Court of Appeal for Ontario

Date: 20211019 Docket: C67283

MacPherson, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Andrew Bond Appellant

Counsel: Craig Zeeh and Jessica Zita, for the appellant Mabel Lai, for the respondent

Heard: September 29, 2021 by video conference

On appeal from the convictions entered on June 11, 2018 and the sentence imposed on October 23, 2018 by Justice David L. Corbett of the Superior Court of Justice.

MacPherson J.A.:

A. Introduction

[1] In a judge alone trial, the appellant was convicted of several offences relating to drugs and a firearm. He received a global sentence of 11 years, less 2 years and 11 months for pre-trial custody. The appellant appeals the convictions and sentence.

[2] The principal grounds of appeal relating to the convictions are that the trial judge erred in upholding the warrants that led police to discover the drugs and firearm and in his treatment of the warrantless “pinging” of the appellant's cell phone, including his finding that the evidence obtained under the warrants that the appellant says was derived from the “pinging” should not be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms.

[3] The only ground of appeal relating to the sentence is that the trial judge erred in his calculation of credit for pre-trial custody.

B. Facts

(1) The parties and events

[4] Four confidential informants led police to believe that the appellant was dealing cocaine from an apartment on Jane Street in Toronto and was habitually armed with a semi-automatic handgun. Three informants had proved reliable in the past and one had never previously provided information to police.

[5] Using location “pings” from a cell tower to the appellant’s cell phone, in addition to database searches and surveillance, police found three addresses with which the appellant was associated and where he was suspected of dealing cocaine. They also found that the appellant had a lengthy criminal record.

[6] On December 27, 2016, the police applied to a Justice of the Peace for search warrants relating to those addresses with which Bond was associated: a residential apartment (the “apartment”), a commercial condominium (the “commercial unit”), and a green Honda Accord (the “vehicle”).

[7] At 2:32 p.m. on December 27, the Justice of the Peace denied the warrants and provided reasons:

a. The relied upon confidential informant information was dated, and there was no indication when the information given was actually observed or how/when it was acquired;

b. The ITO indicated the information provided was corroborated in each case, yet not all information was clear on the corroborating details;

c. Appendix “A” items to be seized was too broad, and the ITO lacked supporting information to provide a nexus; and

d. There were insufficient reasonable grounds to believe items to be seized would be at the specific location.

[8] Later the same date, the police submitted the same ITO to a second application judge at the Ontario Court of Justice. The only addition to the ITO was paragraph 19 which indicated that the application had been submitted to and refused by a Justice of the Peace. The reasons for the refusal were included in the ITO. At 5:20 p.m., the second application judge granted the authorization.

[9] The police executed the warrants. At the apartment, they found property linking the appellant to the apartment, cocaine, and cocaine paraphernalia. In the commercial unit, police found property linking the appellant to the premises, a firearm and ammunition, and enough cocaine to give rise to the inference that it was possessed for the purpose of trafficking. Police found no material evidence in the vehicle. After the apartment and commercial unit were searched, police obtained another warrant to search the appellant’s storage locker where they found small amounts of cocaine.

(2) The trial judge’s Charter ruling

[10] At the trial, the appellant challenged both the validity of the search warrants and the warrantless search of his cell phone by virtue of “pinging” a nearby cell tower. The trial judge framed the two issues in this fashion:

During the trial the defence sought to exclude evidence on the basis that it was obtained in violation of Mr. Bond’s rights to be free from unreasonable search and seizure. This application had two aspects argued before me:

(a) Police obtained warrants on the basis of information from confidential informants. The defence argued that the warrants could not be upheld on the basis of unredacted portions of the Information to Obtain (“ITO”) used before the issuing justice.

(b) Police obtained information about Mr. Bond’s whereabouts by “pinging” the phone with which he was associated. Police did this with the assistance of Bell Canada without first obtaining a warrant to do so. The defence argued that this was a warrantless search and all information obtained by police as a result of this “pinging” should be excluded.

[11] In comprehensive reasons, the trial judge rejected the appellant’s submissions on both issues.

[12] On the validity of the warrants issue, the trial judge concluded:

The judicial summary and the redacted ITO make it clear that police had reasonable and probable grounds to believe Mr. Bond had committed criminal offences and was probably still committing them on an ongoing basis. In terms of the test in Debot, the totality of this evidence is “credible, corroborated and compelling”. Direct evidence from four informants, three of whom had previously proved reliable, is a very strong case to establish reasonable grounds to believe that a crime has been and will be committed. The weaker part of the evidence in support of the warrants concerns whether the places to be searched are sufficiently connected to Mr. Bond to justify authorization of search warrants. And the evidence in respect to these issues is not found in the information obtained from the confidential informants. The defence has full access to the information before the issuing justice on these contested points, and is able to challenge it fully in this court.

The evidence pointing to the Apartment and the Commercial Condo, fully disclosed to the defence as it was provided to the issuing justice, was more than sufficient to ground issuance of the warrants. The Crown has satisfied step 6 of Garofoli in respect to the basis for believing Mr. Bond was an armed drug dealer. The warrants are upheld.

[13] On the “pinging” the appellant’s cell phone issue, the trial judge found no s. 8 Charter infringement. Alternatively, he was prepared to assume that a Charter infringement was made out. However, even excluding the “pings” evidence, he declined to strike down the search warrants or exclude the other evidence obtained during those searches under s. 24(2) of the Charter.

C. Issues

[14] The appellant frames the issues as follows:

Conviction appeal

(1) The trial judge’s written reasons on the Charter application are an after-the-fact justification;

(2) The trial judge misapprehended the nature of the application;

(3) The trial judge erred in finding that the affiant’s judge shopping was permissible; and

(4) The trial judge provided insufficient reasons on the Charter application.

Sentence appeal

(5) The trial judge erred in his calculation of pre-trial custody.

D. Analysis

(1) Reasons as improper after-the-fact justification for result

[15] The genesis of the appellant’s argument on this issue is an email the trial judge sent to counsel during the trial:

The defence application to exclude evidence is dismissed except for the cellphone “pings” information obtained without a warrant. In respect to those, I am not satisfied that urgency was of such kind as to justify proceeding without a warrant. However, I am satisfied that the police acted in good faith in proceeding without a warrant. In the result, I find that search to have been “unreasonable” within the meaning of s. 8 of the Charter for having been done without a warrant.

My reasons for decision are reserved and will be released in due course.

[16] After the trial concluded, the trial judge issued comprehensive reasons for his Charter ruling. The appellant contends that “[w]hen the written reasons were finally released, they revealed that the trial judge’s findings departed significantly from his brief oral conclusions given over a year earlier.” (Appellant’s Factum, at para. 39).

[17] I am not persuaded by this submission. I see no clear dichotomy between the trial judge’s very brief ruling during the trial and his comprehensive reasons for the ruling after the trial. Indeed, as the trial judge explained in his formal reasons, the “pings” issue was peripheral to the broader search warrants issue:

In my view, even if the evidence from the “pings” was excluded, the Crown’s case would not be materially affected. Police had an independent basis for believing that Mr. Bond was living at the Apartment, and that basis was sufficient for granting the warrants. The “pings” were not relevant to any issue other than identifying Mr. Bond’s whereabouts, an issue, itself, only relevant to identifying the premises to be authorized under the warrants. The warrants were justified without the “pings”, and so excluding the “pings” would not affect anything else: none of the evidence admitted against Mr. Bond, other than the “pings” themselves, was derived from the “pings”. Indeed, police subsequently conducted direct surveillance that provides a much stronger basis – the one truly relied upon by the Crown – to tie Mr. Bond to the premises searched. On this analysis, society’s interest in adjudication on the merits would be unaffected by exclusion of the evidence, and I would exclude the evidence under s. 24(2).

[18] I agree with this analysis.

(2) Misapprehension of the nature of the application

[19] The authorization granted by the second application judge listed the enumerated offence as unlawful possession of a firearm contrary to s. 91 of the Criminal Code. The appellant submits that the trial judge in his reasons focused exclusively on his drug trafficking and ignored whether he possessed a firearm and whether it would be located in the places to be searched.

[20] I am not persuaded by this submission. In his reasons, the trial judge made extensive reference to both drugs and firearms:

i. All four of the confidential informants provided detailed and specific first-hand information, identifying Andrew Bond as a cocaine dealer, carrying on business as such at [an apartment on] Jane Street, Toronto, and provided information that Mr. Bond possessed and used a firearm in his drug-dealing.

ii. Each of the confidential informants identified a photo of Andrew Bond as the armed drug dealer.

iii. Three of the confidential informants described the firearm as a semi-automatic handgun (one of whom described it as “Glock-style, police-style”) and said that Mr. Bond keeps the gun tucked in his front waistband.

I am satisfied that this information, taken together, provides evidence: …

b. That the Subject is habitually armed with a semi-automatic handgun which the Subject carries by tucking the gun in at the waist of his pants.

Here, the totality of information from the confidential informants grounded the officer’s belief that Mr. Bond was an armed and dangerous drug dealer, selling cocaine in Toronto.

On the basis of information from the confidential informants and the fruits of police investigation … Mr. Bond appears to be a very dangerous man, systematically dealing hard drugs, carrying a loaded semi-automatic handgun, in defiance of multiple prohibition orders.

[21] In summary, these passages, and other similar passages, completely belie the appellant’s submission that in his Charter reasons the trial judge focused “exclusively” on the alleged drug offences.

(3) The “judge shopping” issue

[22] As set out in the Facts section of this judgment, on December 27, 2016, the police applied twice for search warrants relating to two properties and one vehicle.

[23] At 2:32 p.m., the Justice of the Peace refused to authorize the warrants, giving four reasons in support.

[24] At 5:20 p.m., the justice of the Ontario Court of Justice authorized the warrants, without reasons.

[25] At trial, the appellant raised this issue, labelling it “impermissible judge-shopping”. The trial judge dealt with it in a footnote:

The defence argued that taking the second request to [the justice at the Ontario Court of Justice] was impermissible judge-shopping. Police disclosed the prior request to the Justice of the Peace, including the rejection and reasons for the rejection, when they made the request of [the second application judge]. This is not impermissible judge-shopping: it was within [the second application judge’s] discretion to decide the warrant request, and he did so on full and fair information: R. v. Campbell, [2014] OJ No. 6541 (SCJ), per McMahon J.

[26] The appellant submits that the trial judge erred in reaching this conclusion. His position on this issue is succinctly summarized in his factum, at para. 58:

Judge shopping strikes at the core of our judicial system. The concept undermines the high level of confidence that is placed in our judicial system, where the decision of a judicial officer is final and binding unless and until it has been overturned by a higher court. Section 487(2) of the Criminal Code provides that a “justice” may issue a warrant. The Criminal Code defines a “justice” as a Justice of the Peace or a judge of the provincial court. Therefore, [the justice at the Ontario Court of Justice] cannot be considered a higher court than [the] Justice of the Peace … By applying for successive warrants on the same information to a different judge of the same court, the police committed impermissible judge-shopping. [Emphasis added.]

[27] I do not accept this submission, including the emphasized conclusion.

[28] I begin by observing that I do not think that there should be a bright-line rule that the police cannot make a second application for a warrant if the first application is rejected. It needs to be recalled that there is no appeal from the initial refusal: see R. v. Campbell, [2014] OJ No. 6541 (SCJ), at para. 40.

[29] On this point, I agree with what Thackray J.A. said in R. v. Duchcherer, 2006 BCCA 171, at para. 29:

The procedure of applying successively for search warrants cannot reasonably be said, as such, to be an abuse of process or a “subversion” of the judicial system. Within the process there can, of course, be abuses that would lead to such a finding. It will be a fact driven decision in each case whether the circumstances amount to an abuse of process.

[30] My second contextual observation is that the second judge considering whether to grant the search warrant is not sitting in appeal of the first judge’s decision nor in review of that judge’s decision by way of prerogative writ. As Thackray J.A. said in Duchcherer, at para. 17, “where a judge knows of the previous application to a justice of the peace for a search warrant, but exercises his own discretion, it is a hearing de novo, not a review of the decision of the justice of the peace.”: see also R. v. Colbourne (2001), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 41.

[31] This court in Colbourne, at para. 42 began to address the issue of whether a warrant could be granted on a second application. I agree with Doherty J.A. that “had the second information been the same as the first information, the initial refusal would have played a much more significant role in how the second Justice of the Peace exercised his or her discretion.” While it does play a role and should be considered by the second application judge, the fact a warrant request has been rejected is not determinative to the second request. This is supported by Doherty J.A.’s further reasoning in Colbourne, at para. 42, that he “need not decide whether I would go so far as to say that two applications based on the same information are improper even if full disclosure of the initial refusal is made.”

[32] Turning to the merits of the appellant’s submission on this issue, in my view, the disclosure to the second application judge of the previous refusal and the reasons for that refusal ensured the openness and transparency of the process that the appellant submits was lacking. Those factors were endorsed by McMahon J. in Campbell, at para. 56:

In submitting the materials the officer should ensure the ITO includes the particulars of the earlier refusal, including the time, name of the judicial officer, and the reasons of refusal.

A copy of any reason or endorsement provided by the judicial officer who refused the warrant should be an appendix to the ITO.

[33] As the trial judge noted in the footnote dealing with the judge-shopping issue, the police complied with these factors. The second application judge, who issued the search warrant, was fully apprised of the previous application, its timing, the fact that it had been rejected, and the reasons for the rejection. He was well-positioned to consider the application de novo.

[34] McMahon J. in Campbell also identified another factor to consider, namely that no specific officer should be selecting individually any reviewing judge; instead, the second judicial officer should be the one on call. I note that the appellant does not allege that this factor is in play in this case.

[35] In conclusion, like McMahon J. in Campbell, at para. 58, “I do not accept the argument that allowing successive search warrant applications on the same materials would amount to judge-shopping and would be a reason not to allow for such procedure”. Each case will need to be addressed on its own facts. In this case, the trial judge did not err by affirming the validity of the second search warrant.

(4) Insufficient reasons

[36] The appellant submits that the trial judge’s written reasons did not address critical issues or allow for meaningful appellate scrutiny.

[37] I disagree. The trial judge wrote careful and extensive (66 paragraphs) reasons and this court, with the assistance of the oral and written submissions of counsel, is well-positioned to provide meaningful appellate scrutiny.

(5) Sentence appeal

[38] The trial judge imposed a sentence of 11 years, less 2 years and 11 months for pre-trial custody. The appellant and respondent jointly submit that the trial judge made a modest error in his calculation of credit for pre-trial custody. I accept this submission and would give the appellant an additional 70 days’ credit for pre-trial custody.

E. Disposition

[39] I would dismiss the conviction appeal. I would allow the sentence appeal and assign an additional 70 days to the calculation of pre-trial custody.

Released: October 19, 2021 “JCM”

“J.C. MacPherson J.A.”

“I agree. L.B. Roberts J.A.”

“I agree. B.W. Miller J.A.”