



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Bond, 2021 ONCA 730

DATE: 20211019

DOCKET: C67283

MacPherson, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Bond

Appellant

Craig Zeeh and Jessica Zita, for the appellant

Mabel Lai, for the respondent

Heard: September 29, 2021 by video conference

On appeal from the convictions entered on June 11, 2018
    and the sentence imposed on October 23, 2018 by Justice David L. Corbett of the
    Superior Court of Justice.

MacPherson J.A.:

A.

Introduction

[1]

In a judge alone trial, the appellant was convicted of several offences
    relating to drugs and a firearm. He received a global sentence of 11 years,
    less 2 years and 11 months for pre-trial custody. The appellant appeals the
    convictions and sentence.

[2]

The principal grounds of appeal relating to the convictions are that the
    trial judge erred in upholding the warrants that led police to discover the
    drugs and firearm and in his treatment of the warrantless pinging of the
    appellant's cell phone, including his finding that the evidence obtained under
    the warrants that the appellant says was derived from the pinging should not
    be excluded under s. 24(2) of the
Canadian Charter of Rights and Freedoms
.

[3]

The only ground of appeal relating to the sentence is that the trial
    judge erred in his calculation of credit for pre-trial custody.

B.

facts

(1)

The parties and events

[4]

Four confidential informants led police to believe that the appellant
    was dealing cocaine from an apartment on Jane Street in Toronto and was
    habitually armed with a semi-automatic handgun. Three informants had proved
    reliable in the past and one had never previously provided information to
    police.

[5]

Using location pings from a cell tower to the appellants cell phone, in
    addition to database searches and surveillance, police found three addresses
    with which the appellant was associated and where he was suspected of dealing
    cocaine. They also found that the appellant had a lengthy criminal record.

[6]

On December 27, 2016, the police applied to a Justice of the Peace for
    search warrants relating to those addresses with which Bond was associated: a
    residential apartment (the apartment), a commercial condominium (the
    commercial unit), and a green Honda Accord (the vehicle).

[7]

At 2:32 p.m. on December 27, the Justice of the Peace denied the
    warrants and provided reasons:

a.

The relied upon confidential
    informant information was dated, and there was no indication when the
    information given was actually observed or how/when it was acquired;

b.

The ITO
    indicated the information provided was corroborated in each case, yet not all
    information was clear on the corroborating details;

c.

Appendix
    A items to be seized was too broad, and the ITO lacked supporting information
    to provide a nexus; and

d.

There were
    insufficient reasonable grounds to believe items to be seized would be at the
    specific location.

[8]

Later the same date, the police submitted the same ITO to a second
    application judge at the Ontario Court of Justice. The only addition to the ITO
    was paragraph 19 which indicated that the application had been submitted to and
    refused by a Justice of the Peace. The reasons for the refusal were included in
    the ITO. At 5:20 p.m., the second application judge granted the authorization.

[9]

The police executed the warrants. At the apartment, they found property
    linking the appellant to the apartment, cocaine, and cocaine paraphernalia. In
    the commercial unit, police found property linking the appellant to the
    premises, a firearm and ammunition, and enough cocaine to give rise to the
    inference that it was possessed for the purpose of trafficking. Police found no
    material evidence in the vehicle. After the apartment and commercial unit were
    searched, police obtained another warrant to search the appellants storage locker
    where they found small amounts of cocaine.

(2)

The trial judges
Charter
ruling

[10]

At the trial, the appellant challenged both the validity of the search
    warrants and the warrantless search of his cell phone by virtue of pinging a
    nearby cell tower. The trial judge framed the two issues in this fashion:

During the trial the defence sought to exclude evidence on the
    basis that it was obtained in violation of Mr. Bonds rights to be free from
    unreasonable search and seizure. This application had two aspects argued before
    me:

(a) Police obtained warrants on the basis of information
    from confidential informants. The defence argued that the warrants could not be
    upheld on the basis of unredacted portions of the Information to Obtain (ITO)
    used before the issuing justice.

(b) Police obtained information about Mr. Bonds whereabouts
    by pinging the phone with which he was associated. Police did this with the
    assistance of Bell Canada without first obtaining a warrant to do so. The
    defence argued that this was a warrantless search and all information obtained
    by police as a result of this pinging should be excluded.

[11]

In comprehensive reasons, the trial judge rejected the appellants
    submissions on both issues.

[12]

On the validity of the warrants issue, the trial judge concluded:

The judicial summary and the redacted ITO make it clear that
    police had reasonable and probable grounds to believe Mr. Bond had committed
    criminal offences and was probably still committing them on an ongoing basis. In
    terms of the test in
Debot
, the totality of this evidence is
    credible, corroborated and compelling. Direct evidence from four informants,
    three of whom had previously proved reliable, is a very strong case to
    establish reasonable grounds to believe that a crime has been and will be
    committed. The weaker part of the evidence in support of the warrants concerns
    whether the places to be searched are sufficiently connected to Mr. Bond to
    justify authorization of search warrants. And the evidence in respect to these
    issues is not found in the information obtained from the confidential
    informants. The defence has full access to the information before the issuing
    justice on these contested points, and is able to challenge it fully in this
    court.

The evidence pointing to the Apartment and the Commercial
    Condo, fully disclosed to the defence as it was provided to the issuing
    justice, was more than sufficient to ground issuance of the warrants. The Crown
    has satisfied step 6 of
Garofoli
in respect to the basis for believing
    Mr. Bond was an armed drug dealer. The warrants are upheld.

[13]

On the pinging the appellants cell phone issue, the trial judge found
    no s. 8
Charter
infringement. Alternatively, he was prepared to
    assume that a
Charter
infringement was made out. However, even excluding
    the pings evidence, he declined to strike down the search warrants or exclude
    the other evidence obtained during those searches under s. 24(2) of the
Charter.

C.

issues

[14]

The appellant frames the issues as follows:

Conviction appeal

(1)

The trial judges written reasons
    on the
Charter
application are an after-the-fact justification;

(2)

The trial judge misapprehended the
    nature of the application;

(3)

The trial judge erred in finding
    that the affiants judge shopping was permissible; and

(4)

The trial judge provided
    insufficient reasons on the
Charter
application.

Sentence appeal

(5)

The trial judge erred in his
    calculation of pre-trial custody.

D.

analysis

(1)

Reasons as improper after-the-fact justification for result

[15]

The genesis of the appellants argument on this issue is an email the
    trial judge sent to counsel during the trial:

The defence application to exclude evidence is dismissed except
    for the cellphone pings information obtained without a warrant. In respect to
    those, I am not satisfied that urgency was of such kind as to justify
    proceeding without a warrant. However, I am satisfied that the police acted in
    good faith in proceeding without a warrant. In the result, I find that search
    to have been unreasonable within the meaning of s. 8 of the
Charter
for having been done without a warrant.



My reasons for decision are reserved and will be released in
    due course.

[16]

After the trial concluded, the trial judge issued comprehensive reasons
    for his
Charter
ruling. The appellant contends that [w]hen the
    written reasons were finally released, they revealed that the trial judges
    findings departed significantly from his brief oral conclusions given over a
    year earlier. (Appellants Factum, at para. 39).

[17]

I am not persuaded by this submission. I see no clear dichotomy between
    the trial judges very brief ruling during the trial and his comprehensive
    reasons for the ruling after the trial. Indeed, as the trial judge explained in
    his formal reasons, the pings issue was peripheral to the broader search
    warrants issue:

In my view, even if the evidence from the pings was excluded,
    the Crowns case would not be materially affected. Police had an
    independent basis for believing that Mr. Bond was living at the Apartment, and
    that basis was sufficient for granting the warrants. The pings were not
    relevant to any issue other than identifying Mr. Bonds whereabouts, an issue,
    itself, only relevant to identifying the premises to be authorized under the
    warrants. The warrants were justified without the pings, and so
    excluding the pings would not affect anything else: none of the evidence admitted
    against Mr. Bond, other than the pings themselves, was derived from the
    pings. Indeed, police subsequently conducted direct surveillance that
    provides a much stronger basis  the one truly relied upon by the Crown  to
    tie Mr. Bond to the premises searched. On this analysis, societys
    interest in adjudication on the merits would be unaffected by exclusion of the
    evidence, and I would exclude the evidence under s. 24(2).

[18]

I agree with this analysis.

(2)

Misapprehension of the nature of the application

[19]

The authorization granted by the second application judge listed the
    enumerated offence as unlawful possession of a firearm contrary to s. 91 of the
Criminal Code
. The appellant submits that the trial judge in his
    reasons focused exclusively on his drug trafficking and ignored whether he
    possessed a firearm and whether it would be located in the places to be
    searched.

[20]

I am not persuaded by this submission. In his reasons, the trial judge
    made extensive reference to both drugs and firearms:


i.

All four of the confidential informants provided detailed and specific
    first-hand information, identifying Andrew Bond as a cocaine dealer, carrying
    on business as such at [an apartment on] Jane Street, Toronto, and provided
    information that Mr. Bond possessed and used a firearm in his drug-dealing.


ii.

Each of the confidential informants identified a photo of Andrew Bond as
    the armed drug dealer.


iii.

Three of the confidential informants described the firearm as a
    semi-automatic handgun (one of whom described it as Glock-style, police-style)
    and said that Mr. Bond keeps the gun tucked in his front waistband.



I am satisfied that this information, taken together, provides
    evidence:

b. That the Subject is habitually armed with a
    semi-automatic handgun which the Subject carries by tucking the gun in at the
    waist of his pants.



Here, the totality of information from the confidential
    informants grounded the officers belief that Mr. Bond was an armed and
    dangerous drug dealer, selling cocaine in Toronto.



On the basis of information from the confidential informants
    and the fruits of police investigation  Mr. Bond appears to be a very
    dangerous man, systematically dealing hard drugs, carrying a loaded
    semi-automatic handgun, in defiance of multiple prohibition orders.

[21]

In summary, these passages, and other similar passages, completely belie
    the appellants submission that in his
Charter
reasons the trial judge
    focused exclusively on the alleged drug offences.

(3)

The judge shopping issue

[22]

As set out in the Facts section of this judgment, on December 27, 2016,
    the police applied twice for search warrants relating to two properties and one
    vehicle.

[23]

At 2:32 p.m., the Justice of the Peace refused to authorize the
    warrants, giving four reasons in support.

[24]

At 5:20 p.m., the justice of the Ontario Court of Justice authorized the
    warrants, without reasons.

[25]

At trial, the appellant raised this issue, labelling it impermissible
    judge-shopping. The trial judge dealt with it in a footnote:

The defence argued that taking the second request to [the justice
    at the Ontario Court of Justice] was impermissible judge-shopping. Police
    disclosed the prior request to the Justice of the Peace, including the
    rejection and reasons for the rejection, when they made the request of [the
    second application judge]. This is not impermissible judge-shopping: it
    was within [the second application judges] discretion to decide the warrant
    request, and he did so on full and fair information:
R. v. Campbell
, [2014]
    OJ No. 6541 (SCJ), per McMahon J.

[26]

The appellant submits that the trial judge erred in reaching this
    conclusion. His position on this issue is succinctly summarized in his factum,
    at para. 58:

Judge shopping strikes at the core of our judicial system. The
    concept undermines the high level of confidence that is placed in our judicial
    system, where the decision of a judicial officer is final and binding unless
    and until it has been overturned by a higher court. Section 487(2) of the
Criminal
    Code
provides that a justice may issue a warrant. The
Criminal Code
defines
    a justice as a Justice of the Peace or a judge of the provincial court.
    Therefore, [the justice at the Ontario Court of Justice] cannot be considered a
    higher court than [the] Justice of the Peace
By
    applying for successive warrants on the same information to a different judge
    of the same court, the police committed impermissible judge-shopping
. [Emphasis
    added.]

[27]

I do not accept this submission, including the emphasized conclusion.

[28]

I begin by observing that I do not think that there should be a
    bright-line rule that the police cannot make a second application for a warrant
    if the first application is rejected. It needs to be recalled that there is no
    appeal from the initial refusal: see
R. v. Campbell
, [2014] O.J. No.
    6541 (S.C.), at para. 40.

[29]

On this point, I agree with what Thackray J.A. said in
R. v. Duchcherer
,
    2006 BCCA 171, at para. 29:

The procedure of applying successively for search warrants
    cannot reasonably be said, as such, to be an abuse of process or a subversion
    of the judicial system. Within the process there can, of course, be abuses
    that would lead to such a finding. It will be a fact driven decision in
    each case whether the circumstances amount to an abuse of process.

[30]

My second contextual observation is that the second judge considering
    whether to grant the search warrant is not sitting in appeal of the first judges
    decision nor in review of that judges decision by way of prerogative writ. As
    Thackray J.A. said in
Duchcherer
, at para. 17, where a judge knows of
    the previous application to a justice of the peace for a search warrant, but
    exercises his own discretion, it is a hearing
de novo
, not a review of
    the decision of the justice of the peace.: see also
R. v. Colbourne
(2001), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 41.

[31]

This court in
Colbourne
, at para. 42 began to address the issue
    of whether a warrant could be granted on a second application. I agree with
    Doherty J.A. that had the second information been the same as the first
    information, the initial refusal would have played a much more significant role
    in how the second Justice of the Peace exercised his or her discretion. While
    it does play a role and should be considered by the second application judge,
    the fact a warrant request has been rejected is not determinative to the second
    request. This is supported by Doherty J.A.s further reasoning in
Colbourne
,
    at para. 42, that he need not decide whether I would go so far as to say that
    two applications based on the same information are improper even if full
    disclosure of the initial refusal is made.

[32]

Turning to the merits of the appellants submission on this issue, in my
    view, the disclosure to the second application judge of the previous refusal
    and the reasons for that refusal ensured the openness and transparency of the
    process that the appellant submits was lacking. Those factors were endorsed by
    McMahon J. in
Campbell
, at para. 56:

In submitting the materials the officer should ensure the ITO
    includes the particulars of the earlier refusal, including the time, name of
    the judicial officer, and the reasons of refusal.

A copy of any reason or endorsement provided by the judicial
    officer who refused the warrant should be an appendix to the ITO.

[33]

As the trial judge noted in the footnote dealing with the judge-shopping
    issue, the police complied with these factors. The second application judge,
    who issued the search warrant, was fully apprised of the previous application,
    its timing, the fact that it had been rejected, and the reasons for the
    rejection. He was well-positioned to consider the application
de novo
.

[34]

McMahon J. in
Campbell
also identified another factor to
    consider, namely that no specific officer should be selecting individually any
    reviewing judge; instead, the second judicial officer should be the one on
    call. I note that the appellant does not allege that this factor is in play in
    this case.

[35]

In conclusion, like McMahon J. in
Campbell
, at para. 58, I do
    not accept the argument that allowing successive search warrant applications on
    the same materials would amount to judge-shopping and would be a reason not to
    allow for such procedure. Each case will need to be addressed on its own
    facts. In this case, the trial judge did not err by affirming the validity of
    the second search warrant.

(4)

Insufficient reasons

[36]

The appellant submits that the trial judges written reasons did not
    address critical issues or allow for meaningful appellate scrutiny.

[37]

I disagree. The trial judge wrote careful and extensive (66 paragraphs)
    reasons and this court, with the assistance of the oral and written submissions
    of counsel, is well-positioned to provide meaningful appellate scrutiny.

(5)

Sentence appeal

[38]

The trial judge imposed a sentence of 11 years, less 2 years and 11
    months for pre-trial custody. The appellant and respondent jointly submit that
    the trial judge made a modest error in his calculation of credit for pre-trial
    custody. I accept this submission and would give the appellant an additional 70
    days credit for pre-trial custody.

E.

disposition

[39]

I would dismiss the conviction appeal. I would allow the sentence appeal
    and assign an additional 70 days to the calculation of pre-trial custody.

Released: October 19, 2021 JCM

J.C. MacPherson
    J.A.

I agree. L.B.
    Roberts J.A.

I agree. B.W. Miller
    J.A.


