



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Aulenback, 2019 ONCA 881

DATE: 20191107

DOCKET: C64029

Watt, Huscroft and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Aulenback

Appellant

Mark Halfyard, for the appellant

Jennifer Conroy and Geoffrey Roy, for the respondent

Heard: November 4, 2019

On appeal from the conviction entered on June 29, 2017 by
    Justice Louise L. Gauthier of the Superior Court of Justice, with reasons reported
    at
2016 ONSC 6523
.

REASONS FOR DECISION

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking, contrary to s. 5(2) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. He was sentenced to imprisonment for one year. He appeals his
    conviction.

[2]

On November 5, 2013 the police conducted surveillance on the appellant.
    They followed him as he drove a car from Sudbury to Toronto. Shortly after the
    appellant entered an apartment building in Toronto, he left the building with a
    backpack and commenced his return trip. The police eventually pulled the
    vehicle over and discovered a large quantity of cocaine, a cutting agent, brass
    knuckles, an expandable baton, and $350 in Canadian currency.

[3]

Months earlier, on August 1, 2013, a police officer swore an information
    to obtain (ITO) seeking a production order under s. 487.012(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, as it read at the time, to obtain details
    relating to the appellants rental of two cars. On October 30, 2013 the same
    police officer swore a second ITO seeking further production orders, tracking
    warrants, and production of telephone records:
Criminal Code
, ss. 492.1
    and 492.2. In both ITOs, the affiant relied upon information provided by two
    confidential informants (CIs).

[4]

The appellant applied to quash both authorizations, arguing that the
    ITOs were deficient in the way they addressed the information provided by the
    CIs. In thorough reasons, the trial judge applied the well-known factors in
R.
    v. Debot
, [1989] 2 S.C.R. 1140 and concluded that there were reasonable
    grounds upon which the issuing judge could have granted the orders that were
    sought: see
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992.

[5]

The appellant submits that certain language in the trial judges reasons
    suggests that she misapprehended the test under s. 487.012(3) and applied a
    standard of reasonable suspicion, rather than reasonable grounds to believe.

[6]

We disagree. When read as a whole, it is clear from the trial
    judges reasons that she
applied the correct
    statutory test under s. 487.012(3): see
R. v. Nero
, 2016 ONCA 160,
334
    C.C.C. (3d) 148,
at paras. 61-62.

[7]

The appellant submits that the trial
    judge erred in her application of the
Debot

factors. At
trial, the appellant focused on the fact that the affiant asserted, without
    elaboration, that the information provided by the CIs was based on personal
    knowledge. The trial judge agreed with the appellant that personal knowledge
    does not equate with firsthand knowledge. However, the trial judge held that
    this did not render the assertion bald and conclusory. She found that there was
    texture and detail to the information provided by the CIs.

[8]

The trial judge recognized that, based on their past their track records,
    both CIs had proven themselves to be reliable. Further, the trial judge found
    that the lengthy investigation conducted by the police provided the type of
    corroboration required in the circumstances.

[9]

In conducting the balancing required under
Debot
,

the
    trial judge appreciated that she was tasked with considering the totality of
    circumstances and that weakness in one area may be compensated to some extent
    by strengths in the other two areas:
Debot
, at p. 1168.

[10]

We see no error in the trial judges findings, analysis, or her ultimate
    conclusion. We dismiss this ground of appeal.

[11]

After the trial judge dismissed this application, the appellant brought
    a further application seeking disclosure of the notes recorded by the handler
    of the two CIs. The appellant claimed that these handwritten notes were
    relevant to his constitutional challenge to the legality of his roadside
    detention and search. In separate reasons, the trial judge dismissed the
    application, finding that the notes could only be relevant to the personal
    knowledge issue, one that she had already decided: 2016 ONSC 6840.

[12]

We see no error in the trial judges ruling. First, we fail to see how
    the handlers notes were relevant to the lawfulness of the warrantless search
    of the appellants vehicle. Second, the trial judge had already resolved the
    personal knowledge issue, and in a manner favourable to the appellant. Re-litigating
    this issue would serve no purpose. We also note that, after this application
    was dismissed, the appellant abandoned his challenge to the legality of the
    vehicle search.

[13]

We would dismiss this ground of appeal.

[14]

The appeal is dismissed.

David Watt J.A.

Grant Huscroft J.A.

Gary Trotter J.A.


