



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Spearman, 2015 ONCA 119

DATE: 20150220

DOCKET: C58847

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Phillip Spearman

Appellant

Ross C. Stewart, for the appellant

Kevin Wilson and Colleen Liggett, for the respondent

Heard and released orally: February 13, 2015

On appeal from the conviction entered on November 26,
    2013 and the sentence imposed on April 28, 2014 by Justice Diane M. Lahaie of
    the Ontario Court of Justice.

ENDORSEMENT

[1]

The grounds of appeal raised all revolve around the trial judges
    finding that the Information to Obtain a Search Warrant (the ITO) in this
    case contained sufficient grounds to justify the issuance of the search
    warrant. We begin by adopting the comment of Blair J.A. in
R. v. Duc Van
    Nguyen
, 2011 ONCA 465, at para. 57. In that paragraph, our colleague sets
    out the approach that must be taken by this court when considering submissions
    like the ones made in this case.

[2]

Dealing with the specific submissions, we do not accept the argument
    that the ITO failed to make full, fair and frank disclosure of the grounds upon
    which the warrant was sought. The affiant identified observations made of the
    appellants home that were relevant to the existence of reasonable grounds to
    issue the warrant. He recorded those observations accurately and sufficiently
    placed them in the context of the ongoing activity within the home. Those
    observations provided a basis upon which the trial judge could properly assess
    the totality of the circumstances and decide whether the warrant should issue.
    The failure to include all observations made, even those that clearly had no relevance
    to the existence of reasonable grounds, did not detract from the adequacy of
    the disclosure made in the ITO.

[3]

The other grounds of appeal raise alleged misrepresentations or material
    omissions in the ITO. The appellant has pointed to three alleged
    misrepresentations or omissions. The first is an alleged misdescription of a
    building entered at some point by the appellant while he was under observation
    by the police. The description of the building was entirely irrelevant to the
    existence of reasonable grounds for the warrant and, in our view, of such
    peripheral significance that it could in no way impact on the reliability of
    the affiant. The error quite properly played no role in the trial judges
    assessment of the ITO.

[4]

The second alleged misrepresentation relates to the number of informants
    relied on by the affiant in assembling the grounds for the application. The
    wording of one paragraph in the ITO raises some confusion as to the number of
    informants. However, the balance of the ITO clearly identifies two informants
    and the role each played in providing the information relied on by the affiant.
    The trial judges reasons demonstrate that she was under no misapprehension as
    to the number of informants or the information provided by them.

[5]

The third misrepresentation relates to the affiants description of the
    basis upon which he considered the informant reliable. The appellant submits
    that one passage in the affiants affidavit suggests that the affiant had
    previous dealings with the informant in which he had received information from
    that informant that had proven to be reliable. In fact, the affiant had no
    prior contact with the informant.

[6]

Reading the relevant parts of the affidavit as a whole, the appellants
    interpretation of that passage is not sustainable. It is clear, and it is made
    explicit in at least one part of the affidavit, that the affiant had no prior
    dealings with the informant and that the assertions of the informants
    reliability were based on information the informant provided in respect of this
    investigation. The trial judge clearly understood that to be the basis upon
    which the affiant asserted that the informant was reliable.

[7]

In our view, the appeal must be dismissed. We note that the appellant
    has abandoned his appeal against sentence.

Doherty J.A.

E.A. Cronk J.A.

H.S. LaForme
    J.A."


