



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2017 ONCA 855

DATE: 20171107

DOCKET: C61733

Simmons, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cat Tuong Nguyen

Appellant

Colin Wood, for the appellant

Tanit Gilliam, for the respondent

Heard: November 3, 2017

On appeal from the conviction entered on October 2, 2015
    by Justice J. Woollcombe of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION


[1]

Mr. Nguyen appeals from his conviction on various drug offences.  The
    sole issue is whether the trial judge correctly concluded that a search warrant
    obtained by the police, and which led to the discovery of drugs in the appellants
    home, was properly obtained.  At the conclusion of the hearing, we dismissed
    the appeal with reasons to follow.  We now provide those reasons.

[2]

The basic facts are that the police received tips from two confidential
    informants that Vincent Zmija was dealing drugs.  The police commenced an
    investigation.  They quickly linked David Stewart to Mr. Zmija.  The police
    came to believe that Mr. Stewart was supplying drugs to Mr. Zmija.

[3]

The police engaged in surveillance of Mr. Stewart.  After a brief visit
    to Mr. Zmijas home, Mr. Stewart attended at an address on Paulander Drive in
    Kitchener.  Mr. Stewart went into a particular unit at that address.  A vehicle
    registered to the appellant was in the driveway of that unit.

[4]

Mr. Stewart left the unit a very short time after he entered.  He had a
    black backpack with him, both when he went into the unit and when he left the
    unit.  He placed the black backpack in his vehicle.  The police followed Mr.
    Stewart.  Based on their accumulated knowledge from the investigation, the
    police stopped Mr. Stewart and arrested him on drug charges.  In the black
    backpack, the police found 1/2 pound of marijuana and one ounce of cocaine.

[5]

The police then sought a search warrant for the Paulander address.  The
    search warrant was granted.  The police executed the search warrant.  They
    found the appellant sleeping in one of the bedrooms in the unit.  The police also
    found a quantity of marijuana along with other drugs, including cocaine, three
    digital scales and four cellular telephones.

[6]

The appellant contends that the search warrant was issued in breach of
    his rights under s. 8 of the
Charter
.  The appellant contends that
    material misstatements and/or omissions were made in the ITO upon which the
    search warrant was obtained.  More specifically, the appellant takes issue with
    the following:

1.

The affiant of
    the ITO did not reveal that the vehicle in the driveway, while registered to
    the appellant, was registered to an address different from the Paulander
    address.

2.

The affiant of
    the ITO did not accurately reflect the contents of the police interview
    conducted of Mr. Stewart, including that Mr. Stewart did not positively
    identify the appellant as the person from whom he had purchased the drugs.

3.

There was no
    evidence that drugs would be found at the Paulander address.

[7]

The trial judge considered each of these issues and concluded, correctly
    in our view, that they did not, either individually or collectively, invalidate
    the search warrant.

[8]

Two basic principles apply to our review of the trial judges decision. 
    One is that the trial judges factual conclusions are entitled to deference:
R.
    v. Ebanks
(2009), 97 O.R. (3d) 721 (C.A.).  The other is that the test on
    a challenge to a search warrant is not whether the reviewing judge would have
    granted the warrant but, rather, whether there is any basis upon which the
    search warrant could have been issued:
R. v. Garofoli
, [1990] 2
    S.C.R. 1421.

[9]

We agree, as the trial judge did, that the registered address for the
    appellants vehicle ought to have been included in the ITO.  However, its
    omission is not material to the basis for the issuance of the search warrant. 
    As the affiant explained, the search warrant was not directed at the
    appellant.  It was directed at the address where the police drew the reasonable
    inference that Mr. Stewart had obtained his drugs.  That reasonable inference
    also diminishes the importance that the appellant places on the fact that there
    was no evidence that there were drugs at the Paulander address.  Admittedly,
    there was no direct evidence but that does not change the fact that a
    reasonable inference could be drawn that drugs would be found in the residence,
    given what the police had observed and given the drugs found in the possession
    of Mr. Stewart immediately after he left that address.

[10]

We
    also agree with the trial judge that there was no material misrepresentation of
    the contents of the interview that the police conducted with Mr. Stewart. The
    impugned portion of the ITO states: [f]urthermore,
Stewart
acknowledged the fact that he had just purchased the
    aforementioned cocaine and marihuana in Kitchener from his drug dealer just
    before being arrested by police.

[11]

During
    his interview, Mr. Stewart was very careful in the manner in which he answered
    the officers questions.  Thus, while he did not identify the appellant as the
    supplier of his drugs, he did make it clear that he had only one supplier.  The
    specific questions and answers are:

D/Cst  Well you bought off of him the one time.  Well we
    know at least one time today, right:

STEWART  Ive only got one guy.  Thats all I can say.

D/Cst  You only got one guy?

STEWART  Yeah.

D/Cst  And its the guy that you got off today, right?  It
    only makes sense, right?

STEWART  Logically.

[12]

Later
    in the interview, Mr. Stewart said that he got $500 from Mr. Zmija and then I
    went and saw my guy.

[13]

Admittedly,
    Mr. Stewart did not specifically identify the appellant as his drug supplier.  However,
    the interview read fairly and as a whole leads to the reasonable inference that
    Mr. Stewart had obtained his drugs from the Paulander address immediately
    before he was arrested.  The police had followed Mr. Stewart to that address
    and after he left that address.

[14]

In
    the end result, we agree with the trial judges conclusion that there was no
    breach of the appellants s. 8
Charter
rights arising from the
    issuance of the search warrant.  The appeal is consequently dismissed.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.


