



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Iraheta, 2020 ONCA 766

DATE: 20201211

DOCKET: C63271

Simmons, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Renzzo Iraheta

Appellant

Mark C. Halfyard and Chris Rudnicki,
    for the appellant

Philippe G. Cowle, for the respondent

Heard: October 1, 2020 by
    videoconference

On appeal
    from the convictions entered by Justice John B. McMahon of the Superior Court
    of Justice on December 5, 2016.

REASONS FOR DECISION

[1]

The appellant appeals from his convictions for
    possession of a loaded prohibited firearm and possession of a prohibited
    firearm. The main issues on appeal are the facial validity of the warrant
    authorizing the search of the appellants home; whether information obtained
    from a confidential information was sufficiently corroborated to support the
    issuance of the warrant; and whether the police acted reasonably in the
    execution of the warrant when they sealed, seized and towed a vehicle located
    on the appellants property. The rulings at issue were made on a
Charter
application to exclude evidence seized by police, which was dismissed by
    Justice Susan G. Himel of the Superior Court of Justice (the application
    judge) on December 1, 2016, with reasons dated April 24, 2017:
R. v. Iraheta
    and Ramos-Duenas
, 2017 ONSC 2467.

Brief Factual Background

[2]

After receiving information from a confidential
    informant, the police obtained a warrant to search the dwelling unit located at
    1 Cobbler Crescent to seize marijuana and drug paraphernalia. On December 3,
    2014, while conducting surveillance at 1 Cobbler Crescent, police observed a
    person matching the description of the appellant leave the property in a
    vehicle. After stopping the vehicle and identifying the driver as the appellant,
    the police detained and subsequently arrested him.

[3]

That same day, the police executed the search
    warrant at 1 Cobbler Crescent, with some officers entering the front and others
    entering the rear. Upon entering the premises, the police discovered that there
    were two separate units at 1 Cobbler Crescent, with a family unrelated to the
    appellant residing in the front unit. After realizing that the appellant
    resided in the rear unit, the police vacated the front unit and proceeded to
    search the rear unit.

[4]

On December 3, 2014, following the execution of
    the search warrant, the police discovered several prohibited firearms and
    ammunition, controlled substances, drug paraphernalia, and documents in the
    appellants residence at 1 Cobbler Crescent.

[5]

While searching the appellants residence, the
    police saw a Ford Fusion vehicle in the appellants backyard and observed a
    safe through the vehicle window. The police subsequently sealed the doors to
    the vehicle and arranged for it to be towed to the police garage. On December
    4, 2014, the police executed an additional warrant to search the Ford Fusion
    vehicle, where they discovered weapons, ammunition, drugs, and counterfeit
    money.

[6]

The appellant was charged with several firearm
    related offences, possession of a controlled substance for the purpose of
    trafficking, and possession of counterfeit money. He challenged the sufficiency
    of the information to obtain the search warrants for his residence and vehicle,
    and alleged that his rights under ss. 8, 9, 10(a), and 10(b) of the
Charter
    of Rights and Freedoms

had been infringed.

[7]

The application judge dismissed the appellants
Charter
application for the following reasons that are relevant to the appeal:
[1]

1.
She rejected the appellants argument that the police should have
    obtained another search warrant once they realized 1 Cobbler Crescent was
    divided into two units because the [p]olice searched the address for which the
    warrant was authorized and where the target of the investigation allegedly
    resided.

2.
She determined that the search of the appellants residence was a
    lawful search because there were reasonable and probable grounds on which the
    search warrant could be issued. She also found that the confidential
    informants information on which the information to obtain for the search
    warrant largely depended was credible, compelling, and corroborated.

3.
She concluded that there was no evidence of police misconduct
    during the search of the appellants Ford Fusion vehicle that was towed from
    his backyard. She further rejected the evidence of the neighbour who testified
    that she saw the police searching the vehicle in the backyard before it was
    towed, as this evidence lacked credibility. She found that the police sealed
    the doors to the vehicle and had it towed to the police garage. The search of
    the vehicle was lawful because there were reasonable and probable grounds for
    the justice of the peace to issue the search warrant for the Ford Fusion.

4.
While she found no
Charter
breaches, if she were incorrect, the application judge concluded that any
    breaches were technical and minimal, the police acted reasonably and treated
    the appellant fairly and respectfully, and the reliable and crucial evidence
    gleaned from the searches, on which the respondents case depended, was needed
    to allow the case to proceed. Therefore, the evidence should not be excluded
    from the appellants trial.

[8]

Following the dismissal of his application, the
    appellant did not contest the evidence presented by the respondent. After
    entering a plea of not guilty, the appellant was convicted on December 5, 2016
    of the offences of possession of a loaded prohibited firearm and possession of
    a prohibited firearm. At the time of the offences, he was subject to a weapons
    prohibition order under s. 109 of the
Criminal Code
, R.S.C. 1985, c.
    C-46. On January 17, 2017, he received a global custodial sentence of 96
    months, less 44 months credit for pre-sentence custody.

Issues

[9]

The appellant appeals from his convictions and
    does so by challenging the ruling on his
Charter
application. He
    pursued the following grounds on the hearing of his appeal:

i. The application judge erred in upholding
    the validity of the search warrant for 1 Cobbler Crescent. Relying on this
    courts judgment in
R. v. Ting
, 2016 ONCA 57, 333 C.C.C. (3d) 516, the
    appellant says the search warrant was facially invalid because it did not
    particularize the specific unit to be searched in a multi-unit residence.

ii. The application judge erred in determining
    that the information to obtain the search warrant for the residence was
    sufficient, having regard to the three criteria under
R. v. Debot
,
    [1989] 2 S.C.R. 1140, at p. 1168, which state that the information should be
    compelling, credible, and corroborated. In particular, the appellant argues the
    application judge erred in her conclusion that the information provided by the
    confidential informant was corroborated.

iii. The application judge erred in failing to
    consider whether the police improperly exceeded the scope of the search warrant
    for 1 Cobbler Crescent by seizing a vehicle from the property that was
    searched.

iv. If the appellants submissions are
    accepted, the searches of the appellants home and Ford Fusion vehicle
    represented serious breaches of his rights under s. 8 of the
Charter
.
    As a result, the evidence seized by the police from his residence and vehicle
    should be excluded under s. 24(2) of the
Charter
, the convictions set
    aside, and acquittals entered.

Analysis

(i)

The search warrant for 1 Cobbler Crescent sufficiently described the place
    to be searched

[10]

Relying
    on
Ting
, the appellant submits that when the
    police learned that the search warrant did not accurately describe his unit, in
    the absence of exigent circumstances, they should have stopped their search and
    obtained further judicial authorization to search the appellants particular
    unit.

[11]

We
    do not accept this submission.

[12]

In our view, the appellants reliance on
Ting
is misplaced in the circumstances of this case. The question of whether a
    search warrant adequately describes a location to be searched depends on the
    particular circumstances of the case. As Miller J.A. stated for the court in
Ting
,
    at para. 51,
Just what constitutes an
    adequate description will vary with the location to be searched and the
    circumstances of each case.

[13]

In
Ting
, the police obtained a search
    warrant for 4204B (rear unit) Dundas Street, West. Following an investigation,
    they concluded that a front-facing door labelled 4204B provided an entrance to what
    they mistakenly believed were two residential units, one front and one rear, located
    in a mixed-use plaza at 4204 Dundas Street, West. They also believed Valerie
    Pham, the occupant of the rear unit, was the target of their search. Not
    realizing that this address also contained a basement apartment, they believed
    Ms. Phams unit could be accessed through both the front-facing door labelled
    4204B and a rear entrance. After entering both the front-facing door and the
    rear door leading to the Pham apartment, the police mistakenly entered the
    basement apartment of Suet Stacy Ting. After searching her apartment, the
    police realized Ms. Ting was the actual target of their investigation. They
    stopped their search and applied for second warrant, this time describing the
    location to be searched as 4204B Dundas Street, West, as opposed to 4204B
    (basement unit), Dundas Street, West.

[14]

There are several important distinctions between
Ting
and the present case. First, although the police in
Ting
immediately discovered their mistake, they continued their search of Ms. Tings
    apartment, which was not the stated target of the search warrant. Second, upon
    concluding that Ms. Tings residence was the true focus of their search, while
    they stopped their search, the police did not leave the premises while they applied
    for further judicial authorization to continue the search of Ms. Tings
    apartment. Third, the police applied for another search warrant for 4204B
    Dundas Street, West, without particularizing Ms. Tings unit, which they then
    knew was the basement unit at that address.

[15]

In the particular circumstances of this case, it was not necessary
    for the police to stop their search in order to obtain another search warrant.
    The search warrant adequately described the location to be searched: it
correctly
    stated that the search was for the dwelling unit located at 1 Cobbler Crescent,
    which is where the appellant lived. There is no dispute that at the time of the
    search, the appellant resided with his co-accused girlfriend and her two young
    children in the rear unit of 1 Cobbler Crescent. That another family lived in
    the front unit of the same address, a fact unknown to the police when they
    applied for the warrant, does not, by itself, render the warrants description
    inadequate.

[16]

As
    the application judge found, there was no indication from the outside that the
    house was divided into multiple units: 1 Cobbler Crescent is a small, one-storey
    detached house; there were no separate unit numbers; there was one mailbox, one
    doorbell, and one utility meter. Surveillance would not have assisted the
    police in discerning that there were two units. As there was no indication from
    the outside of the dwelling house that it contained two units, various comings
    and goings would not have alerted the police to the existence of two units.

[17]

The
    police
had clear boundaries to search the appellants unit and
    did not have to look past the warrant:
Ting
, at para. 59. They
    searched the precise location of the target specified in the search warrant,
    namely, the dwelling unit located at 1 Cobbler Crescent, which is where
    the appellant resided. They conducted the search in a reasonable manner.
They
    only searched the rear unit. Upon entering the front unit occupied by the other
    tenant, the police realized their mistake and left the front unit.

[18]

We
    see no error warranting appellate intervention.

(ii)

The information to obtain the search warrant was
    sufficient

[19]

The appellant submits that the search warrant
    was insufficient because it depended entirely on the information provided by an
    untested, first-time confidential informant. While he concedes that the
    information provided was compelling, the appellant maintains that the police
    were required to secure a higher level of corroboration of the information
    provided by a first-time confidential informant. He says the application judge
    erred in holding that the appellants criminal record could be used to
    corroborate the confidential informants information.

[20]

We do not agree.

[21]

The search warrant issued here pursuant to s. 11
    of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19 (
CDSA
),
    is presumptively valid. The scope of the application judges review was narrow
    and limited to the inquiry as to whether the record contained reliable evidence
    that might reasonably be believed and on which a warrant could have been
    issued:
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras.
    84, 88. The scope of appellate review is more limited, as the appellate court
    owes deference to the findings below absent error of law, misapprehension of
    the evidence, or failure to consider relevant evidence:
Sadikov
, at
    para. 89. We see no such error here that would justify appellate intervention.

[22]

The application judge properly stated and
    balanced the three
Debot
factors and found that the information was
    compelling, credible, and corroborated:

In summary, the confidential informant gave a
    detailed description of the background and circumstances of the [appellant]
    including information showing that the confidential informant had knowledge of
    the [appellant]s criminal activity. The information was specific and precise
    and did not contain details that could be based on rumour, coincidence, error,
    or falsehood. Finally, the information was sufficiently current. Overall, the
    information provided by the confidential informant, taken as a whole, was very
    compelling. [Citations omitted.]

[23]

It is well established that each
Debot
factor does not form a separate test but that it is the totality of the
    circumstances that must meet the standard of reasonableness. Weaknesses in one
    area may be compensated, to some extent, by the strengths in the other two
Debot
factors: see
Debot
, at p. 1168.

[24]

That is the case here. As the application judge
    found, the detailed information provided by the confidential informant was
    particularly compelling. She did not err in referencing the appellants
    criminal record to corroborate the confidential informants knowledge of the
    appellant and to bolster the informants credibility. The application judge did
    not rely solely on the appellants past involvement in criminal activities but
    was satisfied on all the circumstances that she outlined in detail that there
    were reasonable and probable grounds to believe there would be evidence of a
    criminal offence in 1 Cobbler Crescent. We see no error in her analysis or conclusions.

[25]

Given our conclusion that the application judge
    made no error in determining that the information to obtain was sufficient and
    the search warrant was validly issued, there is no need to consider the
    respondents motion concerning sealed submissions.

(iii)

The seizure of the appellants Ford Fusion
    vehicle was justified

[26]

The appellant submits that there was no lawful
    authority for the police to seize the appellants Ford Fusion vehicle from 1
    Cobbler Crescent. According to the appellant, the search warrant for the
    residence did not authorize the seizure of the vehicle and s. 11(8) of the
CDSA
operates only to the extent that the search warrant authorizes the seizure.

[27]

We are not persuaded by these submissions.

[28]

We start by noting that the appellant does not challenge
    the validity of the search warrant that was ultimately obtained to search the
    vehicle once it was towed to the police garage nor the subsequent search of the
    vehicle pursuant to that warrant. Rather, the appellant says that the seizure
    of the vehicle from the appellants backyard was warrantless and without
    authority.

[29]

We disagree. The seizure of the vehicle was
    authorized under both s. 489(1)(c) of the
Criminal Code
and s.
    11(8) of the
CDSA
. Under s. 489(1)(c) of the
Criminal Code
,
    the police were entitled to seize any thing that they believed on reasonable
    grounds would afford evidence in respect of an offence. Furthermore, the
    provisions of s. 11(8) of the
CDSA
do not limit the police to the
    things mentioned in the warrant. Notably, in addition to the things mentioned
    in the warrant, s. 11(8) permits the seizure of any thing that the peace
    officer believes on reasonable grounds has been obtained by or used in the
    commission of an offence or that will afford evidence in respect of an
    offence.

[30]

Here, the evidence of the firearms, ammunition,
    controlled substances, and drug paraphernalia, as well as the presence of the
    safe in plain view in the appellants Ford Fusion vehicle, informed the
    polices belief on reasonable grounds that the vehicle would afford evidence
    in respect of an offence. In our view, in light of the evidence of firearms
    and drugs in the appellants residence, it was both reasonable and necessary
    for the police to secure and tow the Ford Fusion vehicle that likely contained
    similar items away from the house and property, where children were present, to
    the police garage for safe-keeping until a warrant could be obtained for its
    search.

[31]

We therefore dismiss this ground of appeal.

(iv)

Whether the evidence should have been excluded
    under s. 24(2) of the
Charter

[32]

As we have upheld the application judges
    conclusions, it is unnecessary that we consider her alternate analysis under s.
    24(2) of the
Charter
.

Disposition

[33]

We dismiss the appeal.

Janet
    Simmons J.A.

David
    Watt J.A.

L.B.
    Roberts J.A.





[1]

The
    application judge also rejected the appellants argument that he was
    arbitrarily detained and arrested when police stopped and searched the vehicle
    he was driving, finding that the detention was lawful and the search was
    incident to arrest. Finally, the application judge rejected the appellants
    argument that he was not provided meaningful rights to counsel, finding that
    the police complied with the obligation to inform the appellant of his right to
    counsel at key instances. These issues under ss. 9, 10(a), and 10(b) of the
Charter
were not
    raised on appeal.


