



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pasian, 2017 ONCA 451

DATE: 20170602

DOCKET: C62378

Cronk, Blair and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Scott Charles Pasian

Appellant

Jonathan Dawe, for the appellant

Anya Weiler and Carolyn Otter, for the respondent

Heard: May 29, 2017

On appeal from the conviction entered on February 26,
    2016 and the sentence imposed on May 26, 2016 by Justice A. Mitchell of the
    Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for various
    drug trafficking offences and offences in connection with the storage and
    possession of a firearm. He also seeks leave to appeal his sentence.

Conviction Appeal

[2]


The conviction appeal
    challenges the application judges
Charter
ruling.
[1]
After finding that the information to obtain (ITO) was insufficient to
    support the warrant for the search of the house located on Prosperity Court,
    the application judge refused to exclude the drugs and other evidence seized in
    the search, under s. 24(2).

[3]

The appellant says the application judge made
    two reversible errors that affected the conclusion in his s. 24(2) analysis,
    that the first branch of the
Grant
inquiry (
R.
    v. Grant,
2009 SCC 32, 2 S.C.R. 353
) favoured admission of the evidence.

[4]

First, the appellant argues that the application
    judge failed to take into consideration in the s. 24(2) analysis, his earlier
    findings that the ITO had omitted material facts (specifically observations of
    the appellants attendances at other addresses during the two days of
    surveillance recounted in the ITO), and included unsubstantiated claims about
    the appellants background from police databases, which the application judge
    characterized as prejudicial and of marginal relevance.

[5]

We disagree. The application judges conclusion
    that the omission of observations suggesting the potential for an alternate
    stash house, and the inclusion of the police database material, were not false
    or deliberately misleading or evidence of bad faith, is entitled to deference.

[6]

Although characterized by the application judge
    as prejudicial and of marginal relevance, the information from the police
    databases situated the appellant in the drug subculture, and could assist in
    understanding the short transactional meetings with people in parking lots that
    were observed in the police  surveillance. Earlier in his reasons, in dealing
    with the s. 8 breach, the application judge observed that this information may
    have provided the affiant with the subjective grounds for belief the appellant
    was involved in drug-related activity and were included for the sake of
    completeness.

[7]

On a fair reading of the application judges
    reasons as a whole, he did not overlook the deficiencies in the ITO in dealing
    with the
Grant

test, but considered
    them when he concluded there was no bad faith, use of false or deliberately
    misleading information or disregard by the police of the
Charter
rights
    of the appellant.

[8]

Second, the appellant contends that the
    application judge erroneously characterized the evidence seized from the house
    as discoverable, which affected his conclusions under both the first and the
    second branches of
Grant.
The appellant says the application judge
    engaged in speculation when he noted that the police might have been able to
    acquire sufficient grounds to justify the search if they had continued their
    investigation further.

[9]

Evidence is discoverable for the purpose of s.
    24(2) when it could have been obtained through lawful means had the police
    chosen to adopt them. Discoverability will have no impact on the inquiry where
    it cannot be determined with any confidence whether evidence would have been
    discovered in the absence of the
Charter
breach:
R. v. Cô
té
, [2011] 3 S.C.R.
    215, at para. 70. It is an error to engage in impermissible speculation in
    assigning weight to discoverability as a factor:
R. v. MacMillan
, 2013 ONCA 109, at para. 63.

[10]

The application judges characterization of the
    evidence as discoverable was based on the fact that, before the warrant was
    issued, and just preceding his arrest, the appellant was observed leaving the
    Prosperity address and without making any stops, engaging in an apparent
    hand-to-hand drug transaction. This observation provided the nexus between the
    Prosperity residence and the appellants drug trafficking the application judge
    considered to be missing from the ITO. The application judges conclusion
    respecting discoverability of the evidence was based on fact, not speculation.

[11]

For these reasons, the conviction appeal is dismissed.

Sentence Appeal

[12]

The appellant seeks leave to appeal his net sentence of imprisonment
    of five years (four years and nine months after credit for restrictive bail
    conditions).

[13]

First, the appellant says that the trial judge erred by imposing a
    concurrent sentence for careless storage of a firearm that exceeded the
    statutory maximum sentence for a s. 86(1) offence (two years imprisonment for
    a first offender). This is conceded by the Crown. The sentence for the s. 86(1)
    offence accordingly is reduced on consent of the Crown to one year imprisonment,
    concurrent to the other sentences.

[14]

Second, the appellant contends that the trial judge erred by
    inferring solely on the basis of the quantity of seized cocaine, that he was a
    mid-level dealer.

[15]

We see no such error. The evidence supported the trial judges
    conclusion beyond a reasonable doubt that the appellant was a mid-level drug
    dealer.  The cocaine in the Prosperity residence consisted of almost a quarter
    kilogram of cocaine divided between several bags and included a large block of
    powder cocaine. It was conceded that the value of the cocaine was approximately
    $23,000. Further, the appellant had quantities of three different controlled
    substances in his room, as well as a loaded semi-automatic firearm. The
    evidence supported the trial judges inference that the appellant was operating
    as a mid-level dealer.

Disposition

[16]

For these reasons, the conviction appeal is
    dismissed, leave to appeal sentence is granted and the sentence appeal is
    allowed in part, in accordance with paragraph 13 of these reasons. In all other
    respects, the appellants sentence remains the same.

E.A. Cronk J.A.

R.A. Blair J.A.

K. van Rensburg J.A.





[1]
The issues on the conviction appeal arise from a ruling made on a
    pre-trial
Charter
application heard by Justice Andrew Goodman, reported
    at 2015 ONSC 1557.


