



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Shedden, 2022 ONCA 25

DATE: 20220113

DOCKET: C68829

Paciocco, Nordheimer and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Shedden

Appellant

Andrew Furgiuele and Elina Korchagina,
    for the appellant

Thomas Lemon, for the respondent

Heard: January 11, 2022 by
    video conference

On appeal from the convictions entered by
    Justice Bernd E. Zabel of the Ontario Court of Justice on January 7, 2020.

REASONS FOR DECISION

[1]

Mr. Shedden appeals his convictions for various
    drug offences. The convictions turn on the validity of a search warrant that
    the police obtained. The appellant challenged the search warrant at trial, but
    that challenge was unsuccessful. He now appeals from that decision. At the
    conclusion of the hearing, we dismissed the appeal with reasons to follow. We
    now provide those reasons.

[2]

The police received information from two
    confidential informants that the appellant and another individual were dealing
    large quantity of drugs, specifically cocaine. The police set up surveillance
    on both individuals. During this surveillance, the police observed multiple
    interactions involving the appellant that were consistent with drug
    transactions. In between many of these transactions, the police observed the
    appellant return to a specific address (the residence) for brief periods of
    time. However, all of the actual transactions occurred either in the
    appellants automobile or in close proximity to it.

[3]

The police obtained a search warrant based on
    this information. The search warrant included the residence. When the police
    executed the search warrant on the residence, they located cocaine, oxycontin,
    methamphetamine and marijuana. They also found a quantity of cash.

[4]

The charges against the appellant were based
    solely on the results of the search warrant. When the challenge to the search
    warrant failed, convictions on the offences immediately followed.

[5]

In his challenge to the search warrant, the
    appellant contended that there was no evidence that drugs would be found at the
    residence. More specifically, the appellant said that neither confidential
    informant had mentioned the residence in their information and thus the police
    were left with only their surveillance observations. The appellant contends
    that those observations could, at best, raise a suspicion that there might be
    drugs in the residence, but they could not rise to the level of the requisite reasonable
    and probable grounds.

[6]

On the motion to challenge the search warrant,
    the appellant led evidence from his mother that she was a resident of the
    residence. The appellant contended that the police ought to have known this
    fact, or at least to have discovered it, and have included it in the
    Information to Obtain the search warrant, as it would have cast a different
    light on the reason why the appellant might visit the residence.

[7]

In the course of the challenge to the search
    warrant, two problems arose. The first problem was that counsel for the Crown
    (not counsel on this appeal), in his oral submissions, incorrectly submitted to
    the trial judge that the test for the granting of a search warrant was
    reasonable grounds to suspect, not reasonable grounds to believe. The second problem
    was that the trial judge provided exceedingly brief, and entirely conclusory,
    reasons for his rejection of the
Charter
challenge to the search
    warrant.

[8]

The appellant argues that the trial judge
    applied the incorrect standard when assessing the sufficiency of the warrant.
    In the alternative, the appellant submits that the reasons are legally
    insufficient because those reasons do not resolve a live issue in the case
    about the legal standard to be used. He argues that it cannot be presumed that
    the trial judge knew and applied the law correctly because comments he made suggest
    that he adopted the Crowns erroneous oral submission that only reasonable
    suspicion was required.

[9]

We need not resolve these issues. Even if we
    were to assume that the trial judge applied the wrong test, or failed to
    provide legally sufficient reasons related to the test, this does not mean that
    his conclusion was not the correct one. Consistent with the approach taken in
    cases such as
R. v. West
, 2020 ONCA 473, 392 C.C.C. (3d) 271, at para.
    24, and
R. v. Cusick
, 2019 ONCA 524, 146 O.R. (3d) 678, at para. 41,
    even if the trial judge applied the wrong standard, this court is entitled to consider
    the record and decide whether there was a basis on which the search warrant
    could issue. We reject the appellants submission that this court should not
    make an independent determination regarding the issuance of the search warrant
    but, rather, should send the matter back for a new trial. While there may be cases
    where the factual circumstances would require that result, this is not one of
    them. There are no factual disputes or credibility issues. The written record,
    upon which the sufficiency of the warrant depends, is settled and it is
    straightforward.

[10]

The record in this case amply sustains the
    conclusion that the search warrant was validly granted with respect to the
    residence. It was not required, in order to obtain the search warrant, that the
    presence of drugs in the residence be established to a certainty. It was only
    required that there be reasonable grounds to believe that drugs would be found.
    The available information provided those grounds based on reasonable inferences
    that could be drawn from the observed conduct of the appellant. That conduct
    included what the police believed were 14 drug transactions committed over
    three days during which the appellant made at least nine visits to the
    residence. It was an entirely reasonable inference to be drawn, from those
    facts, that the appellant was using the residence as his stash house. The
    reasonableness of that inference is not avoided, or precluded, by adding the knowledge
    that the appellants mother resided in the residence.

[11]

It is for these reasons that the appeal was
    dismissed.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.

Sossin J.A.


