



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. DiBenedetto, 2019 ONCA 496

DATE: 20190613

DOCKET: C64303

Doherty, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James DiBenedetto

Appellant

Richard Litkowski and Jessica Zita, for the appellant

Ian Bell and Christina Malezis, for the respondent

Heard: June 11, 2019

On appeal from the convictions entered on April 13, 2017
    and the sentence imposed on October 19, 2017 by Justice Theresa Maddalena of
    the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice sitting
    without a jury, the appellant was convicted of counts of:

i.

production of methamphetamine;

ii.

possession of methamphetamine for the purpose of trafficking; and

iii.

possession of the proceeds of crime.

Sentenced to a term of imprisonment of five years, he
    appeals his convictions and seeks leave to appeal the sentence imposed upon
    him.

The Background Facts

[2]

At trial, the case for the Crown consisted principally of the evidence
    gathered during warranted searches of a rural property and a residential
    property, coupled with evidence of police surveillance of activities taking
    place at both properties prior to the execution of the warrants. A portion of a
    barn on the rural property housed a meth lab. There was evidence linking the
    appellant both properties.

[3]

Investigators invoked the telewarrant procedure of s. 487.1 of the
Criminal
    Code
to obtain authorization to search both properties for
    methamphetamine, clandestine lab equipment, associated paraphernalia and tools
    of the trade and the proceeds of crime. The ITO alleged that there were
    reasonable grounds to believe that the appellant and Jason Barr were committing
    various offences involving the production of controlled substances.

The Appeal from Conviction

[4]

At trial and in this court the appellant challenged the issuance of the
    telewarrants, thus the constitutionality of the searches conducted. To be more
    specific, the appellant says that the trial judge erred in three respects:

i.

in failing to hold that issuance of the warrants was fatally flawed
    because the ITO affiant and issuing justice had failed to comply with the
    requirements of s. 487.1(2) of the
Criminal Code
;

ii.

in failing to grant leave to counsel for the appellant to cross-examine
    the ITO affiant; and

iii.

in finding that the ITO afforded a basis on which the warrants could
    have been issued.

[5]

The appellant also contends that, even if the trial judge were correct
    in rejecting the challenges to the warrant or the warrant-issuing process, she
    erred in her assessment of the strength of the circumstantial evidence in this
    case, in particular as it related to the appellant's knowledge of and control
    over the meth lab at the rural property.

Ground #1: The Telewarrant Procedure

[6]

The ITO affiant submitted a request to the telewarrant centre for
    warrants to search both properties. The warrants were granted, but expired
    before they could be executed. The next day, the affiant resubmitted the
    application to the telewarrant centre. A different justice denied the
    application because of insufficient grounds".

[7]

Later in the day of the refusal, the ITO affiant resubmitted the
    application after making corrections and adding contents to the ITO which had
    been rejected. The justice who received the ITO telephoned the affiant and
    sought identification of the parts of the ITO that contained the added
    contents. This call was not recorded, nor was the ITO affiant under oath. The
    "new information was contained in identified paragraphs of the ITO.

[8]

The appellant contends that s. 487.1(2) requires that the conversation
    between the ITO affiant and issuing justice pointing out the paragraphs added
    to the previously rejected ITO had to be under oath, recorded verbatim and a
    certified copy of the recording or a transcription of it filed with the court.
    Failure to do so, the appellant contends, fatally flawed the warrant-issuing
    process.

[9]

The trial judge was satisfied that s. 487.1(2) was not applicable to
    what occurred here. We agree with the conclusion reached by the trial judge.

[10]

The
    ITO was submitted by fax, which, for the purposes of s. 487.1(2), is a means of
    telecommunication that produces a writing. The subsection only requires an
    information, that is to say, the ITO, to be on oath and recorded verbatim if
    it is submitted other than [by] a means of telecommunication that produces a
    writing". That is simply not this case. And at all events, the additional
    material was contained in the ITO. The mischief at which s. 487.1(2) is
    directed is not at work here.

Ground #2: The Refusal of Leave to Cross-Examine

[11]

The
    second ground of appeal challenges the trial judge's decision refusing the
    appellant leave to cross-examine the ITO affiant.

[12]

It
    is well-established that whether such cross-examination will be permitted lies
    within the discretion of the trial judge. To succeed, an applicant must
    demonstrate that there is a reasonable likelihood that the proposed
    cross-examination will elicit evidence that tends to discredit the existence of
    a condition precedent to the issuance of the enabling warrant. What is involved
    is a fact-specific assessment of the proposed subjects of cross-examination in
    the context of the ITO taken as a whole.

[13]

The
    nature of the standard the trial judge is to apply in determining whether to
    exercise her discretion to grant leave to cross-examine the ITO affiant is also
    important when the decision is challenged on appeal. The decision is subject to
    deference and subject to appellate reversal only where the reviewing judge has
    applied the wrong standard or exercised her discretion unjudicially.

[14]

In
    this case, the lengthy and careful reasons of the trial judge reveal no error
    in the standard applied, rather disclose a painstaking consideration and
    analysis of each of the more than four dozen issues upon which trial counsel
    for the appellant sought leave to cross-examine the affiant. We agree with the
    trial judge that the appellant failed to establish that the proposed
    cross-examination would elicit evidence tending to discredit the existence of
    any condition precedent to the issuance of the telewarrants.

[15]

We
    defer to the findings of the trial judge that nothing improper occurred in the
    exchange between the ITO affiant and the issuing justice. Cross-examination on
    this issue could not have undermined any of the conditions precedent to the
    issuance of the warrants.

Ground #3: The Validity of the Search Warrants

[16]

The
    appellant further argues that the trial judge erred in upholding the validity
    of the search warrants for the rural and residential properties. This
    complaint, reduced to its essence, challenges the weight the trial judge
    assigned or failed to assign to various aspects of the ITO, including
    information provided by five CIs, and to the prior rejection by another justice
    of the peace of an application for warrants on substantially the same grounds.

[17]

In
    her role as reviewing judge, the trial judge was required to determine whether,
    considered as a whole, the ITO contained reliable information that might
    reasonably be believed on the basis of which the warrants could issue under s.
    11 of the
CDSA
. In her assessment of the ITO, the trial judge
    acknowledged that the conclusory statements provided by the various CIs were
    not sufficient, on their own, to furnish the necessary reasonable grounds to
    permit issuance of the warrants. The trial judge, as she was required to do,
    examined the ITO as a whole. From its contents, and reasonable inferences she
    was entitled to draw from those contents, the trial judge was satisfied that
    the ITO contained reliable information that might reasonably be believed on the
    basis of which the conditions precedent to issuance of search warrants under s.
    11 of the
CDSA
could be satisfied. We agree with her conclusion.

Ground #4: The Reasonableness of the Verdict

[18]

The
    appellant also challenges the reasonableness of the findings of guilt entered
    at trial. He says that, considered as a whole, the circumstantial evidence
    adduced at trial cannot meet the requirements imposed by
R. v. Villaroman
,
    2016 SCC 33, [2016] 1 S.C.R. 1001.

[19]

In
    our view the evidence adduced at trial fully warranted the findings of guilt
    and convictions entered by the trial judge. The evidence linked the appellant
    to the rural property through ownership and physical presence, including
    association with Barr, the person physically in charge of the meth lab. There
    was also evidence, found in the appellant's residence, of the purchase of lab
    equipment and literature explaining the steps necessary to produce
    methamphetamine, as well as $50,000 in cash. As the reasons of the trial judge
    so effectively establish, the case against the appellant, charitably described,
    was overwhelming.

[20]

The
    appeal from conviction is dismissed.

The Appeal from Sentence

[21]

The
    appellant also seeks leave to appeal sentence. He says that the trial judge
    erred in two respects in imposing a net sentence of imprisonment for five
    years:

i.

that she misstated the defence position on credit for onerous bail
    conditions, thus failed to give appropriate credit for those conditions in
    calculating the net sentence; and

ii.

that she failed to consider the appellant's rehabilitative prospects and
    to properly apply the principle of restraint when determining the quantum of
    sentence to impose on a first offender.

[22]

Without
    more, the mere misstatement by the trial judge of the defence submission on the
    amount of credit to be awarded for onerous pre-trial release conditions does
    not entitle us to interfere with the sentence imposed. Absent a nexus between
    the alleged error and the sentence imposed such that the sentence imposed is
    demonstrably unfit, we are disentitled to interfere. We see no such nexus in
    this case. The credit the trial judge awarded for pre-disposition onerous bail
    conditions was appropriate in the circumstances of this case.

[23]

Nor
    are we persuaded that the reasons for sentence reflect inadequate consideration
    of the appellant's rehabilitative prospects or the principle of restraint. The
    sentencing objectives that occupy positions of prominence in cases involving
    commercial production of dangerous drugs are denunciation and deterrence. To these
    objectives, rehabilitation must occupy a position of lesser importance. The
    sentence imposed here falls well within the range of appropriate sentencing
    dispositions for this mature, commercially-motivated offender.

[24]

Although
    we would grant leave to appeal sentence, we dismiss the appeal from sentence.

Doherty J.A.

David Watt J.A.

G. Pardu J.A.


