Court of Appeal for Ontario

Date: 20220513 Docket: C66944

Benotto, Miller and Copeland JJ.A.

Between: Her Majesty the Queen Respondent

And: Adam Kaup Appellant

Counsel: R. Craig Bottomley and Andrea VanderHeyden, for the appellant Althea Francis, for the respondent

Heard: April 28, 2022 by videoconference

On appeal from the conviction entered on November 5, 2018 by Justice Pamela Borghesan of the Ontario Court of Justice.

Reasons for Decision

Introduction

[1] The appellant appeals his conviction on one count each of simple possession of cocaine, possession of marijuana for the purpose of trafficking, and possession of hashish for the purpose of trafficking, contrary to ss. 4(1) and 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] The charges arose out of a search with a warrant of the home he shared with his co-accused, Ms Wall, in Kitchener. The search warrant was obtained as part of a broader investigation in which the appellant was not the primary target. The investigation had started as a result of a tip from a confidential informant (not in relation to the appellant). Police investigated and conducted surveillance over a five-month period prior to the issuance of the search warrant.

[3] The appellant raises two grounds of appeal. First, he submits that the trial judge erred in finding that there were sufficient grounds in the ITO such that a warrant could issue for a search of his home. On this basis, he submits that the trial judge erred in concluding that his s. 8 Charter rights were not violated. Second, he submits that the trial judge misapplied the law in relation to constructive possession and erred in finding that his constructive possession of the drugs found in the basement of the home was proven beyond a reasonable doubt.

[4] We do not accept the appellant’s submissions. The trial judge committed no error in finding that the appellant’s s. 8 Charter rights were not violated and in finding that constructive possession was proven beyond a reasonable doubt.

Did the trial judge err in finding that there were sufficient grounds that the warrant could issue?

[5] In considering the grounds of appeal raised by the appellant in relation to the search warrant, we bear in mind the role of a judge reviewing a search warrant, and of this court in an appeal from a reviewing judge’s decision.

[6] As this court explained in R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 81-88, a judge reviewing a search warrant is not to substitute their views for those of the authorizing justice. Rather, the reviewing judge must consider whether the ITO, as amplified on the review, contains sufficient grounds that the warrant could issue. The reviewing judge must bear in mind that the authorizing justice must consider the ITO as a whole on a common-sense, practical, and non-technical basis, and that the authorizing justice is entitled to draw reasonable inferences from the contents of the ITO.

[7] An appellate court owes deference to the findings of a reviewing judge in their assessment of the record as amplified on the review and their disposition of the s. 8 application. Absent error of law, misapprehension of evidence, or failure to consider relevant evidence, an appellate court should decline to interfere with a reviewing judge’s decision: Sadikov, at para. 89.

[8] In her reasons, the trial judge correctly summarized the applicable law with respect to her role as a judge reviewing the sufficiency of the grounds for a search warrant. The appellant does not contend otherwise.

[9] The appellant submits that the trial judge erred in two respects in concluding that the search warrant could have issued. First, he argues that the trial judge erred in failing to give adequate weight to statements in the ITO that he submits were misleading. The appellant challenges the same alleged deficiencies in the ITO that he raised below, and that the trial judge rejected. Second, he argues that there was insufficient evidence that the appellant was involved in any criminal activity.

[10] We are not persuaded that the trial judge erred in rejecting the appellant’s submission that aspects of the ITO were misleading or failed to make full and frank disclosure. In particular, we see no error in the trial judge’s conclusions with respect to the three areas where the appellant asserted there was misleading information or material non-disclosure.

[11] First, with respect to the December 2, 2016 observations at the appellant’s home, the ITO did not state that the man observed at the home with Mr. Spataro, a suspected high-level drug trafficker who was one of the primary targets of the investigation, was the appellant. Rather, the ITO described the male as “an unknown white male”, and noted the observations made by police, including that the unknown male let Mr. Spataro into the house, and that police computer searches of real estate and MTO records showed that the appellant owned the house with Theresa Kaup, and that it was his address listed with the MTO. We see no error in the trial judge’s conclusion that the totality of the circumstances of the December 2, 2016 observations, in the context of all of the information in the ITO, made available an inference that the unknown male who let Mr. Spataro into the home that day was the appellant.

[12] Second, we see no error in the trial judge’s conclusion that the reference in the ITO to a 2014 London Police occurrence was not misleading. The appellant contended at trial, and on appeal, that the ITO misleadingly suggested that he was serving a four-year sentence on drug charges at the time police sought the search warrant. As the trial judge recognized, the ITO expressly stated that the occurrence report was dated December 17, 2014, and that “in the occurrence, it was listed that [the appellant] was serving a four-year sentence” on drug charges, specifically cocaine. Given the express statement in the ITO that the date of the occurrence report was in 2014, there is no error in the trial judge’s conclusion that this portion of the ITO was not misleading.

[13] Third, we see no error in the trial judge’s conclusion that although the ITO omitted that a third party arrived at the appellant’s residence when he was observed interacting with Mr. Spataro on February 4, 2017, this was not material non-disclosure. She reasonably concluded that the presence of a third person did not weaken the observations of the appellant’s interaction with Mr. Spataro.

[14] Nor are we persuaded that the trial judge erred in finding that the ITO contained sufficient reliable information that a warrant could issue, and that the appellant’s s. 8 Charter rights were not breached.

[15] The substance of the appellant’s position is that the ITO was based on observations of the appellant meeting with Mr. Spataro, one of the main targets of the investigation, but did not show sufficient evidence of criminal acts on the part of the appellant. The appellant does not contest that the ITO contained substantial grounds to believe that Mr. Spataro was engaged in drug trafficking. But he characterizes the ITO as only showing the appellant meeting with Mr. Spataro twice, and submits that this is insufficient to constitute reasonable and probable grounds to believe that the appellant was involved in drug trafficking.

[16] Like the trial judge, we do not agree with the appellant’s characterization of the contents of the ITO. The appellant’s characterization focuses on aspects of the ITO taken in isolation. It fails to take into account the full context of the observations of the interactions of the appellant and Mr. Spataro, and fails to view those interactions within the context of the ITO as a whole.

[17] Read as a whole, the ITO was not simply an assertion that there was significant evidence that Mr. Spataro was engaged in drug trafficking, that the appellant met with him twice, and that, therefore, there were grounds to believe that the appellant was also engaged in drug trafficking. Rather, as the trial judge found, the appellant’s interactions with Mr. Spataro had to be considered in the context of all of the information in the ITO.

[18] The trial judge outlined the significant evidence in the ITO supporting the inference that Mr. Spataro was involved in high-level drug trafficking. She also noted that in several of the instances of police observations of Mr. Spataro which supported that he was involved in drug trafficking, he was observed leaving his vehicle with his left arm clutched tightly by his side, and also observed driving in a manner as to suggest he may have been concerned about being followed.

[19] On the two occasions when Mr. Spataro met with the appellant [1] at the appellant’s residence, Mr. Spataro had driven a long distance to get there (from Thornhill to Kitchener), and then stayed for a very brief time (three minutes on the first occasion, one minute on the second). On those two occasions, Mr. Spataro appeared to be concealing or clutching something at his left side when he entered or left the residence. On one occasion, immediately after leaving the residence, Mr. Spataro drove in a manner as to suggest that he may have been concerned about being followed. The trial judge observed that meetings with these characteristics happened between the appellant and Mr. Spataro on two occasions. In addition, she noted that the ITO disclosed that the appellant had served a significant sentence for cocaine-related convictions.

[20] The trial judge considered all of this information in the ITO, and found that the authorizing justice could reasonably infer that evidence relevant to drug trafficking offences would be found in the appellant’s home. She applied the correct legal standards with respect to both full and frank disclosure and the sufficiency of the grounds for the warrant. Her findings of fact are amply grounded in the record before her. We would not interfere with her finding that the contents of the ITO were sufficient that the authorizing justice could find sufficient grounds for a warrant to issue to search the appellant’s home.

Did the trial judge err in finding that constructive possession was proven beyond a reasonable doubt?

[21] Although various drugs were found in the home shared by the appellant and his co-accused, the appellant’s convictions arose only from those found in the basement. The appellant submits that the trial judge erred in finding that it was proven beyond a reasonable doubt that he had constructive possession of these drugs.

[22] In oral submissions, counsel for the appellant clarified his position that the trial judge misapplied the law with respect to constructive possession. The substance of the appellant’s position is that the evidence was not sufficient to prove his constructive possession of the drugs found in the basement, and that the trial judge erred in finding that constructive possession was proven based on the appellant’s occupancy of the home alone. The appellant also stresses that he had been out of the country for approximately two weeks and was not present in the home at the time the search warrant was executed and the drugs found.

[23] We do not accept the appellant’s submission that the trial judge erred in her application of the law relating to constructive possession.

[24] The drugs seized from the basement, of which the trial judge found the appellant had constructive possession, were 15.4 grams of cocaine found in a red duffel bag in a storage room, 1,345 grams of marijuana found in a black duffle bag in the cold cellar, and 500 grams of hashish found in a FoodSaver shopping bag in the cold cellar. The evidence supported that the drugs found in the basement were not out in the open.

[25] The co-accused, Ms Wall, testified that cocaine found in the upstairs bedroom and marijuana found in the garage were hers, but were not for the purpose of trafficking (and she had licence to possess the marijuana). She also testified that a significant quantity of cash found in the house was hers, but was money she was saving for a trip. Although the trial judge had a number of reservations about Ms Wall’s evidence, she ultimately was left in a reasonable doubt that Ms Wall’s purpose in possessing the drugs that she said were hers was personal use, and about whether the cash was proceeds of crime. She found Ms Wall guilty only of one count of simple possession of cocaine. Ms Wall also testified that she was not aware of the drugs found in the basement, and had never seen the red duffel bag that the cocaine was found in. The trial judge accepted Ms Wall’s evidence that she was not aware of the drugs in the basement.

[26] Contrary to the appellant’s submission, the trial judge did not find that constructive possession on his part was proven merely because he was an occupier of the residence. Rather, she correctly applied the law with respect to constructive possession to the whole of the evidence before her.

[27] The trial judge began by noting that the appellant and Ms Wall were the only adults who lived in the house and the appellant owned the house, facts which were admitted. With respect to the drugs in the basement, the trial judge accepted Ms Wall’s evidence that she had not seen them and did not know they were there. The trial judge then considered the possibility that guests invited by Ms Wall could have left the drugs found in the basement, but rejected that inference as speculative, essentially for three reasons. First, she found, based on Ms Wall’s evidence, that there was a level of trust with the friends that Ms Wall invited such that they would not have left drugs in the basement without her knowledge. Second, she found that the drugs in the basement were located in areas that visitors would not readily access. Third, based on the expert evidence of the value of the drugs, she found that the inference that a visitor, who had no control over access to the house, would leave valuable drugs there was a speculative inference and contrary to common sense.

[28] Based on the whole of the evidence, the trial judge was persuaded beyond a reasonable doubt that the appellant had knowledge and control of the drugs found in the basement. She reached this conclusion after considering the value of the drugs in the basement; where in the basement they were located; the appellant’s ownership and occupancy of the home; her finding that neither Ms Wall nor a guest of Ms Wall were the source of the drugs found in the basement; and her finding that as the owner and the occupier (unlike a visitor), the appellant was in a position to bring in the large red duffle bag that the cocaine was found in without Ms Wall’s knowledge, and to exercise control over the cocaine and the other drugs in the basement.

[29] We see no basis to interfere with these factual findings by the trial judge or with her application of the legal principles to the evidence before her.

[30] We would also reject the appellant’s submission that the trial judge erred or engaged in speculation in finding that the people Ms. Wall had over to her home when the appellant was away would not be the type of people who would use a friend’s home for an illegal purpose. This finding was part of the reason that the trial judge found that it would be a speculative inference to conclude that a guest had brought the drugs found in the basement. The appellant bases this submission on one brief extract of Ms Wall’s evidence. Viewing Ms. Wall’s evidence as a whole, there is ample basis in the record for the trial judge’s finding.

[31] The appellant relies on several decisions of this court for the proposition that evidence of occupancy of a premises alone is not sufficient to prove constructive possession, including R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273 (C.A.), at paras. 97-105; R. v. Biggs, 2016 ONCA 910, 34 C.R. (7th) 147, at paras. 27-28; and R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at paras. 34-36.

[32] The legal principle that evidence of a person’s occupancy of a premises alone is not sufficient to prove constructive possession is well-established. In any particular case, the court must assess all of the evidence, direct and circumstantial, to assess whether it is sufficient to prove constructive possession beyond a reasonable doubt. As we have explained above, the trial judge did not base her finding that constructive possession by the appellant was proven beyond a reasonable doubt only on the fact of his occupancy of the home.

[33] For these reasons, the trial judge committed no error in her application of the law regarding constructive possession. Her findings of fact are rooted in the record and support her finding that constructive possession of the drugs found in the basement was proven beyond a reasonable doubt. The appellant did not challenge the trial judge’s finding regarding possession being “for the purpose of trafficking” in relation to the marijuana and the hashish.

Conclusion

[34] The appeal is dismissed.

“M.L. Benotto J.A.”

“B.W. Miller J.A.”

“J. Copeland J.A.”

Footnote

[1] As noted above, on the first occasion, the person Mr. Spataro met with was described in the ITO as an “unknown white male”, who let Mr. Spataro into the home known from real estate and MTO searches conducted by police to be the home of the appellant. The trial judge found that there was sufficient information in the ITO, taken as a whole, that it was open to the authorizing justice to draw a reasonable inference that the unknown male was the appellant.