



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clairoux, 2018 ONCA 629

DATE: 20180711

DOCKET: C56809

Doherty, MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Clairoux

Appellant

Diane Condo, for the appellant

Sandy Thomas, for the respondent

Heard: July 4, 2018

On appeal from the conviction entered by Justice Jacqueline
    Loignon, of the Ontario Court of Justice, on February 27, 2013.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for possession of cannabis resin, a
    Schedule II substance, for the purpose of trafficking.

[2]

The charges against the appellant came about as part of a broad
    investigation into drug trafficking, money laundering, intimidation and debt
    collection associated with the Hells Angels and a group of individuals called
    Order, Respect and Loyalty (ORL). During the course of that investigation,
    the police obtained two authorizations to intercept communications of the
    appellant and others as well as a number of search warrants including for the appellants
    residence and a clubhouse he frequented.

[3]

When the police executed the search warrants on the appellants
    premises, they seized two digital scales, ziplock bags with particles of marijuana,
    a hash press, various containers with packaged marijuana and cannabis leaves,
    652 grams of tetrahydrocannabinol, 958.4 grams of cannabis resin and 795.6
    grams of cannabis marijuana.

[4]

The appellant was charged with possession of the drugs for the purpose
    of trafficking, along with conspiracy to traffic, various criminal organization
    offences, and possession of the proceeds of crime. He was only convicted of
    possession of cannabis resin for the purpose of trafficking. The appellant was
    acquitted on the charge related to the 795.6 grams of cannabis marijuana, as he
    possessed a medical certificate permitting him to possess 1100 grams of
    marijuana.
[1]

[5]

At trial, the appellant challenged the sufficiency of the grounds for
    the two authorizations as well as the search warrants. He also alleged that the
    justice of the peace who issued the two search warrants was biased as there had
    been an indirect familial link and some resulting social contact between the
    justice of the peace and the appellant. There had, however, been no contact for
    a number of years.

[6]

The trial judge rejected the challenges to the sufficiency of the
    grounds for the authorization and the warrants, but accepted that the
    relationship between the appellant and the issuing justice gave rise to a
    reasonable apprehension of bias. After carrying out a s. 24(2) analysis, the
    trial judge determined that the drugs and other items seized would nonetheless
    be admitted.

[7]

The appellant restricts his appeal to the validity of the two search
    warrants, the trial judges s. 24(2) analysis and the trial judges finding that
    the cannabis resin was possessed for the purpose of trafficking.

The validity of the search warrant

[8]

The appellant argues that the trial judge erred in finding that the
    search warrant for the appellants residence was validly issued. He argues that
    the Information To Obtain (ITO) did not contain any information to suggest that
    drugs or the other objects listed on the ITO could be found at the appellants
    residence and that the affiant misled the issuing justice by stating in the ITO
    that the appellant was directly involved in the large-scale trafficking of
    controlled substances. As conceded by the police affiant, they had never
    observed the appellant actually trafficking a controlled substance or being
    engaged in a drug deal.

[9]

We reject this submission, which was considered and rejected by the
    trial judge. She explained that, read in the context of the remainder of the
    67-page ITO, it would have been apparent to the issuing justice that the
    appellants involvement was as a co-conspirator in the scheme to traffic drugs.
    The evidence contained in the ITO included the fact that the appellant had received
    a large sum of money from a target of the investigation and attended the stash
    house. The wiretaps also provided evidence that the accused had arranged drug
    buys and was involved with payments and debts. In our view, the trial judges
    finding is reasonable and we see no basis to interfere. It is to be recalled
    that an ITO must be read as a whole and words and phrases are not to be improperly
    parsed and read in isolation.

[10]

We
    also reject the appellants submission that the ITO did not contain any
    information to suggest that evidence of the conspiracy would be found in the
    appellants home. While there may have been insufficient grounds to believe
    that narcotics would be found, the ITO made it clear that the appellant was
    alleged to be part of a conspiracy to commit an indictable offence, namely,
    trafficking in controlled substances. His involvement was such that electronic
    messages, ledgers of drug debts or other evidence relevant to the existence of
    a criminal organization might be found.

The s. 24(2) analysis

[11]

The
    appellant argues that in her s. 24(2) analysis the trial judge understated the
    seriousness of the
Charter
-infringing state conduct. The appellant
    repeats his submission that the ITO lacked the foundation for the issuance of
    the warrant, and adds that the trial judge failed to acknowledge the seriousness
    of the appearance of bias on the part of the issuing justice. Had she given the
    appropriate weight to these factors, she would, at the balancing stage, have
    concluded that the seized drugs and other items ought to be excluded.

[12]

We
    disagree. The search warrant was set aside because of a reasonable apprehension
    of bias on the part of the issuing justice. There was no evidence to suggest
    that the police had any knowledge of a familial or other connection between
    that justice of the peace and the appellant. Further, as we have explained, we
    do not agree with the appellants submission that the ITO contained
    misstatements by the police affiant or that there was an inadequate basis for the
    issuance of the warrant. The police acted properly and in good faith throughout,
    which favours the inclusion of the evidence.

[13]

The
    s. 24(2) analysis begins from the premise that the
Charter
breach at
    issue has already done harm to the administration of justice. The appearance of
    bias on the part of the issuing justice led to the finding that the warrant was
    invalid, and the search was therefore deemed warrantless. In considering
    whether the improperly obtained evidence should nonetheless be admitted under
    s. 24(2), the question is whether the admission of the evidence will do further
    damage:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 69-70.

[14]

In
    our view, the admission of the evidence on the specific facts of this case
    would not do further harm to the administration of justice than has already
    been done. There was no basis to suggest that the issuance of the search
    warrant by the justice of the peace was made in bad faith or as the result of
    actual bias. In fact, as noted earlier, there were ample grounds for the
    issuance of the warrants. As found by the trial judge, the concern was the
    public perception that, in light of the relationship, there would be a
    reasonable apprehension of bias. A reasonable person informed of these
    circumstances, having regard to the good faith conduct of the police, the seriousness
    of the charges, the reliability of the evidence and its critical role in the
    Crowns case, would not find that the repute of the justice system would
    require the evidence to be excluded. We agree with the trial judge that, to the
    contrary, in these circumstances, the exclusion of the evidence could undermine
    public confidence in the justice system. The trial judges discretionary
    decision, in balancing all of these factors, is entitled to deference:
R. v.
    Bennett
, 2017 ONCA 780, [2017] O.J. No. 5264, at para. 64.

Possession for the purpose of trafficking

[15]

We
    also reject the appellants submission that the appellant was allowed to
    possess cannabis resin pursuant to his medical marijuana licence and that the
    trial judge erred in finding that the possession of the resin was for the
    purpose of trafficking.

[16]

The
    trial judge rejected the appellants explanation for his possession of the
    cannabis resin as well as his explanation for being in possession of a hash
    press. Further, the appellants medical marijuana certificate does not provide
    for possession of cannabis resin and there was no evidence at trial that the
    resin was possessed for medical purposes. The trial judges finding that the
    appellants possession was illegal is entitled to deference.

[17]

As
    for the finding that possession was for the purpose of trafficking, the nature
    and quantity of the drugs and other materials seized from the appellants
    residence amply supports the trial judges inference of possession for the
    purpose of trafficking. Significantly, this finding made the fact that the appellant
    was holder of a medical marijuana certificate irrelevant.
R. v. Smith
,
    2015 SCC 34, [2015] 2 S.C.R. 602, on which the appellant relies, therefore has
    no application.

[18]

As
    a result, we dismiss the appeal.

Doherty J.A.

J.C. MacPherson J.A.

Paul Rouleau J.A.





[1]

The record indicates that the appellants certificate in fact allowed
    for the possession of 1125 grams of marijuana.


