COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Greer, 2020 ONCA 795

DATE: 20201214

DOCKET: C65783

Tulloch, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Greer

Appellant

Brad J. Greenshields, for the appellant

Michael Perlin, for the respondent

Heard: August 19, 2020 by video conference

On appeal from the convictions entered on October 23, 2015, and the sentence imposed on March 14, 2016, by Justice Eleanor M. Schnall of the Ontario Court of Justice.

Paciocco J.A.:

[1] Michael Greer was convicted in the Ontario Court of Justice of charges arising from a residential break-in and theft of property that included a substantial quantity of authentic military-grade weaponry

[2] Shortly after the break-in on July 17, 2014, a confidential informant (“CI”) provided the police with information that Mr. Greer had been involved. Mr. Greer and his girlfriend, Theresa Ann Symes, were placed under surveillance. In addition, several searches were conducted which produced evidence central to Mr. Greer’s convictions.

[3] Specifically, in a warrantless search during a traffic stop on July 22, 2014, ammunition consistent with that stolen in the break-in was found in Mr. Greer’s bag and on his person (“the traffic-stop search”).

[4] On September 3, 2014, a warrantless search of a backpack that Mr. Greer had been seen wearing before crashing a stolen motorcycle, and that was found at the crash site, revealed knives or bayonets later identified by the owner as stolen during the break-in (“the backpack search”).

[5] Based on the information from the CI, their surveillance, and the traffic-stop and backpack searches, police also obtained a warrant to search several locations linked to Mr. Greer. Those search warrants were executed on September 4, 2014 (”the search warrant searches”). At each location, property was discovered that had been stolen in the break-in.

[6] That same day, police searched Ms. Symes’ Chrysler Intrepid motor vehicle (“the Intrepid”) ostensibly with her consent (“the search of the Intrepid”). Property stolen in the break-in was found in the vehicle and a pair of Airwalk shoes were seized from the trunk.

[7] Prior to trial, defence counsel served notice to challenge the search warrant searches under s. 8 of the Canadian Charter of Rights and Freedoms. No notice was given to challenge the warrantless searches. In circumstances I will explain, this Charter notice was served before defence counsel received disclosure of the Information to Obtain (“ITO”) that was used to procure the search warrants.

[8] Indeed, the ITO was not disclosed until the end of the second day of the trial. When defence counsel informed the trial judge the next day that he was considering bringing a Garofoli application to obtain leave to cross-examine the affiant of the ITO, the trial judge ruled that there would be no Garofoli application. She did, however, permit defence counsel to file an amended Charter notice. Once again, the amended notice identified challenges only to the search warrant searches.

[9] Ultimately, the trial judge found no Charter violations. All relevant evidence obtained during those searches was admitted. Expert evidence was also presented associating one of the Airwalk shoes with a footprint left during the break-in. The trial judge found that the Airwalk shoes belonged to Mr. Greer, and convicted Mr. Greer of multiple charges, including break and enter, and numerous counts of possession of stolen property.

[10] Mr. Greer appeals those convictions on several grounds. It will be convenient to address those grounds in the following order.

[11] First, Mr. Greer’s appeal counsel, who did not represent Mr. Greer at trial, argues that the trial judge erred by ruling that Mr. Greer lacked standing to challenge the validity of the search of the Intrepid, which led to the seizure of the Airwalk shoes. In the alternative, he argues that even if Ms. Symes’ consent to the search of the Intrepid could not be successfully challenged, Mr. Greer nonetheless had standing to challenge the seizure of the Airwalk shoes.

[12] I would reject this ground of appeal. As I will explain below, in ruling that Mr. Greer did not have a reasonable expectation of privacy in the Intrepid, the trial judge arrived at the only finding that could be supported on the evidence. As for Mr. Greer’s supplementary argument that the trial judge erred by not recognizing his standing to challenge the seizure of the Airwalk shoes, that argument was not made at trial, nor has Mr. Greer sought leave to make this argument for the first time on appeal. Had he done so, I would not have granted leave. Based on fully-litigated, material factual findings made by the trial judge, which I would not disturb, it is evident that a Charter challenge to the seizure of the Airwalk shoes could not possibly have succeeded, even if it had been brought at trial. In those circumstances, it would not be in the interests of justice to entertain this argument for the first time on appeal.

[13] Second, Mr. Greer’s appeal counsel urges that the trial judge did not conduct a fair hearing of the s. 8 Charter issues, thereby causing a miscarriage of justice. He focuses, with varying levels of intensity, on the trial judge’s treatment of all four searches: the traffic-stop search, the backpack search, the search warrant searches, and the search of the Intrepid.

[14] I would dismiss this ground of appeal, as well. Mr. Greer’s defence counsel did not bring Charter challenges at trial to the first two searches listed above, so no miscarriage of justice can arise relating to those matters.

[15] I do accept that, in addressing the latter two searches, the trial judge failed to act fairly by making rulings without entertaining submissions from defence counsel, and without providing meaningful reasons. However, neither of these unfortunate episodes, which occurred during a difficult trial that got underway before the parties were fully ready to proceed, gave rise to a miscarriage of justice. Even if Mr. Greer had been permitted to bring a Garofoli application, it is evident that any cross-examination that could have been ordered would not have supported an effective challenge to the search warrants. With respect to the trial judge’s ruling that Mr. Greer did not have standing to challenge the search of the Intrepid, as I explain in analyzing Mr. Greer’s first ground of appeal, it is clear Mr. Greer did not have the standing he was claiming. The trial judge’s denial of standing was inevitable, even if a full standing hearing had been conducted.

[16] Third, Mr. Greer’s appeal counsel argues that the trial judge erred in upholding the issuing justice’s finding that there were reasonable grounds for the search warrants. As I will explain, there were ample grounds to support the search warrants. There is no basis for interfering with the trial judge’s decision.

[17] Fourth, Mr. Greer’s appeal counsel contends that the trial judge erred in finding that the Airwalk shoes belonged to him. Again, for the reasons provided below, that conclusion was open to the trial judge on the evidence. Accordingly, this ground of appeal must be dismissed.

[18] I would therefore dismiss Mr. Greer’s appeal.

MATERIAL FACTS

A. The Investigation

[19] On July 17, 2014, Ronald Van Meeteren’s residence was burglarized. Stolen property included 32 military-related firearms, military knives, 3000 rounds of ammunition, electronics, and Blu-ray DVDs. Footprints were left during the break-in, including one on the gunroom door, and another in the laundry room.

[20] Shortly after the burglary, a single, unproven CI provided the police with information that the appellant, Michael Greer, had been involved in the break-in and was attempting to sell some of the stolen firearms.

[21] Mr. Greer and his girlfriend, Theresa Ann Symes, were placed under surveillance. During the surveillance, Mr. Greer and Ms. Symes were observed on several occasions in a gold 2004 Chrysler Intrepid motor vehicle operated by and registered to Ms. Symes. They were also observed at Wingham Legion Trailer Park, where it was confirmed that they were occupying two camping lots, living in two tents. They were followed, as well, to two self-storage units, one at Wingham Self Storage and the other at Teeswater Super Storage. It was confirmed that Mr. Greer rented the two storage facilities from a single proprietor.

(1) The Traffic-Stop Search

[22] On July 22, 2014, Mr. Greer was travelling as a front seat passenger in a vehicle operated by Kent Wall. The rear hatch of the vehicle was open and two Ontario Provincial Police Officers, Cst. Smith, and Sgt. Foxton, affected a traffic stop.

[23] Cst. Smith observed an open case of beer behind the passenger seat and elected to search the vehicle under the authority of the Liquor Licence Act, R.S.O. 1990, c. L.19. Mr. Wall and Mr. Greer exited the vehicle.

[24] Mr. Greer acknowledged ownership of a bag that was on the floor of the passenger side of the vehicle. Cst. Smith searched the bag and discovered two brass nine-millimetre rounds of ammunition. Mr. Greer was then searched, and three more brass nine-millimetre rounds of ammunition were found, one with a hollow point.

[25] When Mr. Wall exited the vehicle, Sgt. Foxton observed a round of .223 calibre long gun ammunition on the seat that Mr. Wall had vacated. Sgt. Foxton, fearing that Mr. Wall might have a weapon, searched Mr. Wall and discovered an empty black ammunition magazine in his cargo pants.

[26] On July 31, 2014, Mr. Van Meeteren used grind marks on the black ammunition magazine to assist in identifying it as his, and confirmed that the ammunition seized during the traffic stop was similar to ammunition taken during the break-in.

(2) The Backpack Search

[27] On September 3, 2014, surveillance officers observed Mr. Greer travelling as a passenger in Ms. Symes’ Intrepid from the Wingham Legion Trailer Park to Teeswater Super Storage. Mr. Greer entered a storage unit and then left the area using a motorcycle that had been inside. Police knew he was not a licensed driver. Mr. Greer was observed heading towards Wingham. Cst. Boudreau, who was participating in the surveillance, noted that Mr. Greer was wearing a backpack when he drove away.

[28] A police vehicle was stationed on the outskirts of Wingham. When Mr. Greer was within sight of the police vehicle, he quickly spun the motorcycle around and travelled at high speed back towards Teeswater. He lost control, crashing. Injured, he ran from the motorcycle but was apprehended. A backpack was found at the roadside near the motorcycle and searched. The Information to Obtain (“ITO”) of OPP Det. Cst. Scott Lobb, subsequently used to obtain search warrants, recorded:

Upon search incident to arrest, Detective Constable DUNN observed two knives/bayonets in sheaths inside GREER’s backpack that he was wearing. One of the knives appeared to be a bayonet style knife designed to be attached to the end of a gun barrel. Further, it was discovered that the motorcycle was stolen from the Kitchener area.

[29] The motorcycle had been stolen on November 6, 2012. The licence plate had since been changed.

[30] Mr. Van Meeteren was shown the knives or bayonets that had been seized from the backpack. He identified them as his and confirmed that they had been stolen from his home.

(3) The Search Warrant Searches

[31] Based primarily on the foregoing information, Det. Cst. Lobb swore the ITO referred to above, and, on its strength, secured warrants to search Wingham Legion Branch 180 Trailer Park, Sites 30 and 31; Teeswater Super Storage, Unit 12; and Wingham Self Storage, Unit 47, all of which were locations that Mr. Greer had control over. The warrants authorized the search for itemized property stolen in the Van Meeteren break-in, as well as the motorcycle licence plate that had been on the motorcycle at the time it was stolen. After the warrants were issued, the ITO was sealed.

[32] The search warrants were executed on September 4, 2014. At each location, property was discovered that had been stolen during the Van Meeteren break-in. None of the firearms were recovered.

(4) The Search of the Intrepid

[33] On September 4, 2014, police conducted a search of Ms. Symes’ Intrepid, claiming that she had consented. Some property stolen in the Van Meeteren break-in was found in the vehicle. Cst. Lucier also seized a pair of size 10 men’s black Airwalk shoes from the trunk of the car.

B. The Trial

[34] On March 9, 2015, a four-day trial was set to commence on April 27, 2015. Mr. Greer was in custody at the time.

(1) The Disclosure Request for the ITO and the First Notice of Application

[35] By letter dated April 2, 2015, defence counsel requested disclosure of the search warrant ITOs for the first time. When that request was made, the single ITO used to obtain the three warrants was still under seal in Stratford, Ontario. Before the ITO could be disclosed, an order would be required unsealing it, and it had to be reviewed for possible editing to protect the identity of the CI who had provided the information that precipitated the investigation of Mr. Greer.

[36] On April 7, 2015, the first working day after the Easter weekend, defence counsel served a “boiler-plate” Notice of Application, seeking to bring a s. 8 Charter challenge to the search warrants that had been used to search Wingham Legion Trailer Park and the two storage facilities. The grounds identified were that the searches were undertaken without reasonable and probable grounds, the warrants were obtained with inaccurate and incomplete information, and the search warrants had not been properly executed. The facts supporting the enumerated challenges were not particularized in the Notice of Application and no references were made to any of the warrantless searches.

[37] On April 21, 2015, the trial Crown (who is not Crown counsel on appeal) filed a response asking for Mr. Greer’s Charter motion to be dismissed as non-compliant with the Criminal Rules of the Ontario Court of Justice, SI/2012-30 (“the rules”), as it “does not include any factual or detailed basis upon which the Applicant’s complaint is made, or the evidence he intends to rely on during the Charter voir dire.”

[38] When the trial commenced on April 27, 2015, the ITO had yet to be disclosed. Defence counsel immediately advised the trial judge of this, along with other concerns he had about late disclosure. He expressed concern about his inability to prepare properly for the trial. He commented that he could not proceed with a Garofoli application without knowing what the ITO contains.

[39] In the colloquy that followed, the circumstances surrounding the disclosure of the ITO were explored. The trial Crown notified the trial judge that the disclosure of the ITO had not been raised during the four pre-trials that had been held. The first time the request was made was over the Easter weekend, approximately three weeks earlier. She said she received the disclosure letter and the Charter application at the same time. The trial Crown also explained that she was on vacation when the disclosure letter arrived but had since taken steps to have the ITO unsealed and brought from Stratford.

[40] The trial judge questioned how defence counsel could set a four-day trial in which the search warrant would be challenged “when nobody has the ITOs”. She also told defence counsel that if he had wanted to bring a Garofoli application, he had set the trial “way too early”. Defence counsel responded that he was “fairly confident” he had requested the three search warrants during the “resolution meetings”. He said, “I suppose, really, what I assume when I ask for search warrant information is that the ITOs assumed in that; that, that in getting the search warrant, you, you get the, the ITOs as part of that disclosure.” When the trial judge insisted that he had to make a specific request to get the ITOs unsealed and produced, defence counsel said, “I was not even aware they were sealed”.

[41] Defence counsel was granted a recess to speak to his client. When he returned, he advised the trial judge, “I have spoken to my client. This trial has been set for several months. He does not want to be prejudiced by having to put it off.” He said he was considering asking for a stay of proceedings. The trial judge challenged this suggestion, noting that defence counsel had not made clear what responsibility the trial Crown had not fulfilled. She asked defence counsel if the problems could be fixed. He said that, after talking to his client, it was his view that the “more productive” course would be to move forward by dealing with Crown evidence “that doesn’t touch on the search warrant” or other items he was alleging had not been disclosed.

[42] In the discussion that followed, responsibility for the non-disclosure of the ITO was addressed again. Defence counsel submitted that the Crown had an affirmative duty to provide ITOs and that he was not required to “go begging” for them. The trial judge disagreed and told defence counsel that his failure to know that the ITO had been sealed was no excuse. She said, “You can’t, on the morning of trial, say, ‘Oh, by the way, I thought about it and I asked for the ITOs to be unsealed approximately two weeks ago.’ It doesn’t work that way.” Later, she said, “You do not bring the Garofoli application on the morning of trial. You bring it before the trial.”

[43] During their exchange, the trial judge commented, “I’m very concerned about the fact that you’re not ready to proceed this morning and [Mr. Greer is] in custody.” When questioned again about how the problem could be fixed, defence counsel repeated his earlier suggestion that they proceed with “evidence that can be called uncontentiously”. The trial Crown agreed with this suggestion, and the parties discussed which witnesses could be called. After agreement was reached, the trial proceeded.

(2) The Garofoli Application Ruling

[44] The ITO was not edited and disclosed until the end of the second day of trial, April 28, 2015. On April 29, 2015, as the third day of trial was beginning, defence counsel was making preliminary comments. The following exchange occurred:

MR. CORNISH: …Number two is I received last evening the ITO information from my friend and I really have to have a discussion at some point with my client about where we go with that and a potential Garofoli application because there’s some mixed.…

THE COURT: A Garofoli application will not be happening, Mr. Cornish, you are way past the time to do that. I’m not going to have that as part of the trial. It should’ve been done weeks before.

MR. CORNISH: But, the problem with that is I didn’t have the information to…

THE COURT: You didn’t have the information because you asked for it as late as you did. That’s my ruling. There will not be a Garofoli application.

(3) Addressing the Traffic-Stop Search

[45] The next morning, April 30, 2015, Sgt. Foxton, who searched Mr. Wall during the traffic-stop search, was called as a witness. When defence counsel asked questions about the search, the trial judge said, “Mr. Cornish, is there an issue as to the legality of the stop? I’m just wondering why we’re going into this. Is there an issue about the legality of the stop?” Defence counsel responded, “That in itself is not – not of issue” but he explained that he wanted to touch on the “narrative” or “backdrop”. The trial judge asked what the issue was, and defence counsel replied:

Well, I said yesterday, I wasn’t contemplating that this stop would be the subject of any Charter right argument, and it may well be that there are some issues in play that I just simply want on the record. I want to have that evidence…

[46] When the trial judge pressed the matter, pointing out that he had not filed a Charter application on that issue, defence counsel said: “Well, it’s a Charter-based issue on when there is a conversion from – at some point apparently from a potential liquor licence issue to something more than that.”

[47] When asked whose rights were being breached in the vehicle stop in which Mr. Wall was the driver, he said, “[t]he occupants”, “[f]or the same reasons that the Court of Appeal articulated in Belnavis”.[^1] The trial judge replied:

I don’t agree with you. Your Charter application does not refer to this, as far as I know… And that’s the Crown’s objection to my entertaining the Charter argument, because you have not identified what the issues are. So perhaps you can just narrow for me how you propose to argue that there’s a Charter breach for Mr. Greer.

[48] Defence counsel said that he would “determine whether this officer’s evidence is consistent or not consistent with the evidence of Constable Smith and then examining the totality of the evidence.” The trial judge challenged this submission, commenting that consistency or inconsistency would not help in establishing a breach. Defence counsel replied, “until we know what the evidentiary basis is in the trial we – we certainly – we can’t know”. The trial judge directed defence counsel to “move on.”

(4) The Second Notice of Application is Served and Filed

[49] On the third day of trial, April 29, 2015, defence counsel raised the issue of the status of the Notice of Application under the Charter that he had filed: “[I]f we’re not dealing with the Garofoli application, there still is the s. 8 – there still - or the Charter application issues and it might be...”. The trial judge interjected and postponed discussion of the s. 8 application because there was a witness in the box.

[50] The trial judge revisited the matter the next day, April 30, 2015, the fourth day of trial, shortly after Sgt. Foxton testified. Defence counsel made clear that he had instructions to leave the s.8 challenge “in play”.

[51] In response, the trial Crown reaffirmed its request that the application be summarily dismissed, claiming that it was prejudiced by the lack of factual detail in the boiler-plate application. The trial Crown submitted, in the alternative, that if it was to receive an amended application, the Charter application could proceed in a blended voir dire with witnesses being recalled, if necessary.

[52] In the course of his submissions, defence counsel agreed that the issue relating to the traffic-stop search that he had raised that morning had not been “implied” in what he “was dealing with” in the Notice of Application that he had filed. He agreed to amend the Notice of Application but protested that the original Notice of Application complied with the rules.

[53] The trial judge disagreed, commenting that the Notice of Application was filed late and failed to identify the searches that were being challenged or set out the factual foundations for any Charter breaches. She decided not to dismiss the Charter application because doing so would prejudice Mr. Greer. Instead, she granted defence counsel a recess so that he could prepare a proper Notice of Application.

[54] Consistent with the first Notice of Application, the amended or Second Notice of Application identified challenges only to the three search warrants.

(5) The Second Notice of Application and the Backpack Search

[55] Since it raised only search warrant challenges, the second Notice of Application did not give notice of a challenge to the backpack search. The sole allusion to that search, in para. 7(j), addressed the contents of the ITO. It read: “The only information connecting Greer to possession of stolen property on September 3, 2014 was two knives located in a backpack lying on the road.”

(6) The Standing Ruling Relating to the Search of the Intrepid and Evidence of the Airwalk Shoes

[56] At the end of the fourth day of trial, the trial Crown called Cst. Lucier to testify to the discovery of the Airwalk shoes during the “consent” search of Ms. Symes’ car. Defence counsel objected, saying that there would need to be a voir dire into the validity of the consent search. The trial judge responded, “The only person who has standing to make that argument is Ms. Symes.” Defence counsel responded, “You’ve heard that they have use of that vehicle together. So, for the Court simply to summarily say there’s no standing whatsoever for Mr. Greer to advance an argument on that basis I would differ with.” The trial judge replied:

I know you differ with me and I’ve made the ruling. Mr. Greer has no standing to raise a Charter argument about a consent signed by Ms. Symes on a vehicle that, all the evidence I’ve heard so far, is her property, she is the owner. That’s the ruling.

[57] The trial judge then admitted into evidence the testimony of Cst. Lucier that on September 4, 2014, he seized black, size 10, Airwalk shoes from the trunk of the Intrepid. Cst. Lucier said he seized them because he believed the tread on the shoes was similar to a footprint that he had seen on the gunroom door at the scene of the Van Meeteren break-in.

[58] Evidence had been presented during the trial linking Mr. Greer to the trunk of the Intrepid. Specifically, the surveillance evidence included testimony that on August 20, 2014, Mr. Greer had been observed rearranging items in the trunk. He was observed wearing flip flops at the time and handling a pair of work boots. There was also evidence that, on August 22, 2014, the police were dispatched to a verbal argument on Bruce Road. When they arrived, they found the Intrepid unoccupied, with property scattered on the roadway nearby. When Cst. James picked up one of the bags, Mr. Greer came out of the nearby bushes, insisting that the officers not go through his property. Further, there was evidence that on September 3, 2014, Cst. Boudreau once again observed Mr. Greer rearranging items in the trunk of the Intrepid.

[59] Cst. Jeffrey Myatt offered testimony as a forensic identification officer with expertise in footwear examination. Some of the footprints found at the scene of the Van Meeteren break-in bore similarities in size, design and physical shape to the Airwalk shoes seized by Cst. Lucier. However, only one tread pattern, located in the laundry room, could be associated to those shoes through two randomly acquired characteristics shared between the impression and one of the shoes. During his examination of the evidence gathered at the crime scene, Cst. Myatt determined that the tread pattern on the gunroom door was not from the seized Airwalk shoes and had in fact been made by another brand of shoe.

C. The Reasons for Judgment

[60] After receiving written submissions, in her Reasons for Judgment the trial judge addressed both the Charter challenge to the search warrants and the verdicts to be rendered in the case.

(1) The Section 8 Charter Ruling

[61] The trial judge denied Mr. Greer’s Charter challenge to the search warrants. She found the information from the “unproven, untested” CI was corroborated by other information, yielding reasonable and probable grounds.

[62] In the course of making that ruling, the trial judge referred specifically to the “property stolen in the break-in… found in [Mr. Greer’s] possession on July the 22nd”, when the traffic-stop search occurred. Since she had already said she could not find that Mr. Greer knew about or was in constructive possession of the gun magazine clip that was discovered in Mr. Wall’s pocket, when she spoke of the stolen property found in Mr. Greer’s possession she can be taken as referring to the ammunition found in Mr. Greer’s backpack and on his person. The trial judge said that Mr. Van Meeteren had identified this ammunition as having been stolen from his home during the break-in. The parties agree that this overstates Mr. Van Meeteren’s position. He could say only that the ammunition was similar to ammunition taken during the break-in.

[63] The trial judge did not specifically identify any other information that corroborated the CI, but in narrating the material evidence in the case she had described the knives or bayonets that were found during the backpack search. She found Mr. Greer to have been in personal possession of those items and found that they were from the break-in.

[64] In his written submissions at the end of the trial, defence counsel had again identified shortcomings in the proof of Ms. Symes’ consent to search the Intrepid. Despite having already ruled that Mr. Greer could not challenge the consent search, the trial judge reaffirmed in her Reasons for Judgment that only Ms. Symes had standing to dispute the legality of the search of her vehicle.

[65] The section 8 challenges were dismissed.

(2) The Verdicts

[66] In the course of her Reasons for Judgment, the trial judge explained her findings that Mr. Greer had constructive possession of the stolen property found in the tents and the storage units during the execution of the search warrants. She also linked Mr. Greer to the stolen goods found in the Intrepid:

Mr. Greer was in constructive possession of the property found in the tents and the two storage units and the Intrepid. He knew that property was there, he had access to the property, he appeared to be dealing with the property inside the Intrepid on a number of occasions when observed by police, and he exercised control over the Intrepid when telling the police not to touch his property….

[67] After describing how the police had observed both Ms. Symes and Mr. Greer rearranging the contents of the trunk of the Intrepid and removing, repacking, and returning items to the trunk, she said:

There was no evidence that anyone else accessed the trunk for the Intrepid… The reasonable inference that can be drawn is that Michael Greer had property in the vehicle and was in constructive possession of the property and was exercising control over it.

[68] She applied similar reasoning in concluding that the Airwalk shoes found in the trunk of the Intrepid belonged to Mr. Greer. She said: “The surveillance observed the accused moving and arranging items in the trunk, and after that no one gained access to the trunk”. She reasoned further that “the Airwalks, sized 12, would clearly not be worn by a female, Theresa Symes, judging by her respective height, as I saw on the video and as observed in the photos of surveillance”. In fact, the evidence was that the Airwalk shoes were size 10, not 12.

[69] Based on her finding of possession by Mr. Greer of the Airwalk shoes, the evidence linking the Airwalk shoes to the crime scene, and Mr. Greer’s recent possession of stolen property from the break-in, the trial judge said, “[T]he court can draw an inference he was involved in the break and enter when the property was stolen.” She therefore found him guilty “as a primary offender, or as a party to a break and enter and the theft of firearms.” Based on this finding, she convicted Mr. Greer of the charge of break and enter and theft of firearms, contrary to s. 98(1)(b) of the Criminal Code, and the charge of break and enter a dwelling house and commit theft over $5000, contrary to s. 348(1)(b) of the Criminal Code.

[70] The trial judge also found Mr. Greer guilty of eight separate counts of possession of stolen property, contrary to s. 354(1) of the Criminal Code, relating to items discovered in his possession during the backpack search, the search of the Intrepid and the search warrant searches. Finally, she convicted Mr. Greer of one count of possession of ammunition, contrary to s. 96(1) of the Criminal Code; and two counts of possessing ammunition while prohibited from doing so, contrary to s.117.01(1) of the Criminal Code.

[71] The foregoing convictions are being appealed. Mr. Greer was also convicted during the trial of other offences that are not before me.

The Issues on Appeal

[72] I would state the issues addressed by Mr. Greer in his oral and written appeal arguments as follows, and I would approach them in the following order:

A. Did the trial judge err in ruling that Mr. Greer did not having standing to challenge the search of the Intrepid?

B. Did the trial judge unfairly resolve Mr. Greer’s s. 8 Charter challenges, thereby causing a miscarriage of justice?

C. Did the trial judge err in finding reasonable and probable grounds for the search warrants?

D. Did the trial judge err in finding that the Airwalk shoes belonged to Mr. Greer?

[73] Only the second and last of these grounds of appeal were pressed during oral submissions, but as grounds A and C have not been abandoned, I will address them briefly.

[74] Mr. Greer also appealed his 55-month sentence, but this sentence appeal was abandoned and so will be dismissed as abandoned.

Analysis

A. Did the trial judge err in ruling that Mr. Greer did not have standing to challenge the search of the Chrysler Intrepid?

[75] Appeal counsel argues that the trial judge acted unfairly in deciding that Mr. Greer did not have standing to challenge the constitutional validity of the warrantless “consent search” of the Intrepid. I will address that argument below.

[76] He also advances the ground of appeal now under consideration, that, whether arrived at fairly or not, the trial judge’s finding that Mr. Greer lacked standing to challenge the search of the Intrepid was simply wrong. Based on the trial record, and without advancing a fresh evidence application, he argues that Mr. Greer should have been found to have standing to challenge this search because he had a reasonable expectation of privacy in the Intrepid.

[77] On appeal, Mr. Greer adds an alternative, second standing argument not advanced at trial. Namely, that even if the consent search could not be successfully challenged, the trial judge erred by not recognizing his standing to challenge the seizure of the Airwalk shoes from the Intrepid.

(1) Standing and the Consent Search

[78] Even when challenging a warrantless search of a place, the party claiming the Charter violation bears the burden of establishing their standing to do so by demonstrating that, in the totality of the circumstances, they had a reasonable expectation of privacy in the place that was searched: R. v. Edwards, [1996] 1 S.C.R. 128. I agree with the Crown that, on the evidence at trial, Mr. Greer simply cannot succeed in demonstrating a reasonable expectation of privacy in Ms. Symes’ car.

[79] Seven non-exclusive factors will typically inform such a decision, including: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from that place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation: Edwards, at para. 45; Belnavis, at para. 20. When these factors are considered, it is evident that Mr. Greer did not have a reasonable expectation of privacy that could support a Charter challenge to the search of the Intrepid.

[80] Mr. Greer was not present when the “consent” search occurred. That search had no impact on his person, or his liberty.

[81] Mr. Greer did not own the vehicle. Ms. Symes did. He therefore had no legal authority to regulate access to the vehicle.

[82] Nor was there evidence that he had any de facto authority to do so. He was never observed operating the vehicle; Ms. Symes would do so, and he would be a passenger. When he accessed the vehicle, she was either immediately present or nearby.

[83] Mr. Greer attempts to demonstrate his de facto authority over the vehicle by relying on an incident that occurred on August 22, 2014, after Csts. Lucier and James were dispatched to a verbal argument on Bruce Road in Huron-Kinloss Township. When they responded, the officers came upon Ms. Symes’ unoccupied Intrepid. Property was strewn on the roadway and in a nearby cornfield. When Cst. James picked up one of the bags near the vehicle, Mr. Greer emerged from the bushes and directed Cst. James not to go through his property. With respect to this incident, I agree with the Crown. This was not an illustration of Mr. Greer regulating access to the car. He was instead regulating access to his property which was outside of the car. Indeed, this incident is a counter-example to his having de facto authority over the car. The most reasonable inference is that during an argument Mr. Greer’s property was ejected from the vehicle by its owner, Ms. Symes, who was also present.

[84] To be sure, the Crown is not in a position to deny entirely that Mr. Greer exercised any control over the Intrepid. In R. v. Jones, [2017] 2 S.C.R. 696, at para. 32, the Supreme Court of Canada ruled that, “a s.8 applicant may ask the court to assume as true for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him.” In its written argument, after identifying the two campsites, the two storage units, and “the gold Chrysler Intrepid belonging to Teresa Ann Symes”, the Crown alleged that Mr. Greer “had strong ties to each of these locations, in that he was in possession of property at each of those locations and had control over each of those locations.”

[85] To be clear, permitting the accused to rely on the Crown’s position to support its standing argument does not create automatic standing. As Harvison Young J.A. explained in R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270, at para. 31:

The point of Jones is that the accused can rely on the Crown theory to establish certain facts relevant to their s. 8 claim. The trial judge is still required to assess those facts in the “totality of the circumstances” to determine whether the accused had a reasonable expectation of privacy in a particular territorial space. [Citations omitted.]

[86] As indicated, the Crown theory included the claim that Mr. Greer had control over the Intrepid. The significance that should be attributed to the Crown’s position that Mr. Greer had control over the Intrepid can be gleaned by examining the objective evidentiary basis for the control alleged by the Crown. It amounts to this: throughout the relevant period, Mr. Greer, who was in a relationship with Ms. Symes and cohabiting with her, used and accessed her car to store his belongings.

[87] Even bearing this degree of control in mind, and assuming Mr. Greer had a subjective belief that his belongings would remain protected and private while in the Intrepid, the trial judge’s conclusion that Mr. Greer did not have standing to challenge the search of the vehicle was inevitable. While Mr. Greer exercised control of the vehicle by using it to store his goods, there is no evidence that his control of the vehicle was independent of Ms. Symes’ control. As indicated, the only reasonable inference that the August 22, 2014 incident yields is that Mr. Greer’s ability to hold his property in the vehicle depended on permission from Ms. Symes. If Mr. Edwards, who had his own key to his girlfriend’s apartment and kept belongings there, did not have a reasonable expectation of privacy in his girlfriend’s apartment, Mr. Greer’s weaker claim to a reasonable expectation of privacy in Ms. Symes’ car must fail: see Edwards, at paras. 48-49.

[88] There is no contradiction between this outcome and the trial judge’s finding that the Airwalk shoes found in the car were Mr. Greer’s. As the decisions in Edwards and Belnavis illustrate, a person can have possessions in a place in which they do not have a reasonable expectation of privacy. Nor is this outcome inconsistent with the trial judge’s finding that Mr. Greer possessed the stolen goods found in Ms. Symes’ car. As I will explain below, this finding was based on circumstantial evidence linking him to the Airwalk shoes. The trial judge did not err in her conclusion that Mr. Greer did not have standing to challenge the validity of the search of Ms. Symes’ car.

(2) Standing and the Seizure of the Airwalk Shoes

[89] I will now address Mr. Greer’s supplementary argument, made for the first time on appeal, that he had standing to challenge the seizure of the Airwalk shoes and that the trial judge erred by not recognizing this. He seeks that standing in order to argue that even if Ms. Symes had provided valid consent to search the vehicle, she did not have authority to consent to the seizure of the Airwalk shoes, and that reasonable and probable grounds for the seizure of the Airwalk shoes were lacking.

[90] Mr. Greer has not sought leave to raise this new standing issue on appeal. Even if he had sought leave to do so, I would not have granted it.

[91] The customary articulation of the test for granting leave to raise a new issue on appeal states that leave may be granted where: (1) “the evidentiary record [is] sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal”; (2) “the failure to raise the issue at trial [is not] due to tactical reasons”; and (3) “the court [is] satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal”: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 43, leave to appeal refused, [2016] S.C.C.A. No. 432; R. v. Brown, [1993] 2 S.C.R. 918, at p. 927. I take this last consideration to be misstated. Logically, the fact that “no miscarriage of justice will result from the refusal to raise the new issue on appeal” is a reason not to grant leave, not a reason for doing so. In my view, if (1) the evidentiary record is sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal, and (2) the failure to raise the issue at trial was not due to tactical reasons, then leave should be granted where (3) refusing leave may result in a miscarriage of justice. On the other hand, if refusing leave would not cause a miscarriage of justice, leave to raise a new issue on appeal should ordinarily be denied.

[92] One final, relevant consideration. Where the new issue arises from a change in the law while the case is still “in the system”, leave may be granted to present an evidentiary record on appeal: R. v. J.D., 2018 ONCA 947, 367 C.C.C. (3d) 403.

[93] After considering these factors, I find that it is not in the interests of justice to grant leave to raise the new standing argument on appeal. I am mindful that Mr. Greer’s trial occurred before Jones was decided. Prior to Jones, it would have been tactically unwise for Mr. Greer to claim ownership of the Airwalk shoes so that he could claim a privacy interest in those shoes to establish standing to challenge their seizure: Jones, at paras. 18, 22-24. Notwithstanding this, had Mr. Greer brought a leave application, I would deny it because the new Charter challenges that Mr. Greer claims to have standing to bring would not have succeeded had they been brought at trial.

[94] First, Mr. Greer’s keystone legal proposition that “the warrantless search of the Chrysler Intrepid could not be justified based on Symes’ third party consent” misses the mark. To be sure, there is a longstanding principle that a third party cannot “validly consent to a search or otherwise waive a constitutional protection on behalf of another”: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 79. However, the police did not rely on Ms. Symes’ consent to seize the Airwalk shoes. They relied on her consent to be lawfully present in her car without a warrant. Once lawfully in that place, the authority to seize the Airwalk shoes derives from s. 489(2)(b) of the Criminal Code, which authorizes the police to seize any thing without warrant that they have reasonable grounds to believe “has been used in the commission of an offence”.

[95] Nor would Mr. Greer’s supplementary claim that Cst. Lucier lacked reasonable grounds to seize the Airwalk shoes have succeeded, had this argument been advanced at trial. This is known because the credibility and reliability of Cst. Lucier’s testimony relating to how he came to seize the Airwalk shoes was litigated fully during the trial proper, on the question of whether the Airwalk shoes could be linked to Mr. Greer.

[96] In his testimony, which the trial judge chose to believe, Cst. Lucier said that “he made a connection between the Airwalk shoes and the imprint on the gunroom door”. She was not dissuaded in accepting this testimony by the fact that Cst. Lucier produced police notes at the last minute to support this evidence, or by the fact that those notes did not record that he had observed similarities between the footprint and the Airwalk shoes.

[97] Nor did she accept the submission that Cst. Lucier’s evidence was discredited by Cst. Myatt’s expert testimony that the imprint on the gunroom door was in fact made by a different make of shoe. The trial judge found, based on testimony that Cst. Myatt gave, that “[it] took an expert analyst to do a professional comparison to determine that the Airwalks had not made that footwear print on the gunroom door.” Clearly, it was the trial judge’s conclusion that Cst. Lucier had an honest, reasonable mistaken belief that the Airwalk shoes likely made the print on the gunroom door.

[98] Given her findings, which the trial judge was entitled to make, and the uncontested evidence that Cst. Lucier knew of Mr. Greer’s recent connection to the vehicle and that he kept possessions inside the vehicle, it is obvious that had Mr. Greer brought a challenge at trial to the seizure of the Airwalk shoes, that challenge would have failed. It is simply not in the interests of justice to permit Mr. Greer to raise a standing argument for the first time on appeal, in order to make a Charter argument that would have failed had it been brought at trial.

[99] I would therefore deny Mr. Greer’s ground of appeal that the trial judge erred in denying him standing relating to the search of the Intrepid.

B. Did the trial judge unfairly resolve Mr. Greer's Section 8 Charter challenges, thereby causing a miscarriage of justice?

[100] Mr. Greer contends that “the trial judge’s approach to the s. 8 Charter challenge rendered the trial unfair”. This is a ground of appeal advanced under s. 686(1)(a)(iii) of the Criminal Code. As such, even if the trial judge did not act fairly in the approach that she took, this ground of appeal cannot succeed unless a miscarriage of justice has occurred. As I will explain, I accept that the trial judge did not act fairly in some of the rulings that she made. However, I am persuaded that, despite this, no miscarriage of justice occurred.

[101] Appeal counsel’s submissions focused most intently on the trial judge’s treatment of the traffic-stop search, and the search of the Intrepid. Issue was also taken with the trial judge’s treatment of the backpack search, but the trial judge’s treatment of this search was given less emphasis in argument. Although not raised in his factum, in oral argument Mr. Greer also addressed the trial judge’s Garofoli ruling. In each case, the heart of Mr. Greer’s complaint is that the trial judge failed, unfairly, to consider any of these issues on their merits.

[102] Context is particularly important in evaluating this ground of appeal, and a salient contextual consideration is that Mr. Greer failed to give notice, as required by the rules, of any of the Charter challenges he relies on in this ground of appeal.

[103] Mr. Greer’s appeal counsel attempted to dull the impact of Mr. Greer’s failure to give notice by pointing out that notice was given to challenge the search warrants, the grounds for which were predicated on the warrantless searches he now seeks to challenge. If, with this submission, appeal counsel is suggesting that when notice is given that search warrants are being challenged, this constitutes notice that warrantless searches that produced information relied upon to secure those search warrants will also be challenged, I would disagree.

[104] The purpose of notice is: (1) to alert the court to impending Charter challenges so that trial time can be accurately estimated and pretrial applications can be organized and conducted in a focused manner, and (2) to enable the Crown to identify the matters in issue so that the Crown can effectively prepare for the trial and answer the challenges made: R. v. Tash (2008), 2008 1541 (ON SC), 166 C.R.R. (2d) 358 (Ont. C.A.), at para. 15; R. v. Kutynec (1992), 1992 12755 (ON CA), 70 C.C.C. (3d) 289 (Ont. C.A.), at pp. 297, 301-2. Only explicit notice of Charter challenges can serve these dual objectives. Permitting notice by implication would defeat them. If an accused intends to challenge preliminary searches that produced information used to support a challenged search warrant, the accused must say so in their Notice of Application. If they have not done so, as here, then notice was not provided.

[105] If appeal counsel was simply making the more modest suggestion that, in this case, the Crown could not have been prejudiced because the Crown must have understood that by challenging the search warrants, Mr. Greer would also be challenging the underlying warrantless searches, I again disagree. If anything, where a Notice of Application expressly includes only search warrant challenges, the most likely inference is that those will be the only challenges brought.

[106] I will turn to the relevant legal principles that govern fair procedure in the summary dismissal of Charter motions, including where that dismissal is for the failure to give notice.

(1) The Legal Principles

[107] In her treatment of some of the issues raised by Mr. Greer during trial, the trial judge relied on defence counsel’s non-compliance with the notice requirements under the rules. For others, she relied on what she perceived to be a patent lack of merit in positions taken by defence counsel.

[108] A trial judge is permitted, in the exercise of their trial management powers, to summarily dismiss Charter motions on both these bases. Absent special circumstances, such as those described in R. v. Sabir, 2018 ONCA 912, 143 O.R. (3d) 465, at para. 32, trial judges “may decline to entertain a motion where no notice, or inadequate notice, of the motion has been given to the other side”: R. v. Loveman (1992), 1992 2830 (ON CA), 71 C.C.C. (3d) 123 (Ont. C.A.), at p. 125. Similarly, trial judges may refuse to hear Charter motions that have no reasonable prospect of success or may terminate motions when it becomes evident that they are frivolous: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38. A decision by a trial judge to summarily dismiss a motion on either basis is ordinarily entitled to deference: R. v. Blom (2002), 2002 45026 (ON CA), 167 C.C.C. (3d) 332 (Ont. C.A.), at para. 28; R. v. Kazman, 2020 ONCA 22, 452 C.R.R. (2d) 185, at para. 16, leave to appeal refused, [2020] S.C.C.A. No. 58.

[109] Deference will not be due, however, if the trial judge conducted a hearing that was so unfair as to result in a miscarriage of justice. Just as a fair trial guarantees the accused “basic procedural fairness” (R. v. Harrer, [1995] 3 S.C.R. 562, at para. 45) so too does a fair Charter challenge. The demands of procedural fairness depend entirely on context: R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 47. Two of the requirements of procedural fairness that arise in the context of the summary dismissal of Charter motions are relevant to this appeal.

[110] First, the accused must be given an opportunity to make submissions before summary dismissal occurs. As a trite, general proposition, the right to make submissions before a ruling is an essential component of the principle of audi alteram partem (that parties have the right to be heard): R. v. D’Allesandro, 2018 BCCA 118, 359 C.C.C. (3d) 350, at paras. 17-20. The right to make submissions is also a central component of the right to make a full answer and defence: R. v. Aucoin, [1979] 1 S.C.R. 554. The trial management authority to dismiss Charter motions summarily will not be exercised fairly if this authority is used without first permitting submissions from the accused as to whether summary dismissal is warranted. When Rosenberg J.A. provided his influential instruction on the general trial management power in R. v. Felderhof (2003), 2003 37346 (ON CA), 180 C.C.C. (3d) 498 (Ont.), at para. 40, he said:

It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. [Emphasis added.]

[111] Where a trial judge is considering summary dismissal without an evidentiary inquiry because a Charter claim appears to be meritless, the trial judge should ensure that the defence is aware of this and is “able to summarize the anticipated evidentiary basis for its claim” so that the trial judge has the information required: Kutynec, at p. 301; R. v. Papasotiriou-Lanteigne, 2017 ONSC 5337, 390 C.R.R. (2d) 222, at paras. 22-23. This includes providing the accused with an opportunity to argue against summary dismissal.

[112] Submissions are no less critical where summary dismissal is based on non-compliance with the rules. Before summarily dismissing a Charter claim because of non-compliance with the rules, trial judges are required to consider all relevant circumstances: Blom, at para. 22. This includes the Charter argument sought to be advanced, prejudice to the opposing party, and the impact that permitting the motion to proceed would have on the trial process: Loveman, at p. 127; Tash, at para. 15(7). Explanations for non-compliance with the rules may also be of importance. For the decision to be made fairly, a trial judge will therefore need to ensure that trial counsel is alerted that summary dismissal is being considered and is given an opportunity to provide material information and submissions so that the trial judge can finally and fairly determine whether summary dismissal is in fact appropriate.

[113] To be clear, I am not suggesting that a full evidentiary hearing needs to be conducted to determine whether to conduct an evidentiary hearing. The issue should first be addressed by oral submissions, but some evidence may prove to be necessary before a full voir dire is dispensed with: R. v. Vukelich (1996), 1996 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.), at paras. 17-23. In receiving such submissions, a trial judge is also entitled to ensure that the submissions are relevant, focused, and efficient.

[114] The second relevant requirement of procedural fairness is the trial judge’s obligation to explain why a Charter motion is being summarily dismissed, if that is the decision that is made. For example, the decision of the trial judge to summarily dismiss a s. 11(b) application was overturned in R. v. Imola, 2019 ONCA 556, 439 C.R.R. (2d) 352, after the trial judge failed to give sufficient reasons for the summary dismissal that occurred. In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 44-45, Binnie J. made clear that the duty to give reasons applies to Charter rulings. This duty must necessarily apply, as well, to rulings that dispense with the need for a full Charter voir dire. The sufficiency of reasons is therefore a relevant consideration in determining whether procedural fairness has been achieved in the summary dismissal of a Charter motion.

[115] Having expressed the principles that I will be relying upon, I will examine, in turn, the trial judge’s treatment of the issues raised by Mr. Greer on appeal. It is convenient to begin with the backpack search.

(2) The Backpack Search

[116] The trial judge did not act unfairly in addressing Charter issues relating to the backpack search for the simple reason that no such issues were raised. As indicated, no challenge was made to this search in either Notice of Application, and at no time did Mr. Greer rely on the Charter to contest the admissibility of the evidence found during this search. Indeed, in his second Notice of Application, Mr. Greer proceeded on the basis that the knives or bayonets that were discovered during this search could be considered in assessing whether there were reasonable and probable grounds for the search warrants.

[117] The fairness of the trial judge’s treatment of this warrantless search is only challenged in Mr. Greer’s contention that the trial judge failed in her obligation to consider whether the Crown had discharged its burden of rebutting the presumptive unreasonableness of the three warrantless searches. This submission must be rejected because the Crown had no such obligation relating to the backpack search. The Crown burden to demonstrate the reasonableness of a warrantless search arises only if that search is in issue in the case, and the constitutional validity of the backpack search had not been made an issue in this case.

[118] I can find no unfairness on the trial judge’s part relating to this issue and I would reject appeal counsel’s attempt to cast doubt on the constitutional validity of this search for the first time on appeal.

(3) The Traffic-Stop Search

[119] Nor did the trial judge act unfairly with respect to the traffic-stop search, again for the simple reason that Mr. Greer never advanced a Charter application relating to this search. The most that can be said is that defence counsel wanted to explore during his cross-examination whether there might be a basis for a Charter challenge. I will explain.

[120] Once again, defence counsel did not bring an application to challenge the constitutional validity of this search. As a result, the trial judge appropriately confronted defence counsel with the relevance of his attempted cross-examination of Sgt. Foxton about the search. When she did so, defence counsel affirmed that he was not taking issue with the search but said that he wanted the evidence as “narrative” or “backdrop”. He then said that although he had not initially contemplated that the stop would be the subject of any Charter right argument, “it may well be that there are some issues in play” relating to whether the search went beyond a liquor licence search, but he could not know “until we know what the evidentiary basis is in the trial”. He grounded the possibility of a potential Charter issue in whether the evidence of the two officers was consistent, without attempting to explain to the trial judge how inconsistent evidence might assist in establishing a Charter breach.

[121] In these circumstances, the trial judge was entitled to simply direct defence counsel to move along. Absent special circumstances, a trial provides an opportunity to bring Charter challenges, not an opportunity to explore whether there may have been Charter breaches.

[122] I recognize that during the colloquy, the trial judge, without inviting full submissions, precipitously expressed her opinion that Mr. Greer had no standing to bring a Charter challenge to the traffic-stop search. Given that the constitutional validity of that search was not before her, this had no impact on the fairness of her treatment of Mr. Greer’s Charter application so I will say no more of it.

[123] However, on two occasions, the trial judge did make similar, precipitous rulings prohibiting Charter applications without notifying counsel in advance of her intention to do so, and without inviting full submissions. These incidents, relating to the Garofoli application and the search of the Intrepid, are more concerning.

(4) The Garofoli Application Issue

[124] In my view, the trial judge did not act fairly in ruling that she would not entertain a Garofoli application if defence counsel was to attempt to bring one.

[125] A Garofoli application is ordinarily brought prior to trial to secure leave of the court to cross-examine the affiant of a search warrant ITO in order to determine whether the ITO affiant made full, frank, and accurate disclosure of the material facts to the issuing justice: R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343. Where it is shown through cross-examination that full and frank disclosure has not been made, the ITO will be amended before the sufficiency of the grounds for issuing the warrant is reviewed. The amendment of the ITO may undermine the grounds for the warrant, leading to the warrant being quashed: R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 53; R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at para. 101.

[126] Amendment can be achieved through “excision” or “amplification”. Excision occurs when information shown to be inaccurate is simply deleted from the ITO. In contrast, as stated in Booth, at para. 59: “Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information”: Booth, at para. 59. Not all inaccurate information can be corrected by amplification. Information should not be added where it “could advance the warrant application” unless “the error in not making full and frank disclosure is: (1) a ‘minor technical error’; and (2) made in ‘good faith’”: Booth, at para. 59.

[127] Given the nature and purpose of permissible cross-examination, it is obvious that counsel cannot responsibly bring a Garofoli application without having examined the ITO. In order to obtain leave to cross-examine in a Garofoli application, the accused must show that there is a “basis for embarking on an enquiry”: Pires, at para. 10. Specifically, the accused must show that there is a reasonable likelihood that cross-examination of the affiant will elicit testimony about the accuracy or completeness of the information in the ITO that is of probative value on the admissibility of the evidence: Pires, at paras. 30-31.

[128] Testimony will have probative value on the admissibility of evidence where it could lead to a finding that the search or seizure violated the Charter. This will occur if the cross-examination leads to the excision or amplification of inaccurate or incomplete information in the ITO that could undermine the sufficiency of the grounds for issuing the warrant. Alternatively, exposing inaccurate or incomplete information through cross-examination may reveal unconstitutional misconduct by the affiant to the ITO. This will be so where the affiant has engaged in “deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 69, leave to appeal refused, [2017] S.C.C.A. No. 81.

[129] On the third day of trial, the morning after receiving disclosure of the ITO, defence counsel advised the trial judge that he was seeking instructions from Mr. Greer on a possible Garofoli application. The trial judge’s response was swift and decisive. Without calling for submissions or waiting for an application to be filed, she ruled peremptorily that no such application would be permitted.

[130] The sole reasons the trial judge expressed were that defence counsel had waited too long to bring the application, and that defence counsel bore responsibility for the delay because he was too late in making his disclosure request. Based on earlier relevant exchanges between the trial judge and defence counsel, it can fairly be inferred that the trial judge was of the view that it was not in the interests of justice to allow a late-breaking Garofoli application to interrupt and delay the trial, particularly given defence counsel’s own expressed desire to proceed with the trial without adjournment.

[131] On its face this decision may seem compelling, but there were arguments available to the contrary. In keeping with their obligations subsequently expressed in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 85-86, the parties had agreed to a prompt trial date only seven weeks away from the set date. In those circumstances, allowances for late preparation might reasonably be required. Moreover, understood in this context, the request for disclosure of the ITO, although made uncomfortably close to the beginning of the trial, had been made relatively promptly after the set date. As well, even the trial Crown was scrambling to get ready for trial. Disclosure was still being made as the trial got underway, and the trial Crown herself had arguably not acted with dispatch in responding to the disclosure request. There were also outstanding disagreements between defence counsel and the trial judge relating to whether it was customary for ITOs to be disclosed as a matter of course without specific request, or whether a request for disclosure of search warrants should be taken as including a request for disclosure of the ITO used to obtain the search warrant. If resolved favourably to the defence after argument or evidence, these considerations could well have had a profound impact on whether the trial judge should disallow a Garofoli application, if one was to be brought.

[132] I do not raise these points to cast doubt on the reasonableness of the trial judge’s decision to refuse to entertain a Garofoli application if brought in aid of Mr. Greer’s search warrant challenge, since I need not concern myself with the merits of that decision to resolve this ground of appeal. I raise these points simply to underscore the unfairness of the trial judge’s decision to make this ruling without inviting or receiving submissions. Indeed, when defence counsel attempted to make submissions after the trial judge raised the issue of summary dismissal by ruling that “[a] Garofoli application will not be happening”, the trial judge cut him off, reaffirming her ruling with curt and cursory reasons. I understand that the trial judge was faced with the unenviable challenge of moving a serious trial along when it was evident that the parties were not fully prepared, and that defence counsel had repeatedly been unclear about where the Charter issues were heading. Still, the trial judge should not have summarily foreclosed the prospect of a Garofoli application in this way. In my view, she acted unfairly.

[133] I am nonetheless satisfied that there has been no miscarriage of justice. I do not rest that decision on the fact that, at the time the ruling was made, a Garofoli application was only a hypothetical possibility, although this is a relevant factor. I am persuaded that there has been no miscarriage of justice because there is no air of reality to the possibility that cross-examination of the ITO affiant could have changed the outcome of the Charter challenges brought on Mr. Greer’s behalf. Appeal counsel has identified only two areas where alleged inaccuracies in the ITO could possibly have led to the cross-examination of the affiant, and neither would have mattered. Those two areas of alleged inaccuracy relate to the backpack search.

[134] Specifically, appeal counsel contends that: (1) the ITO inaccurately reported that Det. Cst. Dunn observed the knives or bayonets in the backpack at the scene of Mr. Greer’s motorcycle crash, when it was Cst. Boudreau who had done so; and (2) the ITO communicates that Mr. Greer “was wearing” the backpack when the decision to search was made, when in fact Mr. Greer had been seen wearing a backpack when he retrieved the motorcycle from the storage unit, and the backpack containing the knives or bayonets was found on the ground near the crashed motorcycle after the crash.

[135] I am prepared to accept, for the purpose of analysis, that these are inaccuracies in the ITO that would have been exposed had Mr. Greer been permitted to cross-examine the affiant. However, I do not accept that exposing these inaccuracies could have affected the result or Mr. Greer’s Charter application.

[136] Appeal counsel’s first argument to the contrary is that, without the inaccurate information that Mr. Greer was wearing the backpack at the time of his arrest, the search of the backpack could not be found to be a valid search incident to arrest. I am unpersuaded that this is so, but even if true, this could not have affected the outcome of Mr. Greer’s Charter claims, given that he did not bring a Charter challenge to the backpack search. In these circumstances, even if a Garofoli application would have undercut support for a finding that the backpack search was a legal search incidental to arrest, nothing would have changed.

[137] Nor could the exposure, through cross-examination, of the discrepancies that appeal counsel identifies have had any impact on the outcome of the search warrant challenges that Mr. Greer did bring. This is not a case where the inaccurate information would have been excised if it had been exposed during a Garofoli application, thereby leaving the ITO without reference either to the discovery of the knifes or bayonets, or to Mr. Greer’s possession of the backpack. Instead, amplification would have been ordered, replacing the inaccurate information with accurate information.

[138] This can be said with confidence because there is no realistic basis for believing that the inaccuracies were anything but good faith, technical errors. The affiant had nothing to gain by withholding the accurate information and offering the inaccurate information. The strength of the search warrant application remains unchanged regardless of which officer discovered the knives or bayonets in the backpack. And it makes no material difference to the grounds for the warrant whether Mr. Greer was wearing the backpack after the accident, or the backpack was linked to Mr. Greer circumstantially by its discovery on the ground near the fallen motorcycle that Mr. Greer, the sole occupant of the motorcycle, had just crashed in a single vehicle accident. Simply put, a Garofoli application would not have advanced Mr. Greer’s Charter application.

[139] I therefore accept that the trial judge acted unfairly in summarily preventing Mr. Greer from bringing a Garofoli application without first inviting submissions on the matter, but I am persuaded that this ruling did not result in a miscarriage of justice as it had no effect on the outcome of the trial.

(5) Standing and the Search of the Intrepid

[140] The second occasion on which the trial judge summarily prohibited Mr. Greer from raising a Charter issue without notifying counsel of her intention to do so, and without inviting full submissions, occurred on the fourth day of trial and related to the seizure of the Airwalk shoes.

[141] It will be recalled that defence counsel had not given notice of his intention to challenge the constitutional validity of the warrantless search of the Intrepid. Indeed, he did not do so even in the second Notice of Application. Yet, after that second Notice was filed, when the Crown called Cst. Lucier, who testified that the Airwalk shoes were discovered during the “consent” search of Ms. Symes’ car, defence counsel objected saying that there would need to be a voir dire into the validity of Ms. Symes’ consent to that search.

[142] It is worth repeating the exchange that then occurred. The trial judge’s immediate response was to say: “The only person who has standing to make that argument is Ms. Symes.” Defence counsel objected to that conclusion, saying, “You’ve heard that they have use of that vehicle together. So for the Court simply to summarily say there’s no standing whatsoever for Mr. Greer to advance an argument on that basis I would differ with.” The trial judge replied:

I know you differ with me and I’ve made the ruling. Mr. Greer has no standing to raise a Charter argument about a consent signed by Ms. Symes on a vehicle that, all the evidence I’ve heard so far, is her property, she is the owner. That’s the ruling.

[143] Without question, there were compelling grounds for dismissing this motion for failure to comply with the rules. Even with the benefit of argument, it is unlikely that Mr. Greer could have persuaded the trial judge otherwise, had that been the basis for her decision. But it was not. As the foregoing exchange confirms, the trial judge purported to exercise her discretion to summarily dismiss Mr. Greer’s request because, in her view, the proposed Charter challenge lacked merit as Mr. Greer had no standing to bring it. She made that decision without inviting submissions, even after being alerted by defence counsel that he had a different view of the law. And she did so without explaining the basis for her disagreement with counsel’s position. It was unfair for her to proceed this way.

[144] Once again, I am persuaded that the unfair process did not result in a miscarriage of justice. As I explained when addressing Mr. Greer’s first ground of appeal, we know from the standing argument Mr. Greer made before us that his claim to standing to challenge the consent search is based solely on evidence that was adduced at trial. I therefore have no misgivings that, had the trial judge not summarily dismissed his standing argument at trial, he may have a better record on which to make his standing argument. He made before us the argument that the trial judge would not hear, and, as I have observed, I found that argument to be untenable. Even had the trial judge permitted submissions on whether the standing argument should be summarily dismissed for lack of merit, the outcome would have been the same.

[145] Similarly, no miscarriage of justice can arise from the claim that Mr. Greer advanced for the first time on appeal, relating to his standing to challenge the seizure of the Airwalk shoes. I have already expressed my view that even if he were to prevail in that standing argument, it can confidently be said that the Charter challenges he would use that standing to advance would not have succeeded at trial.

[146] Since the outcome would have been the same even if the judge had dealt fairly with Mr. Greer’s standing claim, he can show no miscarriage of justice.

(6) Conclusion on Mr. Greer's Second Ground of Appeal

[147] I would therefore dismiss this ground of appeal claiming that the unfairness in the way in which the trial judge resolved his Charter claims caused a miscarriage of justice.

C. Did the trial judge err in finding reasonable and probable grounds for the search warrants?

[148] Mr. Greer did not press the issue during oral argument of whether there were reasonable grounds for the search warrants that were executed on September 4, and with good reason. There was ample information in the ITO upon which the reviewing trial judge could find that “the issuing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified [places]”: R. v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d) 299, at para. 25, leave to appeal refused, [2017] S.C.C.A. No. 93.

[149] The ITO was framed as being based upon information from a CI. This called for an examination of how compelling the information is, how credible the CI is shown to be, and whether the information the CI provides is corroborated: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168. The trial judge recognized that the conclusory information provided by the CI was not compelling, and that, as an informant, he was “unproven” and “untested”. However, these observations are considerations in evaluating the reasonableness of reliance on a CI, not conditions that preclude the existence of reasonable and probable grounds: Shivrattan, at paras. 27-28. The trial judge was entitled to find that the impressive corroboration that was included in the ITO overcame these apparent weaknesses.

[150] Specifically, the ITO disclosed that on July 22, 2014, during the traffic-stop search five days after the break-in, Mr. Greer was in possession of ammunition that was similar to ammunition taken during the break-in. At the time, Mr. Greer was prohibited from possessing ammunition. He was also in the company of Mr. Wall, who was found in possession of a stolen ammunition magazine.

[151] The ITO further disclosed that on September 3, 2014, two “knives/bayonets” that had been stolen from the break-in were found in a backpack linked to Mr. Greer after he crashed a stolen motorcycle.

[152] This evidence provides a credibly-based probability that Mr. Greer had been involved in the break-in and would possess stolen property from the break-in. Indeed, I agree with the Crown that, even without the CI, the events of July 22, 2014 and September 3, 2014 would have sufficed to provide reasonable grounds for the search warrants. Those two occasions on which Mr. Greer was found in possession of goods that were likely linked to the break-in would have been enough.

[153] In coming to this conclusion, I have considered that the trial judge misapprehended the evidence in asserting that Mr. Van Meeteren identified the ammunition found on Mr. Greer as stolen, when the ITO in fact reported only that Mr. Van Meeteren said he had “similar ammo taken”. No miscarriage of justice arises from this. The timing of the discovery, the nature and circumstances in which this similar ammunition was found, and the subsequent discovery of other property definitively linked to the break-in in Mr. Greer’s possession easily show a credibly-based probability, even bearing in mind that Mr. Van Meeteren could not definitively link the ammunition to the break-in.

[154] I would reject this ground of appeal.

D. Did the trial judge err in finding that the Airwalk shoes belonged to Mr. Greer?

[155] The trial judge’s finding that the Airwalk shoes belonged to Mr. Greer is entitled to deference. There was a solid evidentiary foundation for this holding. Evidence showed that Mr. Greer was permitted to keep personal property in Ms. Symes’ Intrepid, including footwear. Only he and Ms. Symes had been observed placing items in the motor vehicle. He was observed reaching into the trunk of the Intrepid the day before the “consent” search. The Airwalk shoes were men’s shoes. Based on her observation of the shoes and of Ms. Symes, the trial judge was satisfied that they would not have fit Ms. Symes. This was her decision to make.

[156] The trial judge’s conclusion that the shoes belonged to Mr. Greer was therefore not unreasonable or unsupported by the evidence. Nor is her conclusion undermined by her description of the size 10 shoes as size 12 shoes. She misspoke. She made that error on one occasion, accurately describing the shoes as size 10 on more than one occasion in the same judgment.

[157] I do not accept Mr. Greer’s contention that the trial judge was also incorrect in observing that “there was no evidence that anyone else accessed the trunk for the Intrepid during the observation period.” That is an accurate description of the evidence. Had others been observed accessing the trunk, the circumstantial case linking Mr. Greer to the Airwalk shoes would have been weakened. The fact that no such observations were made is not irrelevant or improper to consider. Nor does the fact that others were observed driving the car or being around the car change this.

[158] I would dismiss this ground of appeal.

Conclusion

[159] I would dismiss the conviction appeals and dismiss the sentence appeal as abandoned.

Released: December 14, 2020 “MT”

“David M. Paciocco J.A.” “I agree. M. Tulloch J.A.” “I agree. Harvison Young J.A.”

[^1]: R. v. Belnavis, [1997] 3 S.C.R. 341.