



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Prosser, 2016 ONCA 617

DATE: 20160805

DOCKET: M46781 (C59645)

Weiler J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Calvin Prosser

Applicant

David Butt, for the applicant

John Neander, for the respondent

Heard: August 4, 2016

ENDORSEMENT

[1]

The applicant, a young man, seeks his release from custody pending the
    determination of his application for leave to appeal to the Supreme Court of
    Canada pursuant to s. 679(1)(c) of the
Criminal Code
.

[2]

On June 14, 2016, this court dismissed the applicants appeal against
    conviction for trafficking contrary to s. 5(2) of the
Controlled Drugs and
    Substances Act
and the following offences under the
Criminal Code
:
    possession of a loaded prohibited firearm (s. 95(1)), possession of a firearm
    without a licence (s. 92(2)), possession of proceeds of crime (s. 354(1)).
    While leave to appeal sentence was granted, the court also dismissed the appeal
    from sentence of two years and six months in the penitentiary. See
R. v.
    Prosser,
2016 ONCA 467.

[3]

The applicant submits that he meets the criteria for granting judicial
    interim release, namely, that the application for leave to appeal is not
    frivolous, that he will surrender himself into custody in accordance with the
    terms of the order granting his release and that his detention is not necessary
    in the public interest. In addition, the applicant points out that if his
    release is not granted, his application for leave to appeal will essentially be
    rendered moot because he will be eligible for parole on October 15, 2016, before
    the Supreme Court is likely to decide whether or not to grant leave. The Crown
    acknowledges that this is a factor to consider.

[4]

The Crown opposes the application primarily on the public interest
    ground. The Crown points out that during the eighteen month period the
    applicant was on bail pending his appeal to the Court of Appeal, he was charged
    with another offence not long before the hearing of his appeal. More
    importantly, where the conviction has already been affirmed on appeal and the
    first two grounds for granting release have been met, the court has factored
    into the public interest requirement the likelihood of leave being granted and
    the fact that leave to appeal to the Supreme Court is granted sparingly. See
R.
    v. Drabinsky,
[2011] O.J. No. 4491 (C.A.) at para. 11, Doherty J.A. in
    chambers;
R. v. Fundi
[2012] O.J. No. 1556 (C.A.) at para. 14, Hoy
    J.A. in chambers.

[5]

In his application for leave to appeal, the applicant raises two grounds
    of appeal. They are: (1) whether police anecdotal opinion evidence provides
    reasonable and probable grounds necessary to issue a search warrant to enter a
    dwelling home, and 2) whether special advocates should be allowed to
    participate in a challenge to a redacted search warrant (step 6 of
R. v.
    Garofoli
, [1990] 2 S.C.R. 1421).

[6]

The applicant acknowledges that the second ground of appeal, which was
    not raised at trial, would not be sufficient to warrant granting judicial
    interim release. Having regard to
R. v. Reid,
[2016] O.J. No. 3554,
    2016 ONCA 524, and the similar factual background to this case, I agree.


[7]

In respect of the first ground of appeal, the applicant submits that the
    decision of this court conflicts with the decision of the Court of Appeal in
R.
    v. Le,
2014 B.C.C.A. 166.

[8]

The Crown acknowledges that there is a factual similarity between the
    two cases but submits this Court appropriately distinguished
Le
on the
    facts and that no conflict exists that would give rise to an issue of national
    importance. He submits that in all the circumstances the appellants prospect
    of obtaining leave is so remote that the public interest favours enforceability
    of this Courts decision and the application should be dismissed.

[9]

Both
Le
and
Prosser
involve a review of the
    sufficiency of a warrant to search a residence where the live issue is whether
    the information to obtain (ITO) has set out sufficient grounds that the items
    sought are at the residence. In
Le,
the court effectively agreed that
    the police cannot obtain a search warrant for a residence based on the
    proposition that, because the accused is trafficking in drugs, there must be
    drugs at his home. The
Prosser
court distinguished
Le
on the
    facts, one of which was that the confidential informants provided information
    that the appellant was in possession of a firearm and illicit substances at his
    apartment building, 45 Wynford Drive, in Toronto but did not give the exact
    apartment in which he resided. The police established that he resided in
    apartment 1409 based on information obtained from the superintendent of the
    building and located his car in the parking area. The court held at para. 17 of
    its reasons that, considering the ITO as a whole, the information was
    sufficient to establish a reasonably grounded belief that the evidence sought
    would be found in the place of the proposed search. It commented:

This information distinguishes this case from
Le
where
    the ITO contained no information that linked the drug dealing to the address of
    the accused, the premises police sought to search under the warrant.

[10]

However, the fourth and last reason the
Prosser
court gave for
    dismissing the appeal was that the issuing justice and reviewing judge were
    entitled to rely upon the opinion of the affiant as to the practices of drug
    dealers in connection with the storage of drugs and firearms.

[11]

Having regard to all the circumstances, I am satisfied that the
    appellant has shown that his continued detention pending the determination of
    his application for leave to appeal is not necessary in the public interest and
    I hereby grant the application on the terms submitted in the draft order.

[12]

I am indebted to counsel for their well-prepared and well-argued motion.

Karen M. Weiler J.A.


