Court of Appeal for Ontario

Date: 20221216 Docket: C67675 Tulloch, Lauwers and Coroza JJ.A.

Parties

BETWEEN

His Majesty the King Respondent

and

Ryan Gomboc Appellant

Counsel: Mark C. Halfyard, for the appellant Victoria Rivers, for the respondent

Heard: June 22, 2022

On appeal from the convictions entered on September 16, 2019 by Justice Michael K. McKelvey of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of possession of cocaine for the purpose of trafficking, and trafficking cocaine, contrary to ss. 5(1) and 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] The appellant was one of many targets of a large police investigation on a high-level cocaine trafficking ring in the Barrie area. As a result of this investigation, police obtained search warrants for two properties associated with the appellant: 32 Royal Oak Drive and 6 Gibbon Drive.

[3] The appellant was arrested at 32 Royal Oak Drive with 6 grams of cocaine on his person. His cellphone was also seized at this residence. The search of 6 Gibbon Drive revealed a further 47 grams of cocaine, which were seized.

[4] At trial, the appellant sought to exclude the evidence seized on the basis that his s. 8 Charter rights were breached.

[5] Following the Charter motion, the trial judge found that there were sufficient grounds on which to issue the search warrant for 6 Gibbon Drive, but not for 32 Royal Oak Drive. However, despite finding that the search of 32 Royal Oak Drive was unlawful, the cellphone seized in the property was admitted pursuant to s. 24(2) of the Charter.

[6] The appellant now appeals his conviction on the basis that the trial judge erred in finding that (1) the affiant of the Information to Obtain (“ITO”) did not mislead the issuing justice regarding whether evidence could be found at 6 Gibbon Drive; and (2) there were reasonable and probable grounds to search 6 Gibbon Drive. The appellant also submits that, should this court find that there was a breach of s. 8 in relation to 6 Gibbon Drive, a new s. 24(2) analysis must be conducted for the evidence seized from both residences.

[7] We dismissed the appeal following the oral arguments with reasons to follow. These are our reasons.

A. Background Facts

(1) Joint Forces Investigation

[8] From December 2015 to May 2016, a large police investigation called “Project Diablo” was conducted in the Barrie area. Project Diablo involved the deployment of an undercover officer to purchase increasing amounts of cocaine, with the aim of identifying and dismantling a ring of high-level cocaine traffickers.

[9] Beginning in July 2015, undercover officers were deployed to make gram level purchases from Dale Widawski. After purchasing several times from Mr. Widawksi, one of the undercover officers was introduced to Mr. Widawski's cocaine supplier, Christopher Szymanski.

[10] In December 2015, the undercover officer began purchasing ounce level amounts of cocaine from Mr. Szymanski. As a result of surveillance on Mr. Szymanski, the joint forces operation came to identify the appellant as Mr. Szymanski's supplier.

[11] The appellant was surveilled over the next few months. He was observed meeting with various individuals for short periods of time while operating a car. Furthermore, the appellant was seen meeting with Mr. Szymanski in and around the time that Mr. Szymanski would traffic cocaine to the undercover officer on February 24, April 7, and April 14, 2016. Based on their observations and aided by confidential informants, police believed the appellant was associated with drug trafficking.

(2) The Appellant’s Residences

[12] The appellant resided in two residences over the course of the investigation: 32 Royal Oak Drive and 6 Gibbon Drive.

[13] Prior to March 15, 2016, the appellant was consistently seen leaving and returning to 32 Royal Oak Drive after engaging in activities consistent with drug transactions. Furthermore, a confidential informant informed the police that the appellant had a cocaine press in this residence.

[14] On March 15, 2016, the appellant relocated from 32 Royal Oak Drive to 6 Gibbon Drive. He was observed to be moving items into this new residence, as well as signing some paperwork.

[15] On April 6 and 14, 2016, the appellant was seen departing from 6 Gibbon Drive and engaging in activities consistent with drug trafficking.

[16] In addition, on April 14, 2016, Mr. Szymanski arrived at the appellant’s residence with a red cracker box following a drug transaction with the undercover officer. Mr. Szymanski met the appellant in the driveway and they went inside. Later, both individuals left the residence without the cracker box. The contents of the box were unknown, but based on their observations, police believed that it was used to conceal and deliver the money owed for the earlier drug transaction with the undercover officer.

(3) Search Warrants for the Residences

[17] On May 9, 2016, Officer Forest swore an affidavit to obtain a number of search warrants. The ITO was 126 pages long, together with a number of appendices which covered a large number of properties to be searched. Importantly, the ITO contained a request to search 32 Royal Oak Drive and 6 Gibbon Drive.

[18] The search warrants for the two residences were executed on May 12, 2016. The appellant was arrested in 32 Royal Oak Drive and 6 grams of cocaine were found on his person. Upon searching the residence, the police seized the appellant’s cellphone. A further 47 grams of cocaine were seized at the other residence, 6 Gibbon Drive.

B. Decisions Below

[19] During the Charter motion on the validity of both search warrants, the trial judge granted the appellant leave to cross-examine the affiant of the ITO, Officer Forest. Following the cross-examination, the trial judge concluded that there was no deliberate attempt by Officer Forest to mislead the issuing justice in the ITO.

[20] Furthermore, the trial judge found that there were reasonable and probable grounds, based on the surveillance and evidence provided by the confidential informants, to issue a search warrant for 6 Gibbon Drive.

[21] With respect to the search warrant for 32 Royal Oak Drive, the trial judge found that it was invalid. He reasoned that by the time the ITO was sworn in May 2016, there was no longer a reasonable basis to believe that offence-related property would be found there. The appellant had moved his possessions to 6 Gibbon Drive, and there were no observations of him attending 32 Royal Oak Drive after March 16, 2016.

[22] In light of finding a breach of s. 8 in relation to 32 Royal Oak Drive, the trial judge considered whether the cellphone recovered from the residence ought to be excluded pursuant to s. 24(2) of the Charter. He concluded that admitting the evidence would not bring the administration of justice into disrepute.

[23] After the Charter application, the appellant conceded the Crown’s case, entered an agreed statement of fact, and invited the trial judge to enter a conviction. He was later sentenced to two years in jail.

C. Analysis

(1) Affiant Did Not Mislead in the ITO

[24] The appellant submits that the trial judge erred in finding that Officer Forest did not mislead the issuing justice with his speculative belief about whether the red cracker box, seen on April 16, 2016, contained drug money. The appellant argues that Officer Forest omitted facts from the ITO which suggested countervailing inferences about the contents of the cracker box.

[25] We disagree. In our view, the trial judge made no palpable and overriding error when he found that Officer Forest did not mislead the issuing justice. The trial judge dealt with this issue comprehensively in his reasons. He found that Officer Forest responded to questions about the red cracker box in a “forthright and direct manner.” Furthermore, Officer Forest acknowledged that there was no evidence about the contents of the box, and that he did not know how long Mr. Szymanski had the box in his possession. However, given how the undercover officer had purchased cocaine from Mr. Szymanski earlier in the day, Officer Forest believed the reason for Mr. Szymanski’s visit to the appellant’s house was to pay the money owed for the transaction. The trial judge was impressed by Officer Forest’s ability to provide rational explanations, and he concluded that there was no deliberate intention to mislead the issuing justice. In our view, this conclusion was entirely open to the trial judge on the record.

(2) Grounds to Search 6 Gibbon Drive

[26] The appellant submits that, on the whole, there was insufficient evidence to establish reasonable and probable grounds to search 6 Gibbon Drive.

[27] We would similarly dismiss this ground of appeal. The appellant’s conduct established a credibility-based probability that he was engaged in drug trafficking – and, more importantly, that evidence would be found at his new residence. The trial judge’s reasons outlined this evidence in detail. The appellant had been seen leaving and returning to his former residence at 32 Royal Oak Drive after engaging in activities consistent with drug transactions. This pattern of conduct continued after the appellant moved to 6 Gibbon Drive on March 15, 2016. In addition, a confidential informant had informed the police that the appellant kept a cocaine press. As well, police observed the red cracker box being brought into the appellant’s new residence by Mr. Szymanski following a drug transaction.

[28] The trial judge cited R v. Soto, 2011 ONCA 828, and R. v. Balouch, 2018 ONCA 770, for the proposition that if a person leaves his residence and subsequently engages in drug transactions, there is a good chance that there are drugs in his residence. In both Soto and Balouch, the totality of the evidence made this inference reasonable. In our view, there is ample evidence in the present case to support the same inference. As such, the trial judge did not err in finding that the search warrant for 6 Gibbon Drive was validly issued.

[29] Moreover, we would not give effect to the appellant’s assertion that the trial judge applied a lower standard of reasonableness, i.e., “reasonable suspicion” instead of “reasonable and probable grounds”, to reference Officer Forest’s evidence. It is clear that Officer Forest subjectively believed, based on the observations at the appropriate times, that the appellant was involved in drug trafficking and that drug-related property would be found at 6 Gibbon Drive. Furthermore, the totality of the evidence objectively supports this belief. Viewed as a whole, the trial judge’s reasons showed that he appreciated and applied the proper legal standard, notwithstanding his use of the term “suspicion.”

(3) Section 24(2) Analysis

[30] Given that we have not found a s. 8 breach in relation to 6 Gibbon Drive, it is unnecessary to conduct a new s. 24(2) test.

D. Disposition

[31] The conviction appeal is dismissed.

“M. Tulloch J.A.”

“P. Lauwers J.A.”

“S. Coroza J.A.”