drug-related conversation. He was using and paying for a storage locker rented in someone else’s name, which he frequently visited for no apparent purpose, and he gained entry to the storage facility using a passcode associated with a different storage locker. He did not have a locker in his own name.

E. Should the Evidence Be Admitted Despite the Warrantless Search?

Appellant’s Position

[48] The appellant argues that the trial judge understated the seriousness of the infringing conduct. He submits that she failed to acknowledge negligent and misleading actions of DC McGregor, and she mistook the absence of bad faith for the presence of good faith. Portrayal of the bail variation error as an “honest mistake” was unreasonable, submits the appellant, as the evidence showed that the correct bail information was easily obtainable. At best the police were negligent, and the incorrect bail information led to the bail compliance investigation, which ultimately led to the drug trafficking charges. The appellant also argues that the trial judge’s rejection of bad faith is unreasonable given the police failure to address the possibility of false positives before the issuing justice. Further, the appellant submits that the trial judge excused DC McGregor for including information from the tracking warrant in the ITO, despite his acknowledgement that the tracking warrant was biased. Finally, the appellant claims that the swab test was a serious breach even if it was not deliberately unconstitutional, as it was done through inattention to constitutional standards.

[49] The appellant argues that the swabs had a serious effect on his privacy interests as they potentially collected highly personal biological information. The fact that the law was unclear regarding swabs was reason for more police caution, not less.

Respondent’s Position

[50] The respondent submits that the trial judge did not err in principle, misapprehend material evidence, assess the evidence unreasonably or commit a palpable and overriding error, and so her decision to admit the evidence is entitled to significant deference.

Analysis

[51] I would defer to the trial judge’s alternative conclusion that even if the swab of the door handles was a warrantless search in violation of s. 8 of the Charter, the evidence found as a result of the execution of the search warrants should nonetheless be admitted under s. 24(2). Where a trial judge has considered the proper factors, her determination under s. 24(2) is owed considerable deference: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 86; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. I see no reversible error in her analysis.

[52] The police fully disclosed their actions. The ITO was sworn on February 8, 2017. The Wong case, which held that swabbing is a search that requires a warrant, is a British Columbia decision released on February 24, 2017. This may have been a grey area about which reasonable people disagreed. Indeed, a subsequent British Columbia decision that considered both the instant trial decision and Wong reflects continuing legal uncertainty regarding the constitutional limits of swabbing: see R. v. Flintroy, 2019 BCSC 213, at paras. 90-104.

F. Appeal from Sentence

[53] The Crown sought a global sentence of eight years, while the appellant sought two to three years. The appellant emphasized his lack of a criminal record, his pretrial custody, and the totality principle, as a ten-year sentence had already been imposed for the Toronto charges.

[54] The trial judge noted that the appellant was 31 years old at the time of the offences, with no criminal record. He defended the case efficiently, in that he conceded that the agreed statement of fact supported a finding of guilt. He also had a supportive father.

[55] However, the trial judge observed that this was a relatively large-scale professional enterprise. The evidence suggested the appellant was at least a mid-level drug dealer, figures known to prey on vulnerable members of society. The offences were motivated by greed, rather than a drug addiction. The offences were committed while the appellant was on bail for similar charges. Mindful of the totality principle, the trial judge imposed a total sentence of six years, to be served in addition to the ten-year sentence already imposed for the Toronto charges.

Appellant’s Position

[56] The appellant argues that the resulting total incarceration of 16 years is unduly harsh and crushing. The appellant was 31 years of age, with no prior criminal record, and developing prospects in home renovation and sales. He had a supportive family. In light of these circumstances, the appellant argues that a total sentence of 16 years is unreasonable.

Respondent’s Position

[57] The respondent notes that the Supreme Court has established a highly deferential standard for appellate review of sentences, citing R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. The respondent argues that the considerations listed above do not overwhelm the fundamental principle of sentencing under s. 718.1 of the Criminal Code, which is proportionality to the gravity of the offence and the degree of responsibility of the offender. Personal circumstances are relevant, but cannot be elevated at the expense of the gravity of the offences.

[58] The respondent argues that the trial judge correctly assessed the gravity of the offences. This drug operation was a significant commercial enterprise involving large quantities of serious drugs that could potentially destroy many lives. The trial judge found the appellant’s motivation to be economic profit and greed, rather than addiction. His actions were clearly planned, deliberate, and part of a long-term organized scheme, rather than a momentary lapse in judgment. The appellant was not particularly youthful and was on bail at the time of these offences.

Analysis

[59] The trial judge highlighted the aggravating factors. The appellant possessed 736 grams of cocaine, 194 grams of mixed methamphetamine and cocaine, and 60 grams of methamphetamine. These drugs, in these quantities, have the potential to cause serious harm in the community. $100,000 in currency was seized from the accused’s bedroom as well as 107 rounds of ammunition from the storage locker. There was no evidence of other employment and the trial judge concluded that the appellant was at least a mid-level drug dealer engaged in a significant commercial enterprise in order to enrich himself, rather than feed an addiction. He was on bail for other serious drug offences at the time he committed the offences before the court, and in doing so he flagrantly breached the conditions attached to his release. This was not treated as an aggravating factor on the drug convictions, as the appellant was also being sentenced for the breach of recognizance, but it made the breach of recognizance particularly serious.

[60] The mitigating factors were few. At the time of these offences, the appellant had no criminal record and was 31 years old.

[61] The sentencing judge did indicate that she would take into consideration the ten-year sentence to which the appellant was already subject, to ensure that the sentence imposed was not unduly harsh or crushing given his age, circumstances, and prospects. The offences leading to the ten-year sentence were committed three years before the offences under appeal were committed.

[62] I cannot say that the sentence imposed was demonstrably unfit or that the trial judge erred in her balancing of the aggravating and mitigating circumstances. There is no basis to interfere with the sentence imposed.

G. Disposition

[63] In the result I would dismiss both the appeals as to conviction and as to sentence.

Released: April 27, 2020

“DW” “G. Pardu J.A.” “I agree David Watt J.A.” “I agree L.B. Roberts J.A.”