



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhesi, 2019 ONCA 569

DATE: 20190705

DOCKET: C64531

Doherty, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Manjot Singh Dhesi

Appellant

Melanie J. Webb, for the appellant

Tanit Gilliam, for the respondent

Heard: July 3, 2019

On appeal from the conviction entered on September 6,
    2017 and the sentence imposed on November 10, 2017 by Justice Nyron Dwyer of
    the Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted on one count of possession of cocaine for
    the purpose of trafficking and one count of possession of the proceeds of crime
    ($20,710). He received a sentence of two years less a day, concurrent on both
    charges. The appellant appeals conviction and sentence.

[2]

The police executed a search warrant at the appellants home and
    discovered the cocaine and the cash. As in many drug prosecutions, the
    appellants factual guilt was never in dispute. He argued at trial, however,
    that violations of his constitutional rights warranted either the exclusion of
    the evidence and an acquittal, or a stay of the charges. The trial judge rejected
    those arguments. Counsel renews them in this court.

[3]

The information to obtain the search warrant (ITO) relied heavily on
    information provided by two confidential informants (CIs). The Crown provided
    the defence with a copy of the ITO redacted to protect the identity of the two
    CIs. The Crown conceded at trial that the issuance of the warrant could not be
    justified on the basis of the redacted ITO.

[4]

The Crown invoked what is referred to as step six in
R. v.
    Garofoli
, [1990] 2 S.C.R. 1421. According to step six, the Crown is
    entitled to rely on the unredacted version of the ITO to justify the issuance
    of the warrant, even though the accused does not have access to the unredacted
    version, so long as the court can provide the accused with a judicial summary
    of the redacted portions that is sufficient to make the accused aware of the
    nature of the redacted content of the ITO so as to allow the accused to
    challenge the validity of the warrant:
R. v. Reid
, 2016 ONCA 524, at
    para. 86.

[5]

The trial judge held that the judicial summary, combined with the
    redacted ITO and the other information available to the appellant on the
    warrant, allowed the appellant to engage in a meaningful challenge to the
    warrant. The trial judge held that the appellants right to make full answer in
    defence was not compromised by allowing the Crown to rely on the unredacted ITO.
    There was no s. 7 breach and no grounds for a stay of proceedings [para. 14].

[6]

The trial judge went on to conclude that the contents of the unredacted
    ITO provided a basis upon which the warrant could properly issue. There was no
    breach of s. 8 of the
Charter
, and the evidence was admissible [paras.
    24-26].

[7]

The appellant challenges both the ruling on the adequacy of the judicial
    summary, and the ruling on the ultimate validity of the warrant.

Did the trial judge err in holding that the judicial summary
    was sufficient?

[8]

The trial judge identified and applied the correct principles summarized
    in
R. v. Reid
. His application of those principles to the specific
    circumstances before him is due deference in this court
: R. v. Reid
,
    at para. 92.

[9]

In applying the legal principles, the trial judge referred to the
    contents of the summary at length. He noted several parts of the summary, which
    allowed the accused to make informed submissions about the CIs credibility (e.g.
    the CIs involvement in the drug subculture, and the involvement in prior cases
    with the police), and the cogency of the CIs information (e.g. some, but not
    all, of the information was based on first-hand knowledge and observation). The
    summary also referred to information which had come from other sources and was
    said to corroborate aspects of the CIs information (e.g. the appellants
    address, and the model of his automobile).

[10]

In our view, it was open to the trial judge to reach the conclusion that
    the judicial summary, combined with the other information available to the
    appellant, put him in a position where he could meaningfully challenge the
    basis upon which the warrant issued even though he had not seen the unredacted
    ITO. Step six in
Garofoli
contemplates that an accused will have
    sufficient information as to the nature of the information in the ITO to permit
    meaningful submissions even though the specifics of the content of the ITO are
    not available. Step six does not envision a summary that will actually inform
    an accused as to the contents of the redacted portions of the ITO. That kind of
    summary would seriously compromise the CIs privilege.

[11]

Obviously, an accused operating with a summary rather than a copy of the
    full ITO is at a disadvantage in attempting to show that the warrant should not
    have issued. The step six procedure, however, seeks to balance inherently
    conflicting interests. That balancing inevitably puts some limits on the
    accused that are not present in the normal course of litigation. Those limits
    do not amount to a per se violation of s. 7. The violation arises only if an
    adequate summary cannot be provided.

[12]

The trial judge was satisfied that the information the appellant had
    allowed him to make informed submissions, which would direct the trial judge to
    matters that were relevant to the CIs credibility and the cogency of the information
    provided to the police. We see no basis upon which to interfere with the trial
    judges ruling.

Did the ITO justify the issuance of a warrant?

[13]

A court reviewing the validity of a warrant starts with the presumption
    that the warrant  a judicial order  was lawfully issued. The review of the
    issuing of the warrant is limited to a determination of whether there was a
    basis upon which the warrant could properly issue:
R. v. Garofoli
[1990], 2 S.C.R. 1421, at 1452.

[14]

The ultimate validity of the warrant depended on the contents of the
    unredacted ITO. The trial judge could not, of course, refer to the redacted
    portions of the ITO in explaining why he was satisfied that the warrant would
    issue. His reasons consequently may seem somewhat cursory. The trial judge did,
    however, consider whether the ITO provided information that was germane to the
    credibility of the CIs, the cogency of the information they provided, and
    whether the information they provided was corroborated. He ultimately described
    the CIs information as sufficiently current, very detailed and confirmed
    significant portions by information from other sources.

[15]

Our review of the unredacted ITO satisfies us that it was open to the
    trial judge to make those assessments.

[16]

This ground of appeal fails, the warrant stands.

The Fitness of the Sentence

[17]

The trial judge imposed concurrent sentences of two years less a day.
    His reasons demonstrate that he took into account all of the relevant
    mitigating and aggravating factors. The sentence imposed was within the range
    suggested in
R. v. Woolcock
, [2002] O.J. No. 4927.

[18]

The appellant can point to no error in principle in the reasons. Nor do
    we see any material misapprehension of the relevant evidence. The sentence is
    not manifestly excessive. We see no reason to interfere with the sentence
    imposed.

Conclusion

[19]

The appeal from conviction is dismissed. The appeal from sentence is
    dismissed.

Doherty J.A.

J.C. MacPherson J.A.

M.L. Benotto J.A.


