



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Fortune, 2013 ONCA 421

DATE: 20130621

DOCKET: C54991

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Wilson Fortune

Appellant

Brad Greenshields, for the appellant

Sandy Thomas, for the respondent

Heard:  May 17, 2013

On appeal from the convictions entered by Justice D. A.
    Harris of the Ontario Court of Justice on April 13, 2011.

ENDORSEMENT

[1]

Justin Fortune (the appellant) appeals his convictions of possession of
    heroin for the purpose of trafficking and possession of the proceeds of crime.

[2]

The appellant says that his convictions should be set aside and
    acquittals entered, or a new trial ordered, because the trial judge:


i.

erred in concluding that the
    information to obtain (ITO) filed in support of an application for a
    telewarrant under s. 11 of the
Controlled Drugs and Substances Act
(
CDSA
) contained
    sufficient reliable evidence that might reasonably be believed on the basis of
    which the warrant could have issued; and


ii.

failed to provide reasons sufficient
    for meaningful appellate review to explain his findings that the heroin in the
    appellants possession was for the purpose of trafficking and that the monies
    found in the appellants apartment were proceeds of crime.

Ground #1: The Sufficiency of the
    ITO

[3]

The appellant contends that the ITO was required to raise a
    credibly-based probability that the proposed search would yield evidence of
    heroin in the appellants home. The ITO failed to meet this standard, the
    appellant says, rather could only give rise to a reasonable
suspicion
that heroin might be present, a standard that was not legally sufficient to
    sustain the issuance of the
CDSA
warrant. The appellant submits that,
    in essence, the ITO contained three components:

·

the appellants reputation as a suspected heroin dealer

·

the appearance of an alleged, but unconfirmed heroin supplier at
    the appellants home; and

·

increased vehicular and foot traffic at the appellants home
    after the alleged heroin supplier left.

According to the appellant, neither alone nor in
    combination are these factors capable of establishing the credibly-based
    probability that heroin would be found by the proposed search.

[4]

We disagree.

[5]

The ITO included information from four different confidential
    informants, as well as an anonymous tipster, along with the results of various
    police investigations and physical surveillance of the appellants residence
    and activities contemporaneous with his arrest on August 26, 2009. The
    information contained in the ITO covered a period of about nine months, from
    December, 2008 until the end of August, 2009.

[6]

The information provided by the informants included several heroin
    purchases from the appellant at his residence in both December, 2008 and in
    March, 2009. When making a purchase, one of the informants saw several
    pre-packaged points and halfers of heroin, along with other things
    associated with commercial traffic in heroin, in the appellants apartment.  Each
    of the informants is a heroin user or addict with previous convictions and a
    familiarity with the drug trade in St. Catharines and surrounding area.  At
    least two of the informants had provided information to police on prior
    occasions. The information they provided had resulted in the arrests of several
    people and the conviction of one of those arrested for a trafficking offence
    involving heroin.

[7]

The ITO also contained information from another confidential informant
    and an anonymous tipster that the appellant and his girlfriend were selling
    heroin from their apartment in August, 2009. The information was consistent
    with information police had received from other sources and with police
    surveillance of the appellants residence on the day prior to and the day of
    the execution of the telewarrant. Shortly after a suspected heroin supplier met
    with the appellant, vehicular and foot traffic to the appellants residence
    increased with visitors remaining for only a few minutes.

[8]

In our view, it was open to the justice of the peace to conclude from a
    consideration of the contents of the redacted ITO, together with reasonable
    inferences arising from that information, that there were reasonable grounds to
    believe that the appellant was trafficking in heroin from his residence on
    August 26, 2009, and that a search of the premises would yield the drug,
    assorted paraphernalia associated with trafficking, and the proceeds of
    trafficking activity.

[9]

It follows, in our view, that the reviewing judge properly concluded
    that the ITO contained sufficient reliable information on the basis of which the
    telewarrant could have issued. The standard required by
R. v. Araujo
,
    2000 SCC 65, [2000] 2 S.C.R. 992, at para. 52 was met. The search of the
    appellants home was constitutional and the items seized properly admitted in
    evidence at the appellants trial.

Ground #2: The Sufficiency of the Reasons for Conviction

[10]

The
    second ground of appeal alleges that the trial judges reasons finding that the
    appellant had possession of the heroin found during the search for the purpose
    of trafficking and that the money found at various places in the appellants
    apartment was proceeds of crime were inadequate to permit meaningful
    appellate review.

[11]

Once
    again, we do not agree.

[12]

At
    the end of the case for the Crown, trial counsel for the appellant (not Mr.
    Greenshields) conceded that the evidence established that the appellant was in
    possession of the heroin as well as the currency alleged to be proceeds of
    crime found in the apartment. Counsel invited the trial judge to find the
    appellant guilty of simple possession of heroin.

[13]

Trial
    counsel for the appellant contended that the Crown had failed to prove beyond a
    reasonable doubt that the appellants possession of heroin was for the purpose
    of trafficking and that the cash found around the appellants apartment was
    proceeds of crime.

[14]

It
    is common ground that the trial judge misapprehended the nature of the
    concession of the appellants trial counsel. The trial judges reasons finding
    the appellant guilty as charged are as follows:

As I stated earlier, in light of my ruling, counsel for Mr.
    Fortune conceded that if I did not exclude the heroin, there was sufficient
    evidence for me to be satisfied beyond a reasonable doubt that Mr. Fortune was
    in possession of that heroin for the purpose of trafficking.  That concession
    was amply supported by the evidence in this case, and I am satisfied that the
    Crown has proven beyond a reasonable doubt that Mr. Fortune was in possession
    of heroin for the purpose of trafficking and that he was in possession of
    proceeds of crime less than $5,000.

[15]

The
    appellant acknowledges that the evidence adduced at trial was capable of
    supporting the disputed inferences of purpose and criminal origins and does not
    say that the trial judges conclusions were unreasonable.

[16]

D/C
    Terry Thomson was qualified as an expert in the indicia of trafficking.  Trial
    counsel for the appellant did not challenge the officers qualifications, but
    took issue with his conclusions on the controversial issues. The trial judge
    accepted the officers evidence which was based on the items found on the
    search of the appellants premises. Included were 4.39 grams of heroin,
    packaging materials including tin foil and nearly 6 dozen baggies, a scale, and
    over $3,000 in cash hidden at various places in the apartment. The appellant
    offered no evidence to the contrary.

[17]

Despite
    their brevity, the reasons given by the trial judge permit meaningful appellate
    review in this case.

[18]

In
    this case, the trial judge was not called upon to address troublesome
    principles of unsettled law. Nor to resolve confused and contradictory evidence
    on a key issue. In the end, this case was reduced to the drawing of inferences
    from the evidence as a whole. Evidence that was neither confused nor
    contradictory. Inferences about the purpose for which the appellant had 4.39
    grams of heroin, trafficking paraphernalia, and a significant amount of
    currency in his possession. And inferences about the origins or character of that
    currency in light of the other items found in the appellants apartment.

[19]

We
    are not to view the trial judges reasons on a stand alone, self-contained
    basis. We are to judge their sufficiency not only by what the trial judge said,
    but by what the judge said in the context of the record, the issues, and the
    submissions of trial counsel. Despite the trial judges misapprehension of the
    position of the defence, it is clear that the trial judge was satisfied that
    the evidence adduced at trial proved the essential elements of purpose and
    unlawful origins beyond a reasonable doubt. Acceptance of that evidence makes
    it apparent, without further elaboration, why the appellant was convicted:
R.
    v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at pp. 892-893, and pp.
    897-898; and
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at para.
    37.

c
onclusion

[20]

For
    these reasons, the appeals from conviction are dismissed.

David Watt J.A.

M. Tulloch J.A.

P. Lauwers J.A.


