



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fuller, 2021 ONCA 411

DATE: 20210611

DOCKET: C68362

Benotto, Trotter and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sara Fuller

Appellant

Sara Fuller in person

Breana Vandebeek, as duty counsel

Tanit Gilliam, for the respondent

Heard: June 8, 2021 by video conference

On appeal from the conviction entered on January 22, 2020
    by Justice Jonathan C. George of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Ms. Fuller appeals from her convictions on five counts of possession of
    drugs for the purpose of trafficking.

[2]

The drugs were found in a basement apartment rented by the appellant
    after the police executed a search warrant for the residence as a whole. At the
    time, the police were looking for goods stolen during a break and enter robbery
    at another residence that had occurred a couple of months earlier.

[3]

With respect to that break-in, a witness had observed a black Ford Explorer
    outside the residence. A male came out of the Ford Explorer and broke into the
    residence by kicking in the front door. The witness took a picture of the Ford
    Explorer. The break-in occurred on August 17, 2018. A number of items were
    taken from the residence, including a jewellery box, various different sets of
    earrings, and a ring.

[4]

When the police began their investigation into the break-in, they
    discovered that the Ford Explorer had stolen licence plates affixed to the
    vehicle. A couple of weeks later, the same vehicle was observed at a gas
    station where gas was put into the vehicle and then the vehicle left without
    paying.

[5]

On October 17, 2018, the police located the Ford Explorer at a
    residence. The vehicle was still at this address the next day. The police began
    the process to obtain a search warrant for that residence. However, after
    obtaining the search warrant, but before executing on it, the police discovered
    that the Ford Explorer was no longer at the residence. Rather, the next day, on
    October 19, the police located the Ford Explorer at a second residence, this
    being the residence where the appellant leased the basement apartment.

[6]

The police obtained another search warrant for this second residence. The
    Ford Explorer, still bearing the stolen licence plates, was parked outside. The
    police executed the search warrant. In the process of the search, drugs were
    found in the basement apartment.

[7]

The appellant challenged the issuance of the search warrant for the
    second residence. She submitted that there were insufficient grounds for its
    issuance. In particular, the appellant submitted that there was an insufficient
    basis to believe that the stolen goods would still be in the possession of the individuals
    who committed the break-in, two months after it had occurred and that there was
    an insufficient connection between the vehicle and the residence.

[8]

The trial judge disagreed. While he said that he might have reached a
    different conclusion than the Justice of the Peace who issued the search
    warrant, he correctly stated that that is not the test. The trial judge found
    that there was enough information contained in the Information to Obtain to
    justify the issuance of the search warrant. In particular, he found that there
    was sufficient information for the police to form a reasonably grounded belief
    that the stolen goods would be found in the residence. As the trial judge said,
    absolute certainty and definitive concrete knowledge is not what is required.

[9]

The trial judge did not directly address the staleness argument. However,
    we do not accept that the passage of two months was sufficient to invoke that
    basis for undermining the search warrant. Given the nature of the stolen goods,
    there was no compelling reason to believe that the goods would have been
    disposed of within that time frame. As the British Columbia Court of Appeal
    observed in
R. v. Ballendine
, 2011 BCCA 221, 271 C.C.C. (3d) 418, at
    para. 54:

Merely because information is "dated" does not mean
    it is "stale". While the length of time that has passed is to be
    taken into account in a reasonable-grounds determination, it is but one factor.

[10]

The
    Information to Obtain set out a sufficient basis to believe that the stolen
    goods, or some of them, would still be in the possession of the person who
    committed the break-in. There was a direct connection between that person and
    the Ford Explorer. There is also a direct connection between the Ford Explorer
    and the residence, both from its presence in the driveway of the residence, and
    the presence of prior parking tickets for the vehicle, all related to the area in
    which the residence is located. Thus, it was open to the Justice of the Peace
    to conclude that there were sufficient grounds for the search warrant to issue
    for the residence in question. We do not see any error in that conclusion or in
    the trial judges conclusion upholding its issuance.

[11]

In
    terms of the trial proper, the main objection raised by the appellant is the
    trial judges reference to the failure of the appellant to testify at the
    trial. While it would have been preferable if the trial judge had not engaged
    in that discussion, we are not satisfied that it constitutes an error that
    undermines the ultimate conclusion he reached regarding the guilt of the
    appellant. The trial judge identified the various pieces of evidence that would
    establish possession of the drugs by the appellant. His reference to the
    appellants failure to testify, in this circumstantial case, was only intended
    to demonstrate that there was no evidence that would establish a reasonable
    inference other than guilt, as discussed in
R. v. Villaroman
, 2016 SCC
    33, [2016] 1 S.C.R. 1000.

[12]

The
    appeal is dismissed.

M.L. Benotto J.A.

Gary Trotter J.A.

I.V.B. Nordheimer
    J.A.


