Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231006 DOCKET: C69258

Before: Benotto, Roberts and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

Ezra Harely Appellant

Counsel: Leo Adler and Kevin Gray, for the appellant Genevieve McInnes and Giuseppe Cipriano, for the respondent

Heard: October 4, 2023

On appeal from the convictions entered by Justice Patrick Hurley of the Superior Court of Justice, sitting with a jury, on November 22, 2019, and from the sentence imposed on March 4, 2021.

Reasons for Decision

[1] The appellant was convicted of possession and production of marijuana for the purpose of trafficking contrary to ss. 5(2) and 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). An 18-month custodial sentence was imposed.

[2] The appellant appeals his convictions and sentence. The appellant submits that the trial judge fell into reversible legal error by: 1) carrying out a flawed analysis under s. 8 of the Canadian Charter of Rights and Freedoms and admitting the evidence seized under the search warrants executed by police; 2) failing to properly instruct the jury; and 3) declining to impose a conditional sentence.

[3] At the conclusion of the appellant’s submissions, we dismissed the appeal with reasons to follow. These are our reasons.

[4] The appellant argues that the trial judge erred in minimizing the deficiencies in the Informations to Obtain. He submits that the affiant did not provide full, fair, and frank disclosure. He also submits that the trial judge misread s. 11(8) of the CDSA by allowing the security video to be admitted into evidence. We accept none of these submissions. We see no legal error in the trial judge’s analysis. Nor do we see any basis to disturb the trial judge’s findings of fact, including his finding that any deficiencies in the Informations to Obtain were unintentional. Having applied the correct legal principles and considered the whole of the evidence, it was open to the trial judge to conclude that the search warrants were properly issued. In any event, there is no basis to interfere with the trial judge’s thorough s. 24(2) Charter analysis holding that, even if he had found a s. 8 Charter breach, he would have admitted the evidence.

[5] The appellant’s complaints about the jury charge with respect to “acquiescence” related to possession and circumstantial evidence are also without merit. The jury charge adequately provided the tools that the jury needed to determine the issues at trial, including the treatment of circumstantial evidence and that the jury had to be satisfied that the appellant was a knowing participant in the grow operation. Notably, the surveillance video and other evidence showing the appellant actively working within and connected to the grow operation, and the absence of any evidence that the appellant or anyone else was carrying on any other business in the premises, belied the appellant’s argument that he was a mere bystander who simply acquiesced to the grow operation. We see no reversible error in the charge or unfairness to the appellant.

[6] Finally, with respect to the sentence appeal, the appellant argues that the trial judge should have granted him a conditional sentence. We are satisfied that the trial judge made no error in principle and that the 18-month custodial sentence is not unfit. While taking into account various mitigating factors, including the appellant’s health issues [1], and considering the possibility of a conditional sentence, the trial judge’s reasons clearly explained why he decided that a conditional sentence would not be appropriate in the circumstances of this case given the scale of the grow operation and the need for deterrence and denunciation. Appellate intervention is not warranted.

[7] The appeal is dismissed.

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”

“L. Favreau J.A.”

Footnotes

[1] The appellant did not bring a motion to admit fresh evidence but tendered a letter from his current physician dated September 16, 2023 that confirmed the previous medical evidence concerning his health issues. As the Crown did not object, we admitted the letter. It had no effect on the outcome of the sentence appeal.