



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rocha, 2018 ONCA 84

DATE: 20180130

DOCKET: C60980

Hoy A.C.J.O., MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Rocha

Appellant

Paul J.I. Alexander, for the appellant

Tanit Gilliam, for the respondent

Heard: January 26, 2018

On appeal from the conviction entered on June 26, 2015
    and the sentence imposed on September 15, 2015 by Justice Nancy L. Backhouse of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant Jason Rocha was convicted of possession of a controlled
    substance (cocaine) for the purpose of trafficking (x4) and possession of
    property obtained by crime. He received a global sentence of five years and
    eight months imprisonment.

[2]

In March 2013, a confidential informant (CI) told police that a male
    known as Jason worked at and was selling powdered cocaine from a bar called Os
    Dragoes and kept cocaine at his home. The CI described Jason. The CIs
    handler, Detective Taylor, knew the male described from a prior investigation.
    Database searches confirmed Jason Rochas address as 64 Crawford Street.

[3]

Surveillance was conducted at 64 Crawford Street and 703 College Street,
    the address of the Os Dragoes bar. The description of that surveillance in
    the unredacted portions of the Information to Obtain (ITO), which was
    prepared by Officer Stehlik, can be summarized as follows:

·

On March 26, 2013, a male later identified as Alan Rocha, the
    appellants brother, was seen getting into a car with a brown paper bag at 64
    Crawford Street. The car was driven by a woman believed to be the appellants
    mother. The car later arrived at the bar where patrons were already waiting.
    Alan Rocha, with a brown paper bag in his possession, unlocked the front door
    and entered with the woman and the patrons. The officers conducting the
    surveillance noted a flow of customers entering the door leading to the
    establishment and leaving in what they considered an abnormally short time for
    patrons of a bar or restaurant.

·

Surveillance of the bar continued on March 27, 2013 where the
    same flow of customers was noted by the observing officers.

[4]

The unredacted portions of the ITO summarized the CIs credibility as
    follows:

·

Two cases in which the CI provided information that culminated in
    arrests and charges, one in 2011 and one before that.

·

The CI had a track record of providing accurate and truthful
    information.

·

The CI was financially motivated and aware that monetary rewards
    are only paid out upon successful results of an investigation.

·

The CI acknowledged that he would face criminal charges for
    making false reports to police.

·

The CI is immersed within the criminal subculture, has several
    contacts in the GTA, and is privy to information not normally available to the
    general public.

·

The CI does not appear to have a criminal record.

[5]

The ITO also contained details of a 2008 case against the appellant and
    others, where a search warrant was executed at the bar and the appellants residence.
    The ITO stated that drugs and firearms had been seized, but also that the
    charges were dismissed at trial (2011 ONSC 2518, appeal dismissed 2012 ONCA
    707).

[6]

The warrant was executed at the appellants residence on April 5, 2013.
    Police seized 800 grams of cocaine, 505 oxycodone pills, drug paraphernalia and
    $32,880 in cash.

[7]

At the outset of the trial, the appellant applied for the fruits of the
    search of his residence to be excluded. In his view, the search warrant should
    not have been issued and the search and seizure infringed his rights under s. 8
    of the
Canadian Charter of Rights and Freedoms
.

[8]

At trial, a heavily redacted copy of the ITO was disclosed to the
    appellant. The Crown conceded that the redacted ITO could not adequately make
    out the grounds for the warrant. A judicial summary was prepared and provided
    to counsel. The judicial summary can be summarized as follows:

·

The CI gave accounts of his firsthand observations of Jasons
    drug trafficking at the bar including when and the number of times the
    observations were made. Sale of cocaine had been observed recently on a
    specific date. The CI also specified the circumstances surrounding the sale of
    drugs inside the bar and his/her means of knowing of Jasons drug trafficking.

·

The CI provided very specific information regarding the CIs
    means of knowledge that Jason keeps cocaine at his home. The information is
    not based on rumour or gossip. The CI made recent observations at the bar
    that lend support to the CIs statement that Jason keeps cocaine at home.

[9]

Some information was excised and other information amplified the ITO.
    References to the 2008 drug seizures from 64 Crawford were excised. Reference
    to a brother of the applicant having died of a drug overdose was excised for
    lack of probative value. The ITO was amplified to show that the CI had no
    criminal record. The trial judge granted defence counsel leave to cross-examine
    the affiant.

[10]

The
    defence argued that the Crowns application to use step 6 of the
Garofoli
procedure (
R. v. Garofoli
, [1990] 2 S.C.R. 1421) ought not to have
    been granted because the CIs means of knowing that the applicant kept drugs in
    his home is redacted, preventing the accused from challenging it in argument or
    by evidence. In the trial judges view, the judicial summary explained how the
    tip was compelling. The defence was able to cross-examine the affiant on a
    number of issues relating to the credibility of the CI and the accuracy of investigative/corroborative
    details. The defences submissions together with the affiants
    cross-examination led the trial judge to find that the accused was sufficiently
    aware of the nature of the excised material to challenge it by argument or
    evidence. Step 6 was found to be appropriate.

[11]

Applying
    the criteria in
R. v. Debot
, [1989] 2 S.C.R. 1140 (
Debot
) to
    this case, the trial judge determined that the issuing justice could reasonably
    have found that: the tip was compelling with respect to criminal activity at
    the bar and the presence of cocaine at the appellants home; the CI was credible;
    and the tip was corroborated.

[12]

The
    trial judge rejected the defence argument the tip was insufficiently
    corroborated because no undercover agent entered the bar to observe criminal
    activity. Police officers testified that the bars patrons are a close-knit
    community and they would not have engaged in criminal activity in the presence
    of a stranger. That explanation was found to be credible by the trial judge.

[13]

The
    trial judge also rejected the defences contention that reference to the 2008
    search was deliberately misleading. Reference to the search was excluded
    because the applicants
Charter
rights were breached during that search,
    not because the reference was misleading.

[14]

Accordingly,
    the s. 8 application was dismissed.

[15]

The
    trial judge nonetheless conducted a s. 24(2) analysis in case of an erroneous
    conclusion in relation to the appellants s. 8 rights. The trial judge found
    that the police acted in good faith. Even though the search was conducted in
    the appellants home, society has a great interest in adjudicating the case on
    its merits. Accordingly, the admission of the evidence would not bring the
    administration of justice into disrepute.

[16]

The
    appellant appeals the trial judges ruling relating to the search warrant on
    four grounds.

[17]

First,
    the appellant contends that the trial judge erred by relying on redacted
    material that was not summarized and that the appellant could not challenge.

[18]

We
    do not accept this submission. The trial judge did not err in relying on the
    redacted material, the nature of which was set out in the judicial summary. The
    detail of the redacted information does not have to be communicated to the
    defence. The issue is whether the nature of the material was sufficiently
    summarized and disclosed. In our view, the defence was sufficiently aware of
    the materials nature to challenge it by argument or by evidence, as the trial
    judge comprehensively demonstrated in paragraph 22 of her ruling.

[19]

The
    appellant then submits that the reviewing judge used judicial scrutiny as a
    substitute for the meaningful participation of the defence. Specifically, he
    relies on the portion of the trial judges reasons where she states:

My ability to fully explain my findings with respect to 64
    Crawford is limited by the fact that some of the information remains redacted.
    For protection of his Charter rights, the applicant must essentially rely on
    judicial oversight (of at least 2 levels in this case) to ensure, to the extent
    practicable, that there were reasonable grounds for issuing the warrant.

[20]

We
    are not persuaded by this submission. In our view, in this passage the trial
    judge was simply indicating that the determination as to the existence of reasonable
    grounds supporting the issuance of the warrant would be made by the judge based
    in part on redacted information that had not been disclosed to the appellant.
    It does not, as suggested, indicate that the nature of the redacted information
    relied on by the trial judge was not disclosed in the judicial summary. Nor do
    we interpret it as suggesting that, using the judicial summary and other
    information available to the appellant, he was not in a position to mount both
    a facial and sub-facial attack on these redactions.

[21]

Second,
    the appellant submits that the ITO did not meet the
Debot
criteria,
    namely, whether the CIs tip was compelling, whether the CI was credible, and
    whether there was corroboration for the tip (the three Cs).

[22]

We
    are not persuaded by this submission.

[23]

The
    tip was compelling. It was detailed and current. It was not limited to
    conclusory allegations of criminal conduct. It was sourced to the informants
    direct observations and personal knowledge. The source had a first-hand basis
    for the information and gave detailed information about the drug activity. It
    was not based on rumour or gossip. The appellant has not demonstrated that
    there was no basis upon which the tip could be relied upon as compelling.

[24]

The
    source was credible. The informer was known to police, immersed in the criminal
    sub-culture, and privy to details not normally known to the public. He had
    provided valuable information to the police before. He was aware that he might
    face criminal prosecution by giving false information.

[25]

The
    information was corroborated. Numerous material aspects of the tip were
    confirmed by police, including the appellants connection to the bar and 64
    Crawford Street and activity at the bar suggestive of drug trafficking.

[26]

Third,
    the appellant asserts that the police affiant failed to make full, frank and
    fair disclosure in the ITO. The ITO contained three specific references to the
    2008 case involving the appellant, where a search warrant was executed at the
    appellants home and bar. The ITO stated that drugs and firearms had been
    seized, but also that the charges were dismissed at trial. The police affiant
    did not know, and accordingly did not state, that the reason for the dismissal
    of the 2008 charges was police breach of s. 8 of the
Charter
. This omission,
    contends the appellant, was so misleading as to require the search warrant to
    be set aside.

[27]

We
    disagree. On this point, we explicitly agree with the trial judges reasons:

I do not agree with defence counsels characterization of the
    reference to the 2008 search and seizure as deliberately misleading. While the
    ITO did not state that the evidence had been excluded against the applicant, it
    did state in 3 separate places (each time the 2008 investigation was
    referenced) that the charges were dismissed against the applicant after a
    trial. If the reference to the 2008 search and seizure had been omitted, the
    affiant would have been criticized for failing to disclose facts upon which the
    affiant was in reality relying. Notwithstanding that it was relied upon as a
    ground in the ITO, highlighting the history of 64 Crawford Street including the
    dismissal of all charges against the applicant ensured that the issuing justice
    would not rely on it as evidence of reasonable and probable grounds at the time
    of this application for a search warrant. The references were excised because
    the evidence was excluded against the applicant due to his
Charter
rights having been breached, not because it was misleading.

[28]

The
    appellants fourth submission is that the trial judges alternative conclusion,
    namely that if a
Charter
s. 8 breach were established, the search
    warrant should be upheld under s. 24(2) of the
Charter
, is in error.
    In light of our conclusions on the first three issues, this issue does not
    arise.

[29]

The
    appeal is dismissed.

Alexandra Hoy A.C.J.O.

J.C. MacPherson J.A.

Paul Rouleau J.A.


