COURT OF APPEAL FOR ONTARIO DATE: 20221028 DOCKET: C66476
Roberts, Miller and Zarnett JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Garey Harris
Appellant
Counsel: Ravin Pillay, for the appellant Sandy Thomas, for the respondent
Heard: March 28, 2022 by video conference
On appeal from the conviction entered on November 22, 2018 by Justice David L. Corbett of the Superior Court of Justice, sitting with a jury.
B.W. Miller J.A.:
[1] The appellant was arrested in the hallway outside of unit 1412 of a residential condominium on Elm Drive. He had over $2,000 and three cell phones on his person. A search warrant executed on unit 1412 resulted in the seizure of 5.18 kg of cocaine, one loaded semi-automatic firearm, three cell phones, and what appeared to be a debt list, as well as additional drug paraphernalia in his storage locker.
[2] The appellant was not the initial target of the police investigation that led to his arrest. A confidential informant had provided information that Ewan Sutherland, a drug trafficker, would be looking at bricks of cocaine, which the police understood to be a matter of drug trafficking. The police were able to corroborate much of the information they received about Sutherland and executed a warrant at Sutherland’s residence, where they found a 12-ton cocaine press. Surveillance of Sutherland on March 5 led the police to the Elm Drive condominium, where they observed Sutherland driving into the parking garage. The police later observed recorded security video showing Sutherland using the security code associated with unit 1412 to enter the parking garage, entering the building through the parking garage, and proceeding to the 14th floor. He was observed returning two hours later with a bag that he put in his car and returned home.
[3] Later that morning, the police observed the appellant park in the underground garage. After 45 minutes, the police observed the appellant take the elevator from the 14th floor to the parking garage while carrying a black bag and keys. The appellant left the building and returned later that afternoon. He was arrested as he approached unit 1412 with keys in his hands. The police heard voices in the unit and entered it to secure it. As it turned out, the television was on, but no one was present. The police remained in the unit but did not conduct any searches while awaiting a warrant. Approximately eight hours later, the police obtained a warrant and searched the unit, seizing four cocaine bricks and two sealed bags of cocaine from the freezer, along with a handgun and ammunition, and various articles of drug paraphernalia.
[4] The appellant argued that his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms were breached, and he applied to exclude the evidence obtained as a result of the search of unit 1412. The application judge found that although there was one minor breach of the appellant’s Charter rights as a result of the police remaining in the unit pending the warrant, it would not bring the administration of justice into disrepute to admit the evidence under section 24(2) of the Charter. She therefore dismissed the application to exclude the evidence.
[5] After a trial by jury, the appellant was found guilty and convicted of various weapons offences and offences related to drug trafficking.
Issues on Appeal
[6] The appellant argues that the application judge made three errors in the decision on the Charter applications. The application judge is said to have erred in finding that:
- there was no violation of the appellant’s s. 9 rights, and the search incident to arrest did not violate his s. 8 rights;
- the warrantless entry into the condominium did not violate s. 8;
- there were requisite grounds to grant the warrant to search the condominium and to consequently find that the subsequent search did not violate s. 8.
[7] The appellant seeks to have the evidence obtained as a result of the searches excluded under s. 24(2) of the Charter.
[8] The appellant further argues that the trial judge made a series of errors in his instruction to the jury, including usurping the role of the jury in evaluating the appellant’s evidence and the strength of the Crown’s case, and in removing the appellant’s main defence from the jury’s consideration.
[9] For the reasons given below, I would allow the appeal. Although there is no merit in the Charter arguments advanced, there is a risk that the jury would have understood the trial judge to have removed a defence that the jury needed to consider. I would quash the convictions and order a new trial.
Analysis
(1) The Charter arguments
(a) Section 9
[10] The appellant argues that his arrest was unlawful, as at the time of the arrest there were no grounds to believe that a drug transaction had taken place or would be taking place, or that the appellant was in possession of any drugs. The appellant was unknown to the officers conducting the investigation into Sutherland.
[11] The application judge made no error in finding the police had reasonable grounds to arrest the appellant. As the application judge correctly stated, police officers may arrest anyone who they believe, on reasonable grounds, has committed or is about to commit an indictable offence: R. v. Mann, 2004 SCC 50, [2013] 3 S.C.R. 250, at para. 38. Among the facts considered by the application judge in determining that the police had reasonable grounds were:
- A confidential informant had informed police that Sutherland was trafficking drugs and looking at bricks of cocaine;
- Sutherland came to the Elm Drive condominium, used the access code for unit 1412 to enter the parking garage, and parked in a spot reserved for unit 1412;
- Sutherland went from the parking garage to the 14th floor and exited the elevator in the direction of unit 1412;
- Sutherland returned from unit 1412 with a bag in hand;
- Sutherland and the appellant had both been observed that day transporting bags to and from their respective vehicles.
[12] Although the appellant contests that unit 1412 was in fact his residence, nothing turns on this for the purposes of determining whether the arresting officer had formed reasonable grounds to arrest. The arresting officer had reasonable grounds to believe that Sutherland was engaging in a drug transaction at unit 1412. The appellant was approaching unit 1412 with keys in his hand. He had been observed earlier carrying concealed items in bags between his car and unit 1412. Although the fact that the officer believed unit 1412 to be the appellant’s residence strengthened his grounds to arrest the appellant, there were sufficient grounds to arrest the appellant regardless.
(b) Section 8 – the initial entry
[13] The application judge held that exigent circumstances permitted the police to enter unit 1412 without a warrant, as there was a reasonable concern that someone in the unit could destroy evidence. The application judge made a finding that the police heard voices coming from the unit that they reasonably believed indicated the presence of persons inside who might destroy evidence. The police were therefore authorized to enter the unit to secure it. The police entered and swept the unit for occupants without conducting any further search at that time. The application judge found that there was a breach only with respect to the decision to remain in the unit, rather than waiting outside until a search warrant was obtained. The appellant argues that the application judge ought to have found a wider ranging breach, encompassing the entry into the unit. The application judge’s findings and conclusion were reasonable and are entitled to deference.
(c) Section 8 – the search warrant
[14] The appellant argues that the search warrant ought not to have issued as it was not based on reasonable grounds and contained materially misleading statements. The appellant submits that the application judge misapprehended the evidence, which vitiates her findings.
[15] The application judge states, at paragraphs 7 and 8 of her reasons, “[o]n March 5, 2014 police were told that Ewan Sutherland was going to look at bricks (a reference to cocaine). That same day, police observed Ewan Sutherland leave Rean Drive and enter the underground parking garage at 33 Elm Drive in Mississauga.”
[16] The misapprehension is this: there is no evidence that the police were told on March 5 specifically that Sutherland was going to look for bricks. The Crown concedes this was a mistake. There is no evidence as to when the police received this information (other than it had to be not later than the date the ITO was sworn – March 5 – and that it would have been after the police executed a general warrant dated February 14, 2014 that was attached as an appendix to the March 5, 2014 search warrant), or as to which day Sutherland would be looking at bricks. The application judge herself states the evidence correctly at para. 53 of her reasons “[b]y March 5, 2014 there was further evidence from the confidential informant that Mr. Sutherland was going to look at bricks of cocaine.”
[17] Although the application judge may have initially misapprehended the detail of when the police received the information, that initial misapprehension had been clearly dispelled by the conclusion of the reasons. In any event, the misapprehension was peripheral to the application judge’s reasoning. The ITO left a 3-week window as to when the information was received. The import of this is the extent to which it impacted the assessment of whether the tip was sufficiently contemporaneous to satisfy the criteria articulated in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140.
[18] The nature of the information set out in the ITO is that in the near term – whether that was the same or next day or sometime over the next several weeks – Sutherland would be looking at bricks of cocaine. This information was sufficient to justify the decision to surveil Sutherland, and when his behaviour and the behaviour of others with whom he interacted were indicative of drug trafficking, to seek a search warrant. The error made by the application judge was not material to this reasoning.
(d) Section 24(2)
[19] The application judge’s s. 24(2) analysis was conducted on the basis of the single admitted breach of the appellant’s s. 8 rights: the police remaining in the unit while awaiting the issuance of the search warrant. As the application judge noted, no evidence was obtained during this time, and no one was present in the unit. The application judge easily concluded that under the test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the evidence should not be excluded.
[20] The appellant did not identify any reviewable errors in this analysis.
(2) The instructions to the jury
[21] The appellant argues that statements the trial judge made in his instructions to the jury compromised the fairness of the trial in two respects: (1) he instructed the jury that the case for the Crown was strong and the defence evidence, including the appellant’s testimony, was not credible; and (2) he instructed the jury that there was no evidence to support the defence submission that there was evidence capable of raising a reasonable doubt.
(1) Commentary on the relative strength of the Crown’s case and the defence evidence
[22] Four times over the course of the charge, the trial judge told the jury that the case against the appellant was “strong” or “very strong”. In some instances, this judgment was qualified by statements such as “on its face” or “in the absence of any evidence to the contrary”, which the appellant says invited the conclusion that the defence evidence was weak and incapable of meeting the Crown case.
[23] This court has explained that there are reasons why a trial judge should be reluctant to express an opinion on the strength of the evidence, even where it is permissible. A jury is likely to be impressed with the experience and legal expertise of a trial judge, and there is a danger that members of the jury will incline towards deference to the trial judge’s opinion of the merits of the evidence and strength of the competing cases. This undermines the independent fact-finding role the jury is to perform and potentially jeopardizes the right to a fair trial: R. v. Walker, 2019 ONCA 806, 58 C.R. (7th) 7, at para. 20. However, it is not impermissible for the trial judge to have a view of the strength of the evidence and “express it as strongly as the circumstances permit, as long as it is made clear to the jury that the opinion is given as advice and not direction”: R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at paras. 27 and 31. In this case, the trial judge explained that his characterization of the evidence was “a factual conclusion, my factual conclusion, and you do not have to agree with me on that.” Taken on their own, these statements, together with the explanation that the jury was entitled to disagree with the trial judge’s assessment of the evidence, would not have amounted to an error. However, as explained further below, when these statements are read together with the removal of the defence of absence of evidence from the jury’s consideration, there is a real danger that the jury would not have understood it was entitled to disregard the trial judge’s expressed opinion about the absence of evidence.
(2) Instructing the jury there was no evidence that could raise a reasonable doubt
[24] The theory of the defence was that – notwithstanding that the appellant was found steps from the door with keys in his hand, his driver’s licence indicated the unit as his address, and the appellant’s two passports and his identification were found in one of the bedrooms of the unit and a photo album with old photos of him were in another – the appellant did not actually live at Elm Drive and did not know that there were drugs and a firearm inside the unit.
[25] The appellant argued that there was evidence that Kamal Hill occupied the unit; in addition to the appellant’s testimony to that effect, police notes indicated that prescription medication issued to Hill was found in the second bathroom, and mail addressed to Hill was seen inside the unit. Furthermore, the appellant testified that the owner of the unit was his uncle, Selwyn Harris, a statement supported by a mortgage document seized by the police that indicated Selwyn Harris as the owner.
[26] The appellant testified that he did not live at Elm Drive and did not know of the drugs and firearm. On his account, he had arrived from Jamaica the day before his arrest, gone from the airport to a residence in Brampton he shared with his ex-wife, and later went to Elm Drive to spend the night in the unit after a having a disagreement with his ex-wife and her son. The appellant’s ex-wife testified and confirmed the appellant’s account.
[27] There were two related aspects to the appellant’s defence: (1) the police investigation was negligent, and as a result, there were gaps in the evidence that raised a reasonable doubt; and (2) having regard to the evidence and the absence of evidence, there was a reasonable doubt as to the appellant’s guilt. The appellant argues that the instructions of the trial judge effectively dismantled both these arguments and removed them from the jury’s consideration. As a result, the appellant’s defence was not heard, and he did not receive a fair trial. As explained below, I agree that although the trial judge likely only intended to remove the first of these, there is a real risk that the jury would have understood him to have removed the second as well, which jeopardized the appellant’s right to a fair trial. I would allow the appeal on this basis.
[28] In addition to Ewan Sutherland, two other persons had a connection to the unit, potentially giving rise to competing inferences as to knowledge and control of the drugs and gun. The appellant pointed to the decision of the police not to investigate Kamal Hill or Selwyn Harris as suspects: the police did not interview either of them, did not conduct fingerprint analysis of the drug packaging, and did not analyze any of the four cell phones seized (two from the appellant and two from inside the unit) for any evidence they might contain.
[29] In his instruction, after recounting some of the evidence that connected Hill and Selwyn Harris to the unit, the trial judge remarked that “this evidence respecting Mr. Hill and Selwyn Harris does not diminish the evidence the police had against Mr. Harris.” He carried on to say, “[s]ometimes investigators fail to do something that leaves a hole in the Crown’s case. I would suggest to you that this is simply not the case here. In the absence of anything other than the evidence discovered by the police on March 5, 2014, this was a very strong case.”
[30] As the appellant argues, there are problematic aspects to this statement. To say that the defence evidence “did not diminish the evidence the police had against Mr. Harris” was to say that the evidence was not capable of raising a reasonable doubt. That was the very matter the jury had to decide. The trial judge continued by expressly negativing the defence argument that three omissions in the police investigation left a hole in the Crown case and raised a reasonable doubt:
- Not searching the cell phones: the trial judge told the jury that “the defence could have hired someone to search those phones themselves.” He went on to say, “I am instructing you that the absence of information about what was on the cell phones does not establish anything. It is no more than an absence of evidence and not a basis upon which you should infer anything for the Crown or the for the defence.”
- Not dusting for fingerprints: the trial judge stated: “the same analysis applies to this point … It was open to the defence to ask for fingerprints to be run or to seek to have run the test themselves.”
- Decision not to investigate alternative suspects: the trial judge told the jury that they “might well consider that police should be investigating these people based on what you have heard, but that is not the issue in this case. The issue in this case is whether the Crown has proved possession by Mr. Harris, not whether these other people may also have committed crimes.” He further commented on the phenomenon of tunnel vision: “[t]his term applies when the police fail to pursue legitimate lines of inquiries to solve a crime because of a premature rush to judgment. That is not what happened here.”
[31] As the appellant argues, the trial judge’s repeated statement that “in the absence of anything to the contrary” this was a strong case against the appellant may have left the jury with the misimpression that it was up to the appellant to elicit evidence that would raise a reasonable doubt given the strength of the case against him. This would have been an error. The Crown case against the appellant may well have been strong, but it was nevertheless circumstantial, and whether the evidence or absence of evidence was sufficient to raise a competing inference that raised a reasonable doubt was for the jury to decide.
[32] Although the Crown argues that the issue was the Crown case against the appellant and not the failure to investigate other individuals associated with the unit, the distinction cannot be drawn quite so neatly. As the Crown case against the appellant was circumstantial, an available defence was to argue that there was a competing inference that raised a reasonable doubt – that someone else occupying or using the residential unit controlled the gun and drugs, and because the appellant was only a short-term guest, he was unaware of them.
[33] I do not, however, accept the defence theory of inadequate police investigation. The police officers were never cross-examined on any of the alleged investigative omissions and thus had no opportunity to explain why certain investigative steps were not taken. The trial judge did not err in instructing the jury to disregard it.
[34] But the form of the instruction created a problem. In instructing the jury on the problems with this defence, the trial judge potentially obscured from the jury’s view a legitimate defence the jury needed to consider: was there evidence that the jury could have accepted (including the evidence that the appellant did not regularly occupy the unit and other people may have had control of the unit) or an absence of evidence capable of raising a reasonable doubt as to the appellant’s guilt? The trial judge instructed the jury “(t)here was some evidence available to the police that someone called Kamal Hill received mail at that address. There is some evidence that Selwyn Harris owns the unit, holds the mortgage on the unit and is authorized to occupy it. But this evidence respecting Mr. Hill and Selwyn Harris does not diminish the evidence the police had against Mr. Harris.”
[35] In shutting the door on the failure to investigate argument, the trial judge went a step too far and essentially removed from the jury’s horizon the defence that the connections of other persons to the unit raised a reasonable doubt that the drugs and gun were under the appellant’s control. The Crown points to other passages in the charge that are said to demonstrate it could not have been the trial judge’s intention to remove this defence. For example, the trial judge provided the standard instruction on reasonable doubt from R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320. In my view, the Lifchus instruction, coming as it did in another part of the charge unrelated to the defence theory from the evidence of the ownership and control of the condominium, was not adequate to remedy the potential misunderstanding. There is a risk that the jury would have been confused by the instruction and not have understood that they had to consider and assess this defence. Accordingly, there was a risk that the appellant did not receive a fair trial.
Disposition
[36] I would allow the appeal in part, quash the convictions, and order a new trial.
Released: October 28, 2022 “L.R.” “B.W. Miller J.A.” “I agree. L.B. Roberts J.A.” “I agree. B. Zarnett J.A.”