



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wawrykiewycz, 2020 ONCA 269

DATE: 20200427

DOCKET: C65667

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Wawrykiewycz

Appellant

Gregory Lafontaine and Saul Moshé-Steinberg,
    for the appellant

Kevin Wilson and Alexia Bystrzycki, for
    the respondent

Heard: February 25, 2020

On appeal
    from the convictions entered on May 3, 2018, with reasons reported at 2018 ONCJ
    199, and the sentence imposed on June 22, 2018, by Justice Marcella Henschel of
    the Ontario Court of Justice.

Pardu J.A.:

A.

OVERVIEW

[1]

The appellant was convicted of various drug-related offences following the
    execution of search warrants. He argues that the trial judge erred in finding
    that the Information to Obtain (ITO) was sufficient to support the issue of
    the warrants and submits that the evidence ought to have been excluded pursuant
    to s. 24(2) of the
Charter
. He also appeals
    his sentence.

B.

FACTUAL BACKGROUND

[2]

Police received information that a suspicious
    young male was frequenting a Walton Drive address in Aurora. They discovered
    the appellant lived there and that he was on bail for weapons and drug
    trafficking offences. Police began surveillance of the appellant. Over the
    following months, they observed him going to a storage locker rented in someone
    elses name and engaging in what appeared to be a drug transaction. On one
    occasion, police took swabs of the exterior door handle of the appellants car.
    The swabs were subjected to ion scan testing. They tested positive for cocaine.

The Information to Obtain the Search Warrants
    of February 8, 2017

[3]

Based on this surveillance, on February 8, 2017,
    DC McGregor swore an ITO to obtain search warrants. The ITO contained the
    following information:

·

In November 2016, the appellant was on bail for two
    sets of offences in Toronto, including weapons trafficking and possession for
    the purpose of trafficking. One set of offences was committed while on bail for
    the other. The conditions of release required the appellant to reside at the
    Walton residence and remain inside from midnight until 6:00 a.m. unless
    accompanied by his father or surety. On November 9, 2016, the appellants
    father said he had not seen his son in two days, but that he believed his son
    had been granted a bail variance allowing him four-day periods away from home.

·

A Toronto judge concluded that the appellants
Charter
rights had been violated in the course of a search relating to the Toronto
    charges, but that the evidence would be admitted nonetheless. There was an
    agreed statement of facts and it was anticipated that the appellant would be
    convicted of both sets of Toronto charges on his next court date. A copy of the
    Toronto judges
Charter
reasons was attached as an exhibit to the ITO.

·

The police observed the appellant going into a
    storage unit in Mississauga on five occasions in November 2016, December 2016,
    and January 2017. The appellant drove a Lexus to the unit and attended other
    addresses afterward. On February 3, 2017, the police installed hidden cameras
    at the storage facility. The footage showed the appellant frequently attended
    the storage unit over the course of several days, often arriving and leaving empty-handed.
    No one else was filmed attending the storage unit. The appellant was seen
    paying for the unit, but it was rented in the name of another individual whom
    police confirmed had not, in fact, rented it.

·

On January 27, 2017, the appellant attended a
    Walmart in Toronto. An officer overheard a conversation between the appellant
    and another male in which they said cheap, crack, stepped-on, and
    passcode.

·

On January 28, 2017, when the appellant went
    inside a restaurant, officers took a swab from the exterior drivers side door
    handle. The door handle was cleaned, and a second swab taken as a control
    sample. The appellant left the restaurant and conducted what police believed to
    be a drug transaction in an IKEA parking lot, with an unknown man getting in
    the Lexus briefly with a bag, which appeared emptier when he left the car.
    After, the appellant attended the storage unit. Later, the appellant entered a
    Toronto address, and officers obtained a third swab from the door handle. All
    three swabs tested positive for cocaine. In the ITO, the affiant said the
    control sample may have tested positive because the door handle was not
    adequately cleaned, or due to the texture/nature of cocaine or the door handle,
    or because there was so much cocaine saturation that residue remained.

·

DC McGregor said he did not rely on any
    information gathered through a tracking device he placed on the appellants
    Lexus in December 2016. Although he was granted a warrant, upon review DC McGregor
    concluded the original affidavit included bias that outweighed the facts
    presented.

[4]

However, the bail conditions cited in the ITO
    had been varied and were no longer accurate in one regard: the appellant was
    allowed to be out between midnight and 6:00 a.m. for work purposes if he had
    written permission from his surety indicating his whereabouts and the timeframe
    of his absence from his residence. A copy of any such written permission was to
    be retained by his surety.

Execution of search warrants

[5]

Based on the above information, warrants were
    issued for the appellants bedroom, storage unit, and Lexus. On February 9,
    2017, police executed the warrants and seized the following:

·

Storage unit: cocaine (736g), mixed cocaine and
    methamphetamine (194g), methamphetamine (60g), cutting agents, cocaine press,
    ammunition (107 rounds), other drug paraphernalia

·

Appellants bedroom: $100,000 in cash

·

Lexus: cocaine (2.86g), cutting agent

C.

Decision at Trial

[6]

The appellant brought an application to exclude
    the seized evidence. The trial judge concluded that after excision and
    amplification, the ITO supported the warrants issuance. She dismissed the
    appellants application.

[7]

The trial judge correctly set out the test for
    assessment of the ITO, citing
R. v. Pires;

R. v. Lising
, 2005
    SCC 66, [2005] 3 S.C.R. 343, at para. 8:

The reviewing
    judge does not substitute his or her view for that of the authorizing judge. If,
    based on the record which was before the authorizing judge as amplified on the
    review, the reviewing judge concludes that the authorizing judge could have
    granted the authorization then he or she should not interfere. In this process,
    the existence of fraud, non-disclosure, misleading evidence and new evidence
    are all relevant, but rather than being a pre-requisite to review, their sole
    impact is to determine whether there continues to be any basis for the decision
    of the authorizing judge.

[8]

The trial judge summarized the application of
    the test as follows:

It must also be
    kept in mind that what the ITO must establish is a reasonably grounded belief
    that the offence of possession for the purpose of trafficking had been committed
    and that the search of the storage facility unit, Lexus, and the applicants
    home would afford evidence of the offence. The informant must establish
    reasonable grounds to believe that these statutory preconditions have been [
sic
:
    met]. The informant is not required to establish the statutory preconditions
    beyond a reasonable doubt, or even to establish a
prima facie
case.
    Reasonable grounds exist at the point that credibly based probability replaces
    suspicion.

The trial judge addressed the appellants
    arguments in turn.

[9]

There was in fact a bail variance, but its terms
    allowed the appellant to be out past curfew for work purposes with written
    permission from his surety. The trial judge found the ITO was not invalid
    simply because the affiant attached the wrong recognizance conditions. She was
    not persuaded the affiant acted in bad faith; rather, he may have been unable
    to find the latest recognizance because it misidentified the date of the
    charges. Moreover, the warrants would have issued even if the proper
    recognizance had been attached. The affiant needed to show reasonable grounds
    to suspect drug possession, not that the appellant had breached the surety or
    curfew conditions of his bail.

[10]

Evidence of the appellants Toronto charges did
    not have to be excluded from the ITO simply because they were not yet proven.
    However, evidence from the investigations did need to be excluded in this case
    because the Toronto judge concluded that the evidence was obtained in violation
    of s. 8: the police entered a hotel room without giving the occupants the
    chance to comply with a request to leave. The trial judge questioned the
    appropriateness of the rule requiring automatic excision of unconstitutionally obtained
    evidence from an ITO. If unconstitutionally obtained evidence can be relied on
    to convict the accused when admitted under s. 24(2), it seemed incongruous
    that it could not form a basis for the issuance of a search warrant. She
    concluded however that she was bound by
R. v. Grant
, [1993] 3 S.C.R. 223,
to excise the
    evidence obtained in the Toronto investigations which resulted from
Charter
violations. In the instant case, police attached the judgment setting out those
    breaches of s. 8 of the
Charter
to the ITO.

[11]

Following excision of the factual details
    resulting from the earlier
Charter
violations, the trial judge gave
    limited weight to the outstanding charges:

[W]hat remains in
    respect of the outstanding charges is the fact that the applicant was alleged
    to have committed multiple charges of possession for the purpose of trafficking
    and other related offences with offence dates of December 29, 2013 and February
    18, 2014, and that it was anticipated that there will be a finding of guilty
    registered on Wawrykiewyczs next court date of February 14, 2017. Although
    the excision of the underlying facts significantly limits the weight that can
    be placed on the outstanding charges, in my view the fact of the outstanding
    charges and the expected outcome of those charges, has some value, albeit very
    limited, and can be considered as a part of the information as a whole in
    assessing whether the justice could have issued the warrants. In my view, even
    if no weight were placed on the outstanding charges, there remained sufficient
    reliable evidence that provided a basis upon which the issuing justice could
    have issued the warrants.

[12]

The trial judge also ruled that the ion scan
    swab results did not need to be excised. The trial judge concluded that while
    the swabs constituted a search, they were authorized under the ancillary powers
    doctrine, derived from
R. v. Waterfield
[1963] 3 All E.R. 659.
    Analogizing to
R. v. Chehil
, 2013 SCC 49, [2013] 3 S.C.R. 220, which
    involved sniffer dogs and luggage, and
R. v. MacKenzie
, 2013 SCC 50,
    [2013] 3 S.C.R. 250, which involved sniffer dogs and vehicle perimeter searches,
    the trial judge concluded that a warrantless exterior car swab based on
    reasonable suspicion was acceptable for the following reasons:

·

The swabbing was minimally intrusive, narrowly targeted,
    and contraband-specific.

·

The impact on privacy was even lower than with
    dog sniff cases because swabbing provides no information about the interior of
    a vehicle.

·

There was no potential for embarrassment or
    delay to the appellant.

·

The police had an important purpose (i.e.,
    investigating cocaine trafficking).

·

Covert swabbing is an important investigative
    tool that allows police to test for the presence of illegal drugs without
    risking disclosure of the investigation.

[13]

The trial judge found that while the affiant
    should have included information about the reliability of such swabs 
    particularly given the positive result from the control sample  there was no
    evidence of bad faith. The affiant disclosed and listed possible reasons for
    the positive control sample. His failure to mention false positives as a
    possible explanation was not reason enough to excise the test results or give
    them no weight. Considered as part of the evidence as a whole, the ion scan
    test results did not require a more detailed explanation before the issuing
    justice.

[14]

Thus, after excision and amplification, the ITO
    still contained information about the ion scans and the appellants trips to
    the storage unit, IKEA, and Walmart. This was sufficient to support the
    warrants issuance.

[15]

The trial judge found that even if she was
    mistaken that the warrants were lawfully obtained, the evidence was still
    admissible under s. 24(2). She considered the factors from
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, as follows:

Seriousness of police conduct

·

To the extent any deficiency in the grounds arose
    from the need to excise information relating to the Toronto charges, the breach
    was not serious. First, although the Toronto judge found a s. 8 breach, he
    found the seriousness was tempered because the Toronto police acted in good
    faith and believed they were acting pursuant to law. That evidence was admitted
    under s. 24(2) of the
Charter
. Second, the evidence sought to be
    excluded was linked only indirectly to the
Charter
infringing conduct:
    see
R. v. Lam
, 2015 ONSC 2131, 343 C.R.R. (2d) 281, at para. 76.

·

If the ion scan swab violated s. 8, it was not a
    serious breach. The police acted in good faith and fully disclosed their
    actions in the ITO. Nor did they act in blatant violation of the law: at the
    time, the law was not clear whether such a swab constituted a search and
    whether prior judicial authorization was required.

·

Although erroneous information was included
    about the appellants bail conditions, this was an honest mistake and was not
    material to the warrants issuance. The appellant was in breach of his bail
    conditions under either version of his recognizance.

·

Ultimately, the searches were conducted with
    prior judicial authorization based on full disclosure to the issuing justice.
    The searches were conducted by officers who believed they were acting with
    lawful authority.

Impact of the breach

·

While the appellant had a high expectation of
    privacy in his home, favouring exclusion, his privacy interest in the storage
    unit and Lexus door handle were significantly lower, favouring inclusion.

·

None of the searches impacted the appellants
    liberty interests or human dignity.

·

Even if the Lexus swab violated s. 8, it only
    involved the exterior door handle, yielded focused and narrow information that
    was not highly personal, and the appellant was not present when it was taken
    and did not suffer stigma or embarrassment.

Societys interest in adjudication on the
    merits

·

This factor strongly supported admission. Excluding the drugs and
    paraphernalia would wholly gut the Crowns case.

·

The search yielded physical, highly reliable evidence. Cocaine and
    methamphetamine are drugs that have extremely serious consequences within the
    community, and the charges were of a serious nature.

[16]

The trial judge rejected the appellants request
    to consider the tracking warrant as evidence of police misconduct in her s.
    24(2) analysis. Even if the Information to Obtain the tracking warrant did not
    support the issue of that warrant, DC McGregor fully disclosed his concerns
    about the tracking warrant, and provided a copy in an appendix to the search
    warrant ITO. Moreover, he did not rely on any information obtained from the
    tracking warrant in obtaining the search warrants.

[17]

Balancing the
Grant
factors, the trial
    judge held that a reasonable person would not find admitting the evidence would
    bring the administration of justice into disrepute. The ITO was not carelessly
    drafted, materially misleading, factually incomplete, or premised on negligent
    or incompetent police investigation or bald conclusory statements.

[18]

The appellant also advanced a s. 9 argument, but
    the trial judge dismissed it in light of her conclusions on the s. 8 issue.

[19]

After the appellants application to exclude
    evidence was dismissed, he was convicted based on an agreed statement of facts.

D.

Did the trial judge err in finding the search
    warrants were properly issued and that the appellants s. 8 rights were not
    violated by their issuance?

Appellants Position

[20]

The
    appellant argues that the trial judge mischaracterized his argument as a
    piecemeal dissection which analyzed each piece of evidence in isolation. In
    reality, the appellant pointed to multiple issues which 
taken together
    and in context
 mean the warrants were not properly issued.
    Further, the judge misapprehended key aspects of the evidence, as follows:

Bail conditions

[21]

The
    ITO referred to bail conditions which had been superseded by a subsequent
    variation. The trial judges finding that this was an honest mistake was
    unsupported by the evidence. The appellant alleges that the trial judge offered
    speculative excuses that this resulted from a typographical error in the bail
    variation, or that it was harder for police to obtain this information than it
    was for counsels assistant. In fact, the police could have obtained it through
    exactly the same means that counsels assistant did. The evidence suggests the
    police did not make good faith efforts or were negligent.

[22]

The
    trial judge also supposedly erred when she found the bail condition error did
    not impact the warrants issuance. While the search warrants were issued to
    investigate gun and drug trafficking, the entire investigation only started
    because the police
suspected
a bail violation. Had the issuing justice been
    provided with the correct bail conditions, they would have called into question
    the need to continue surveillance of the appellant, and therefore the validity
    of the warrants.

Toronto charges

[23]

The
    trial judge found that even without the information about the Toronto charges
    and the tracking warrant, there was enough information in the ITO to issue the
    warrant. However, the Toronto charges permeated the ITO. By the affiants own
    admission, the tracking warrant ITO was based on bias rather than factual
    information. The trial judge failed to acknowledge and consider the prejudicial
    impact of including this information in the ITO.

Swab evidence & ion scan testing

[24]

The information related to the swab of the
    appellants Lexus was an unconstitutional warrantless search and should have
    been excluded from the ITO. The trial judge erroneously focused on the
purpose
of the
    swabs and found that the
possibility
of obtaining DNA evidence was irrelevant to the
    appellants reasonable expectation of privacy. The trial judge should have
    applied the reasoning in
R. v. Wong
, 2017 BCSC 306, and concluded the warrantless
    swabbing was an unreasonable search and seizure. A vehicle swab involves a much
    greater privacy interest than a dog sniff because of the potential collection
    of biological information. The trial judge should not have applied the
    reasonable suspicion standard from sniffer dog cases like
R. v. A.M.
,
    2008 SCC 19, [2008] 1 S.C.R. 569.

[25]

Alternatively, the trial judge erred in finding
    the police had reasonable suspicion of drug offences at the time of the vehicle
    swab. She did not properly consider the totality of the circumstances,
    including the very limited value of the appellants outstanding charges, and
    the significantly limited value of the Walmart conversation. The surveillance
    officer barely overheard the conversation and missed the most significant words
    indicating a drug transaction. Finally, the judge explained away the affiants
    failure to inform the issuing justice of the possibility of a false positive
    from the swab. The affiant simply provided reasons why the control swab may
    have given an accurate positive result. The issuing justice may have been left
    with an inaccurate impression of the reliability of the swab tests.

Respondents position

[26]

The respondent argues that the trial judge
    correctly found that after amplification and excision, the ITO contained
    sufficient information to issue the warrants. The responses to the appellants
    arguments are as follows:

Failure to attach the most recent
    recognizance does not invalidate the ITO

[27]

The trial judge properly noted that a mistake
    does not always indicate bad faith. Listing potential reasons for the officers
    mistake did not amount to improper speculation on the part of the trial judge,
    and her passing comments have no bearing on the correct analysis she provided. Attaching
    the updated recognizance would have had no impact on the warrants. In
the earlier release document
,
    the appellant was permitted out past curfew in the presence of his father or
    surety; in the later one, he was permitted out past curfew for work purposes
    with written permission from his surety. When police spoke with the father, he
    reported that he had not seen his son for two days, and there was no evidence
    that the appellants surety gave permission to break curfew for work purposes,
    or that the appellant was working.

[28]

Nor does the ITOs sufficiency depend on whether
    the polices
initial
suspicion of a bail violation proved correct. First, the police also suspected
    that the appellant was trafficking in narcotics, and initiated their
    investigation with this in mind as well as curfew violations. Second, baldly
    characterizing police error as negligence does not establish a reversible error,
    especially given the trial judges rejection of the assertion that the police
    acted in bad faith. The polices initial reasons for investigation (or even
    negligence during the investigation) do not bear on the ultimate question of
    whether the ITO contained sufficient information to issue the warrants.

The judge properly handled the Toronto
    charges

[29]

The appellants argument that including the fact
    of the Toronto charges was overly prejudicial is flawed in two ways. First,
    the job of a reviewing judge is to determine whether the ITO contained
    sufficient information upon which the issuing justice could have issued the
    warrants 
not
to speculate about the improper influence that excised evidence may have had on
    the issuing justice. Second, the trial judge actually
did
consider the prejudicial impact,
    noting that DC McGregor did not emphasize the underlying facts of the Toronto
    charges, disclosed the s. 8 violation found by the Toronto judge, and provided
    the Toronto judges reasons.

The judge correctly found the ion scan swab
    was not an unlawful search

[30]

While
Wong
is factually similar, the
    trial judge was not bound by a Supreme Court of British Columbia decision. In
    finding the search was justified on the lower threshold of reasonable suspicion
    the trial judge noted the appellants reduced expectation of privacy, the
    minimal intrusiveness of the search, and the lack of harm to the appellants
    dignity or autonomy. The presence of DNA on a swab does not expose intimate
    biographical information because such DNA is meaningless without an ability to
    decode it: see
R. v. Tessling
, 2004 SCC 67, [2004] 3 S.C.R. 432, at
    para. 28. That decision, which concerned the use of Forward Looking Infra-Red (FLIR)
    technology, noted that reasonableness must be determined by looking at the
    information generated by
existing
FLIR technology rather than its
    theoretical capacity. It was open to the judge to conclude there was no bad
    faith or material non-disclosure in the affiants failure to mention the
    possibility of a false positive.

Analysis

[31]

I agree with the trial judges conclusion that
    the police reference to an outdated bail document was immaterial to the issue
    of whether grounds to search for drugs existed. That police attention was
    initially drawn to the appellant because they thought he might be violating his
    bail terms is irrelevant to that issue.

[32]

I largely agree with the trial judges
    conclusions as to the sufficiency of the ITO.

[33]

The trial judge gave very limited weight to the
    Toronto charges, and the police made full disclosure of the
Charter
violations associated with those charges. Moreover, police made full disclosure
    of the flaws associated with the earlier tracking warrant and did not rely on
    any evidence resulting from that investigative technique. Police made full
    disclosure of the positive control sample from the swab of the door handles and
    gave three possible explanations for it. The issuing justice was able to assess
    this evidence and evaluate its significance. The justice of the peace also
    would have been able to assess the degree of detail given about the drug-related
    conversation.

[34]

However, I part company with the trial judge on
    the issue of whether swabbing the door handles of a vehicle in a public parking
    lot, and analysis of those swabs using special equipment, requires prior
    judicial authorization. I do not agree that this search is analogous to a
    sniffer dog search, and that it may therefore be conducted without a warrant if
    there is reasonable suspicion that the target is involved in a drug-related
    offence. As I shall explain, in the circumstances of this case, the swabbing of
    the door handles of the car the appellant was driving required prior judicial
    authorization.

[35]

This issue turns on a question of law: Does
    swabbing the door handles of a vehicle in a public parking lot, and analyzing
    those swabs using special equipment, require prior judicial authorization, or is
    a reasonable suspicion legally sufficient? Questions of law, and the
    application of the law to a given factual matrix to determine whether a legal
    standard is met, attract a correctness standard: see
R. v. Le
, 2019
    SCC 34, 434 D.L.R. (4th) 631, at para. 23. While the underlying facts are
    reviewed for palpable and overriding error, the parties do not attack the
    factual findings of the trial judge on this issue. Therefore, her ultimate
    legal conclusion that swabbing and analysis of the door handles is a search
    that does not require prior judicial authorization is reviewed on a correctness
    standard.

[36]

Whether the appellant had a reasonable
    expectation of privacy in the material collected from the door handle of a car
    he parked in public is a normative, value-laden inquiry. The essential question
    is what degree of state intrusion into personal, territorial, and informational
    privacy can be tolerated without prior judicial authorization. As observed in
R.
    v. Patrick
, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 14, [p]rivacy
    analysis is laden with value judgments which are made from the independent
    perspective of the reasonable and informed person who is concerned about the
    long-term consequences of government action for the protection of privacy. Elsewhere,
    the Supreme Court has observed, At the same time, social and economic life
    creates competing demands. The community wants privacy but it also insists on
    protection. Safety, security and the suppression of crime are legitimate
    countervailing concerns.: see
Tessling
, at para. 17.

[37]

The degree to which police make physical contact
    with property is one factor to be considered in the totality of the
    circumstances. In
Patrick
there was an element of trespass by police,
    as they had reached over a property line to seize bags of garbage. Binnie J.
    noted at para. 45,


that
    while territorial privacy is implicated in this case, the
physical
intrusion by the police was relatively peripheral, and viewed in context, it is
    better considered as part of the totality of circumstances in a claim that is
    preferably framed in terms of informational privacy.
 (emphasis in original).


[38]

In
A.M.
, the fact that sniffer dog
    searches do not require physical contact with targeted property was relevant
    but not determinative: see para. 81. In some circumstances the degree of
    physical intrusion constituted by the search may be important, such as when police
    search through the contents of a purse or backpack. In others, the degree of
    physical intrusion may have little relation to resulting invasions of privacy.

[39]

Too narrow a focus on whether there was a
    trespass to a chattel, and the extent of interference with use of that chattel,
    could obscure the privacy interests at stake, as here, where the trial judge
    focused on the fact that the taking of the swabs had no impact on the
    appellants use of the car and was not known to him. She emphasized that the
    taking of the samples was itself nonintrusive, did not intrude into private
    places or embarrass the appellant, and did not affect his dignity, integrity,
    or autonomy.

[40]

Here the appellant had some expectation of
    privacy in the vehicle. Although the vehicle was owned by his father, he was
    using it and had the ability to regulate access to it, and there is no suggestion
    he abandoned his privacy interest. By parking the vehicle in a public lot, he
    would reasonably expect that others, including police, would make observations
    of the car. Police could legitimately observe physical damage to the car, or
    evidence on its exterior such as blood spatter, without prior judicial
    authorization.

[41]

I would not conclude that any physical contact
    by the police with the car is necessarily a violation of a reasonable
    expectation of privacy. An officer might, for example, place a hand on the hood
    of a car to determine whether it is warm, that is, to determine whether the
    vehicle has recently been driven. This evanescent contact is not far beyond the
    casual contact patrons of a parking lot might incidentally have with other
    vehicles.

[42]

However, I would hold that taking samples of
    residue left by a suspects hands on the handles of a vehicle, and subjecting
    those samples to chemical analysis, is an intrusion for which a warrant should
    be required. This investigative technique can reveal intimate details of the
    lifestyle and personal choices of the individual.: see
R. v. Plant
, [1993] 3 S.C.R. 281,
at p. 293. These
    swabs presumably revealed whether the appellant had handled cocaine. I also
    agree with the observations in
Wong,
at para. 27, that privacy
    concerns are heightened because the swabs may also provide DNA samples for
    analysis by police, even if that is not why they were initially collected, or
    what they were used for.
Patrick
concerned police searches of a
    suspects curb-side garbage. Though the police were searching for evidence of
    drug offences, the potential for collection of DNA was also relevant to the
    privacy analysis: see para. 30. The court also expressed scepticism of the
    notion that privacy concerns are diminished because the search was targeted at
    contraband: see
Patrick
, at para. 32; see also
A.M.
, at para.
    73.

[43]

This is unlike the emanations of heat released
    into the public sphere in
Tessling
.
By themselves, such heat emanations revealed little about the occupants of the home
    and concerns mainly centered on the technologys theoretical capacity to invade
    privacy. In the present case, while the swabbing was only carried out for the
    limited purpose of testing for the presence of cocaine, the technological
    capacity exists to subject swabs to other privacy-compromising analyses. In
    contrast, in
Kang-Brown
the odors were released into the public sphere
    and detected by a sniffer dog; no physical contact with the backpack was
    required, no samples were taken, and a sniffer dog generally cannot disclose non-targeted
    private information. As the Supreme Court observed in
A.M.
, at paras.
    74, 83:

[T]he fact that the sniff only communicates
    the presence of contraband and does not disclose the nature or existence of
    other personal belongings is not without significance.



[T]he dogs
    communication capacity is limited to a positive alert or a failure to react at
    all. Unlike a wiretap or a physical search, the police do not obtain a lot of
    information about a suspect that is not relevant to their specific drug
    inquiry. While the suspect has a privacy interest in the place where the drugs
    are concealed, the fact that the sniff will disclose nothing except the
    presence of illegal drugs in that private place is a factor weighing in favour
    of moving the balance point to the reasonable suspicion standard.

[44]

Here, though the vehicle was in public view, any
    residue left by the appellants hands was not observable to a passerby and was
    in this sense private. As the trial judge concluded, the appellant had an
    objective and subjective reasonable expectation of privacy in the car, and more
    particularly, in the residue left by his hands on the handles of the car he was
    using.

[45]

Given the privacy interests in the material
    transmitted from the appellants hands to the door handles, and given the
    degree of intrusion, sampling, and analysis, this is not a search for which
    reasonable suspicion could substitute for prior judicial authorization, as was
    the case in
Kang-Brown
. This was a warrantless search which was
    presumptively unreasonable: see
R. v. Collins
, [1987] 1 S.C.R. 265;
Hunter
    et al. v. Southam Inc.
, [1984] 2 S.C.R. 145. The presumptive requirement
    for prior judicial authorization remains. The onus rests on the Crown to
    demonstrate that the warrantless search was reasonable. Here there was no
    evidence about the accuracy or functioning of the ion scan equipment. A review
    of the jurisprudence suggests that its use has largely been confined to border
    searches. This was not a case of bodily residue or DNA left on abandoned personal
    property, or on public property, or on someone elses property. There is no
    suggestion that exigent circumstances existed to justify the warrantless search.

[46]

However, even if the evidence of the swabbing of
    the door handles and the analysis of those swabs were excised from the
    information to obtain, there remained a sufficient basis upon which the search
    warrants could have been obtained.

[47]

The appellant was on bail for two separate sets
    of drug offences and breach of recognizance, and was expected to be convicted
    on his next court appearance. He had engaged in what appeared to be a drug transaction
    and was overheard participating in what sounded like drug-related conversation.
    He was using and paying for a storage locker rented in someone elses name, which
    he frequently visited for no apparent purpose, and he gained entry to the
    storage facility using a passcode associated with a different storage locker. He
    did not have a locker in his own name.

E.

Should the evidence be admitted despite the
    warrantless search?

Appellants Position

[48]

The appellant argues that the trial judge
    understated the seriousness of the infringing conduct. He submits that she
    failed to acknowledge negligent and misleading actions of DC McGregor, and she
    mistook the absence of bad faith for the presence of good faith. Portrayal of
    the bail variation error as an honest mistake was unreasonable, submits the
    appellant, as the evidence showed that the correct bail information was easily
    obtainable. At best the police were negligent, and the incorrect bail
    information led to the bail compliance investigation, which ultimately led to
    the drug trafficking charges. The appellant also argues that the trial judges
    rejection of bad faith is unreasonable given the police failure to address the
    possibility of false positives before the issuing justice. Further, the
    appellant submits that the trial judge excused DC McGregor for including
    information from the tracking warrant in the ITO, despite his acknowledgement
    that the tracking warrant was biased. Finally, the appellant claims that the
    swab test was a serious breach even if it was not deliberately unconstitutional,
    as it was done through inattention to constitutional standards.

[49]

The appellant argues that the swabs had a
    serious effect on his privacy interests as they potentially collected highly personal
    biological information. The fact that the law was unclear regarding swabs was
    reason for more police caution, not less.

Respondents
position

[50]

The respondent submits that the trial judge did
    not err in principle, misapprehend material evidence, assess the evidence
    unreasonably or commit a palpable and overriding error, and so her decision to
    admit the evidence is entitled to significant deference.

Analysis

[51]

I would defer to the trial judges alternative
    conclusion that even if the swab of the door handles was a warrantless search
    in violation of s. 8 of the
Charter
, the evidence found as a result of
    the execution of the search warrants should nonetheless be admitted under s. 24(2).
    Where a trial judge has considered the proper factors, her determination under
    s. 24(2) is owed considerable deference: see
R. v. Grant
, 2009 SCC 32,
    [2009] 2 S.C.R. 353, at para. 86;
R. v. McGuffie
, 2016 ONCA 365, 131
    O.R. (3d) 643, at para. 64. I see no reversible error in her analysis.

[52]

The police fully disclosed their actions. The ITO was sworn on
    February 8, 2017.
The
Wong
case, which held that swabbing is a search that requires a warrant, is a
    British Columbia decision released on February 24, 2017. This may have been a
    grey area about which reasonable people disagreed. Indeed, a subsequent British
    Columbia decision that considered both the instant trial decision and
Wong
reflects continuing legal uncertainty regarding the constitutional limits of
    swabbing: see
R. v. Flintroy
, 2019 BCSC 213, at paras. 90-104.

F.

Appeal from sentence

[53]

The Crown sought a global sentence of eight
    years, while the appellant sought two to three years. The appellant emphasized
    his lack of a criminal record, his pretrial custody, and the totality
    principle, as a ten-year sentence had already been imposed for the Toronto
    charges.

[54]

The trial judge noted that the appellant was 31
    years old at the time of the offences, with no criminal record. He defended the
    case efficiently, in that he conceded that the agreed statement of fact
    supported a finding of guilt. He also had a supportive father.

[55]

However, the trial judge observed that this was
    a relatively large-scale professional enterprise. The evidence suggested the
    appellant was at least a mid-level drug dealer, figures known to prey on
    vulnerable members of society. The offences were motivated by greed, rather
    than a drug addiction. The offences were committed while the appellant was on
    bail for similar charges. Mindful of the totality principle, the trial judge
    imposed a total sentence of six years, to be served in addition to the ten-year
    sentence already imposed for the Toronto charges.

Appellants Position

[56]

The appellant argues that the resulting total incarceration
    of 16 years is unduly harsh and crushing. The appellant was 31 years of age,
    with no prior criminal record, and developing prospects in home renovation and
    sales. He had a supportive family. In light of these circumstances, the
    appellant argues that a total sentence of 16 years is unreasonable.

Respondents position

[57]

The respondent notes that the Supreme Court has
    established a highly deferential standard for appellate review of sentences,
    citing
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089. The
    respondent argues that the considerations listed above do not overwhelm the fundamental
    principle of sentencing under s. 718.1 of the
Criminal Code
,
    which is proportionality to the gravity of the offence and the degree of
    responsibility of the offender. Personal circumstances are relevant, but cannot
    be elevated at the expense of the gravity of the offences.

[58]

The respondent argues that the trial judge
    correctly assessed the gravity of the offences. This drug operation was a
    significant commercial enterprise involving large quantities of serious drugs
    that could potentially destroy many lives. The trial judge found the
    appellants motivation to be economic profit and greed, rather than addiction.
    His actions were clearly planned, deliberate, and part of a long-term organized
    scheme, rather than a momentary lapse in judgment. The appellant was not
    particularly youthful and was on bail at the time of these offences.

Analysis

[59]

The trial judge highlighted the aggravating
    factors. The appellant possessed 736 grams of cocaine, 194 grams of mixed
    methamphetamine and cocaine, and 60 grams of methamphetamine. These drugs, in
    these quantities, have the potential to cause serious harm in the community.
    $100,000 in currency was seized from the accuseds bedroom as well as 107
    rounds of ammunition from the storage locker. There was no evidence of other
    employment and the trial judge concluded that the appellant was at least a
    mid-level drug dealer engaged in a significant commercial enterprise in order
    to enrich himself, rather than feed an addiction. He was on bail for other
    serious drug offences at the time he committed the offences before the court,
    and in doing so he flagrantly breached the conditions attached to his release. This
    was not treated as an aggravating factor on the drug convictions, as the
    appellant was also being sentenced for the breach of recognizance, but it made
    the breach of recognizance particularly serious.

[60]

The mitigating factors were few. At the time of
    these offences, the appellant had no criminal record and was 31 years old.

[61]

The sentencing judge did indicate that she would
    take into consideration the ten-year sentence to which the appellant was
    already subject, to ensure that the sentence imposed was not unduly harsh or
    crushing given his age, circumstances, and prospects. The offences leading to
    the ten-year sentence were committed three years before the offences under
    appeal were committed.

[62]

I cannot say that the sentence imposed was
    demonstrably unfit or that the trial judge erred in her balancing of the
    aggravating and mitigating circumstances. There is no basis to interfere with
    the sentence imposed.

G.

Disposition

[63]

In the result I would dismiss both the appeals
    as to conviction and as to sentence.

Released: April 27, 2020

DW

G. Pardu J.A.

I agree David Watt J.A.

I agree L.B. Roberts J.A.


