



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Durette, 2015 ONCA 668

DATE: 20151001

DOCKET: C58222

Doherty, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Durette

Appellant

Bernadette Saad, for the appellant

Stephen Dawson, for the respondent

Heard:  September 25, 2015

On appeal from the convictions entered by Justice Mulligan
    of the Superior Court of Justice, dated August 26, 2013.

APPEAL BOOK ENDORSEMENT

[1]

There are three issues.

(i)

Was the Crown required to disclose the O.P.P. Protocols in reference to
    confidential informants (CIs) upon request of the defence prior to trial?

[2]

We need not determine whether the O.P.P. protocols were properly treated
    as first party or third party records for the purpose of disclosure.  We will
    assume they were first party records.

[3]

In our view, the protocols were not relevant when the defence sought
    production. They were potentially relevant to the s. 8 challenge to the search
    warrant depending largely on the trial judges ruling as to the
    cross-examination of the affiants.  In our view, the trial judge did not err in
    declining to order disclosure prior to the brining of the s. 8 motion.  Any
    determination of the relevance of the material at that time would have been
    premature.  We make no comment on the potential relevance of the material to
    the s. 8
voir dire
and, in particular, on the cross-examination of the
    officers.

(ii)

Was the search warrant properly granted?

[4]

Counsel recognizes the standard of review and argues that on the
    material as amplified on the voir dire, there was no basis upon which a
    justice, acting reasonably, could have issued the warrant.  We disagree.  The
    information could reasonably be viewed as compelling (direct evidence of drug
    dealing from two sources) and there was some confirmation of the evidence
    provided by the CIs.  We do not accept that the discrepancies in the affidavit
    could justify a finding that the affiant deliberately misled the justice of the
    peace.

(iii)

Did the evidence justify a finding of possession?

[5]

There was ample evidence from which the trial judge could make the
    factual findings necessary for a finding of possession. Counsel, quite
    properly, acknowledges that the trial judge did not misapprehend the evidence.

[6]

The appeal is dismissed.


