




CITATION:
R. v. Tohl, 2012 ONCA
          9



DATE: 20120106



DOCKET: C52458



COURT OF APPEAL FOR ONTARIO



Sharpe, Blair and Rouleau JJ.A.



BETWEEN:



Her Majesty the Queen



Respondent



and



Mohamad Tohl



Appellant



Mohamad Tohl, in person



C. Mainville, Duty Counsel

V. Goela for the Public Prosecution Service of Canada



Heard: December 22, 2011

On appeal from  convictions imposed by Justice Michel
          Charbonneau of the Superior Court of Justice dated June 25, 2010.



ENDORSEMENT

[1]

Mr. Tohl seeks to set aside his convictions for possession of cocaine
    and marihuana for purposes of trafficking, and for unlawful possession of
    proceeds of property obtained by crime.  As duty counsel on his behalf, Ms.
    Mainville ably argued,

a)

that the trial judge erred in concluding that there were sufficient
    grounds to issue the search warrant in respect of his residence; and,

b)

that in light of the fact the search warrant  which had been issued in
    Quebec  was endorsed in Ontario without the proper record being placed before
    the endorsing justice, the trial judge erred in concluding that there was no
    violation of the appellants s. 8
Charter
rights.

[2]

We reject these arguments.

[3]

We did not find it necessary to call on the Crown with respect to the
    warrant endorsement issue.  The Ontario Justice of the Peace who endorsed the
    warrant had the warrant before her.  We are satisfied that in the circumstances
    of this case the warrant contained sufficient information to enable to conduct
    her statutory duty under s. 11(3) of the
Controlled Drug and Substances Act
S.C.
    1996, c 19, which is to endorse the warrant as a justice having jurisdiction in
    Ontario.  There is nothing in the record to indicate she failed to carry out
    her duties properly in this regard.

[4]

Nor would we give effect to the argument that there were insufficient
    grounds set out in the information to obtain the warrant (the ITO) on which
    the issuing justice in Quebec could have issued the warrant to search Mr.
    Tohls residence at 1380 Prince of Wales Dr. in Ottawa.

[5]

The trial judge applied the correct test for review of a search
    warrant.  There was more than ample evidence in the ITO, as he found, to
    support the conclusion  for purposes of issuing the warrant  that Mr. Tohl
    was actively engaged in supplying drugs to the Chahwan brothers on a regular
    basis and in substantial amounts, and that he had a supplier who was known by
    police to be a large drug supplier himself.  At the same time, the trial judge
    noted that there must be a link with the place to be searched, namely in this
    case, his residence, in order to justify the warrant.  The issue is whether
    the evidence, as a whole, is sufficient to establish that link here.

[6]

We agree with Ms. Mainville, that the trial judge appears to have
    overstated the evidence of that connection somewhat.  He concluded that there
    were a number of pieces of evidence which indicate a link to the place to be
    searched,  In this respect, the trial judge said:

Mr. Tohl, during all
    of this period when he was under surveillance, on a number of occasions, left
    his residence and went directly to the residence of [Mr.] Chahwan in
    circumstances, which under surveillance, led the police to suspect that he was
    bringing drugs to Mr. Chahwan.  He was observed attending at the residence of
    Mr. Elouta, the larger supplier I have talked about, picking up some packages
    and then coming back to his own residence in the context also that led the
    investigators or the surveillance officers [to believe] that he was picking up
    drugs and he, at that point in time, returned to his residence.  On a number of
    occasions, when he drove to the Chahwan residence, not long after the
    undercover agents purchased drugs, again the surveillance established him as
    being the person in control of this apartment at 1380 Prince of Wales.

[7]

The ITO does not support the finding that on a number of occasions the
    surveillance showed that Mr. Tohl left his residence and went directly to the
    residence of [Mr.] Chahwan.  There appears to be no such direct evidence. However,
    we are satisfied that despite this error, there was sufficient evidence to
    establish the required link with the appellants residence and to support the
    conclusion that Mr. Tohl was the person in control of the apartment at 1380
    Prince of Wales St. in Ottawa.  There is also direct evidence of one occasion
    on which Mr. Tohl attended at the residence of his supplier, Mr. Elouta,
    apparently obtained a quantity of drugs there, and returned directly to his
    residence.

[8]

In addition, there is one other piece of evidence in the ITO that, when
    considered in the light of the rest of the evidence, supports an inference that
    there may be evidence of drug crime activity in Mr. Tohls home: Mr. Tohl has
    been arrested on drug-related charges before and the last time he was, he was
    found to have almost a kilo of cocaine in his possession at his home.

[9]

Accordingly, and notwithstanding that the trial judge overstated the
    evidence of a direct connection between the drug dealing and Mr. Tohls
    residence, we are satisfied that there was sufficient evidence in the ITO from
    which the issuing judge could reasonably have inferred that a search of Mr.
    Tohls premises at 1380 Prince of Wales in Ottawa would reveal evidence of
    criminal activity contrary to the
Controlled Drugs and Substances Act
.

[10]

The appeal is therefore dismissed.

Robert J. Sharpe J.A.

R.A. Blair J.A.

Paul Rouleau J.A.


