



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Herdman, 2021 ONCA 294

DATE: 20210504

DOCKET: C68137

Doherty, van Rensburg and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trevor Jesse Herdman

Appellant

Cara Barbisan, for the appellant

Michael Dunn, for the respondent

Heard: April 29, 2021 by video conference

On appeal from the conviction entered on June 17, 2019,
    and the sentence imposed on November 29, 2019, by Justice David L. Edwards of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

This appeal was dismissed with reasons to follow. These are our reasons.

[2]

The appellant appeals his conviction for three counts of the possession
    of stolen property, and one count each of possession of stolen property under
    $5,000, possession of cocaine for the purpose of trafficking, and failure to
    comply with a recognizance. He does not appeal his convictions for certain
    other offences. If successful in the appeal, he seeks to reduce the global
    sentence he received and is currently serving.

[3]

There is only one ground of appeal. The appellant submits that the trial
    judge erred in dismissing his challenge under s. 8 of the
Charter
, to
    the validity of a telewarrant issued under the
Criminal Code
, which
    led to the seizure of stolen property and drugs from his residence.

[4]

The appellant contends that, contrary to the conclusion of the trial
    judge, there were no reasonable grounds to believe that the power tools listed
    in the Information to Obtain (ITO) would be found at the place of the
    proposed search because the ITO was based on a tip from a confidential
    informant (CI) that did not meet the
Debot
criteria (
R. v. Debot
,
    [1989] 2 S.C.R. 1140).

[5]

The investigation of the appellant began when a CI told the police that
    the appellant had stolen an ATV. The CI provided the make and license plate
    number for the ATV, as well as its location (in a parking lot behind an
    apartment building on Cleveland St. in Thorold). The police searched the
    license plate and contacted the registered owner of the ATV, who, after
    checking his barn, told them that his ATV and a number of power tools (which he
    listed) had been stolen. The police attended at the Cleveland St. address where
    they saw the ATV and some of the missing power tools in the parking lot. They
    also observed the appellant drive past them slowly, then speed away. CPIC
    inquiries revealed that the appellant had a significant history of prior
    convictions, and that he was bound by a recognizance with a condition that he
    live either at the Cleveland St. address or another address, and was prohibited
    from driving. The property manager at the Cleveland St. address advised that
    the appellant was on the lease for apartment Unit 1 at the Cleveland St.
    address.

[6]

Based on this information, the police applied for a telewarrant pursuant
    to s. 487.1 of the
Criminal Code
to search Unit 1 of the
    Cleveland St. address. The ITO listed the stolen tools as the items to be
    seized in the search and the suspected offences as break and enter and
    possession of stolen property.

[7]

Upon execution of the warrant, the police seized 60.6 grams of cocaine,
    21 oxycodone pills, and the remainder of the missing power tools from Unit 1. A
    subsequent search warrant was obtained and executed to search the appellants
    cell phone.

[8]

The question for the trial judge, in considering the appellants
Charter
application, was not whether he would have issued the telewarrant, but
    whether it was open to the issuing justice to have done so. The question was
    whether the ITO, in its redacted form, disclosed reasonable grounds to believe
    that there was evidence respecting the commission of an offence at the location
    to be searched:
R. v. Herta
, 2018 ONCA 927, 143 O.R. (3d) 721, at
    para. 20. This court will not interfere with a decision made in a
Garofoli
application
    absent an error in law, a misapprehension of the evidence or a failure to
    consider relevant evidence:
R. v. Grant
(1999), 132 C.C.C. (3d) 531
    (Ont. C.A.), at para. 18, leave to appeal refused, [1999] S.C.C.A. No. 168.
    There is no such error here. Essentially, the appellant invites this court on
    appeal to reweigh the
Debot
factors.

[9]

The trial judge properly found that the CI rated low in terms of
    credibility: confidential information about the CI had been redacted from the
    ITO, so that the only available information was that the CI may or may not
    have a criminal record and that, while the CI was believed to be truthful, the
    police had never before acted upon information that the CI had provided. The
    trial judge went on to consider whether the tip was compelling and
    corroborated. He reminded himself that the totality of the circumstances must
    meet the standard of reasonableness, and that strengths in one area may
    compensate for weaknesses in another:
Debot
, at p. 1168;
Herta
,
    at para. 34.

[10]

Contrary
    to the appellants argument, there was no error in the trial judges conclusion
    that the information provided by the CI was highly compelling and
    significantly corroborated.

[11]

Whether
    a CIs tip is compelling depends on the quality of the information provided.
    A more detailed tip will be more compelling, as will a tip that is more recent:
Herta
, at para. 42;
R. v. Rocha
, 2012 ONCA 707, 112 O.R. (3d)
    761, at para. 18. In this case, as the trial judge observed, the tip was
    specific regarding the person, item and time; that is, that the appellant
    stole an ATV bearing a particular license plate number, and that the ATV could
    be found at the rear of the Cleveland St. address.

[12]

As
    for corroboration, the trial judge identified the investigative steps that were
    taken by the police that confirmed the currency of the information provided by
    the CI, that the specific ATV identified by the CI had in fact been stolen and
    that it was located where the CI said it was, in a parking lot at the Cleveland
    St. address.

[13]

In
    any event, the issue was whether reasonable grounds existed for the issuance of
    the search warrant. There was no question that the police had reasonable
    grounds to believe that an offence had been committed as the owner of the ATV
    confirmed that the ATV as well as various tools had been stolen. Whether there
    were reasonable grounds to believe that evidence would be found at Unit 1 of the
    Cleveland St. address depended on the entirety of the ITO, which contained not
    only the compelling and corroborated information from the CI, but also the
    other information provided by the police investigation: the fact that some of
    the tools were located in the same parking lot as the stolen ATV, confirmation
    that the appellant lived in a particular unit at that address, information
    about the appellants criminal record, including for possession of stolen
    property, and the appellant speeding away after he was seen by the police.
    Based on all the circumstances disclosed in the ITO, it was reasonable to
    believe that evidence of the offence, such as the other stolen tools, would be
    found in the appellants unit.

[14]

The
    appellant demonstrated no error in the trial judges determination of his
Charter
application. For these reasons the appeal was dismissed.

Doherty J.A.

K. van Rensburg J.A.

J.A. Thorburn J.A.


