



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Christiansen, 2017 ONCA 941

DATE: 20171204

DOCKET: C62282

Epstein, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Christiansen

Appellant

Joseph Wilkinson, for the appellant

James D. Sutton and Christa Reccord, for the
    respondent

Heard: November 28, 2017

On appeal from the conviction entered on December 1, 2015
    by Justice Douglas C. Shaw of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

Ryan Christiansen was convicted after a jury trial of two counts of
    possessing narcotics for the purpose of trafficking, and one count of possessing
    proceeds of crime, $21,500. The narcotics, oxycodone and cocaine, were seized
    under warrant from a leased unit, 105-212 Miles St. in Thunder Bay (the Unit).
    The money was discovered when a search warrant was executed at Mr.
    Christiansens home.

[2]

When the investigation commenced, the police suspected that Mr.
    Christiansen was engaged in drug trafficking in association with a
    co-principal, Mr. Tony Napolitano, out of a clothing store called Limited
    Edition. Surveillance of the men ultimately linked Mr. Napolitano to the Unit,
    which he was renting and that he had attended on several occasions. On April 9,
    2013, Mr. Christiansen was seen entering the Unit carrying a white box. A short
    time later he left carrying a different box.

[3]

The police suspected that the Unit was Mr. Christiansens and Mr.
    Napolitanos stash house. That same day they sought and obtained a general
    warrant pursuant to s.487.01 permitting covert entry into the Unit.

[4]

In the Case Overview of the Information to Obtain (ITO) the affiant
    disclosed that the general warrant is being sought to gather information that
    the evidence of trafficking is presently located inside the [Unit], to support
    the issuance of a
Controlled Drugs and Substances Act
(
CDSA
) Warrant
    to search.  A general warrant was ultimately issued for that purpose. It
    authorized the location and observation of narcotics, as well as the recording
    of evidence and the seizure of samples.

[5]

When they entered the Unit pursuant to the general warrant the police
    confirmed the presence of narcotics. Relying on these observations, they secured
    a
CDSA
s. 11 warrant authorizing the search and seizure of evidence at
    the Unit and then at Mr. Christiansens home. This evidence led directly to Mr.
    Christiansens convictions.

[6]

Mr. Christiansen appeals his convictions. His grounds of appeal relate
    both to the jury charge and to the trial judges decision upholding the general
    warrant.

[7]

The challenges to the jury charge include the decision of the trial
    judge to leave
Criminal Code

s. 21(2) to the jury as an avenue
    of conviction. Mr. Christiansen says that s. 21(2) should not have been left
    with the jury because there was no air of reality in the evidence for common
    purpose liability that s. 21 (2) provides for.  Moreover, the trial judge
    failed to instruct the jury on the elements of s. 21(2). He simply read them
    the provision. This raised the prospect that jurors might have taken an
    impermissible path to conviction.

[8]

The Crown concedes the trial judge erred in these respects.

[9]

In disposing of this appeal, however, we need not determine the legal
    significance of these conceded jury direction errors, or resolve whether there
    were other mistakes in the jury direction, as claimed. Rather, we are allowing
    this appeal based on the improper use of the general warrant.

[10]

General warrants under s. 487.01 authorize the use of investigative
    techniques, procedures or devices, or other things to be done, that would
    otherwise constitute unreasonable searches. Subsection 487.01(c) restricts
    general warrants to cases where there is no other [legislation] that would
    provide for a warrant, authorization or order permitting the technique,
    procedure or device to be used or the thing to be done. The Supreme Court
    dealt with this legislative restriction in
R. v. TELUS Communications Co.
,
    [2013] 2 S.C.R. 3, [2013] S.C.J. No. 16. Justice Moldaver explained, at para.
    80, that this requirement ensures that general warrants are to be used
    sparingly when the investigative technique is truly different in substance
    from an investigative technique accounted for by another legislative
    provision. He explained that s. 487.01(c) serves to ensure that general
    warrants may not be used as a means to circumvent other authorization
    provisions that are available but contain more onerous pre-conditions.

[11]

In this case, the general warrant was issued, in substance, for the same
    investigative technique available under
CDSA
, s. 11, namely, to search
    the Unit.  The police could not satisfy the requirements for a search under
CDSA
,
    s. 11 because they did not have reasonable and probable grounds to believe
    there was evidence at the Unit. In effect, the police used the general warrant
    for the impermissible purpose of circumventing the standards required for obtaining
    a
CDSA
s. 11 warrant.

[12]

As a result, the trial judge erred in not quashing the general warrant. In
    our view, there was no basis in the ITO enabling a reasonable issuing judge to
    conclude that s.487.01(c) was satisfied.

[13]

The Crown appropriately concedes that if the general warrant is invalid,
    Mr. Christiansens conviction cannot stand, for if a trial judge was to exclude
    the evidence obtained as a result of the general warrant, Mr. Christiansens
    finding of guilt could not be sustained.

[14]

We therefore allow the appeal, set aside the convictions against Mr. Christiansen,
    and order a new trial.

Gloria
    Epstein J.A.

David
    M. Paciocco J.A.

I.V.B.
    Nordheimer J.A.


