Court File and Parties

CITATION: R. v. Bullen, 2016 ONSC 7684

COURT FILE NO.: CR-13-30424

DATE: 2016-12-09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAVID JOHN BULLEN

Defendant

COUNSEL:

R. W.A. Sonley, and M. Jarmoc, for the Crown

V. Clifford, and G. McInnis for the Defendant

HEARD: November 28 – December 2, December 5, 2016 at Ottawa

Reasons for Judgment

Ray, J

[1] The defendant brings this ‘Omnibus “Garofoli” Application’ to exclude evidence pursuant to ss. 8, 24(1) and 24(2) of the Canadian Charter of Rights and Freedoms, on the ground that the affidavits before the authorizing judge for a series of Part VI authorizations commencing December 12, 2012, as part of an investigation into the defendant, were inadequate and misleading to the point that on review they must be set aside. His challenge is primarily to the first authorization but contends that the five authorizations subsequent to the first authorization must also fail because they all relied on the first one: fruit from the poisoned tree.

[2] The defendant faces the following charges following a direct indictment: Conspiracy to Traffic in a Schedule I Substance x 2; Traffic in a Schedule I Substance x 2; Possession for the Purpose of Trafficking x 2; Money Laundering; and Instructing a Person to Commit an Offence for the Benefit of a Criminal Organization x 2.

[3] The investigation had been triggered following receipt by the OPP of an anonymous detailed letter describing concerns about the defendant’s (among others) involvement with drugs. Following receipt of this letter along with information from other tips, project ‘Mayday’ was launched. Its purpose was to investigate the defendant’s alleged importation and distribution of drugs. As part of this investigation, a total of approximately 12 judicial authorizations had been obtained between December 29, 2011 and November 17, 2012. The warrants authorized “number recorder warrants for mobile phones believed to be utilized by the applicant; tracking warrants in relation to the applicant’s mobile phones; orders for the production of telephone records relating to incoming and outgoing calls from the telephone numbers associated to the applicant”; general warrants authorizing police to install and monitor the tracking devices in the applicant’s mobile phones; and various Assistance and Sealing Orders.

[4] The defendant’s position is that physical and electronic surveillance of the defendant’s daily activities during this period produced no actionable information. The continual interception of the Applicant’s text messages revealed no involvement by him in any kind of criminality. The Applicant’s daily movements, while deemed “suspicious” by the O.P.P., were equivocal in their support of this alleged criminality.

[5] In September, 2012, project ‘Adelaide’ was born out of Mayday by the Organized Crime Enforcement Bureau of the OPP, and piggy backed on the information from Mayday. The purpose was to continue its focus on the defendant, and to ascertain the identity of his ‘criminal associates’. In late 2012, a registered OPP informant named Jeff Edwards agreed to become a ‘Police Agent’ in consideration for between $100,000 and $240,000. He had been a long-time opiate addict with an extensive and serious record for drugs and violence, supporting himself on $7,200 per year from Ontario Works. He held himself out to the OPP as a criminal associate and long-time friend of the defendant. The plan for Edwards was to attempt to reconnect with the defendant after an 18 month hiatus, and to attempt to purchase cocaine from him.

[6] On December 12, 2012, the OPP obtained a ‘one-party consent’ authorization pursuant to s 184.2 CCC in order to record exchanges between Edwards and the defendant. This was the first of the many authorizations that the defendant now challenges.

[7] In January, 2013, the agent, Edwards, met with the defendant as instructed to see about obtaining cocaine. The defendant put him in touch with Viorel Gheorghevici, and on January 15, Edwards engaged in the first of five cocaine transactions with him- concluding July 29, 2013. Following Edward’s success in reconnecting with the defendant and gaining his assistance in locating a cocaine distributor, the OPP successfully obtained five additional Part VI authorizations to intercept the communications of the defendant and a number of other targets: January 10, 2013; February 25, 2013; April 25, 2013; June 19 2013; and August 20, 2013.

[8] On October 16, 2013 the OPP executed a search warrant at the defendant’s residence at Lombardy, Ontario. Upon learning of the charges the defendant turned himself in to the police on October 21, 2013.

[9] The defendant’s position is that the affidavit or ITO in support of the first authorization failed to meet the required reasonable and probable grounds, and ought not to have been granted. In particular, the defendant claims the ITO failed to demonstrate the following:

a. The defendant reasonably and probably committed, or would commit, each of the noted offences in respect of which the communications were sought;

b. That communications by the defendant would with reasonable probability occur on the intercepted devices (e.g. that Edwards will succeed in contacting the defendant); and,

c. That the interception of communications between Edwards and the defendant, would with reasonable probability, afford evidence of each noted offence.[^1]

[10] Quite aside from inadequacies apparent from the facial analysis of the ITO, the defendant contends that these inadequacies were magnified by several material omissions, and a number of misleading statements. In addition the defendant contends the ITO was fraught with unsupported conclusory statements.

[11] The Crown’s position is that the ITO meets the requisite standards, and that the tests framed by the defendant failed to correctly address that the authorizations sought under s 184.2 differed from the search warrant test, in that they were only for investigative purposes, and a lower threshold in accordance with the language of the section was in play. The Crown’s position is that the “may assist” in the investigation test is in play, and was easily met.

[12] A Garofoli application permits the defendant to challenge an authorization for a wiretap or search warrant, on the basis of the inadequacy or impropriety of the affidavit or ITO (information to obtain) before the authorizing judge. The review is an evidentiary hearing to determine the admissibility of relevant evidence about the offence pursuant to a presumptively valid court order.[^2] On such an application before the reviewing judge, the Crown is permitted to file further affidavit material to amplify the original ITO. The defendant may seek leave to cross-examine the affiant in order to add weight to the defendant’s challenge.[^3] In this case the Crown did not file further material to amplify the record; and the defendant did not pursue an application to cross-examine the affiant. However, additional materials were part of the application record for amplification purposes. No objection was taken to these materials- only the weight to be attributed.

[13] The application record before me consists of seven large volumes of material which include the several authorizations, the ITO’s for each of the authorizations before the authorizing judge (which have however since been redacted for confidentiality reasons); and in addition three volumes of a supplementary application record were filed during the hearing. No responding application record was filed.

[14] The excellent submissions of counsel were supported by detailed facta, and books of relevant authorities.

[15] The onus is on the defendant to show on a balance of probabilities that there was no basis upon which the authorizing judge could have granted the authorization(s). The test for a search to be authorized by law is whether a state seizure is ‘reasonable’: “reasonable and probable grounds established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search.”[^4]

[16] However, for the grant of a part VI authorization to intercept private communications where one party consents to the interception (as is the case here) the requirements are set out in s. 184.2 (3) C.C.C. The test then is specifically whether the police had both reasonable and probable grounds to believe that an offence “has been or will be” committed; and to believe that evidence “will be obtained” through the interception sought.

[17] The RPG standard is triggered “where credibility-based probability replaces suspicion”. It anticipates “a practical, non-technical and common-sense probability as to the existence of the facts and inferences asserted”, and is to be applied in the totality of the circumstances considering facts that assist the police in forming the requisite grounds, and facts that detract from reasonableness of the grounds for issuance.[^5] Mere suspicion, conjecture, hypothesis or ‘fishing expeditions’ fall short of the minimally acceptable standard from both a common law and constitutional perspective.

[18] The analysis is limited to the four corners of the ITO. It is a facial review. The analysis may then move to a consideration of additional documentation or evidence aimed at disclosing errors omissions, and other issues with the ITO. If after review and editing, the ITO falls short, then the warrant or authorization would be set aside, any search conducted pursuant to the authority of the authorization would be rendered a warrantless search and a presumptive violation of s. 8 of the Canadian Charter of Right and Freedoms. The reviewing judge must only assess the record that was before the issuing judge, as amplified on review, and determine whether the authorization could have issued, not would have issued. The reviewing judge is required to edit and or amplify the ITO and then determine if there was some reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge the authorization should have issued.[^6] It is not an onerous test, and there is only a narrow basis on which the authorization can be set aside.[^7]

[19] The guiding principles for the reviewing judge in conducting an analysis of the ITO include the following:

a. During facial enquiry the contents of the ITO are presumed to be both accurate and reliable; [^8]

b. During the sub-facial enquiry, the reliability of the ITO is assessed in the context of other source documents or evidence that undermines the veracity of the ITO, and edited to ensure that only accurate information remains.[^9]

c. The affiant in the ITO is obliged to make full, fair, and frank disclosure. This requires that all material facts, whether favourable or not, be disclosed. Material non-disclosure is not countenanced, particularly where the omission invites an inference that would not be available but for the material non-disclosure.[^10] This includes the requirement that the affiant disclose all relevant facts including those which tend to disprove the existence of reasonable and probable grounds when applying for a wiretap authorization.[^11]

d. During a sub-facial enquiry, information may be deleted where it is shown to be false given the omission of evidence that ought to have been included but was not because of the failure of the police to investigate the case with due diligence. [^12]

e. The affiant must show that they have avoided a “degree of carelessness completely inconsistent with the standard of care expected from any police officer competent to apply for a search warrant”. The objective standard of care must be enforced. This requires that it be written in an organized and understandable fashion without padding with extraneous information.[^13]

f. Unsourced narrative or conclusory statements are of no assistance and must be given little or no weight.[^14]

g. While the criminal history of the suspect may be relevant, it must be connected to the offence under investigation. Where the criminal history is entirely unrelated it should not be included. Including an unrelated criminal history to show a propensity to criminality is improper.[^15] Similarly a dated criminal history, even for a related offence, is of limited value.[^16]

h. Reliance on information from confidential informants or outside sources carries with it the obligation to equip the authorizing justice to evaluate the nature and quality of the tip. The entire criminal record should be made available to the authorizing judge, as should the disclosure of any outstanding charges.[^17] A conclusory statement that the source is credible is insufficient. [^18] An important indicia of the source’s reliability is whether previously disclosed information has led to convictions (as opposed to charges being laid).[^19] Where the source of the informant’s information in the ITO is not disclosed, the information must be treated as rumour or gossip, and given little to no weight in its evaluation.[^20] The risk of false allegations is particularly significant when the tipster is shielded by an absolute and impenetrable anonymity. This requires scrutiny to ensure that widely available detail is not assumed to mean the tipster’s evidence is compelling. [^21]

i. Corroboration of the tip by independent investigation becomes more relevant where it is difficult to assess the credibility of the source. The most persuasive evidence is that that is predictive of criminal activity. It need only be some indication that the criminal activity alleged was occurring. [^22]

j. Conclusory statements about an offence having occurred without substantiating detail is not a compelling tip.[^23] The currency of the information, in the sense of when the observation was made by the informant, is crucial in order to determine whether it is current and ongoing.[^24] When assessing the reliability of an informant or tipster the applicable principles are to be viewed within the totality of the evidence.[^25]

k. After excluding erroneous information, the affidavit should be assessed as a whole to see whether there remains a basis for the authorization in the totality of the circumstances.[^26]

Analysis.

[20] I propose to review the ITO of December 12, 2013 with regard to the above guiding principles; and with reference to the large volume of documents that was filed as relevant disclosure occurrence reports and investigative notes provided by the Crown to the defendant but which had not been reviewed by the affiant. These additional relevant materials would have been available to the affiant.

[21] I then propose to apply the legal test to determine if there was some reliable evidence before the authorizing judge that could have permitted the authorization to have been granted as against the defendant concerning the offences referenced in the ITO that has been or will be committed.[^27]

[22] I do not accept the Crown’s submission that the ‘reliable evidence’ need only be in relation to any of the named suspects in order for the authorization to survive. Neither do I accept the Crown’s submission that under s. 184.2(3) the authorizing judge is only to be concerned with whether there are RPG concerning an offence against any Act of Parliament. I am not persuaded that the purpose of s. 184.2 triggers the test as to “whether there were reasonable grounds to believe that interception of (the suspects) communications may assist in the investigation of the offence”[^28] This application concerns the admissibility of evidence relevant to the case against the defendant. Relevance requires that the evidence concern the defendant and the offences he is alleged to have committed. The “may assist” standard is found in s 186 (investigative necessity), but not found in s. 184.2 under which this authorization was granted. The relevant test is determined by the language of the section under which the authorization was granted.[^29]

[23] Following are the contents of the ITO that must be considered by way of amplification, and editing of misleading or erroneous information:

a. The agent Edward’s criminal record is to be included. A summary of his offences was described in the ITO, but not his criminal record. It is recognized by the jurisprudence that as a general rule the criminal record of a police agent should be included in the ITO. It was not;

b. A Service Provider Agreement between the OPP and Edwards dated November 25, 2012 shows a staged payment plan that would see Edwards receive up to $240,000. The ITO is silent on the agreement. It is to be included. It recites that Edwards is unemployed and receives Ontario Works payments of $7200 per annum. It only records that he will be financially compensated and that previously he had received $2,000 for information as a confidential informant. That is misleading;

c. The materials in Volume VII of the application record which include occurrence reports prior to the ITO concerning Edwards, from police forces other than the OPP. These documents describe multiple encounters with law enforcement following complaints of sexual impropriety, assaults, threats against corrections personnel, assaultive behaviour with law enforcement personnel ;

d. The reference to Edwards being incentivized to assist the OPP because of a ‘moral obligation’ is deleted. There is nothing anywhere in the materials to support that statement. To the contrary Edward’s extensive criminal history, combined with his various ‘run- ins’ with the police, descriptors in Volume VII, and documented complaints about him from time to time demonstrate an utter absence of any sense of decency or morality.

e. The affiant’s summary of the positive and negative features of Edwards as an agent fail to describe, in the context of the investigative plan, that Edwards had no contact with the defendant for some 18 months with the defendant. The reasons elsewhere in the ITO are a bit murky but suggest a falling out over the quality of drug product. The tenor of the language in the ITO suggests the affiant is uncertain about the success of the proposed reconnection by Edwards to the defendant, but fails to detail the reason for his uncertainty.

f. The OPP had reviewed the contents of all the defendant’s cell phones including two ‘burner phones’ and found no evidence of illicit activity. The ITO was misleading in suggesting that texts were being exchanged to arrange meetings with unknown burner phones, but failed to mention that they had reviewed the alleged two ‘burner’ phones and found no evidence of illicit activity. I do accept that the surveillance evidence permits the inference that meetings were being continuously arranged- and possibly by way of a communication device of which the police were unaware. However, the phrasing was badly chosen, erroneous, contradictory and misleading;

g. The defendant’s financial situation was misstated as an income of $30,000 per year with Edwards as the source of the information in November – December 2011. The information from Edwards further attributes comment from the defendant’s accountant that he should declare more income. That information is erroneous since an order by Tausenfreud J, recited in the ITO had ordered the production of the defendant’s income tax returns from CRA. That information showed income of $$46,658 for 2010, and $112,500 for 2011, not $30,000. The defendant’s wife showed income of $30,000 and $55,000 for those same years. While it is a material misstatement of his income, the instructive information is that the income for both is T-3 income as opposed to T-4 income. The source of the income is a company controlled by the defendant and his wife according to the ITO. The erroneous income amount attributable to the defendant reflects more on the reliability of the information from Edwards, and the failure of the affiant to reconcile the two sources of information.

h. The defendant in submissions was critical of a considerable amount of the information concerning the defendant attributable to the agent. His submissions were detailed and referenced virtually every debriefing note. However, except for the specific references elsewhere in this paragraph, I do not consider the information to be either erroneous or subject to amplification; and therefore to be edited. Most of the references do however go to the weight of the information, and that question will be addressed in the following paragraphs.

i. The reference to the garment bag that accompanied the defendant during his trips to Montreal “was bottom heavy and weighed down” on one of his return helicopter flights is deleted. I viewed the video of the surveillance with counsel. The garment bag is thinner when the defendant arrives in Montreal; and it is thicker as he is about to return. That would be consistent with additional clothes on a hangar in the garment bag. “Bottom heavy” and “weighed down” used as descriptors in the ITO attempt to create the inference that there is something other than clothes that in the garment bag. That inference is not consistent with my view of the video.

[24] The ITO as edited and amplified must now be considered in order to determine if the authorizing justice could have been satisfied that:

a. There were reasonable grounds to believe an offence listed in the ITO has been or will be committed by the defendant;

b. There are reasonable grounds to believe that information relating to (one or more of) the offence(s) will be obtained through the interception sought. (It is not in dispute that there was indeed consent by Edwards to this one-party consent).

[25] Edwards’ extensive criminal history contains little to support his reliability, but it is consistent with him having a stated involvement in the criminal drug community, and is strongly suggestive of his being well placed to be aware of their criminal activities. It could be unlikely that an individual with no criminal antecedents would have access to the defendant and the others named in the ITO. It is also clear that Edwards was motivated by financial reward. His entire interaction with the police is shown to have always been to give somebody up in exchange for him getting a benefit- either dropped charges, money etc., whenever the occasion arose. The absence of his criminal record from the ITO was a material omission but diminished somewhat by a recitation in the ITO of a summary of his record. In this case, while the omission was material, I do not consider it could have carried much weight keeping in mind that it was Edwards’ credentials as a criminal that made it more likely that he could be received by the defendant and others. Arguably his record could have enhanced his credentials and therefore the success of the investigative plan; and the authorizing justice could have found him more likely to be successful in the plan.

[26] The ITO records that Edwards said that he was a career criminal, but was largely “out of the life” and could provide lots of background information into many of his criminal colleagues. But, he wanted a statement withheld from the Brockville Police Service before he would cooperate. The ITO supports the view that Edwards was not reliable enough to give evidence, but that the plan for him to record inter alia the defendant would remove that issue since the recording (if any) would capture any potential evidence.

[27] I find the Service Provider Agreement was a material omission from the ITO. I do not find the Crown’s argument that since the agreement had not kicked in because the authorization had not been provided, persuasive. The Crown concedes it should have been included. I agree. But what is the consequence. Again, I do not understand why it was not disclosed; and instead the affiant gave the impression that Edwards was unemployed and living on Ontario Works payments. Under the agreement, Edwards was to receive staged payments over a period of time totalling in excess of $240,000. The defendant takes the position that it undermines Edwards’ reliability because he was so motivated by money. Clearly the contrary conclusion could have been open to the authorizing judge- namely that significant payments to Edwards could ensure the likelihood of the investigative plan for Edwards to reconnect with the defendant.

[28] The misstatement of the defendant’s income as reported by Edwards, without reference to the contradictory information already in possession of the OPP, does not alter the inference the authorizing judge could have drawn, that the defendant was living way beyond his means on ill-gotten gains on which he had avoided paying taxes. The misstatement, while material appears to be as a result of carelessness since the affiant recites in the preamble to the ITO the orders that gave rise to production of his income tax returns which showed the higher incomes current at the time. It is clearly a misstatement but the corrected amounts would still be inconsistent with the defendant’s described lifestyle of an expensive home, expensive cars, and helicopter- all being unsupportable by any visible income, on which no tax was being paid. When viewed along with the surveillance team having inferred from a photo that the defendant had large quantities of cash in a plastic bag when leaving the Perkins building, the totality of that information could have been relied upon by the authorizing judge in support of the money laundering offence.

[29] There is no doubt that the ITO documents regular weekly overnight trips to Montreal by the defendant in his helicopter. Surveillance reports document the defendant regularly meeting with a number of individuals with criminal histories with drugs, and with individuals connected to the Hells Angels in Montreal. One of the individuals the defendant is shown to have met with regularly in Montreal is Eric Corbeil. The defendant and Corbeil were convicted together of cocaine trafficking in 1998. While the defendant’s criminal record is dated, it does by inference explain his association with Corbeil. Both the defendant’s record and his current association with Corbeil become relevant.

[30] Much of Edwards’ information was corroborated independently by most of the nine confidential informants. The surveillance reports also corroborated most of the relationship information of the confidential informants and Edwards. The interactions of these several individuals with the defendant who each had a history of criminal activity including drug trafficking is suggestive of drug trafficking through an organized group. Without repeating in these reasons the lengthy detailed analysis argued by counsel, I consider that the various details, or absence thereof, are capable in their totality to be given different weights, but nonetheless it cannot be said that there is no evidence before the authorizing justice when he concluded there were reasonable and probable grounds to believe that one or more of the offences in the ITO had been or would have been committed.

[31] According to the ITO the plan was for Edwards to telephone the defendant on his home telephone “in an attempt to purchase a half a kilo of cocaine”. The success of this cold call was premised on the past relationship between Edwards and the defendant. Missing from the ITO was a rational presentation of information that would explain why the affiant had confidence that the plan for Edwards and the defendant to reconnect would be successful. The agent and the defendant had apparently been estranged for some 18 months after a disagreement. The various information in the ITO is strongly suggestive that in general the various participants experienced violence as part of their life/work- style. It suggests that drug trafficking is a profitable but highly competitive activity. The ITO was replete with examples of killings and threats to kill where parties had a falling out. The falling out between Edwards and the defendant was not fully explained beyond a disagreement over the quality of the drug product. They had not communicated for some 18 months. Those details would be important to an authorizing judge in order to evaluate the success of the plan for Edwards to reconnect with the defendant.

[32] Even the investigators had their doubts.

[33] Present in the ITO is language from the affiant that demonstrates uncertainty rather than certainty as to the success of the plan. For example, in the concluding portion of the ITO the affiant quotes Edwards “The undercover police agent Jeff EDWARD believes he can reconnect with David BULLEN and purchase quantities of cocaine directly from BULLEN“ (my emphasis in italics) This suggests a lack of certitude inconsistent with the language of s. 184.2 (3). The affiant quotes the investigators as having their doubts when he repeats their belief that Edwards may be able to purchase cocaine directly from the defendant. (my emphasis in italics). The affiant then shares with the reader, that the investigators, in anticipation of failure, “will attempt a more lengthy reintroduction with the necessary optics in an attempt to get the relationship back to where it was prior” to the defendant and Edwards parting ways over the defendant’s product. Again that language is inconsistent with the language of s. 184.2(3) but perhaps more consistent with the “may assist” language in s. 186, which I dealt with in paragraph 23.

[34] In conclusion, I am satisfied that that the authorizing judge could have concluded that there were reasonable grounds to believe that an offence listed in the ITO “has been or will be committed” by the defendant. However, I cannot conclude that the authorizing judge could have found that there were reasonable grounds to believe that information relating to one or more of the offences will be obtained through the interception sought.

[35] The authorization of December 12, 2013 is therefore set aside as being non complaint with the requirements of the section of the Criminal Code under which it was granted. Any evidence obtained is therefore deemed to be in violation of s. 8 of the Canadian Charter of Rights and Freedoms.

[36] I expect I will now hear submissions concerning s. 24(2) of the Canadian Charter of Rights and Freedoms; and submissions concerning the authorizations that were granted subsequent to the authorization of December 12, 2013.

Honourable Justice Timothy Ray

Released: December 9, 2016

[^1]: The defendants submission of the requirements of Section 184.2 C.C.C. [^2]: R v. Pires, R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para 30. [^3]: R v. Garofoli, , 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 [^4]: Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 (S.C.C.) at p. 168; R v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, para 39 (SCC) [^5]: R v Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260 (Ont. Gen. Div.) at paras. 28-29. [^6]: R v Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, paras 51, 54(SCC) [^7]: R v. Pires; R v. Listing, note 2, para 40. [^8]: R v Crevier, 2015 ONCA 619, [2015] O.J. No. 5109, para 73.(OCA) [^9]: R v Crevier, note 8, para 74; R v Reid, [2016] O.J. No. 3554, 2010 ONCA 524 Paras 73-76 (OCA) [^10]: R v Araujo, note 6, para. 46; R v Morelli, note 4, para 58,102.(SCC) [^11]: R v. Araujo, note 6, paras 46, 47; R. v. Hosie, 1996 CanLII 450 (ON CA), [1996] O.J. No. 2175 at paras. 31,34. (Ont. C.A.) [^12]: R v. Scotland, [2007] O.J. No. 5301 at para. 80. (ONSC) [^13]: R. v. MacDonald, [2005] O.J. No. 551, at paras. 78-79 (ONSC); Criminal Code (Re.), [1997] O.J. No. 4393 paras 8,9,11 (Ont. Gen. Div.). [^14]: Criminal Code (Re), Note 13. [^15]: R v Debot, [1989] S.C.J. No. 11 para 56-58.; R v MacDonald, note 13, para 54. [^16]: R. v. Hosie, note 11, at para. 17; R. v. Ryckman, [1996] O.J. No. 4472 at para. 95, (Ont. Gen. Div) aff d. [1998] O.J. No. 2880 (ONCA) [^17]: R v. Rocha, [2012] O.J. No. 4991, 2012 ONCA 707 , para 33 (OCA); R v Sutherland, 2000 CanLII 17034 (ON CA), [2000] O.J. No. 4704 paras 14, 39 (OCA) [^18]: R v. Debot, 1986 CanLII 113 (ON CA), [1986] O.J. No. 994 at p 8 (OCA.), affirmed 1989 CanLII 13 (SCC), [1989] S.C.J. No. 118, para 53 [^19]: R v Rocha, note 17, para 20 [^20]: R v. Riley, [2008] O.J. 4893 (ONSC). [^21]: R. v. Lewis, 1998 CanLII 7116 (ON CA), [1998] O.J. No. 376 at paras. 18. (OCA.) [^22]: R v. Dhillon, [2016] O.J. No. 2216, 2016 ONCA 308 para 41(OCA); R v Lewis, Note 22, paras 14,18-19, 22, [^23]: R v Rocha, note 17, para 26 (OCA) [^24]: R v Hosie, note 11, para 14; R v. Henry, [2012] O.J. No. 1267 (ONSC) [^25]: R v Garofoli, Note 3, Para 68 [^26]: R v Ebanks [2009] OJ. No. 5168, 2009 ONCA 851, 249 C.C.C. (3d) 29, para 28 (ONCA) [^27]: R v. Mahal, [2012] O.J. No. 4672, 2012 ONCA 673 para 49 (ONCA) [^28]: R v Ebanks, note 26, para 33 [^29]: R v Pires; R v. Lising, note 2, para 30