



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2021 ONCA 540

DATE: 20210728

DOCKET: C67378

Rouleau, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne Brown

Appellant

Paul Calarco, for the appellant

Brendan Gluckman, for the respondent

Heard: March 16, 2021 by video
    conference

On appeal from the conviction entered on
    February 12, 2019, by Justice Dino DiGiuseppe of the Ontario Court of Justice.

Pepall J.A.:

A.

Introduction

[1]

The police obtained a general warrant to make
    covert entries into a storage locker used by the appellant and rented under a
    false name. The police discovered cocaine, marijuana, oxycodone, alprazolam and
    Canadian currency in the locker. The appellant was charged with possession of cocaine
    for the purpose of trafficking, possession of the proceeds of crime, and
    conspiracy to traffic cocaine.

[2]

At trial, the appellant was convicted after
    unsuccessfully applying to quash the general warrant based on s. 8 of the
Canadian
    Charter of Rights and Freedoms
. Before this court, the appellant argues
    that the reviewing judge applied the wrong standard in considering whether the
    warrant was valid and that the requirements of s. 487.01 of the
Criminal
    Code
, R.S.C. 1985, c. C-46 were not met. Moreover, the test in
R. v.
    Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353 favoured exclusion of the seized
    evidence. He asks that the warrant be quashed, the evidence obtained excluded,
    and an acquittal entered.

[3]

For the following reasons, I would dismiss the
    appeal.

B.

Facts

[4]

The Thunder Bay Police Service received
    information from seven confidential informants (CIs) that the appellant and
    two associates were selling cocaine at the Royalton Hotel in Thunder Bay. Surveillance
    was conducted which confirmed the information provided by the CIs and which led
    to a storage locker where it was believed drugs and other evidence of
    trafficking would be located. The appellant and his associates were observed in
    vehicles rented by them going to and from the storage locker and entering and
    exiting the locker with various bags.

[5]

The police applied for, among other things, a
    general warrant to covertly enter and search the storage locker. In the
    information to obtain (ITO), Detective Constable Bartol was the affiant. He
    set forth the basis for his belief that there were reasonable grounds to
    believe that the appellant and his two associates had committed the subject
    offences.

[6]

D.C. Bartol outlined information received on the
    appellant and his drug dealing activities since 2007, his arrests and charges for
    possession of cocaine for the purpose of trafficking in 2008 and 2011, his guilty
    plea and conviction of the former and withdrawal of charges in the latter, and
    his continued active trafficking in cocaine assisted by Romariando Meggoe, whose
    street name was Cash, and another unidentified male known as Money.

[7]

Police investigation revealed that the appellant
    had rented a grey Toyota vehicle and Mr. Meggoe a black Chevrolet Malibu and a
    green Volkswagon Jetta, and the police obtained other identification
    particulars associated with the vehicles.

[8]

D.C. Bartol described in detail the information
    obtained from the seven CIs in the summer and autumn of 2017, four of whom had
    previously provided information to the police. In addition, much of the
    information provided was corroborated by independent investigation by the
    police.

[9]

CI No. 1 advised that the appellant, who went
    by the name Marshall, was in town selling cocaine with a few other black
    males. They were driving a new grey or silver car. The appellant was using a
    cell phone and his number was provided. He recruited women to sell for him and was
    the main guy selling hard and soft cocaine. CI No. 2 said that the appellant
    was back in town and dealing cocaine out of the Royalton Hotel. CI No. 3 stated
    that the appellant was back in town, using the phone number identified by CI
    No. 1, his boy who was black, in his 20s, and skinny with short hair, went
    by the street name Cash, and CI No. 3 saw Cash with coke a couple of days prior.

[10]

CI No. 4 reported that the appellant was driving
    a rented silver Toyota Camry and was usually in the company of two other black
    males, one of whom was Cash. The appellant had two phones, moved around and
    used hotels and met people in parking lots. CI No. 5 reported that there were
    two black guys in town who were usually at the Royalton Hotel bar dealing three
    to four times a week. They supplied drugs to friends who lived there, and two
    named individuals dealt drugs for them. They were trying to get people to sell
    cocaine for them. The owner did not want them selling in the bar, so they went
    outside to deal and did all the drug dealing behind the bar. The black guys in
    the bar had a boss named Marshall who was not seen in the bar very often.

[11]

CI No. 6 reported that there were black males
    selling crack cocaine at the Royalton and that the informant had bought drugs
    from them. CI No. 6 identified a photo of Mr. Meggoe as Cash. CI No. 7 stated
    that two black guys from Toronto were selling coke and crack at the Royalton
    almost every day, hanging around the bar. They went by the names Cash and
    Money. Cash was about 57, black, and skinny with short hair and a nose
    piercing. They sold crack that was prepackaged, wrapped in a plastic bag. They
    always had lots of coke on them and kept it in their pockets. They met people
    behind the building in the back lane to make the deal.

[12]

D.C. Bartol also reported on the surveillance
    conducted at the Royalton and other locations on August 23, September 7, 21,
    and 26, 2017. This revealed three black males engaging in apparent drug dealing
    activities and using the three vehicles noted. On September 21, 2017, following
    suspected drug transactions at the Royalton, a black male got into the Volkswagen
    Jetta vehicle believed to be rented by Mr. Meggoe, and drove in a manner
    consistent with attempting to lose anyone trying to follow to a residence at 25
    Melon Street. The vehicle remained for about 20 minutes and then returned to
    the Royalton Hotel.

[13]

On September 26, 2017, the police conducted
    surveillance at 25 Melon Street where the Volkswagen Jetta was parked outside.
    A black male carrying a white Old Navy bag, and identified as Mr. Meggoe, exited
    the building, got into the vehicle, and drove to Nor-Shore Storage where he
    went to storage locker number 316 and placed two bags inside. He then picked up
    a female at Confederation College, drove to the Thunder Bay airport, went into
    the terminal for a period of time, exited, dropped the female off at
    Confederation College, and returned to 25 Melon Street. Thirty minutes later he
    drove to the airport again, returned the Volkswagen Jetta, and entered the
    terminal where he checked a dark bag.

[14]

On September 28, 2017, the police determined
    that storage locker 316 was rented to a male named Mark James who had paid cash
    and had produced a drivers licence on July 31, 2017. However, on
    investigation, there was no person with that name and date of birth on the CPIC
    file or the MTO database.

[15]

The storage facility surveillance system on July
    31, 2017 showed a black male paying for the rental of the storage locker and
    exiting the passenger seat of the silver Toyota rented by the appellant, and on
    August 7, 2017, two men were seen exiting the same silver Toyota at storage
    locker 316 and placing a black pack sack inside.

[16]

On October 3, 2017, the police installed a
    camera with a clear view of the front of storage locker 316.

[17]

As the reviewing judge summarized:

On October 6, 7, 8, 10, 11, 12, 17 and 19, a
    silver vehicle was observed parking near the storage locker. Black males were
    observed on these dates, often more than once on the same date, removing bags
    from the vehicle and taking them to the storage locker, and removing bags from
    the storage locker and placing them in the vehicle. On three occasions, a male
    believed to be Mr. Brown is seen exiting the drivers side of this vehicle.
    Each visit to the locker is brief, and the door to the locker is continually
    shut behind these individuals in an effort to conceal their actions.

[18]

Armed with this
    information, D.C. Bartol outlined in the ITO why he had reasonable grounds to
    believe that evidence of drug trafficking, telecommunication devices, evidence
    of money laundering and proceeds of crime would be obtained from the storage
    locker while at the same time preserving the integrity of the investigation. He
    believed that the information provided by the CIs when taken in totality was
    compelling, credible and corroborated. Physical surveillance at the Royalton
    Hotel had provided observations consistent with hand to hand drug trafficking;
    physical and video surveillance of the storage locker had shown on numerous
    occasions that bags were placed inside and taken out of locker 316. Each stay
    at the locker was brief and the door continually pulled closed behind them.

[19]

D.C. Bartol set
    out the objectives of the application, namely: to gather sufficient evidence of
    the full scope of the drug network, learn the stash locations, identify the
    persons assisting with drug transactions or exchanges, identify the couriers of
    drugs and money, and to seize evidence to support trafficking charges against
    the appellant, Mr. Meggoe and Money and any co-conspirators.

[20]

He addressed
    the three components of s. 487.01(1), stating that he believed that the covert
    interception of one or more of the drug shipments and currency shipments will
    provide police with evidence to further their investigation while at the same
    time preserving the integrity of the ongoing criminal investigation. He
    expressed his belief that it was in the best interests of the administration of
    justice to issue the warrant. The investigation was ongoing and a conventional
    search warrant would by its nature likely terminate the investigation as the
    main targets would be immediately notified that they were the subject of a
    police investigation. He noted his belief that no other statutory provision
    would permit the technique contemplated by the general warrant.

[21]

He believed that
    the appellant, Mr. Meggoe and Money were utilizing the storage locker to
    store the majority of the drugs and money and concluded by stating: I believe
    that there will be further evidence collected from the storage locker that will
    further support the charges of possession for the purpose of trafficking. He
    proposed 15 conditions and sought authorization to covertly enter and search
    the storage locker from November 9, 2017 to January 8, 2018.

[22]

A general
    warrant was granted by the issuing judge on November 9, 2017, and on November
    22, 2017, police covertly entered and searched the storage locker, finding
    cocaine, marijuana, oxycodone, alprazolam and Canadian currency. This was the
    only entry made.

[23]

The appellant
    was arrested on December 14, 2017. A search of his room revealed the key for
    storage locker 316. Money, who was identified as Novado Fraser, was arrested
    later that day at the airport. A search of his luggage revealed 11 ounces of
    cocaine. A search of a cell phone seized from the appellant on his arrest
    revealed text messages between the appellant and Mr. Fraser as Mr. Fraser was
    arriving in Thunder Bay.

[24]

The appellant
    was charged and subsequently tried, and convicted. As mentioned, at trial, he
    unsuccessfully challenged the general warrant.

C.

Reviewing
    Judges Reasons

[25]

The reviewing
    judge found that the ITO, as amplified by the cross-examination of D.C. Bartol,
    was sufficient to afford the issuing judge reasonable grounds to issue the
    general warrant. In addressing the requirement for reasonable grounds to
    believe an offence has taken place and that evidence of a crime would be found
    in the storage locker, he stated that the standard was one of reasonable
    probability, and did not rise to the standard of proof on a balance of
    probabilities or proof beyond a reasonable doubt. As the reviewing judge, he
    was to inquire whether there was a basis upon which the issuing judge could be
    satisfied that the necessary preconditions to issue the warrant existed.

[26]

After
    instructing himself on the law, he noted that the ITO depended on two planks:
    the information collected from CIs and the information generated directly by
    police surveillance and other investigative techniques. Neither plank was
    independently capable of justifying the grant of the warrant. The reliability
    of the police investigation, particularly with respect to the storage locker,
    was strong but the information provided by the CIs required scrutiny pursuant
    to
R. v. Debot
, [1989] 2 S.C.R. 1140. Even if it were
    trustworthy, there remained the question of whether that information together
    with that collected by the police investigation objectively established the
    reasonable grounds to issue the warrant. He concluded that the CI information
    was compelling, credible and corroborated. The information was detailed in identifying
    the street names of the sellers, the location of the drug transactions, the
    vehicle descriptions, the cell phone number used by Marshall, that Marshall
    recruited women to sell the drugs, the drug packaging and pricing, and the frequency
    of the transactions. In addition, each CI provided information from August,
    September and October of 2017 and described the interactions and the
    individuals involved with similar particularity.

[27]

The reviewing
    judge found that the issuing judge had ample information available to determine
    the credibility and reliability of each CI based on the information in the ITO.
    Finally, the CI accounts were corroborated by the police observations of
    suspected drug transactions behind the Royalton Hotel, the grey Toyota and the
    Volkswagen Jetta involved in the suspected transactions and found to be rented by
    the appellant and Mr. Meggoe respectively, and the cell phone number associated
    with the appellant. He noted that the totality of the circumstances must be
    considered. In this case, the information was compelling and corroborated in
    every material respect.

[28]

He described
    how the surveillance video at the storage locker revealed that: the locker was
    rented by someone likely using a false name with false identification; the vehicles
    rented by the appellant and Mr. Meggoe were seen at the storage locker;
    significant activity was noted with each visit to the locker, particularly the
    movement of bags or packs between the vehicles and the storage locker; the
    appellant and Mr. Meggoe were present and accessing the storage locker; and the
    individuals observed appeared to be trying to conceal their actions.

[29]

The reviewing
    judge stated that D.C. Bartol believed that the general warrant was needed to
    continue the investigation and ultimately uncover the full extent of the drug
    operation. He was cross-examined at length. The reviewing judge stated that the
    police believed that there were no other provisions in the
Criminal Code
or any other Act of Parliament that would provide for a warrant permitting the
    investigative techniques sought. The reviewing judge concluded that the ITO, as
    amplified by the cross-examination of D.C. Bartol was sufficient to afford the
    issuing judge reasonable grounds to issue the general warrant. He accordingly dismissed
    the appellants s. 8
Charter
application.

D.

Analysis

[30]

Section
    487.01(1) of the
Criminal Code
addresses the three requirements that
    need to be met to obtain a general warrant. That subsection provides:

487.01 (1)
    A provincial court judge, a judge of a superior court of criminal jurisdiction
    or a judge as defined in section 552 may issue a warrant in writing authorizing
    a peace officer to, subject to this section, use any device or investigative
    technique or procedure or do any thing described in the warrant that would, if
    not authorized, constitute an unreasonable search or seizure in respect of a
    person or a persons property if:

(a) the
    judge is satisfied by information on oath in writing that there are reasonable
    grounds to believe that an offence against this or any other Act of Parliament
    has been or will be committed and that information concerning the offence will
    be obtained through the use of the technique, procedure or device or the doing
    of the thing;

(b) the
    judge is satisfied that it is in the best interests of the administration of
    justice to issue the warrant; and

(c)
    there is no other provision in this or any other Act of Parliament that would
    provide for a warrant, authorization or order permitting the technique,
    procedure or device to be used or the thing to be done.

[31]

Boiled down to
    its basics, the issuing judge had to be satisfied that (i) there were
    reasonable grounds to believe that an offence had been or would be committed
    and that information concerning the offence would be obtained through the use
    of the general warrant, (ii) it was in the best interests of the administration
    of justice to issue the warrant, and (iii) there was no other federal statutory
    provision that would provide for a warrant permitting the technique or thing
    sought to be done.

[32]

In
R. v. Ha
, 2009
    ONCA 340, 96 O.R. (3d) 751, leave to appeal refused, [2009] S.C.C.A. No. 295, MacPherson
    J.A. discussed s. 487.01 in some detail noting, at para. 26, that it focuses
    not on authorizing specific techniques but rather on whether the public
    interest in authorizing the specific investigative technique in issue is
    sufficiently strong in the circumstances to overcome an individuals
    constitutional right not to be subject to an unreasonable search or seizure.

[33]

In
Ha
, this court
    held that a covert entry and search falls squarely within the meaning of an
    investigative technique or procedure under s. 487.01. The subsection (c) requirement
    was met in that case because no provision in any other federal statute would
    authorize an unlimited number of covert entries and searches on private
    property over a two-month period. This court, at para. 42, accepted the
    proposition put forward by Frankel J.A. in
R.
    v. Brand
, 2008 BCCA 94, 229
    C.C.C. (3d) 443, at para. 51, that there was nothing wrong in utilizing a
    general warrant to obtain information with a view to gathering additional and
    possibly better evidence than that which could be seized immediately through
    the execution of a search warrant. Subsection (b) was met as the evidence obtained
    by the police in
Ha
strongly pointed to the accused having a
    major role in a drug laboratory and the warrant was not merely a fishing
    expedition. The authorization of multiple entries and the 59-day duration of
    the warrant, on the facts of that case, were considered to be reasonable. The
    court was also satisfied that the conditions attached to the general warrant
    were explicit, clear and narrowly drawn as described in
R. v. Brooks
(2003), 178 C.C.C. (3d) 361 (Ont. C.A.).

[34]

In
R. v. TELUS Communications Co.
, 2013 SCC 16, [2013] 2 S.C.R. 3, at para. 56, in concurring
    reasons, Moldaver J. noted that subsection (c) is designed to ensure that the
    general warrant is used sparingly as a warrant of limited resort and, citing
    S.C. Hutchison et al.,
Search and Seizure
    Law in Canada
(loose-leaf), at p. 16-40.3, to guard against it becoming an easy back door
    for other techniques that have more demanding pre-authorization requirements.

[35]

At para. 77, he
    addressed the test under s. 487.01(1)(c), stating:

The test under s.
    487.01(1)(c) must consider the investigative technique that the police seek to
    utilize with an eye to its actual substance and not merely its formal
    trappings. The provision must be interpreted so as to afford the police the
    flexibility Parliament contemplated in creating the general warrant, while
    safeguarding against its misuse. As the facts of this case illustrate, there is
    a need for heightened judicial scrutiny where Parliament has provided an
    authorization for an investigative technique that is substantively equivalent
    to what the police seek but requires more onerous preconditions.

[36]

The appellant
    advances four arguments in support of his position that his s. 8
Charter
rights were violated and also urges this court to conclude that under s. 24(2)
    of the
Charter
, the
Grant
test favours exclusion of the evidence
    seized.

[37]

First, he
    submits that the reviewing judge erred by applying the wrong standard for
    reasonable grounds and that there were insufficient grounds before the issuing judge
    to support a general warrant. In that regard, he argues that the ITO only
    disclosed possibilities, not a reasonable probability that the covert entry
    into the storage locker would reveal evidence of offences as required by s. 487.01(1)(a).
    The evidence before the issuing judge did not show that the use of a covert
    entry would produce evidence to support a charge. He asserts that the ITO
    contained conditional language such as if controlled substances are located,
    should the police discover a large quantity of drugs, and that the reviewing
    judge used phrases such as [i]t was hoped and police hoped which imply
    reservation, not likelihood.

[38]

In addition, he
    argues that the timing of the ITO detracted from there being any reasonable
    probability of evidence being found. The CIs provided information in the August
    to October timeframe and camera surveillance of the locker ended on October 19,
    yet the warrant was issued on November 9, 2017.

[39]

I do not agree with
    these submissions.

[40]

The reviewing
    judges first task, which he recognized and applied, was to consider whether
    the issuing judge had a basis on which to issue the warrant:
R. v. Garofoli
, [1990] 2 S.C.R. 1421, at p. 1452. He also correctly set out the
    standard for reasonable grounds as one of reasonable probability or
    credibly-based probability:
Hunter v.
    Southam Inc.
,

[1984] 2 S.C.R. 145, at pp. 167-68;
Debot
, at p. 1166. The reviewing judges use of the word hope
    in his reasons was in the context of summarizing some of D.C. Bartols evidence
    and the ITO, and it was not his articulation or application of the standard of
    reasonable probability.

[41]

After a
    detailed review, the reviewing judge was satisfied that there was a basis upon which
    the issuing judge could be satisfied that there were reasonable grounds to
    support the issuance of a general warrant. Although D.C. Bartol used some
    conditional terminology, he clearly set out in the ITO that the police believed
    that drugs and other evidence of trafficking would be located in the storage
    locker. He also testified that he believed the police had reasonable and
    probable grounds for a
Controlled Drugs and
    Substances Act
, S.C.
    1996, c. 19 warrant and a conventional search warrant. The reasonable and
    probable grounds were supported by the information provided from the CIs and
    the police investigation. Reviewing the ITO and D.C. Bartols evidence in
    totality, it is hard to see how any other conclusion could be reached.

[42]

As for timing, in
    this case, the appellant and Mr. Meggoe had been using the storage locker for
    months, since July 31, 2017. In October, the month preceding the ITO, they were
    observed accessing the storage locker at least 12 times. Although it was put to
    him multiple times in cross-examination, D.C. Bartol did not agree that it was
    common for drugs to be moved between stash locations to evade police or
    prevent seizure, only that it happened sometimes out of precaution. When the general
    warrant was issued on November 9, 2017, only a few weeks after the last
    observation, it was reasonable to believe that information concerning the
    offences would still be found there.

[43]

I would not
    give effect to this ground of appeal.

[44]

Second, the
    appellant submits that the reviewing judge applied the wrong legal test under
    s. 487.01(1), treated the police request as being for a conventional warrant,
    and neglected to consider all of the components of s. 487.01(1). Counsel
    particularly emphasized the failure of the reviewing judge to address the best
    interests of the administration of justice element found in s. 487.01(1)(b).

[45]

It is the case
    that, consistent with the submissions of counsel, the reviewing judge placed
    emphasis on the reasonable grounds requirement found in s. 487.01(1)(a)
    and did not explicitly use the term best interests in his reasons. However,
    he referred to s. 487.01(1) as a whole and dealt with the issue of best
    interests in the context of the argument made before him. In submissions before
    the reviewing judge, defence counsel had argued that it would only be in the
    interests of justice to permit entry to the storage locker if there were a
    reasonable basis to believe evidence would be located there and that it was not
    in the interests of justice to go on a fishing expedition. The reviewing judge
    clearly found that there was a reasonable basis to conclude that evidence would
    be located in the storage locker, thus implicitly negating any suggestion of a
    fishing expedition.

[46]

Defence counsel
    also submitted that the interests of justice and the no other provision
    authorizing blurred together although he would try to keep them distinct.

[47]

The reviewing
    judge expressly addressed the third element or no other provision authorizing
    element of s. 487.01(1) noting that D.C. Bartol had stated that there were no
    other Acts of Parliament or provisions in the
Criminal Code
that would authorize a warrant permitting the techniques or procedures needed
    to conduct this particular investigation. This lends further credence to the
    conclusion that the reviewing judge did not overlook the three elements of s. 487.01(1)
    including the best interests requirement. Although it would have been
    preferable if the reviewing judge had expressly referenced this element, reading
    his reasons as a whole, he implicitly considered the best interests of justice.
    As he stated at p. 23:

The CIs and the
    information they provided, were worthy of belief. The police investigation,
    from corroborating the CIs information to locating the storage locker, was
    unassailable. It followed a linear and logical path from one step to the next.
    While the focus of the investigation commenced at the Royalton Hotel, it
    inevitably shifted to the storage locker. The information in the ITO, as
    amplified by the cross-examination of Detective Constable Bartol, set out those
    investigatory steps taken, the objectives of the investigation and the need for
    a general warrant to surreptitiously enter the storage locker, obtain evidence
    and continue the investigation.

[48]

D.C. Bartol had
    also explicitly addressed the best interests requirement in the ITO. He
    believed it would be in the best interests of the administration of justice to
    issue the proposed general warrant because the investigation was ongoing and
    the execution of a conventional warrant would likely terminate the
    investigation, as the main targets would be immediately notified that they were
    the subject of a police investigation. The reviewing judge referenced the need
    for surreptitious entry and concluded that [n]othing in the ITO, nor in
    Detective Constable Bartols evidence in cross-examination, persuades me, as a
    reviewing justice, that seeking a general warrant in these circumstances, was
    inappropriate.

[49]

Turning to the
    appellants third argument, he submits that the warrant permitted potentially
    unlimited covert entries over a 60-day period and as such, could not meet the
    best interests of the administration of justice requirement under s. 487.01(1)(b).
    He argues that the conditions of the warrant should have been explicit, clear,
    and narrowly drawn. Section 487.01(3) of the
Criminal Code
provides that:

(3) A
    warrant issued under subsection (1) shall contain such terms and conditions as
    the judge considers advisable to ensure that any search or seizure authorized
    by the warrant is reasonable in the circumstances.

[50]

This argument was
    not made by the appellant before the reviewing judge and is raised for the
    first time on appeal. In any event, although the facts of each case differ, there
    was judicial precedent for such a time period (see
Ha
, at para.
    51;
Brand
, at para. 14; and
R. v. Lucas
,
    2014 ONCA 561, 121 O.R. (3d) 303, at para. 186, leave to appeal refused,

[2014] S.C.C.A. No. 460, [2014] S.C.C.A.
    No. 461). In addition, D.C. Bartol explained the need for 60 days to uncover
    the bulk amount of hidden controlled substances and the full drug operation,
    and to add to the success of the investigation while preserving its integrity.
    Here the targets had rented the storage locker for months and in October alone,
    had accessed it at least 12 times. As this court noted in both
Ha
and
Lucas
, an
    authorization under s. 186(4)(e) of the
Criminal Code
to intercept private communications similarly may be valid
    for up to 60 days. The time was reasonable in the circumstances, and the 15
    conditions were clear and sufficiently narrow.

[51]

Fourth, the
    appellant submits that the purpose of the covert entry, namely the collection
    of evidence, could have been accomplished by other means such as a production
    order for past text messages and numbers called and an authorization to
    intercept private communications under Part VI of the
Criminal Code
.
    He argues that in pursuing a general warrant, the police were attempting to
    make an end run around these more demanding and time-consuming provisions.

[52]

I do not accept
    this submission.

[53]

Even though the
    police might have gathered some evidence under a conventional search warrant,
    production order, or authorization to intercept communications, this does not
    preclude reliance on a general warrant: see e.g.
Brand
, at
    paras. 50-51;
Ha
, at paras. 42, 52. In
Telus
, Moldaver
    J. confirmed that his approach to s. 487
.01(1)(c)
has
    nothing to do with investigative necessity: at para. 100. In addition, at para.
    102, he clarified that:

[U]nder the no
    other provision test, the police are not asked to show why an alternative
    authorization
would not work
on the facts of a particular case, but
    rather why it is
substantively different
from what Parliament has already provided.
    Though the fact that an alternative authorization will satisfy the
    investigative objective of the police may be helpful as a factor in
    demonstrating its substantive equivalence, the inquiry under the no other
    provision test remains focused on the latter point, not the former. If the
    police successfully make this showing, the inquiry under s. 487.01(1)(c) ends. [Emphasis
    in original.]

[54]

MacPherson J.A.
    similarly stated in
Ha
, at para. 43:

The focus in the s.
    487.01(1)(c) analysis is not on whether there are other investigative
    techniques that might accomplish the purported investigative purposes or goals
    of the police; rather, the focus is on the particular investigative technique
    or procedure that the police seek to utilize and whether it can properly be
    authorized by another provision in the
Code
or any other federal statute.

[55]

As the
    appellant concedes, there is no other provision in the
Criminal Code
or other federal statute that would have authorized covert entries and searches
    at the storage locker. The other investigative techniques raised by the
    appellant are not, in substance, equivalent to unlimited covert entries and
    searches on private property. They would not allow the police to do what they
    sought to do in this case, namely, search the storage locker, where they
    believed evidence of the offences was located, without effectively terminating
    the ongoing investigation. The police in this case were not using the general
    warrant to circumvent more onerous requirements for other substantively
    equivalent investigative techniques.

[56]

In light of my
    conclusion that none of the grounds of appeal relating to the alleged s. 8
    breach can succeed, it is unnecessary to address the appellants ground
    relating to s. 24(2).

E.

Disposition

[57]

For these
    reasons, I would dismiss the appeal.

Released: July 28, 2021 P.R.

S. E. Pepall
    J.A.

I agree. Paul
    Rouleau J.A.

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


