



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lapple, 2016 ONCA 289

DATE: 20160420

DOCKET: C58641

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Lapple

Appellant

Dirk Derstine and Janani Shanmuganathan, for the
    appellant

Melissa Insanic and Nick Devlin, for the respondent

Heard and orally released:  April 11, 2016

On appeal from the conviction entered by Justice Bruce Durno
    of the Superior Court of Justice, dated February 20, 2013.

ENDORSEMENT

[1]

The appellant was convicted of conspiracy to import cocaine, importing
    cocaine and possession of cocaine for the purpose of trafficking.  His factual
    guilt was not in dispute.  He was party to the importation into Canada of 43
    kilograms of 90 per cent pure cocaine from Peru.  At trial, the appellant
    brought three pre-trial motions.  He argued that:

·

the search of the container by the customs officials contravened his
    rights under s. 8 of the
Charter
;

·

the judicial authorization to intercept his telephone calls
    should not have been granted, rendering interceptions made pursuant to that
    authorization a violation of s. 8; and

·

the search warrants should not have been granted, rendering the
    searches of the appellants premises and his car conducted under the authority
    of those warrants a violation of his s. 8 rights.

[2]

The appellant argued that cumulatively those violations justified the
    exclusion of the incriminating evidence at trial.

[3]

All three arguments were rejected by the application judge and all three
    arguments are renewed on appeal.  We, too, reject those arguments.


I



the search of the container by the customs officials

[4]

The application judges reasons are reported at 2011 ONSC 6549.  We need
    not repeat the facts set out in those reasons.

[5]

Sections 99(1)(a) and (e) of the
Customs Act
, R.S.C. 1985, c. 1
    (2nd Supp.) read:

99. (1) An officer may

(a) at any time up to the time of release, examine any goods
    that have been imported and open or cause to be opened any package or container
    of imported goods and take samples of imported goods in reasonable amounts; or



(e) where the officer suspects on reasonable grounds that this
    Act or the regulations or any other Act of Parliament administered or enforced
    by him or any regulations thereunder have been or might be contravened in
    respect of any goods, examine the goods and open or cause to be opened any package
    or container thereof.

[6]

Section 99(1)(a) of the
Act
authorizes the examination of goods,
    and the opening of packages and containers containing goods by customs
    officials prior to the release of those goods.

[7]

In oral argument, counsel submitted that the reach of s. 99(1)(a) ended
    when the actions of the customs officers interfered with the integrity of the
    container or its contents.  He submitted that interference with the integrity
    of the package occurred when the customs officers drilled a small hole into the
    wooden bottom of one of the crates inside the container and struck cocaine.

[8]

We reject this submission.  Nothing in the language of s. 99(1)(a) of
    the
Act
supports the distinction counsel urges.  Furthermore, that
    distinction is untenable in light of the clear language of s. 99(1)(a) which
    permits the opening of crates and containers containing goods and the examination
    of those goods, including the taking of samples of the goods.  Clearly, the
    authorized conduct involves interference with the integrity of not only the
    container, but the contents of the container.

[9]

The actions of the customs officers taken before the goods were released
    by customs were justified under s. 99(1)(a) of the
Act
.  The
    constitutionality of the section is not challenged.

[10]

These
    reasons are, of course, restricted to the facts of this case, particularly the
    nature of the container examined and the commercial context in which it came
    under the control of Canada Customs.

[11]

We
    need not address s. 99(1)(e).  However, for the sake of completeness, we add
    that on the totality of the circumstances known to the customs officials, there
    were ample grounds to support the reasonable grounds to suspect criterion set
    out in s. 99(1)(e).  This ground of appeal fails.


II



the wiretap authorization

[12]

The
    application judges reasons are reported at 2011 ONSC 7302.

[13]

The
    appellant submits that the investigative necessity requirement in s. 186(1)(b)
    was not met in the affidavit filed in support of the application for the
    authorization.

[14]

The
    authorizing judge was satisfied that the requirement was met.  The application
    judge was engaged in a limited review of the authorizing judges decision.  He
    had to be satisfied that the authorization could have been granted on the
    material contained in the affidavit.

[15]

The
    application judge was aware that para. 22 of the affidavit contained a factual
    error.  He was also satisfied that the affidavit nonetheless supported a
    finding of investigative necessity.  The key passage from his reasons is at
    para. 19 of those reasons:

I am satisfied that on the facts of this case and the history
    described by Officer Johnson, it would be reasonable to expect that others
    would be involved.  It is unlikely that Mr. Lapple (even along with his wife)
    was acting on his own to import 43 kgs of cocaine from Peru, secrete it in
    wooden packaging, and then distribute it to end users in Brampton.  Officer
    Johnson had the experience to say that the warrants would assist to help
    police identify, arrest and prosecute the individuals involved in organizing,
    shipping and distributing this drug shipment.  It was open to the authorizing
    judge to rely on that information and to find investigative necessity.

[16]

We
    see no error in the application judges analysis.  On that analysis, the authorization
    stands and the interceptions were lawful.


III



the search warrants

[17]

The application judges reasons rejecting the s. 8 claim as it related
    to the search warrants are found at 2011 ONSC 6550.

[18]

The appellant submits that the Justice of the Peace went beyond
    identifying errors in the officers affidavit in support of his application for
    the search warrants and effectively instructed the officer as to the changes he
    should make in the affidavit so that it would justify the issuing of the search
    warrants.  Counsel submits that the conduct of the Justice of the Peace created
    an appearance of bias in favour of the Crown.

[19]

Counsel places heavy reliance on
R. v. Gray
(1993), 81 C.C.C.
    (3d) 114 (Man. C.A.).  In her submissions, counsel urged the court to draw a
    line between comments by a Justice of the Peace that identify problems with an
    affidavit filed in support of search warrant application and comments by a
    Justice of the Peace that suggest or provide solutions to the problems
    identified by the Justice of the Peace.  She argues that the former are proper
    while the latter are improper and demonstrates bias.

[20]

In our view, the distinction urged by counsel, while possibly helpful in
    assessing a bias claim in some situations, cannot be the ultimate test.  As
    with other bias claims, the outcome should turn on whether a reasonable
    observer, fully informed of all of the relevant facts, would view the conduct
    of the Justice of the Peace as giving rise to a reasonable apprehension of bias: 
    see
R. v. Clark
,
2015
    BCCA 488, 330 C.C.C. (3d) 448, leave to appeal granted, [2016] S.C.C.A. No. 32. 
    That test was no doubt met on the facts in
R. v. Gray
, a very
    different case than this one.  That test is not met on the facts of this case. 
    The search warrants stand and the searches were lawful.

[21]

The
    appeal is dismissed.

Doherty J.A.

David Watt J.A.

Bradley W. Miller
    J.A.


