



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rojas-Machuca, 2018 ONCA 390

DATE: 20180420

DOCKET: C61625

Benotto, Brown and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fred Rojas-Machuca

Appellant

Cate Martell, for the appellant

Xenia Proestos and Brigid Luke, for the respondent

Heard and released orally: April 18, 2018

On appeal from the
    conviction entered on December 4, 2015 by Justice Robert P. Villeneuve of the Ontario
    Court of Justice.

REASONS FOR
    DECISION

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking, possession of marijuana, and possession of stolen property. He
    appeals on the basis that the evidence obtained during the execution of a
    search warrant at his residence should have been excluded. He submits that the
    reviewing justice erred in considering the sufficiency of the Information to
    Obtain (ITO).

[2]

Three Confidential Informants provided information to police officers
    about the appellants involvement in drug trafficking:

·

CI #1 witnessed transactions in March, May, August, September and
    November 2014. CI #1 told police that the appellant was observed in possession
    of cocaine, that he kept cocaine inside his residence and that he delivered his
    product on foot.

·

CI #2 observed three drug transactions and said the appellant was
    constantly delivering cocaine but made no link between the drug trafficking and
    the appellants residence.

·

CI #3 saw individuals approach the appellants residence, bend
    down and drop something then pick something up. The information was that the
    front door is used for drug transactions.

[3]

Following a blended
voir dire
, the trial judge concluded at
    (page 22) that: The ITO adequately sets out grounds to believe that the
    [appellant] carried out the business of selling cocaine from his residence.

[4]

The appellant submits that this conclusion involves three broad errors
    by the trial judge:

1.

He did
    not properly consider the sufficiency of the grounds in relation to the location
    to be searched.  He submits that the information from CI#1 was conclusory, and
    CI#3 was untested. The evidence merely established that the appellant lived at
    the residence, not that evidence would be located there.

2.

He failed
    to appreciate the staleness of the information because the observations dating
    back to March were of no significance with respect to the search warrant sought
    in November.

3.

He did
    not assess the credibility and reliability of the information in accordance
    with factors in
Debot
by assessing the informants on a global basis
    instead of considering the information separately.

[5]

We do not accept these submissions.

[6]

CI #1s information was that he witnessed five cocaine transactions
    between March and November, two of which were at the appellants residence. The
    trial judge found this information detailed, based on personal information and
    compelling. In conjunction with the information from CI #2 and #3, it was
    reasonable to conclude that evidence of drug trafficking would be found at the
    appellants residence.

[7]

As to timing, CI#1 provided information of cocaine trafficking by the
    appellant in November 2014. The trial judge found that this information, given
    to the police in early November provides, in my view, reasonable grounds to
    conclude that [the appellant] was in possession of cocaine at or very near the
    time of the execution of the search warrant.

[8]

Lastly, in our view, the trial judge assessed each informers
    information using the
Debot
criteria. There was no pooling of the
    informers as alleged by the appellant. He addressed the credibility and
    reliability of each informer and specified where and how he found
    corroboration. CI #1s information was that he witnessed two cocaine
    transactions at Mr. Rojas residence. CI #2s information was found to be
    equally credible, and the source of his information was in the ITO. CI#1 and #2
    had been proven to be credible in the past. CI #3 provided information based on
    personal observations.

[9]

As there was no
Charter
breach, it is not necessary to address
    the appellants s. 24(2) submissions.

[10]

The
    appeal is dismissed.

M.L. Benotto J.A.

David Brown J.A.

B.W. Miller J.A.


