



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Soltan, 2019 ONCA 8

DATE: 20190111

DOCKET: C62890

Watt, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexandru Soltan

Appellant

Daniel C. Santoro and Zahra Shariff, for the appellant

Jennifer Epstein, for the respondent

Heard: November 6, 2018

On appeal from the conviction entered by Justice Marvin A.
    Zuker of the Ontario Court of Justice on July 4, 2016.

REASONS FOR DECISION

[1]

This is a conviction appeal. The appellant was
    unsuccessful at first instance in his challenge, under s. 8 of the
Charter
, to the validity of a search warrant issued under the
Controlled
    Drugs and Substances Act
, leading to the seizure of drugs
    and other items. The appellant was convicted of various offences, including
    possession for the purpose of trafficking a number of drugs.

[2]

The appellant advances one ground of appeal with
    two parts. He argues that the trial judges reasons, both in refusing leave to cross-examine
    the affiant on the information to obtain the search warrant (the ITO) and in
    concluding that the ITO could reasonably support the issuance of the warrant,
    were insufficient to permit appellate review.

[3]

The inadequacy of reasons is not a free-standing
    ground of appeal. An appellate court must look beyond deficient reasons and
    determine whether the reasons for the decision are patent on the record. A
    functional approach is thus required in the review of the sufficiency of reasons,
    and requires an examination of the evidence and of the submissions of the
    parties: see
R. v. Victoria
, 2018 ONCA 69,

359 C.C.C. (3d) 179, at paras. 44-46;
R.
    v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras.
    42-43.

[4]

The ITO in this case was based primarily on
    information provided by a confidential informant (CI), who personally knew
    the appellant. The CI informed the police that the appellant was dealing a
    variety of drugs from a particular apartment unit, where he said the appellant
    lived. The CI provided details as to the types and quantities of drugs he had
    seen in the appellants apartment, and he said that the appellant was never out
    of drugs. The ITO stated that the CI was immersed within the criminal
    subculture, had provided accurate and reliable information to the police, and
    was motivated by an incentive he or she would receive upon the success of the
    investigation.

[5]

The appellants trial counsel sought leave to
    cross-examine the affiant on two issues: (a) whether the CI had a track record
    of providing reliable information, or whether the statement that he had
    provided information to the [p]olice which has led to active drug
    investigations simply meant that the CI had provided information in the
    subject investigation; and (b) whether the CI had a criminal history which had
    not been disclosed, and whether the issuing justice was therefore misled by the
    statement that the CI had no known history of any charges or allegations
    relating to deceit, obstruct or public mischief.
The ITO contained
    information as to whether or not the CI had a criminal record
,
    but this section of the ITO was redacted in the proceedings before the trial
    judge to protect the identity of the CI.
[1]


[6]

Crown counsel opposed the cross-examination on
    the basis that it did not meet the test that there was a reasonable likelihood
    that cross-examination of the affiant would elicit testimony tending to
    discredit the existence of one or more of the preconditions to the issuance of
    the search warrants:
R. v. Pires; R. v. Lising
,
    2005 SCC 66, [2005] 3 S.C.R. 343, at para. 40;
R. v. Garofoli
, [1990] 2 S.C.R. 1421, at p. 1465. In the course of argument, Crown
    counsel also submitted that, even if the information respecting the CIs proven
    reliability were removed from the ITO, the information provided by the CI would
    meet the
Debot
criteria that it was sufficiently
    compelling, credible, and corroborated to justify the issuance of the warrant:
R.
    v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168.

[7]

The trial judge provided oral reasons declining
    the request to cross-examine the affiant. The appellant says that the oral
    reasons are insufficient to permit appellate review.

[8]

We disagree. The trial judge correctly
    articulated the test for cross-examination of an affiant of an ITO. He then
    identified the areas defence counsel wished to pursue in cross-examination. Unfortunately,
    toward the end of his reasons, the trial judge appears to have moved into considering
    the issue on the
Garofoli
application  when
    he stated that he was satisfied in the totality of the circumstances that the
    information provided by the informant was sufficiently confirmed by the police
    and that on a review of the ITO, [he was] satisfied it was reliable evidence
    that might reasonably be believed on the basis of which the authorization could
    have [been] issued.

[9]

We agree, however, with the respondent that the
    trial judge ultimately considered and turned his mind to the proper criteria,
    and in fact determined that the cross-examination that defence counsel proposed
    (which was limited to two areas, and not the seven possible topics identified
    by appellate counsel) would have made no difference to the outcome of the
Garofoli
application, as there was sufficient other information in
    the ITO to support the warrant. While the trial judges reasons are imprecise
    and unfocussed, when read in the context of the record and the submissions on
    the live issues before him, they demonstrate that the judge seized the
    substance of the matter when he dismissed the motion to cross-examine the
    affiant of the ITO: see
R.E.M.
, at paras.
    42-43. In this case, the substance of the matter was whether the
    cross-examination of the affiant on the proposed areas could elicit information
    that would undermine the existence of grounds for the issuance of the warrant.
    Given the compelling and precise information contained in the ITO and the
    parties submissions on this question, the inadequacy of the judges reasons does
    not prejudice the appellants exercise of his right to appeal.

[10]

Absent an error in principle, a material
    misapprehension of the evidence, or an unreasonable decision, the trial judges
    determination of this issue is entitled to deference:
Garofoli
, at p. 1465;
R. v. Shivrattan
,
    2017 ONCA 23, 346 C.C.C. (3d) 299, leave to appeal refused, [2017] S.C.C.A. No.
    93, at para. 55.

[11]

The reviewing judge was entitled, in the
    exercise of his discretion, to refuse leave for the appellants cross-examination
    on the CIs track record. It was open to the judge  and we would not interfere
    with his conclusion  to find that the CIs credibility and the reliability of
    the information the CI provided could be considered without permitting
    cross-examination on this issue. Nor do we see how cross-examination on whether
    the affiant meant that the CI had been proven reliable on prior occasions or
    simply during the subject investigation would have assisted the judge. The
    affiants statement that [t]he CI in this investigation has provided
    information to the [p]olice which has led to active drug investigations and
    proved to be accurate, credible and reliable is not, in our view, reasonably
    open to the interpretation advanced by the appellant  that the affiant was
    talking only about the current investigation and not any prior investigation.

[12]

As for the proposed line of questioning on the
    CIs criminal record, there was no reasonable prospect that the issuing justice
    would have been misled by comments about the CIs history of charges, and accordingly
    the extent to which this may have affected the reliability of the information
    the CI provided. As already noted, information about whether the CI had a
    criminal record, although redacted from the ITO in the application before the
    trial judge, was available to the issuing justice.

[13]

As for the appellants challenge to the trial
    judges reasons for dismissing the challenge to the search warrants, the
    appellant argues that trial counsels arguments were unfairly curtailed on the
Garofoli
application because the judge had effectively already
    determined the application on its merits when he denied the appellant leave to
    cross-examine the ITOs affiant.

[14]

We do not give effect to this ground of appeal.
    The appellants argument is not borne out by the record. The trial judge heard
    argument on the
Garofoli
application, which
    included some of the same arguments that had been made in the motion to
    cross-examine, as well as additional arguments, including that the CIs
    information was stale and therefore unreliable. The trial judge provided
    reasons for denying the application, which mostly summarized the parties
    submissions. When these reasons are considered in the context of the record, however,
    they demonstrate that he grasped the issue he was to determine, that he
    considered and understood the arguments that were made, and that he disposed of
    the application after identifying and applying the proper test.

[15]

In this case, the information provided by the CI
    was specific and based on first-hand knowledge. The defence acknowledged that
    the information was compelling. The CI had provided credible and reliable
    information to the police in the past, and many of the details provided by the
    CI in this case were corroborated by the police investigation. The information
    provided by the CI met the
Debot
criteria and,
    together with all of the other information that was before the issuing justice,
    justified the issuance of a warrant.

[16]

The appeal is therefore dismissed.

David
    Watt J.A.

K.
    van Rensburg J.A.

David
    Brown J.A.





[1]
This information was available in the draft judicial summary prepared by Crown
    counsel in anticipation of the application moving to step six under
Garofoli.


