



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Prosser, 2016 ONCA 467

DATE: 20160614

DOCKET: C59645

Sharpe, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Calvin Prosser

Appellant

David Butt, for the appellant

Shawn Porter, for the respondent

Heard: June 7, 2016

On appeal from the conviction entered on June 5, 2014 and
    the sentence imposed on November 5, 2014 by Justice Janet Wilson of the Superior
    Court of Justice, sitting without a jury.

By
    the Court
:

[1]

The appellant was convicted after a trial before a judge of the Superior
    Court of Justice sitting without a jury of two firearms offences, possession of
    the proceeds of crime and possession of cocaine for the purpose of trafficking.
    The guns, money and drugs were found during a warranted search of the apartment
    the appellant occupied with his mother and grandmother.

[2]

At trial, the appellant sought to exclude the evidence of the firearms
    and drugs on the basis that the search of the apartment and seizure of the
    items was unreasonable. The submission was that the ITO disclosed insufficient
    grounds to justify the issuance of the warrant. The trial judge held that the
    ITO was sufficient to satisfy the preconditions necessary for the issuance of
    the warrant. Absent a constitutional infringement, s. 24(2) of the
Charter
was not engaged, thus could not be invoked to exclude the seized items as
    evidence at trial. The trial judge went on to hold that even if she had found a
    breach of s. 8, she would nonetheless have admitted the evidence.

[3]

In this Court, the appellant contends that the trial judge erred in two
    respects in concluding that the ITO provided a proper evidentiary basis upon
    which the trial judge could conclude that the warrant could have been issued.
    He submits that the trial judge erred in finding:


i.

that the police had reasonable and probable grounds to believe that the
    firearms and drugs would be found in the premises to be searched  the
    appellants apartment; and


ii.

the carelessness of the author of the ITO could not afford a basis or
    ground for undermining the search warrant.

The Background Facts

[4]

To situate the claims of error in their appropriate setting, a brief
    description of the contents of the ITO and the procedure followed at trial is
    necessary.

The ITO

[5]

The substance of the information in the ITO came from two confidential
    informants involved in the drug culture. Each provided recent personal
    information about a drug dealer known on the street as Ghost. Sometimes,
    Ghost, who was identified as the appellant, trafficked from a motor vehicle
    which one of the informants described by colour, make and model. Both said
    Ghost also carried a firearm.

[6]

One informant had contact with Ghost at 45 Wynford Heights Crescent.
    The other informant, who had seen Ghost with a firearm, said that Ghost
    lived in the Wynford Drive area. Neither informant provided an apartment number
    for Ghost or said that they had seen drugs or firearms at the appellants apartment.
    Police confirmed with the building superintendent that the appellant lived in
    apartment 1409 at 45 Wynford Heights with his mother and grandmother. A car of
    the same colour, make and model as described by the informant was located in
    the parking space assigned to the appellants apartment. An officer, standing
    outside the entrance door to the apartment, heard both male and female voices
    inside.

The
Voir Dire

[7]

Prior to trial the Crown provided trial counsel for the appellant with a
    heavily redacted copy of the ITO. The Crown conceded that, on the basis of the
    material contained in the redacted ITO, the warrant could not have been issued.

[8]

On the motion to exclude evidence for a breach of s. 8 of the
Charter
,
    Crown counsel invoked step six of
R. v. Garofoli
, [1990] 2 S.C.R. 1421
    and provided defence counsel with a judicial summary of the redacted parts of
    the ITO. That summary included the following:

CI1 and/or CI2 provided timed, personal information that Calvin
    Prosser is in possession of a firearm that is linked to the address of 45
    Wynford Heights.

CI1 and/or CI2 provided timed, personal information that Calvin
    Prosser is in possession of illicit substances that are linked to the address
    of 45 Wynford Heights.

[9]

The trial judge was satisfied that the summary was sufficient to permit
    the appellant to challenge the excised materials (thereby the basis for the
    warrant) by argument or evidence.

[10]

Defence counsel was granted leave to cross-examine the author of the ITO
    and did so. Counsel took the position that the summary failed to meet the
    requirements of step six. On the hearing, it became clear that neither
    informant had provided any firsthand information about drug dealing or firearms
    in apartment 1409 at 45 Wynford Heights Crescent. It also appeared that the ITO
    had failed to include the criminal record of one of the informants.

[11]

At the conclusion of the
voir dire
, the trial judge found no
    infringement of s. 8 and admitted the evidence of the guns, drugs and money
    found on execution of the search warrant at the appellants apartment.

The Appeal from Conviction

Ground #1: The Adequacy of the ITO

[12]

On appeal, Mr. Butt for the appellant submits that the ITO filed in
    support of the warrant, as amplified on review, fails to disclose a basis upon
    which the issuing justice could conclude that there was a reasonable
    probability that firearms would be found in the appellants residence. He
    invites us to follow the lead of the British Columbia Court of Appeal in
R.
    v. Le
, 2014 BCCA 166. He contends that, contrary to
Le
, the trial
    judge held that the ITO need not disclose reasonable grounds to believe that
    the evidence sought in this case, contraband consisting of firearms and drugs,
    would be found at the place of the proposed search.

[13]

For several reasons, we decline to give effect to this ground of appeal.

[14]

First, and fundamentally, reading the trial judges reasons as a whole,
    as we are required to do, we are not persuaded that the trial judge held that
    the ITO need not disclose reasonable grounds to believe that the evidence
    sought would be found at the place of the proposed search. The more apt
    characterization of the trial judges reasons is that she rejected the
    appellants submission that the information provided by the confidential informants
    had to shoulder the entire burden of establishing a reasonably grounded belief
    that the evidence sought would be found in the apartment.

[15]

Second, the requirement that the ITO contain information that permits
    the issuing justice to conclude that there are reasonable grounds to believe
    that there is anything in a building, receptacle or place that will afford
    evidence of the commission of an offence is a precondition to the issuance of a
    warrant to search that place and seize those things is found in s. 487(1)(b) of
    the
Criminal Code
and s. 11(1)(d) of
CDSA
.

[16]

To determine whether this precondition has been established, the issuing
    justice is to consider the ITO as a whole, not one piece at a time, because
    each piece of evidence colours other pieces of evidence revealing a fuller and
    truer picture only through a consideration of the evidence as a whole:
Re
    Church of Scientology & The Queen (No. 6)
(1987), 31 C.C.C. (3d) 449
    (Ont. C.A.), at p. 502;
Le
, at para. 36. The examination of the
    information as a whole is to be carried out in a practical, non-technical and
    common sense basis. The issuing justice is also permitted to draw inferences.

[17]

Third, neither the statutory enactments nor the common law requires that
    information from a CI be the exclusive source or bear the entire burden of
    establishing the necessary evidentiary foundation for a finding of a reasonably
    grounded belief of the presence of the evidence sought in the place proposed to
    be searched. To be sure, information from an informant services this
    requirement in many instances. But it is not a legal requirement any more than we
    demand that a single item of evidence prove an essential element of an offence.
    The confidential informants provided information that the appellant was in
    possession of a firearm and illicit substances at 45 Wynford Drive. The ITO
    indicated that the police had determined that the appellant resided in
    apartment 1409 and located his car in the parking area. That was sufficient to
    establish a reasonably grounded belief that the evidence sought would be found
    in place of the proposed search. This information distinguishes this case from
Le
where the ITO contained no information that linked the drug dealing to the
    address of the accused, the premises police sought to search under the warrant.

[18]

Fourth, the issuing justice and reviewing judge were both entitled to
    rely upon the opinion of the author of the ITO about the practices of drug
    dealers in connection with the storage of drugs, firearms and assorted
    paraphernalia. That these opinions, if proffered at trial, would fall foul of
    the prohibition against anecdotal evidence adumbrated in
R. v. Sekhon
,
    2014 SCC 15, at para. 50, is beside the point. The contents of an ITO need not
    be compliant with the rules of evidence applicable at trial. After all, neither
    issuance of a search warrant nor a
Garofoli
review hearing is intended
    to test the merits of any of the Crowns allegations in respect of the offence.
    That is done at the trial:
R. v. Pires
;
R. v. Lising
, 2005
    SCC 66, at para. 30.

[19]

Finally, we are not at all persuaded that the reviewing judge considered
    the ITO authors opinion as dispositive of the likelihood of the items sought
    being in apartment 1409. When the ITO was submitted to the issuing justice, its
    author did not know where the appellant would be when he was to be arrested. As
    a result of this uncertainty, police also obtained a warrant to search the
    appellants car. The opinion was an item of evidence relevant to the affiants
    subjective belief and was also relevant to the reasonableness of that belief.
    It was open to the reviewing judge to take it into account in deciding whether
    the search warrant could have issued on the material before the issuing
    justice.

Ground #2: The significance of
    carelessness in the ITO

[20]

The appellant further contends that the trial judge erred in holding
    that the carelessness of the author of an ITO cannot vitiate the warrant.

[21]

Once again, we do not agree.

[22]

The trial judge, sitting on review, recited the governing authorities
    that make it clear that the existence of fraud, non-disclosure and misleading
    evidence are neither conditions precedent to review nor dispositive of whether
    the enabling authority could have been granted:
Garofoli
, at p. 1452.
    Each is a factor to consider. Nothing more and nothing less.

[23]

The trial judge carefully analyzed the credibility of the author of the
    ITO who was cross-examined on the motion. The trial judge considered the error,
    as well as the authors explanation for it. She reached a conclusion she was
    entitled to reach. Her reasons for doing so do not reflect error and are
    entitled to deference.

[24]

It is also important not to lose sight of the trial judges task as the
    reviewing judge. She was not there to conduct a
de novo
hearing or to
    decide what she would have done had the warrant been sought from her. She was
    there, as she appreciated, to determine whether, based on the record before the
    issuing justice, as amplified on review, the warrant could have been issued:
Pires
;
Lising
, at para. 8. This ground of appeal fails.

The Appeal from Sentence

[25]

The appellant also challenges the fitness of the sentence imposed upon
    him, a term of imprisonment in a provincial reformatory of 22 months followed
    by a period of probation of two years. He seeks a reduction in the length of
    the carceral portion of the sentence and invites us to consider ordering its
    service in the community.

[26]

The appellant does not suggest that the sentence was unfit when imposed.
    Quite the contrary. He acknowledges that it was fit, reflecting a proper
    consideration and weighing of the relevant circumstances of the offence and of the
    offender, as well as the applicable sentencing objectives, principles and factors,
    both aggravating and mitigating.

[27]

The appellant asks us to consider his conduct since conviction and his
    release pending appeal. For 18 months the appellant was bound by restrictive
    terms including house arrest. These terms duplicated those on which he had been
    released prior to trial. He has matured as he has grown older. He worked
    steadily and did well.

[28]

Until last weekend, the appellant had completed several years of release
    on strict terms without incident. He is now charged with a
Criminal Code
and a provincial offence as a result of being found in possession of a stolen
    licence plate for a motorcycle and operating a motorcycle without insurance. He
    was released by the investigating officer on these charges. Thus far at least,
    he has not been charged with breach of his recognizance.

[29]

The appellant received substantial credit for his onerous release terms
    when the trial judge imposed sentence at the conclusion of the trial. The
    sentence imposed, in our view, was lenient in light of the serious offences of
    which he was convicted. We do not consider the further restrictive conditions
    of release warrant a further reduction of an already lenient sentence or its
    conversion to a sentence to be served in the community.

Conclusion

[30]

The appeal from conviction is dismissed. Leave to appeal sentence is
    granted, but the appeal from sentence is also dismissed.

Released: June 14, 2016 (R.J.S.)

Robert
    J. Sharpe J.A.

David
    Watt J.A.

David
    Brown J.A.


