





CITATION:
R. v. Soto, 2011 ONCA 828



DATE: 20111222



DOCKET: C52582



COURT OF APPEAL FOR ONTARIO



MacPherson, Juriansz and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Julio Soto



Appellant



Mariya Yakuseva, for the appellant



Randy Schwartz, for the respondent



Heard and released orally:
December 16, 2011



On appeal from the conviction entered on March 12, 2010 by
          Justice Alison Harvison Young of the Superior Court of Justice.



ENDORSEMENT




[1]

The appellant was convicted of four firearms offences.  The firearm that
    led to these convictions was seized pursuant to a search warrant executed on
    March 17, 2009 at the appellants apartment residence.

[2]

At his trial, the appellant made a s. 8
Charter
challenge to the
    warrant that had authorized the search of his residence for drugs.  Justice
    Harvison Young held that the search did not violate s. 8 of the
Charter
.

[3]

The appellant contends that the trial judge erred in law when she held,
    relying upon a tip from a confidential informant that was neither compelling
    nor sufficiently corroborated, that the Information to Obtain a search warrant
    (the 
I
TO) for the appellant`s residence established
    reasonable and probable grounds to believe evidence relating to possible drug
    offences would be found at the residence.  Accordingly, the appellant submits,
    the search warrant was invalid, the search violated s. 8 of the
Charter
and the evidence of the loaded firearm seized pursuant to the warrant should be
    excluded pursuant to s. 24(2) of the
Charter
.

[4]

We do not accept this submission.  On her ruling, the trial judge
    reasoned:

While I agree that the high expectation of privacy
    in ones home must always be kept in mind, I disagree with the conclusion that
    there was an insufficient nexus in this case.  Officer Taylors information was
    that Mr. Soto was dealing cocaine.  He saw Mr. Soto leave the building, get
    into the car, and then, as the ITO sets out, he and Officer Fitkin each
    observed what they believed to have been two hand-to-hand drug transactions. 
    (That is, they each saw one.)
As Mr. Soto had not stopped anywhere else along
    the way before these transactions, it is reasonable to believe that he would
    have had the drugs on his person when he left the apartment.
[Emphasis
    added.]

[5]

In our view, this reasoning is sound.  In particular, the emphasized
    passage speaks to an obvious nexus among a person, drug and location, namely,
    if a person leaves his residence, then almost immediately engages in two drug
    transactions, it follows that there is a good chance that there are drugs in
    his residence.

[6]

The appellant also submits that the trial judge erred by finding that
    the ITO was not drafted in a misleading, deliberately or otherwise, manner.

[7]

The trial judge dealt comprehensively with this issue and concluded that
    the Affiant did not deliberately attempt to mislead the court, nor did he
    display such a cavalier attitude that the Court cannot find that he acted in
    good faith.  In our view, this conclusion was entirely open to the trial judge
    on the record.

[8]

Finally, the appellant asserts that the confidential informants tip was
    not sufficiently compelling to support the ITO.

[9]

We disagree.  The informant was a known credible source, he spoke
    directly to the police officer affiant, and the police sought and obtained
    other information to confirm many of the factual details provided by the
    informant.

[10]

In her reasons, the trial judge said this:

At the end of the day, the point is that there were
    reasonable and probable grounds in the circumstances to think that Mr. Soto had
    drugs on his person when he left 11 Catford Road and got into the Lincoln, and
    a reasonable inference that, as a dealer, he would have a supply in the
    apartment.

In our view, this is succinct and sensible summary of
    the case.

[11]

The appeal is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J. Epstein
    J.A.


