



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reid, 2017 ONCA 430

DATE: 20170530

DOCKET: C61748

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rudolph Reid

Appellant

Ian R. Smith and Amy J. Ohler, for the appellant

Tanit Gilliam, for the respondent

Heard: March 29, 2017

On appeal from the conviction entered on May 4, 2015 and
    the sentence imposed on June 23, 2015 by Justice Nancy L. Backhouse of the Superior
    Court of Justice.

van Rensburg J.A.:

A.

Introduction

[1]

The appellant appeals his conviction for possession of cocaine for the
    purpose of trafficking and possession of the proceeds of crime. He seeks leave to
    appeal his sentence of five years imprisonment, less nine months credit on
    account of restrictive bail conditions.

[2]

For the reasons that follow, I would dismiss the appeal from conviction
    and sentence.

B.

Background Facts

[3]

The investigation of the appellant began when a confidential informant
    (CI) told the police that he or she had purchased cocaine from the appellant (whom
    he knew as Rocky) and his roommate Carl Morris (Morris) and that the
    appellant was in possession of a gun. The police conducted surveillance at the
    address provided by the CI and observed a person that the police identified as
    the appellant at the address. Based on the CIs information and the
    surveillance evidence, the police applied for a telewarrant pursuant to s.
    487.1 of the
Criminal Code

to search the appellants residence
    for a handgun, identification and cocaine, as evidence in respect of an offence
    under s. 91(1) of the
Criminal Code
.

[4]

The following day, after he was observed engaging in several hand-to-hand
    transactions suggestive of drug trafficking, the appellant was arrested and was
    found to be in possession of narcotics. The police then executed the search
    warrant, and discovered cocaine, a quantity of Canadian and U.S. currency and
    drug trafficking paraphernalia in the appellants apartment. No gun was located
    in the search of the appellant or his residence.

[5]

At trial, the appellant brought an application under s. 8 of the
Charter
to challenge the legality of the search warrant and the admissibility of the
    evidence obtained in the execution of the warrant (the 
Garofoli
application). The Crown, after conceding that the Information to Obtain
    (ITO) that was redacted to protect the CIs identity did not establish
    reasonable and probable grounds for issuing the warrant, resorted to the
    procedure now known as step six
[1]
,
    which was first described in
R. v. Garofoli
, [1990] 2 S.C.R. 1421. The
    trial judge dismissed the
Garofoli

application.
[2]


[6]

The trial judge concluded that the evidence obtained through the execution
    of the search warrant was sufficient to establish the appellants guilt beyond
    a reasonable doubt, and she convicted him of the two offences.

C.

Conviction Appeal  Alleged Errors in the
Garofoli
Application

[7]

The conviction appeal concerns the trial judges disposition
    of the
Garofoli

application
.

[8]

A trial judges decision on a
Garofoli
application is entitled
    to deference. An appellate court should not interfere with the trial judges
    disposition of the application, absent an error in law, a misapprehension of the
    evidence or a failure to consider relevant evidence:
R. v. Grant
(1999), 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18, leave to appeal refused
    [1999] S.C.C.A. No. 168;
R. v. Ebanks
, 2009 ONCA 851,
97 O.R. (3d) 721,
at para. 22,
    leave to appeal refused [2010] S.C.C.A. No. 84.

[9]

The appellant alleges there were four such errors warranting
    intervention by this court.

(1)

Reasonable and Probable Grounds with Respect to the Firearm Offence

[10]

First, the appellant says that the ITO did not
    provide reasonable and probable grounds to believe an offence had been
    committed under s. 91(1) of the
Criminal Code
.
The affiant of the ITO deposed that he
    believed the appellant was in possession of a handgun, based on the CIs
    information that he had seen the gun in the appellants possession. The ITO did
    not, however, provide any evidence that the appellants possession of the
    handgun was illegal. The ITO does not indicate, says the appellant, that the
    police took any investigative steps to determine whether the appellant had a valid
    firearm licence or certificate, or was prohibited from possessing a firearm by
    an order under the
Criminal Code
. The
    appellant refers to
R. v. Ball
, 2014 ONCJ 265,
    [2014] O.J. No. 2552, at para. 12 and
R. v. Boussalas
, 2014 ONSC 5542, 320 C.R.R. (2d) 64, at para. 37, as cases in which
    the police took investigative steps to determine whether the accused was in
    lawful possession of a firearm.

[11]

I would not give effect to this argument.

[12]

The appellants illegal possession of the
    handgun could be inferred reasonably, if not inevitably, from the circumstances
    set out in the ITO. The appellant had a criminal record, which included
    offences that attracted a mandatory weapons prohibition under s. 109 of the
Criminal
    Code
. Further, it was reasonable to assume that the possession
    of a gun by the appellant in the context of his activities as a drug dealer
    would be illegal. In these circumstances, the trial judge committed no error in
    concluding that the ITO disclosed reasonable and probable grounds to believe
    the appellant was unlawfully in possession of a firearm.

(2)

Denial of Leave to Cross-examine the ITO
    Affiant

[13]

Second, the appellant asserts that the trial
    judge erred in refusing leave to cross-examine the affiant of the ITO on the
Garofoli
application.

[14]

The appellant says that there were a number of topics
    on which cross-examination of the affiant ought to have been allowed: (i) the
    affiants failure to include the CIs complete criminal record; (ii) the
    failure to note the date of the appellants record for trafficking (which would
    have revealed a 12 year gap between the appellants last conviction and the
    date of the investigation); (iii) the overstatement by the affiant that all of the
    CIs information had been corroborated; (iv) the bald statement that police surveillance
    showed acts indicative of drug dealing; (v) the affiants resort to the
    telewarrant process when it may have been unnecessary; and (vi) the fact that
    the police did not seek a warrant in respect of Morris under the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19
.
The appellant says that cross-examination of the affiant on any of
    these topics could have elicited evidence of sloppiness, conclusory reasoning and
    exaggeration by the affiant, from which it could be inferred that the police
    misled the issuing justice. He argues that leave should have been granted
    because all of the proposed areas of cross-examination went to the affiants
    reasonable belief and could have discredited the grounds for issuing the
    warrant.

[15]

To satisfy the test for leave to cross-examine the affiant of an
    ITO, [a] basis must be shown by the accused for the view that
    cross-examination will elicit testimony tending to discredit the existence of one
    of the preconditions to the authorization, as for example the existence of reasonable
    and probable grounds:
Garofoli,
at p. 1465;
R. v. Pires
;
R.
    v. Lising
, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 40;
R. v.
    Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 39. The trial judge
    must be satisfied that the proposed cross-examination is reasonably likely to
    assist in determining whether the necessary grounds existed for the issuance of
    the search warrant:
R. v. Green
, 2015 ONCA 579, 337 O.A.C. 72, at
    para. 34. The focus of the cross-examination, if leave is granted, is on the reasonableness
    and honesty of the affiants belief as to the existence of reasonable and
    probable grounds, and not on the ultimate accuracy of the information relied on
    by the affiant:
Pires
,
at para. 41;
Green
, at para.
    34. A decision to refuse leave to cross-examine the affiant is discretionary
    and, absent evidence that the trial judge did not exercise his or her
    discretion judicially, is entitled to deference:
Pires
, at paras.
    46-47;
Green
, at para. 52.

[16]

The trial judge identified the correct test from
Garofoli

at para. 12 of her reasons. She then
    observed that weaknesses in the ITO were matters for argument on the
Garofoli
application, and that there was no evidence to support a claim that
    the affiant deliberately concealed relevant information or deliberately
    provided misleading information. She also adverted to the risk that
    cross-examination might reveal the identity of the CI. She concluded that the
    applicant had not established that the proposed cross-examination would elicit
    testimony tending to discredit the existence of one of the preconditions to the
    authorization of the search warrant.

[17]

The appellant says the trial judge applied too onerous
    a test on the application to cross-examine by requiring him to show that the
    affiant
deliberately
concealed relevant information or misled the issuing justice to satisfy the
    test for leave. I disagree.
The lack of evidence that the affiant
    deliberately concealed or provided misleading information was only one of the
    factors considered by the trial judge. It was, however, a valid factor.
    Cross-examination will only tend to discredit the existence of one of the
    preconditions to the authorization of the search warrant if it can show that
    the affiant knew or ought to have known the information in the ITO was false:
Pires
,
    at para. 41;
Sadikov
, at para. 40. There was no evidence before the
    trial judge to suggest that this was the case. Further, simply pointing to
    omissions, inconsistencies, or conclusory or inaccurate statements is not a
    sufficient basis to permit cross-examination:
R. v. Ambrose
(1994), 73
    O.A.C. 135, at para. 7 (C.A.), leave to appeal refused, [1995] S.C.C.A. No. 28;
Pires
, at paras. 40-44. I agree with the trial judge that the proposed
    topics of cross-examination here largely dealt with alleged deficiencies
    apparent on the face of the ITO, which could be addressed through argument.

[18]

I would not therefore interfere with the proper
    exercise of the trial judges discretion in this case to refuse leave to
    cross-examine the affiant of the ITO.

(3)

Conditions for the Telewarrant

[19]

Section 487.1 of the
Code
provides for the issuance of a
    telewarrant, and requires the applicants belief that an indictable offence
    has been committed and that it would be impracticable to appear personally
    before a justice to make application for a warrant. In the ITO, the affiant justified
    the application for a telewarrant by stating that it was after 4:00 p.m., that
    the court house was closed and that a justice of the peace was not available in
    the jurisdiction. The ITO was submitted at 8:32 p.m.

[20]

The trial judge concluded that the conditions for a telewarrant had been
    met. She referred to the decision of this court in
R. v. Lao
, 2013
    ONCA 285, 305 O.A.C. 346, that impracticable under s. 487.1 of the
Criminal

Code
is not the same as inconvenient. She concluded that waiting
    until the following day to obtain a warrant risked failure of the exercise
    because the delay may have stale-dated the CIs information and because guns
    and drugs are easily transportable.

[21]

The appellant asserts that the trial judge erred in
    finding that the
conditions for a telewarrant under s. 487.1 of the
Criminal
    Code
had been satisfied and that her reasons for this decision were not
    supported by the evidence. The fact that the affiant requested three days to
    execute the search warrant suggests that it was not impracticable for the
    affiant to attend personally before a justice.

[22]

I would not give effect to this argument. Since the trial judge
    made her decision in this case, the Supreme Court has released its decision in
R.
    v. Clark
, 2017 SCC 3, [2017] S.C.J. No. 3. In that case,
an
    officer justified the impracticability of obtaining a warrant in person on the
    basis that he was working a nightshift in the early morning hours and the
    Kelowna Court House is presently closed. The Supreme Court dismissed the
    appeal for the reasons given by Frankel J.A. in the B.C. Court of Appeal:
2015 BCCA 488
, 330 C.C.C. (3d) 448.
    At para. 66, Frankel J.A. stated:

The telewarrant procedure was designed to make
    it possible for law enforcement officers to apply for a search warrant 24 hours
    a day, seven days a week. Whether the application is made in-person or by fax
    the reasonable-grounds standard must be met before a warrant can be issued.
The
    impracticability requirement is concerned with whether it is practicable to
    make an in-person application at the time the application is brought; it does
    not require that an immediate need for a warrant be demonstrated
. [Emphasis
    added.]

[23]

Similarly, in this case, the affiant explained that the court
    house was closed when the application was made. Further, t
he
    trial judge reasonably concluded that waiting 12 hours to obtain a search
    warrant could have impacted the ability to execute the warrant. As in
Clark
, the onus is on the appellant to demonstrate that it was practicable
    for the affiant to have made an in-person application notwithstanding the fact
    that the court house was closed. The trial judge did not err in her conclusion
    that the impracticability requirement for a telewarrant had been met.

(4)

Corroboration of the CIs Information

[24]

The appellant contends that the trial judges conclusion that the
    information provided by the CI was sufficiently corroborated was unreasonable. In
    particular, the police did not corroborate the information the CI gave them about
    Morris and the appellant living together and their joint enterprise selling drugs
    out of their home. The best the police could do was to place Morris as a
    resident of the home three years earlier. Surveillance did not show that Morris
    was connected to the target address or that he had the relationship with the
    appellant described by the CI. Further, the appellant asserts that the trial
    judge misapprehended the evidence in concluding that the CIs description of
    the appellant was confirmed by a police officer who identified the appellant
    while conducting surveillance at his home, even though there was no explanation
    of how the identification was made.

[25]

The appellant asserts that the failure of the police to corroborate
    these details ought to have affected the assessment as to whether CIs
    information was sufficiently reliable and compelling to justify the issuance of
    a warrant.

[26]

Again, I would not give effect to this ground of appeal.

[27]

The trial judge considered and applied the test in
R. v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168, which
required
    her to consider whether the information from the CI was compelling, credible
    and corroborated. She acknowledged that the statement in the ITO that all the
    information provided by the CI had been corroborated was an overstatement and
    she excised this statement from the ITO. After outlining the information from
    the CI that the police had corroborated, the trial judge concluded that the issuing
    justice could reasonably have found that the information from the CI was corroborated.
    In coming to this conclusion, the trial judge noted that where the police
    receive compelling information from a known CI with a track record of
    reliability, something less in the way of verification might suffice (at
    para. 27).

[28]

Indeed, the law does not require the police to corroborate every detail
    of a CIs tip. Rather, the totality of the circumstances must meet the standard
    of reasonableness and weaknesses in one area may, to some extent, be
    compensated by strengths in the other two:
Debot
,
at para. 1168.

[29]

In this case, there were reasonable grounds to justify the issuance of
    the search warrant sought based on the information in the ITO, taken as a whole.
    The CI provided detailed and firsthand information about the appellant. In
    particular, he or she described the handgun, when they last saw it and how many
    times they had seen it. The CI also provided very specific information
    regarding how often and how much cocaine he or she personally purchased from Rocky
    who lived at the appellants address. As the trial judge correctly noted, the
    information provided by the CI was not commonplace or easily ascertainable. Furthermore,
    it was reasonably open to the issuing justice to find that the CI was credible,
    after considering the CIs track record of reliability and his or her motive
    for providing the information to the police. In these circumstances, the past
    reliability of the CI and the specific nature of the CIs information made up
    for the fact that not every aspect of the tip was corroborated.

D.

Sentence Appeal

[30]

The appellant seeks leave to appeal his sentence
    of five years imprisonment, less nine months credit for the three years he
    was under house arrest. He seeks a prison term of three years and nine months,
    less the nine months credit.

[31]

The appellant does not assert that the sentence
    he received was outside the appropriate range. Rather, he argues that the trial
    judge erred in principle in relation to certain aggravating factors and that,
    as a result of these errors, the trial judge imposed an inflated sentence.

[32]

Specifically, the appellant contends that the
    trial judge erred in characterizing him as a mid-level drug dealer based only
    on the quantity of drugs seized, rather than on evidence of the actual amounts
    he trafficked, and in describing him as a career drug dealer when there was a
    15 year gap between these convictions in question and his last drug conviction.
    The appellant also says, that the undue emphasis on his earlier record led the
    trial judge to conclude that there was little prospect of rehabilitation, which
    was contrary to the pre-sentence report. The appellant further contends that
    the trial judge erred in identifying his lack of remorse as an aggravating
    factor.

[33]

I would not give effect to any of these
    arguments.

[34]

The conclusion that the appellant was a
    mid-level dealer was open to the trial judge on the evidence. The appellant says
    the only evidence on this point was the
expert report of an officer who
    provided the opinion that the quantities of narcotics and drug paraphernalia
    were consistent with street-level trafficking and possibly mid-level sales.
    The trial judge, however, was entitled to arrive at her own assessment based on
    the evidence before her,
which included: the
amount of
    cocaine seized from the search of the appellants person and his apartment
    (123.34 grams of powder cocaine and 151.98 grams of crack cocaine); the manner
    in which the drugs were packaged (pre-weighed in different baggies); the
    quantities of cash seized from the search of the appellants person and the
    apartment (CDN$8425 and USD$1325 in total, which was organized in denominations
    with different coloured elastic bands); and the drug trafficking paraphernalia
found in his home.

[35]

The
trial judge did not err in failing to give
    weight to the 15 year gap in the appellants criminal record between his
    convictions. Although she did not mention the gap principle specifically, she
    was alive to the gap because both counsel raised it in their submissions. The
    trial judge also mentioned that the criminal record was somewhat dated but
    found that the appellant had not been deterred by his previous sentence.

[36]

I agree with the appellant that the trial judge erred in referring
    to his lack of remorse as an aggravating factor. However, there is no indication
    that this error resulted in an increase in the sentence that otherwise would
    have been imposed. An error in principle, the failure to consider a relevant
    factor or the erroneous consideration of an aggravating or mitigating factor

will
    justify appellate intervention only where it appears from the trial judges
    decision that such an error had an impact on the sentence:
R. v. Lacasse
,
2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. The absence of remorse did
    not inflate or elevate the sentence and the sentence imposed is comparable to
    what similarly-situated offenders have received. See, for example,
R. v.
    Bajada
(2003), 173 C.C.C. (3d) 255 (Ont. C.A.),
R. v. Boughner
,
    [1999] O.J. No. 5449 (Sup. Ct.), affd (2002), 159 O.A.C. 316 (C.A.),
R. v.
    Dodd
, [2004] O.J. No. 6074 (C.J.), affd [2006] O.J. No. 282 (C.A.),
R.
    v. Bryan
, 2011 ONCA 273, [2011] O.J. No. 1581, and
R. v. Murray
,
    [2007] O.J. No. 3095 (Sup. Ct.), which were among the cases cited to the trial
    judge by the parties.

E.

Disposition

[37]

For these reasons I would dismiss the conviction
    appeal, grant leave to appeal the sentence but dismiss the sentence appeal.

Released: (DW) May 30, 2017

K. van Rensburg
    J.A.

I agree. David
    Watt J.A.

I agree. G.
    Pardu J.A.





[1]
Step six is the procedure set out by the Supreme Court in
Garofoli

to
    be followed when an ITO is redacted to protect informer privilege and where the
    redacted ITO does not disclose sufficient information to make out the
    reasonable and probable grounds required to support the issuance of the search
    warrant. In these circumstances, the court may consider the excised or redacted
    passages in an ITO and apprise the applicant of the nature of the information
    redacted from the ITO through a judicial summary. The court must be satisfied
    that the applicant, through the provision of a judicial summary, is
    sufficiently aware of the nature of the excised material to challenge it in
    argument or by evidence:
Garofoli
, at p. 1461;
R. v. Crevier
,
    2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 24.



[2]
The
    trial judge also dismissed the appellants application alleging breaches of ss.
    9, 10(a) and 10(b) of the
Charter
.  There is no appeal from these
    rulings.


