



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Balouch, 2018 ONCA 770

DATE: 20180920

DOCKET: C62421

Pepall, Lauwers and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Baktazh Balouch

Appellant

Mark Halfyard, for the appellant

Ian Bell, for the respondent

Heard and released orally: September 19, 2018

On appeal from the conviction entered on April 4, 2016 and
    the sentence imposed on July 20, 2018 by Justice Jane E. Kelly of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of possessing heroin for the
    purpose of trafficking. One count relates to the seizure of heroin from the
    appellant when he was arrested and the second count relates to a larger seizure
    of heroin from an apartment he was associated with. The appellant received a
    global sentence of nine years less 48 days for pre-trial custody.

[2]

Two search warrants issued during the investigation, one for the
    appellants car (the car warrant) and one for an apartment the appellant was
    associated with (the apartment warrant). The appellant claimed at trial that
    his s. 8
Charter
rights had been breached because there were
    insufficient grounds to support the warrants. The trial judge disagreed and
    dismissed the
Charter
application.

[3]

In this court, the appellant abandons his objection to the car warrant,
    but continues to maintain his objection to the apartment warrant. He argues that
    the trial judge erred in failing to conclude that the grounds in support of the
    apartment warrant amounted to anything more than suspicion that drugs would be
    found in the apartment. He contends that the trial judges error is reflected
    in her reference to the fact that it was reasonable to infer [the drugs]
might
have been stored at that location [emphasis
    added].

[4]

If this court concludes that there was a s. 8
Charter
breach,
    the appellant maintains that the evidence should be excluded under s. 24(2), he
    should be acquitted in relation to the count arising from the apartment
    seizures, and his sentence should be reduced accordingly.

[5]

We disagree that the trial judge erred in dismissing the s. 8
    application.

[6]

In his able submissions, Mr. Halfyard does not dispute that the trial
    judge accurately summarized the test for reviewing an information in support of
    a search warrant. Rather, he challenges her application of the test to the
    facts in this case.

[7]

The trial judge gave careful reasons for why she concluded that there
    were sufficient grounds upon which the warrant could issue. We see no error in her
    view that the information to obtain the warrant (ITO) contained credible and
    reliable facts upon which an issuing justice could find reasonable grounds to believe
    that the appellant was trafficking in drugs and that evidence respecting that
    offence would be found in the apartment searched.

[8]

The trial judge specifically acknowledged that the appellant was not
    seen leaving the specific apartment unit, but from the underground parking
    lot associated with the apartment building. She concluded, however, that she
    could not ignore the totality of the evidence in the ITO, leading to the
    reasonable inference that [the appellant] had been inside [the] apartment 
    before doing so. That was a reasonably available inference. The trial judge
    was correct to look to the totality of the information in coming to her
    decision. There was credible and reliable information that the appellant was
    trafficking in drugs from his car, that his car was associated with the
    apartment building and seen leaving there on three occasions, two of which were
    followed by conduct consistent with drug trafficking. There was also information
    that he was associated with the apartment searched because it was his mailing
    address and that of his father. In these circumstances, it was open to the
    trial judge to conclude that there were sufficient grounds contained within the
    ITO upon which the apartment warrant could issue. We owe deference to that
    finding.

[9]

As for the trial judges reference to the fact that drugs 
might
have been stored in the apartment, nothing turns
    on her use of the word might. Her reasons clearly demonstrate she was aware
    of the threshold test for issuance. Indeed, in the very same impugned paragraph,
    the trial judge referred to the fact that there was a reasonable inference
    that evidence of criminal activity
would
be found
    in the apartment [emphasis added].  Read in context, the trial judge clearly
    understood that credibly based probability was the threshold test that had to
    be met and she was satisfied that it had been met.

[10]

Having
    concluded that the trial judge did not err in finding no s. 8 breach, there is no
    need to conduct the s. 24(2) analysis. Nor is there a need to consider the
    sentencing issue as it only arises if the appellant succeeded on his first
    ground appeal.

[11]

The
    conviction and sentence appeals are dismissed.

S.E.
    Pepall J.A.
P. Lauwers J.A.
Fairburn J.A.


