



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cole, 2019 ONCA 516

DATE: 20190620

DOCKET: C63997

Juriansz, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shamar Cole

Appellant

Marianne Salih, for the appellant

Amanda Hauk, for the respondent

Heard: May 23, 2019

On appeal from the conviction entered on December 14,
    2016 by Justice Michael G. Quigley of the Superior Court of Justice, sitting
    with a jury.

REASONS FOR DECISION

Introduction

[1]

On July 20, 2014, the police obtained three telewarrants to search for
    cocaine at an apartment on Tuxedo Court, Toronto; in a 2008 Mercedes; and in a
    2004 Nissan Maxima. The next day, police arrested the appellant in the Nissan
    Maxima near the entrance to the underground parking lot of the Tuxedo Court residence.
    They seized a key to the Mercedes, which was found on the appellants person.
    Both cars and the apartment were searched. Nothing was found in the Nissan, but
    there were 272.88 grams of crack cocaine in the trunk of the Mercedes. In the
    apartment, the police found 2.45 grams of crack cocaine.

[2]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking. The trial judge rejected the appellants
Charter

challenge
    based on deficiencies in the Information to the Obtain the Telewarrants
    (ITO). The ITO relied on information provided to police by a confidential
    informant. The appellant submitted that while the ITO was sufficient to support
    a warrant

for the search
    of the apartment unit, it was not sufficient to authorize a search of the cars.
    The trial judge agreed, finding that the appellants s. 8 rights were violated.
    However, the trial judge did not exclude the evidence under s. 24(2).

[3]

On appeal, the appellant argues that the trial judge erred by: (i)
    characterizing the breach as technical; (ii) failing to consider the impact of
    misleading information in the ITO regarding the apartment; (iii) failing to
    consider the impact of the polices unlawful resort to a telewarrant; and (iv)
    incorrectly balancing the
Grant
factors to include the evidence.

[4]

For the reasons that follow, we are not persuaded by any of these
    submissions and dismiss the appeal.

Analysis

(i)

Technical Breach

[5]

The appellant submits that the application judge erred in characterizing
    the breach as technical, because the ITO was insufficient to support the car
    warrants. The ITO indicated that, according to the confidential informant, the
    appellant used his cars in drug transactions. The appellant argues that the
    failure to disclose the basis of the confidential informants conclusions in
    relation to the cars constituted a serious and significant deficiency in the
    ITO, which was aggravated by the failure to meaningfully corroborate those
    conclusions. It was, the appellant submits, an error for the trial judge to
    rely on the strength of the information about the apartment to overcome this
    deficiency in a bootstrapping fashion. Further, the trial judge is also said
    to have erred in considering the police misconduct as having been conducted in
    good faith because it was a clear violation of well-established rules. In the
    appellants view, the seriousness of the breach strongly favoured exclusion of
    the evidence.

[6]

We note that the trial judge found a breach of s. 8 on the basis that
    the affiant failed to articulate his subjective belief about the grounds to
    issue a warrant with respect to the vehicles. The breach, as found by the trial
    judge, did not relate to whether sufficient grounds to issue the warrant
    actually existed.

[7]

The Crown submits that there was no breach. Regardless of whether the
    trial judge erred in finding a breach, there is no question that the police had
    ample grounds to obtain a warrant with respect to the vehicles. In this regard,
    it is important to look at the ITO as a whole. We have reviewed the unredacted
    ITO and it is clear that the confidential informant provided credible and
    compelling information about the appellants drug activities, including the use
    of his vehicles to deliver drugs. Further, the police took adequate steps to
    corroborate that information.

[8]

In our view, if there were a breach in this case it was minor in nature
    and would fall at the low end of the spectrum of state misconduct. Accordingly,
    the trial judge did not err in categorizing the breach as technical.

(ii)

Misleading Information

[9]

In the redacted ITO, the affiant included the following information:

On July 20
th
, 2014 at 7:26 pm, Police Constable
    Diane PARKER #10824 walked by address 215-40 Tuxedo Court, Toronto to obtain
    visual confirmation of the address. PARKER is currently employed by the Toronto
    Police Service as a Police Constable and is assigned the 43 Divisions
    Neighbourhood Safety Unit. PARKER advised there were three look-outs in the
    lobby and two in each stairwells. By look-outs PARKER meant there were persons
    at the mentioned locations to look-out for police and alert unsuspecting
    criminals in the building.

[10]

The appellant submits that this information in the ITO about the
    lookouts observed in the building where the searched apartment unit was
    located was misleading because the information suggested a connection with the
    unit for which there was no evidence. According to the appellant, the trial
    judge erred in failing to consider the misleading information in his analysis.

[11]

We do not give effect to this argument. Properly understood, the
    impugned information was not misleading because there was no suggestion that
    the lookouts were tied to the appellant or his apartment. The reference to P.C.
    Parkers observations relate to unsuspecting criminals in the building. No
    mention is made of the appellant or the specific unit occupied by the
    appellant.

(iii)

Unlawful Resort to Telewarrant

[12]

The appellant submits that the resort to a telewarrant was unlawful because
    it was not impracticable for the police to appear personally before a justice
    of the peace. He argues that there was no urgency to the application, and notes
    that the trial judge admonished the officer in court for his choice to apply
    for a telewarrant. According to the appellant, this impropriety aggravated the breach
    and, under the s. 24(2) analysis, militated in favour of exclusion of the
    evidence.

[13]

At trial, the appellant raised this issue but explicitly abandoned it
    before it was litigated. Consequently, there is an insufficient record before
    this court to consider the issue, as the Crown did not call evidence to explain
    the circumstances surrounding the polices resort to the telewarrant process. As
    the necessary factual record is missing, the appellant does not meet the test
    for raising a new issue on appeal. Further, we are satisfied that no
    miscarriage of justice will result from refusing to entertain an issue that the
    appellant chose to abandon at trial.

(iv)

Grant
Balancing

[14]

The appellant argues that the evidence should have been excluded under
    the

analysis set out in
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353
. He submits that the breach was serious
    and it was not made in good faith. Further, he argues that in spite of a reduced
    expectation of privacy in cars, the impact on his rights was serious, as two of
    his cars were searched without any authority. According to the appellant, the
    third factor should not be accorded disproportionate weight when the first two
    weigh heavily in favour of exclusion.

[15]

We do not accept this submission. Where, as here, a trial judge makes no
    legal error or palpable and overriding factual error and considers the proper
    factors, his or her s. 24(2) analysis is afforded significant deference:
Grant
,
    at para. 86.

[16]

In any event, we agree with the trial judges conclusion. The breach was
    minor and made in good faith. The impact on the appellants rights was relatively
    low, because there is a reduced privacy interest in cars. Finally, the evidence
    was highly reliable and central to the Crowns case. A proper balancing of the
Grant
factors results in the inclusion of the evidence.

Disposition

[17]

For the foregoing reasons, the appeal is dismissed.

R.G. Juriansz
    J.A.

David Watt
    J.A.

C.W. Hourigan
    J.A.


