



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Daniels, 2017 ONCA 551

DATE: 20170629

DOCKET: C60445

Strathy C.J.O., Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Daniels

Appellant

Breana Vandebeek, for the appellant

Lisa Csele, for the respondent

Heard: June 21, 2017

On appeal from the conviction entered by Justice Kenneth
    L. Campbell of the Superior Court of Justice, sitting with a jury, dated November
    27, 2014.

REASONS FOR DECISION

Background

[1]

At the conclusion of the hearing of the appeal, we dismissed the appeal,
    with reasons to follow. These are those reasons.

[2]

Acting on a tip from a confidential informant, the Toronto police
    obtained a telewarrant to search the appellants apartment, which resulted in a
    seizure of drugs. The appellant was tried before a jury and found guilty of
    possession for the purposes of trafficking. He was sentenced to a 16 month
    conditional sentence. He appeals his conviction and seeks leave to appeal
    sentence.

[3]

The appellant challenged the telewarrant on numerous grounds. The trial
    judge quashed the warrant on the narrow basis that the affiant had failed in
    the ITO to provide any explanation of why it was necessary to resort to the
    telewarrant procedure, rather than appearing in person before a justice of the
    peace. Notwithstanding the violation of s. 8 of the
Charter
, the trial
    judge admitted the evidence obtained from the search under s. 24(2).

Issues

[4]

With respect to the conviction appeal, the appellant argues that the
    trial judge erred: (1) in restricting the appellants cross-examination of the affiant
    of the ITO; (2) in finding there were reasonable and probable grounds to issue the
    warrant; and (3) in not excluding the evidence obtained in the search.

[5]

With respect to the sentence appeal, the appellant argues that the
    sentence is unfit, and the trial judge erred in not granting him credit as a
    result of the
Charter
breach.

Conviction appeal

Cross-examination of the affiant

[6]

The appellant argues that the trial judge made numerous errors in
    restricting the appellants cross-examination of the affiant of the ITO, which
    restrictions frustrated the appellants ability to argue there were not reasonable
    and probable grounds to issue the warrant.

[7]

The main thrust of the appellants argument is that there were numerous
    omissions and misrepresentations in the ITO, which called into question the
    extent to which the affiant provided full, fair, and frank disclosure. The
    appellant hoped to explore, through cross-examination, whether the affiant made
    deliberate misrepresentations, which would constitute an independent basis to
    quash the warrant, and would necessitate a fresh s. 24(2) analysis.

[8]

Chief among the omissions was the failure to advise that the
    confidential informant had never before provided the police with information.
    Among the alleged misrepresentations were statements about: (i) police
    observations of the quantity and location of drug packaging in the hallway and
    stairwell outside the appellant's apartment, (ii) police observations of
    whether the smell of marijuana outside the appellant's apartment was fresh or
    burnt, and (iii) the confidential informants physical description of the
    appellant.

[9]

We do not agree that the trial judge made an error in refusing cross-examination
    on these matters. The decision of whether to permit cross-examination is
    discretionary. In making the decision, the trial judge must determine whether
    there is a reasonable likelihood that the cross-examination could undermine the
    basis upon which an authorizing judge could grant the order.

[10]

The trial judge carefully considered each of the appellant's submissions,
    and assessed whether the information that could be obtained through
    cross-examination on these issues could have vitiated the warrant. He concluded
    no. The reasons given by the trial judge are in every respect a model of care
    and precision of thought. The trial judge painstakingly went through each
    proposed area of examination and explained, through logic and reference to the
    rest of the information contained in the ITO, how the proposed areas of
    examination were either far too speculative or otherwise incapable of
    undermining the order. We find no error.

Reasonable and probable grounds to
    issue the telewarrant

[11]

The appellant argues further that the trial judge erred in rejecting
    several additional bases for quashing the telewarrant, and ought to have
    concluded that there were not reasonable and probable grounds to issue the
    warrant.

[12]

It is well-settled that the question for the reviewing judge is whether
    the warrant could have been issued, not whether the reviewing judge would have
    issued it:
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para.
    40. Here, the trial judge concluded that the issuance of the warrant was
    inevitable, notwithstanding the credibility issues attached to the
    confidential informant (due to his criminal record, lack of a history of
    providing credible tips, participation in drug sub-culture, and self-interest
    in providing information), and notwithstanding various technical drafting
    errors that were made in good faith.

[13]

The trial judge was satisfied that the information was compelling and
    corroborated. The information received was not generic, but specific with
    respect to the types of drugs the informant claimed to have purchased from the
    appellant at his apartment, as well as the details such as drug storage
    location and quantities, and the name, address, and cell phone number of the
    supplier, as well as his physical description.

[14]

With respect to corroboration, the trial judge noted that the police
    confirmed with building management the unit number and telephone number
    supplied by the informant. They attended outside the unit number and smelled a
    strong marijuana odour emanating from the apartment and filling the hallway.
    They also observed drug packaging in the hallway. Additionally, while in the
    apartment building, they were approached by a resident who volunteered that
    the guy in 311 was a problem, and had druggies coming to the door at all
    hours, day and night.

[15]

The trial judge concluded from all of the foregoing that there were ample
    grounds upon which the issuing justice could have issued the warrant, and he
    made no error in doing so.

Section 24(2) ruling

[16]

As stated above, the basis for the trial judges conclusion that the
    search of the appellants apartment infringed s. 8 of the
Charter
was
    the failure to justify the use of the telewarrant procedure. The trial judge
    found that this was not a sufficiently serious breach of the appellants s. 8
    rights to justify an exclusion under s. 24(2) of the drugs seized. The
    appellant has not identified any errors in the trial judges analysis founded
    on that particular breach. Given that we do not give effect to the appellants
    argument that the trial judge erred in not finding additional s. 8 breaches, we
    necessarily reject the appellants s. 24(2) argument premised on those
    additional breaches.

Leave to appeal sentence

[17]

The appellant was sentenced to a conditional sentence of 16 months, plus
    a probationary period of two years. The custodial portion of the sentence has
    been served, but the appellant seeks to have the probation order vacated on the
    basis that he ought to have been granted a sentence reduction for the s. 8
    breach, and also because the sentence was harsh in the circumstances of the
    appellants health issues and lengthy house arrest while on bail.

[18]

There is no error in principle or other error that would permit a
    variation of sentence:
R. v. Lacasse
, [2015] 3 S.C.R. 1089. Leave to
    appeal sentence is refused.

Disposition

[19]

The appeal of conviction is dismissed. Leave to appeal sentence is
    refused.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.


