COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Malcolm-Evans, 2016 ONCA 28

DATE: 20160114

DOCKET: C55996

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Malcolm-Evans

Appellant

Breana Vandebeek, for the appellant

James D.M. Clark, for the respondent

Heard: January 8, 2016

On appeal from the convictions entered on January 13,
    2011 and the sentence imposed on January 14, 2011 by Justice James A. Ramsay of
    the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

After trial by judge and jury, the appellant was convicted of possession
    of cocaine for the purposes of trafficking and possession of the proceeds of
    crime under $5,000. He appeals both convictions.

[2]

The police conducted surveillance of a multi-unit house in which
    suspected cocaine trafficking was occurring. The appellant was one of five
    people arrested after they had departed the building in a car. The arresting
    police officer, Constable Ranieri, testified that, during the arrest, he saw
    the appellant reach into his pocket, pull out a clear plastic bag containing
    what appeared to be crack cocaine, and throw it under the car. The bag
    contained 26.8 grams of powder cocaine. A search of the appellant disclosed two
    cell phones and $4,030 in cash. The other males in the vehicle were found in
    possession of various drugs and drug paraphernalia. Constable Ranieri testified
    that at least one of the appellants cell phones was ringing repeatedly and, when
    he answered the phone, the callers asked for a 20 piece or a 10 piece,
    which is code for certain quantities of cocaine.

[3]

It was the defence theory that the appellant was not involved in the
    drug trade. The appellant did not testify, but his girlfriend gave evidence for
    the defence. She said that she lived at the target residence, that no drug
    dealing took place in her apartment, and that she had given the appellant
    $2,400 in cash the evening before his arrest to cover rent and supplies for a new
    apartment unit.

[4]

The appellant raises four grounds of appeal.

[5]

First, relying on the Supreme Courts decision in
R. v. Baldree
,
    2013 SCC 35, [2013] S.C.R. 520, the appellant argues that the trial judge erred
    in admitting evidence of the intercepted drug purchase calls. The calls, he
    says, were hearsay and presumptively inadmissible. The appellant submits that,
    despite the lack of any objection at trial, the evidence ought not to have been
    admitted.

[6]

We reject this ground of appeal.

[7]

Unlike the circumstances in
Baldree
, which involved evidence of
    a single drug purchase call and no other evidence connecting the accused to
    drug dealing, in this case there were multiple calls, which the
Baldree
court
    (at paras. 71, 94 and 120) recognized may establish reliability. In addition, in
    this case, there was significant confirmatory evidence that the appellant was a
    drug dealer. The necessity requirement for the admission of hearsay is also
    met: the callers hung up quickly and used coded language. There was no
    realistic possibility of identifying the callers and obtaining their evidence
    for use at trial.

[8]

Further, the lack of objection at trial to the admissibility of the drug
    purchase calls is important. Constable Ranieri was cross-examined on the fact
    that he failed to keep a full record of how many calls were received, or what
    exactly the callers said. This was relevant to the overall reliability of his
    testimony, which included the important evidence of seeing the appellant throw
    cocaine under the car. In these circumstances, it is difficult to accept that
    defence counsel at trial failed to object to the admission of the evidence of the
    cell phone calls through oversight.

[9]

Moreover, even without the evidence of the content of the cell phone calls,
    the case against the appellant was overwhelming. As we have said, the appellant
    did not testify, and there was no evidence that contradicted the police
    officers description of the appellants possession and attempted disposal of a
    bag of cocaine. It was not suggested to Constable Ranieri that he had either
    not made, or had fabricated, his observations. The evidence of at least one and
    possibly two of the appellants cell phones ringing steadily was admissible in
    any event. According to the uncontradicted evidence of a police expert witness
    who also testified at trial, in the circumstances, this was indicative of drug
    dealing.

[10]

The
    remaining grounds of appeal relate to alleged insufficiencies in the jury
    charge with respect to the trial judges instructions on reasonable doubt, and
    the assessment of the defence evidence and the credibility of witnesses.

[11]

More
    particularly, the appellant argues that the trial judge erred in telling the
    jury that reasonable doubt was closer to absolute certainty than it is to the
    balance of probabilities, without defining for them how much closer it is to
    absolute certainty. In this regard, the appellant contends that the trial judge
    should have told the jury that proof beyond a reasonable doubt falls much
    closer to absolute certainty than to proof on a balance of probabilities. In
    addition, in describing the standard of proof, the trial judge failed to use
    the word sure, in describing the level of certainty required for a finding of
    guilt. Further, he erred by telling the jury not to go sifting through the
    evidence looking for a reasonable doubt here and a reasonable doubt there.

[12]

We
    also reject these arguments.

[13]

There
    was no objection to the charge on reasonable doubt at trial. The issues now
    raised take phrases used by the trial judge out of context. On a review of the
    entire charge, we are satisfied that there was no reasonable likelihood that
    the jury was under a misapprehension as to the correct standard of proof to
    apply:
R. v. Lifchus
, [1997] 3 S.C.R. 320, at para. 41.

[14]

The
    appellant also asserts, relying on this courts decision in
R. v. B.D
.,
    2011 ONCA 51, that the trial judge erred in not giving a
W.(D.)
instruction
    with respect to the defence evidence:
R. v. W.(D.)
, [1991] 1 S.C.R.
    742. We disagree.

[15]

In
    our view, a
W.(D.)
instruction in respect of the defence evidence was
    not required in this case. This was not a case, like
B.D
., where the
    jury had to make credibility findings on a vital issue that seemed to require
    an either/or choice between conflicting evidence: See
R. v. Dayes
, 2013
    ONCA 614, at paras. 54-56.

[16]

The
    evidence of the appellants girlfriend was particularly relevant to the
    proceeds of crime charge  it went to whether there was an alternative
    explanation for the cash found on the appellant. Her testimony did not bear on
    whether the appellant was in possession of a bag of cocaine when he was
    arrested. Moreover, even on her evidence, the amount of the funds found in the
    appellants possession ($4,030) was not fully accounted for.

[17]

We
    note that the charge given on the funds found in the appellants possession
    actually favoured the appellant. The charge did not highlight for the jury the
    failure of the defence evidence to fully explain the amount of the funds in the
    appellants possession. If a
W.(D.)
instruction specific to the
    defence evidence had been given, this discrepancy may well have been
    underscored, to the appellants potential detriment.

[18]

Finally,
    we do not give effect to the appellants argument that the trial judge erred by
    failing to provide the jury with sufficient guidance on the assessment of
    witnesses credibility and/or demeanour. None of the alleged deficiencies are
    material in the context of the entire charge given in this case.

[19]

Accordingly,
    the appeal is dismissed.

E.A. Cronk J.A.

M. Tulloch J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Manning, 2016 ONCA 56

DATE: 20160119

DOCKET: C60915

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Anthony Manning

Appellant

Sam Goldstein and Norm Keith, for the appellant

John A. Neander, for the respondent

Heard: January 15, 2016

On appeal from the sentence imposed on October 24, 2011
    by Justice D.P. Cole of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant pled guilty to four offences  aggravated assault,
    choking, break and enter, and kidnapping  and was sentenced pursuant to a
    joint submission. The sentence imposed was 8 years less credit for 261 days
    served in pre-sentence custody on a 1:1 basis.

[2]

The sentence preceded
R. v. Summers
, 2014 SCC 26, which held that
    under the
Truth in Sentencing Act,
time served in pre-trial custody
    could justify granting enhanced credit at a rate of 1.5:1.

[3]

The appellants co-accused, Jahmal Anthony Hodge, was granted enhanced
    credit on a 1.5:1 basis by this Court on appeal. The appellant argues that the
    principle of parity requires that he benefit from
Summers
in the same
    way. Additionally, the Crown advised the Court that the appellants parole
    officer reports that the appellant appears to be doing well in custody.

[4]

On these particular facts, the appeal is allowed and the sentence is
    varied to credit his 261 days of pre-sentence custody at the ratio of 1.5:1.

J.C. MacPherson J.A.

David Watt J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mielke, 2016 ONCA 80

DATE: 20160126

DOCKET: C59515

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradley Mielke

Appellant

David W. Russell, for the appellant

Dayna Arron, for the respondent

Heard: January 25, 2016

On appeal from the conviction entered on April 11, 2014
    and the sentence imposed on June 5, 2014 by Justice Robert S. Gee of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction of dangerous operation of a motor
    vehicle and seeks leave to appeal his sentence on the basis that he was not
    accorded proper credit for time spent in pre-disposition custody.

[2]

On the appeal from conviction, the appellant contended in his factum
    that the conviction was unreasonable in light of the particularization of the
    offence in the information. In oral argument, the appellant made no submissions
    in support of the appeal from conviction. We are satisfied that the conviction recorded
    on the dangerous operation count is not unreasonable. We do not consider the municipal
    address of the place of the offence was an essential element of the offence in
    these circumstances. Further, we are satisfied that the evidence fully supports
    the finding of guilt on the count as drafted.

[3]

The appeal from conviction is dismissed.

[4]

On the appeal from sentence, we are satisfied that the discussion in
Summers
and in decisions of this court that consider the same issue with which we are
    concerned mandate calculation of the credit for pre-disposition custody at the
    rate of 1.5:1.

[5]

In the result, leave to appeal sentence is granted, the appeal from
    sentence is allowed and the sentence imposed at trial is reduced by a further
    300 days.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Shea, 2016 ONCA 53

DATE: 20160119

DOCKET: C58667

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn OShea

Appellant

Michael Davies, for the appellant

Alexander Hrybinsky, for the respondent

Heard: January 15, 2016

On appeal from the conviction entered on February 7, 2013
    and the sentence imposed on February 6, 2014 by Justice Johanne
    Lafrance-Cardinal of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant pleaded guilty to a single count of possession of child
    pornography. He was sentenced to one year imprisonment and two years
    probation. He appeals the conviction and sentence.

[2]

On the conviction appeal, the appellant contends that his guilty plea
    was not informed by accurate information from his counsel. He believed, when he
    entered his guilty plea, that the matter of sentence was settled and that he
    would receive the then minimum custodial term for the offence, namely 45 days,
    followed by probation. His belief was supported by his mother and was based on
    advice from his trial counsel.

[3]

We do not accept this submission. Based on the information the appellant
    received from his counsel, the appellant knew that he would receive a custodial
    sentence if he pleaded guilty to the offence of possession of child pornography
    because that offence had a minimum sentence of 45 days.

[4]

There is no suggestion that Crown counsel did anything wrong in seeking
    a sentence above the statutory minimum. The Crown indicated its position to
    defence counsel well before the guilty plea was entered.  The sentencing
    hearing was contested.

[5]

Nor can it be suggested that the trial judge was not entitled to impose
    a sentence of one year imprisonment. Even accepting that the appellants
    counsels notation written at the first pre-trial (a pre-trial conducted by the
    same judge who ultimately accepted the guilty plea and imposed the sentence) to
    the effect that a proposed 45 day sentence would be reasonable, it was
    entirely permissible for the trial judge to change her mind once she had seen
    the evidence of the volume and nature of the child pornography possessed by the
    appellant. This is reflected in the exchange between the trial judge and
    defence counsel immediately after she imposed sentence:

THE COURT: Any questions [counsel]?

[Counsel]: Uhm, other than the fact, Your Honour that there had
    been some judicial pre-trials with respect to resolving the matters, I take it
    Your Honour was aware of that? Is that correct?

THE COURT: I may have been aware of that, but I havent viewed
    the videos and I havent seen the pictures when the position was given. Theres
    a big difference between [Mr. B.s] case where its young adults, no, Im
    sorry, older teens, and what was seen on those particular pictures, images and
    videos.

[6]

The problem here is that the appellants counsel may well have been
    overly optimistic about the potential sentence after the first pre-trial and
    may not have properly communicated to the appellant and his mother that a 45
    day sentence was being opposed by the Crown and was not a certainty with the
    trial judge who ultimately took the plea. However, absent an allegation of
    ineffective assistance of counsel, which the appellant fairly does not make,
    this is not enough to clear the informed hurdle in the voluntary,
    unequivocal and informed test for the validity of a guilty plea: see
R. v.
    R.T.
, (1992), 10 O.R. (3d) 514 (C.A.). Through the advice of his counsel,
    the appellant knew that he would not face a trial and would receive a custodial
    sentence if he pleaded guilty. Through the advice of his counsel, he may have
    expected a lower sentence than the one he received. This dichotomy is not
    sufficient to call into question the validity of his guilty plea. As LaForest
    J. said in
R. v. Lyons
, [1987] 2 S.C.R. 309, at para. 107:

Subsequent dissatisfaction with the way things turned out or
    with the sentence received is not, in my view, a sufficient reason to move this
    Court to inquire into the reasons behind the election or plea of an offender,
    particularly where there is nothing to suggest that these were anything other
    than informed and voluntary acts.

[7]

On the sentence appeal, the appellant submits that the trial judge did
    not give sufficient weight to the appellants unique background, including,
    especially, the brain injury he sustained as a teenager.

[8]

We are not persuaded by this submission. The trial judge considered the
    appellants circumstances with the aid of a pre-sentence report, sexual
    behaviour assessment, and submissions of counsel. She specifically, and in some
    detail, referred to the consequences of the brain injury in a section of her
    reasons titled
Medical condition
. She also identified it as a mitigating
    factor under the heading
Mitigating Factors
:

3.       The personal circumstances of the accused. He is  on
    long term disability for a severe traumatic brain  injury following a motor
    vehicle accident.

[9]

The conviction and sentence appeals are dismissed.

J.C. MacPherson J.A.

David Watt J.A.

B.W. Miller J.A.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an
    offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice shall

[1]

(a) as soon as feasible, inform the victim of their right to make an
    application for the order; and

[2]

(b) on application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ogbamichael, 2016 ONCA 65

DATE: 20160122

DOCKET: C58576

Feldman, Hourigan and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tekle Ogbamichael

Appellant

Tekle Ogbamichael, acting in person

Katie Doherty, for the respondent

Heard and released orally:  January 12, 2016

On appeal from the conviction entered on March 3, 2014 and
    sentence imposed by Justice Gary Trotter of the Superior Court of Justice, dated
    March 21, 2014 sitting without a jury.

ENDORSEMENT

[3]

The appellant was convicted of one count of sexual assault and one count
    of breach of probation. He was sentenced to 18 months imprisonment on the
    sexual assault conviction and 12 months imprisonment on the breach of
    probation conviction, with three years probation to follow. He appeals his
    convictions and seeks leave to appeal sentence.

[4]

The appellant submits that the trial judge erred in convicting on a very
    weak identification evidence.  We disagree.  In very thorough and compelling
    reasons, the trial judge carefully considered the identification evidence.  We
    see no error in that analysis and no basis for appellate intervention.

[5]

With respect to the sentence appeal, again we see no error in principle
    or in the sentence imposed. The appellant has a lengthy history of convictions
    for similar offences. The trial judge found that previous custodial
    dispositions have  failed to curb his behaviour, both in terms of committing
    sexual offences and in failing to comply with court orders, including that he
    not ride on TTC vehicles.

[6]

In these circumstances, the trial judge did not breach the jump principle
    in imposing the sentence appealed from and there is no basis to interfere with
    the imposition of the consecutive sentences. Given the appellants history of
    committing sexual offences on public transit, we also see no error in the
    imposition of a prohibition on his use of public transit as part of his
    probation order.

[7]

The conviction appeal is dismissed.  Leave to appeal sentence is
    granted, but the sentence appeal is dismissed.

K. Feldman J.A.

C.W. Hourigan J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Osman, 2016 ONCA 64

DATE: 20160122

DOCKET: C60874

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isman Mohamed Osman

Appellant

Eva Taché-Green, for the appellant

Brock Jones, for the respondent

Heard and released orally: January 20, 2016

On appeal from the sentence imposed on March 5, 2015 by
    Justice Paul B. Kane of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant seeks leave to appeal sentence and, if leave is granted,
    appeals his sentence of eight years. The appellant, who was 25 years old at the
    time, was convicted of six counts of robbery during a one-month period, attempted
    robbery (s. 462(a)), conspiracy to commit robbery (s. 465(c)) and flight from
    police.

[2]

In sentencing the appellant, the trial judge rejected the defence
    position that the robberies were part of a crime spree and that concurrent
    sentences should be imposed. He arrived at a total sentence of 21.5 years,
    which he adjusted to an eight-year global sentence after applying the principle
    of totality. The appellant was then given credit for 17 months pre-trial
    custody on a 1.5 to 1 basis.

[3]

The issues on appeal are whether the trial judge erred in principle in
    imposing consecutive sentences, whether he properly took into account
    rehabilitation and whether the overall sentence was fit.

[4]

The appellants first submission is that the sentencing judge ought to
    have counted the 28 months the appellant was serving for two prior related
    offences as part of the total sentence arrived at. The decisions on which he
    relies are
R. v. Johnson
, 2012 ONCA 339, at para. 25 and
R v.
    Parry
, [2012] O.J. No. 1209 (C.A.), at paras. 22-24.

[5]

While the sentencing judge did not specifically advert to these
    decisions, a trial judge is presumed to know the law. We also note that in both
    decisions relied on by the appellant, pleas of guilt to the subsequent offences
    played a significant role in the totality of the sentence. This case involved a
    nine day trial on the issue of identity. We see nothing in the trial judges
    reasons to suggest he did not take proper consideration of the appellants
    prior sentence in considering the global sentence he imposed. The trial judge
    gave the appellant credit for pretrial custody while serving his original
    sentence.

[6]

The appellant further submits that the trial judge erred in not placing
    sufficient weight on the appellants rehabilitation prospects and that the overall
    sentence was crushing.

[7]

In our opinion the trial judge did take into consideration the
    appellants rehabilitation prospects. He referred to his younger age as a
    factor. Contrary to counsels submission, he did consider Mr. Osmans
    acknowledgment that his conduct was stupid.  He also specifically referred to
    what Mr. Osman said in addressing the court.

[8]

Insofar as the issue of whether a consecutive versus concurrent sentence
    ought to have been imposed and the totality of the sentence is concerned, the trial
    judges decision to give the appellant consecutive sentences was an exercise of
    his discretion that warrants a high degree of deference absent an error in
    principle. We see no error in principle. The trial judge appropriately balanced
    the aggravating and mitigating factors. We are of the opinion that the trial
    judge took into account totality by discounting the sentence as he did from 21
    years and then giving the appellant credit for pre-trial custody of 17.5
    months.

[9]

Accordingly while leave to appeal sentence is granted the appeal as to
    sentence is dismissed.

Karen M. Weiler J.A.

M. Tulloch J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shakir, 2016 ONCA 45

DATE: 20160115

DOCKET: C58369

Feldman, Hourigan and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammed Shakir

Appellant

Mohammed Shakir, in person

Vincenzo Rondinelli, duty counsel

Tanit Gilliam, for the respondent

Heard and released orally: January 12, 2016

On appeal from the decision of the Summary Convictions
    Appeal Court dated January 20, 2014 by Justice Timothy Minnema of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on November
    14, 2012 by Justice C.D. Anderson of the Ontario Court of Justice.

ENDORSEMENT

[1]

The applicant requires leave to appeal from the decision of the summary
    conviction appeal judge. We see no basis to grant leave to appeal.

[2]

The car the appellant drove to the border was subject to duties under
    s. 159 of the
Customs Act
, R.S.C., c. 1 (2nd Supp.).  We see no error
    in the decision of the summary conviction appeal judge in so holding.

[3]

Leave to appeal the decision of the summary conviction appeal judge is
    denied.

K. Feldman J.A.

C.W. Hourigan J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2016 ONCA 25

DATE: 20160113

DOCKET: C57174

Watt, Lauwers and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Anthony Smith

Appellant

Paul Burstein, for the appellant

Jason A. Gorda, for the respondent

Heard: June 30, 2015

On appeal from the conviction entered on July 23, 2012
    and the sentence imposed on April 30, 2013 by Justice Lois B. Roberts of the Superior
    Court of Justice, sitting without a jury.

Watt J.A.:

[1]

It was an early evening in August. A few years ago. In Scarborough. Two
    uniformed police officers in a marked police car signalled the driver of a red
    Honda Civic to pull over. The driver, Neville Devonish, complied.

[2]

Paul Smith was a passenger in the red Honda. He sat in the front
    passenger seat. As soon as Devonish stopped the vehicle, he and Smith got out
    and began walking back towards the driver and passenger side of the police car.
    They left both doors of the Honda open.

[3]

The police officers got out of their car and told Devonish and Smith to
    return to the Honda. Devonish, still yelling and gesticulating, returned to the
    drivers side. Smith, as directed, returned to the passenger side.

[4]

At the drivers door, one of the officers saw a handgun on the floor of
    the drivers side of the centre console. After a brief struggle, the officer
    arrested, subdued and handcuffed Devonish.

[5]

The second officer confronted Smith. She pointed her handgun at him and
    issued the police challenge. Smith bolted. He was arrested on a nearby street a
    few minutes later by other police officers.

[6]

In the red Honda, police found a loaded handgun, and a clear plastic bag
    containing brightly coloured pills. Both were in the drivers side footwell in
    plain sight. Another plastic bag was tucked in the centre console. It contained
    marijuana.

[7]

Devonish and Smith were tried together on a 22 count indictment.
    Devonish was acquitted of the nine counts with which he was charged. Smith was
    found guilty of 10 of the 13 counts on which he was tried.

[8]

Smith appeals his conviction and applies for leave to appeal his
    sentence. These reasons explain why I would dismiss his appeal from conviction
    but allow his appeal from sentence to the extent required by
R. v. Summers
,
    2014 SCC 26, [2014] 1 S.C.R. 575, which was not available to the trial judge at
    the time of sentencing.

THE BACKGROUND FACTS

[9]

The circumstances that underpin the charges on which Paul Smith (the
    appellant) was tried fall within a narrow compass. In large measure, what
    happened before and after the vehicle stop is not controversial. Where the
    parties differ is in the inferences that may be drawn from those events.

The First Sighting

[10]

Police
    Constables Dales and Stepanenko first encountered the red Honda at a stoplight
    at an intersection in Scarborough. The Honda was travelling in the same
    direction as the police car at a speed apparently in excess of the posted
    limit. Devonish stopped the Honda in the curb lane. Cst. Dales stopped the
    police car beside the Honda. Devonish then rolled the drivers side window down
    and began waving at the officers before making an abrupt right turn.

[11]

Cst.
    Stepanenko did a CPIC check on the licence plate number attached to the Honda.
    The vehicle was registered to a female. The officer also noticed a spider
    crack in the front windshield, and dark tinted windows.

The Second
    Meeting

[12]

Moments
    later, a short distance away, the police car and red Honda arrived at a
    four-way stop on an adjacent street. Leaning out of his drivers seat, Devonish
    pointed and yelled at Cst. Dales, who was still driving the police car.

[13]

The
    officers decided to pull over the red Honda. They activated the emergency
    equipment on the police car to signal Devonish to pull over. He complied.

The Stop

[14]

Devonish
    and the appellant got out of the Honda as soon as it stopped. Devonish exited
    from the drivers side, the appellant from the passenger side. Each left the
    door open behind him. Their exits occurred at virtually the same time, at most
    only seconds apart. Each began to walk towards the police car as the officers
    were getting out of their vehicle.

[15]

The
    officers directed Devonish and the appellant to return to the Honda. Devonish
    was belligerent, the appellant quiet. The appellant returned to the passenger
    side. Cst. Stepanenko followed. Cst. Dales ushered Devonish back to the
    drivers side of the Honda.

The Handgun

[16]

When
    Cst. Dales and Devonish got back to the open drivers door of the Honda, the
    officer saw a handgun on the floor of the vehicle. It rested on the floor mat
    near the gas pedal in plain view. At that time, Cst. Dales said nothing about
    seeing the handgun.

[17]

The
    appellant was sitting in the front passenger seat. Cst. Stepanenko was at the
    passenger side door. She could see into the vehicle through the door opening.
    She had a full view of the passenger side and the further side of the
    drivers seat. She could not see to the drivers footwell because the centre console
    obstructed her view.

The Arrest of Devonish

[18]

Cst.
    Dales told Devonish to put his hands behind his back. The officer began to
    handcuff Devonish. Cst. Stepanenko saw the appellant blading, turning his
    body in the passenger seat towards the drivers seat and away from the officer.

[19]

Cst.
    Dales was only partly successful in handcuffing Devonish, who resisted the
    officers attempt to restrain him. Cst. Dales attempts to complete the
    handcuffing procedure and Devonishs resistance carried on across the street.
    The appellant tried to step out from the passenger side of the vehicle. Cst.
    Stepanenko asked him to remain seated. The appellant complied.

[20]

Cst.
    Stepanenko noticed that Cst. Dales continued to struggle with Devonish on the
    lawn across the street. She ran across the street to help her partner subdue
    Devonish.

The Gun Disclosure

[21]

As
    Cst. Stepanenko approached the altercation between Cst. Dales and Devonish,
    Cst. Dales repeated to her: gun in the car, gun in the car. Cst. Dales said
    nothing about the location of the firearm.

[22]

Cst.
    Stepanenko immediately went back across the street towards the red Honda. The
    appellant stepped out of the passenger side of the vehicle and walked towards
    her. The officer unholstered her gun, pointed it at the appellant and ordered:
    Dont move. Keep your hands visible. Get down on the ground. The appellant
    hesitated. Then he turned and ran. The officer took up but soon abandoned the
    pursuit. She radioed for assistance and returned to the Honda.

The Vehicle Search

[23]

In
    the red Honda, police found a handgun, and a clear plastic bag containing
    brightly coloured pills. The officers thought these pills were ecstasy or MDMA.
    Subsequent analysis confirmed this was not the case. In a plastic bag tucked behind
    the centre console they found marijuana in sufficient quantity for the purpose
    of trafficking.

[24]

Devonish
    was searched incident to arrest. In his possession officers found a cellphone, a
    small digital scale, rolling papers and a marijuana roach.

The Arrest of the Appellant

[25]

Within
    minutes of Cst. Stepanenkos call for assistance, other officers located the
    appellant on a nearby street. After a brief foot pursuit and a struggle that
    resulted in several further charges, the appellant was arrested and taken into
    police custody. A later search of his clothing yielded some money and a small
    amount of cocaine.

The Trial Proceedings

[26]

Devonish
    and the appellant were tried together by a judge of the Superior Court of Justice
    sitting without a jury. The indictment contained 22 counts, none charging
    Devonish and the appellant jointly. Each was charged separately with seven counts
    alleging the same firearms offences, as well as possession of marijuana and
    possession of marijuana for the purpose of trafficking.

[27]

Neither
    the appellant nor Devonish testified at trial. Devonish was acquitted on all
    counts. The appellant was convicted of all the firearms offences, several
    offences arising out of his resistance to arrest, and possession of a small
    amount of cocaine. He was acquitted of the marijuana counts and of possession
    of the proceeds of crime.

THE GROUNDS OF APPEAL

[28]

On
    the appeal from conviction, the appellant alleges two material errors in the
    reasons of the trial judge. I would paraphrase those errors as:

i.

failing to decide the appellants case separately and independently from
    the case against Devonish; and

ii.

rendering an unreasonable verdict through impermissible speculation
    rather than permissible inference.

[29]

On
    the application for leave to appeal sentence, the appellant asks that the
    sentence imposed  seven years and three months  be reduced by an amount that
    would reflect the proper credit for time spent in pre-sentence custody under
Summers
.

THE APPEAL FROM CONVICTION

Ground #1: Failure to Decide the Appellants Case Separately
    and Independently from the Case of the Co-accused

[30]

The
    first ground of appeal alleges error in the trial judges reasoning leading to
    her findings of guilt. The error begins with an incorrect framing of the issue
    to be decided. It continues to an erroneous conclusion of guilt based on the
    same inference that raised a reasonable doubt about the guilt of the co-accused
    Devonish.

[31]

It
    is unnecessary to repeat the circumstances giving rise to the charges but
    helpful to begin with a brief tour through the reasoning process followed by
    the trial judge in reaching her conclusion.

The Reasons of the Trial Judge

[32]

The
    trial judge characterized the issue she had to decide in these terms:

In issue are: who was in possession of the firearm, marijuana,
    and crack cocaine; and whether $913.08 were proceeds from marijuana
    trafficking.

[33]

After
    summarizing the evidence adduced at trial, the trial judge turned to the
    firearms counts against Devonish and the appellant. She noted the admitted
    facts and framed the issue she was required to decide in these words:

As a result, the question to be determined with respect to
    those charges is whether or not the Crown has proven beyond a reasonable doubt
    that Mr. Devonish and or Mr. Smith were in possession of the firearm found in
    the Honda Civic on August 21, 2010.

[34]

The
    trial judge acknowledged that neither Devonish nor the appellant was in
    personal possession of the 9mm handgun found by the accelerator in the Honda
    Civic. As a result, the trial judge recognized that proof of possession
    depended upon whether the circumstantial evidence, considered as a whole, could
    establish constructive possession as the only reasonable inference in the
    circumstances.

[35]

The
    trial judge was satisfied that the handgun and the clear plastic bag containing
    pills were on the floor near the accelerator on the drivers side of the centre
    console of the Honda Civic. Both items were in plain view of anyone seated in
    the drivers seat, but not from the passenger seat unless the passenger leaned
    over slightly towards the drivers side. The gun was resting on the top of its
    slide with its grip facing up.

[36]

The
    trial judge considered first the case against the driver, Devonish. She
    recognized that the mere physical proximity of Devonish to the handgun did not
    establish possession any more than his occupancy of the drivers seat could
    sustain the same conclusion. She concluded from Devonishs behaviour in
    attracting the attention of the police and persisting in his aggressive conduct
    when stopped by the police that the gun was not in the position in which it was
    later found when Devonish got into, drove or got out of the car.

[37]

In
    concluding that Devonish was not guilty of the firearms offences, the trial
    judge said:

The only reasonable inference to be drawn from the
    uncontroverted evidence of Mr. Devonishs extraordinary behaviour is that Mr.
    Devonish did not have knowledge that the firearm was in the Honda Civic.

Based on the evidence before me, I find that Mr. Devonish did
    not put the firearm in the drivers footwell, did not have knowledge that there
    was a firearm in the Honda Civic, and did not have possession of it.

[38]

In
    turning to the case against the appellant, the trial judge reiterated her
    findings that the firearm was not on the drivers side footwell when Devonish
    entered the car and that Devonish had not put the gun there. There were only
    two people in the vehicle  Devonish and the appellant. The appellant did not
    have control over the vehicle. His proximity to the gun was not enough to prove
    possession which required both knowledge and control.

[39]

In
    reaching her conclusion of guilt in connection with the appellant, the trial
    judge considered the combined effect of evidence of:

·

opportunity;

·

contemporaneous conduct; and

·

post-offence conduct.

She concluded:

Based on all of the evidence before me, the only reasonable
    conclusion to be made is that Mr. Smith was in possession of the firearm which
    he had concealed from Mr. Devonish and that Mr. Smith had placed the firearm in
    the drivers side of the Honda Civic.

As a result, I find that the Crown has proven beyond a
    reasonable doubt that Mr. Smith was in knowing possession of the firearm that
    was found in the Honda Civic.

The Arguments on the Appeal

[40]

The
    appellant invokes fundamental principles governing criminal liability in
    support of his claim that the trial judges reasons reflect error. That this
    was a joint trial does not alter the bedrock principle that guilt is
    individual, to be proven both on evidence properly admissible against an
    accused, and independently and separately from conclusions reached in relation
    to a co-accused. Proof of the commission of a crime without more does
not
establish
    the guilt of any person charged with it. The evidence, taken as a whole, must
    establish an individual accuseds culpable participation in the offence to
    establish his or her guilt.

[41]

In
    this case, the appellant continues, the trial judge got off on the wrong foot.
    She framed the issue as who  Devonish or the appellant  was in possession
    of the firearms and drugs, rather than whether the Crown had proven beyond a
    reasonable doubt that either was in possession. The trial judge compounded this
    initial error by using an inference that created a reasonable doubt about
    Devonishs guilt as an item of evidence supportive of the appellants guilt.
    She failed to consider the possibility that neither was in knowing possession
    of the firearm, or to apply the principle that uncertainty about who was in
    possession required the acquittal of both.

[42]

The
    respondent rejects any suggestion of error in the trial judges reasoning. The
    finding of guilt, according to the respondent, was grounded on three essential
    findings of fact:

i.

the firearm was not in plain view in the drivers side footwell when the
    driver entered the vehicle;

ii.

the appellant had the opportunity to place the firearm in the drivers
    footwell without the drivers knowledge; and

iii.

the appellants conduct during and after the vehicle stop, including
    fidgeting, turning his body, trying to get out of the car and flight, supported
    an inference of culpable conduct rather than accidental or non-culpable
    presence.

[43]

The
    respondent contends that each of these three essential findings of fact is
    firmly rooted in the evidence adduced at trial and untainted by legal error.

[44]

The
    consistently extraordinary behaviour of Devonish before and after apprehension
    belied not only the presence of the gun in the drivers side footwell, but also
    his knowledge of it and control over it.

[45]

The
    respondent submits that after finding Devonish not guilty on evidence that
    related to his conduct, the trial judge turned to the case against the
    appellant. She noted that mere proximity to the firearm did not establish
    either knowledge of its presence or control over it. Then she considered the
    evidence as a whole, finding that it established the appellants knowledge of
    and control over the firearm as the only reasonable inference available. In
    doing so, the trial judge did not convert evidence that raised a reasonable
    doubt about Devonishs guilt into positive evidence of the appellants guilt.

The Governing Principles

[46]

Recall
    that the indictment and trial of the appellant and Devonish were joint, but the
    liability of each was several.

[47]

A
    person may participate in and be found guilty of a crime in any of several ways.
    As a principal, whether alone or together with another or other principals.
    Joint or co-principals may be liable even though each has not done every act
    that makes up the
actus reus
of the offence:
R. v. Pickton
,
    2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63;
R. v. Mena
(1987), 34
    C.C.C. (3d) 304 (Ont. C.A.), at pp. 314-15. As an aider or abettor of one or
    more principals. Or as a participant in a common unlawful purpose under s.
    21(2).

[48]

In
    cases in which an accuseds participation in an offence is alleged to be as a
    principal, the acquittal of one principal determines nothing in respect of the
    other:
R. v. Rémillard
(1921), 62 S.C.R. 21, at pp. 23-24;
R. v.
    Hick
, [1991] 3 S.C.R. 383, at p. 386;
R. v. Duong
(2001), 160
    C.C.C. (3d) 467 (Ont. C.A.), at para. 19.

The Principles Applied

[49]

As
    I will explain, I would reject this ground of appeal.

[50]

First,
    it was open to the trial judge to find, as she did, that the gun was not in the
    drivers side footwell when Devonish entered the Honda. Had it been in the
    position in which the police found it  inches away from the accelerator and
    leaning against the centre console  it would not only have been clearly visible
    to Devonish but would equally have obstructed his access to the accelerator and
    thus his operation of the vehicle.

[51]

Further,
    as the trial judge found, it beggars belief that Devonish, aware of the
    location of the gun, would go out of his way to attract and maintain the
    attention of the police who were in uniform, driving a marked police car and in
    plain sight. The appellant was the only other person in the Honda.

[52]

Second,
    despite an initial mischaracterization of the issue she had to decide, the
    trial judges reasons, read as a whole, reveal that she considered the
    appellants liability as a principal separately from Devonish.

[53]

The
    trial judge considered Devonishs liability as a principal first. She found
    that the gun was not in the drivers side footwell when Devonish got into the
    car. She concluded that this finding followed from Devonishs unrelenting
    pursuit of the attention of uniformed police officers driving a marked car, a
    manifest improbability if Devonish had seen the gun on the floor inches away
    from the accelerator and his foot. Absent knowledge of the presence of the gun,
    and all the more so control over it, Devonish could not be found guilty of its
    possession on a constructive basis.

[54]

The
    trial judge then turned her attention to the evidence relating to the appellant
    as principal. He was the only other person in the car. He occupied the front
    passenger seat, a position a short reach away from where the gun was found. The
    position of the gun  grip facing up and resting on its slide or barrel  was
    consistent with the position expected on placement from the passenger side of
    the vehicle. The appellant had the opportunity, arguably the exclusive
    opportunity, to put the gun where it was found.

[55]

The
    trial judge also considered the appellants conduct following the vehicle stop,
    including his turning towards the centre console and drivers side, as well as
    his flight from the scene. This evidence was relevant to negate the claim of
    non-culpable conduct advanced on his behalf, but unsupported but his own
    testimony.

[56]

Third,
    the appellants reliance on
R. v. Schell and Paquette
(1977), 33
    C.C.C. (2d) 422 (Ont. C.A.), is unavailing. There, the appellants were jointly
    charged and tried by a jury on a count of second degree murder arising out of
    the death of a child. They were the only two people who had custody and control
    of the child during all material times. Thus, they were virtually the only
    persons who had the opportunity to inflict the fatal injury. Both had severely
    mistreated the child on previous occasions.

[57]

In
    his charge to the jury, the trial judge did not instruct on liability under s.
    21(2). He also pointed out the practical inapplicability of ss. 21(1)(b) and
    (c) in those circumstances. This court held that the jury should have been instructed
    that they should convict one or the other, but if they could not decide whom to
    convict, then they should find both not guilty.

[58]

The
    premise from which
Schell and Paquette
proceeds is that the jury had
    determined that one of the two accused was clearly innocent, but was unable to
    conclude, as between them, who was innocent and who was guilty:
R. v. A.K.
(2002), 169 C.C.C. (3d) 313 (Ont. C.A.), at para. 17. But the reasons of the
    trial judge in this case demonstrate that this case is different. Devonish was
    innocent, or at least not guilty. The trial judge then proceeded to consider
    whether the Crown had established the appellants guilt beyond a reasonable
    doubt. That decision was not contaminated by her finding in connection with
    Devonish.

Ground #2: Speculative Conclusions and Unreasonable Verdict

[59]

The
    second ground of appeal from conviction requires no further reference to the
    evidence adduced at trial. A brief refresher about the basis upon which the
    trial judge found guilt established will afford an adequate foundation for
    consideration of this ground of appeal.

The Reasons of the Trial Judge

[60]

The
    trial judge considered several features of the evidence in reaching her
    conclusion in connection with the firearms offences:

i.

the appellants opportunity to put the gun in the drivers footwell from
    his position in the passenger seat;

ii.

the position of the gun, consistent with its placement there from the
    passenger side of the vehicle;

iii.

the appellants conduct in the passenger seat when engaged by Cst. Stepanenko,
    in particular, turning away from her towards the drivers seat and attempting
    to get out of the car;

iv.

the appellants flight from the scene of the vehicle stop and resistance
    to arrest; and

v.

the finding that the gun was not in the drivers side footwell when
    Devonish got into the car.

[61]

Based
    on all of the evidence before her, the trial judge reasoned that the only
    reasonable conclusion was that the appellant was in possession of the firearm,
    which he had concealed from Devonish, and that he had placed it in the drivers
    side footwell of the vehicle.

The Arguments on Appeal

[62]

The
    appellant says that the verdict reached by the trial judge is unreasonable, the
    product of impermissible speculation rather than permissible inference.

[63]

The
    appellant submits that the trial judge erred by equating evidence of mere
    opportunity with the exercise of control over the firearm. The opportunity was
    brief. No one observed any movement by the appellant consistent with what would
    be required to put the gun in its final resting place.

[64]

The
    appellant argues that the only evidence linking him to the firearm was his
    physical proximity to it. The trial judge recognized that such proximity was
    not enough to establish Devonishs liability. She should have reached the same
    conclusion about the appellant. There was no other direct or circumstantial
    evidence linking the appellant to the gun. No DNA. No fingerprints. And no
    evidence that he brought anything into the car.

[65]

The
    appellant says that evidence of his behaviour at and after the vehicle stop
    cannot satisfy or help to satisfy the burden of proof. The conduct was
    ambiguous. The appellant had just seen his friend arrested. And after all, he
    was in possession of contraband  cocaine  later found in his pants pocket at
    the hospital.

[66]

The
    respondent rejects any claim that the verdict is unreasonable, whether as a
    result of legal error or otherwise.

[67]

The
    respondent says that the trial judge did not equate the opportunity to commit
    the offence with its actual commission. Opportunity was only part of the trial
    judges analysis leading to her conclusion that guilt had been established. The
    opportunity in the case was coloured by the position in which the gun was
    found, a position consistent with its placement there by a person in the
    passenger seat, a mere arms length away. That the officers could not identify
    any particular movement is scarcely surprising since their principal focus was
    on Devonish and his aggressive conduct.

[68]

The
    respondent submits that the trial judge made appropriate use of the conduct of
    the appellant after the Honda was pulled over and in fleeing when confronted by
    Cst. Stepanenko at gunpoint. This evidence negated any non-culpable presence on
    the appellants part and is not explainable by the small amount of cocaine or
    the money found in his pants pocket.

[69]

The
    respondent says that the appellants piecemeal analysis of the circumstantial
    evidence fails to respect the principle that it is the cumulative effect of the
    various items of evidence that is to be considered in deciding whether guilt
    has been established. Isolated scrutiny of individual items of circumstantial
    evidence is contrary to binding precedent.

The Governing Principles

[70]

This
    ground of appeal requires brief reference to the principles that apply on
    appellate review of verdicts impeached as unreasonable, the role of evidence of
    after-the-fact conduct in the demonstration of guilt, and the manner in which a
    trier of fact is to evaluate circumstantial evidence tendered in proof of
    guilt.

Unreasonable Verdicts

[71]

The
    test for an appellate court to apply when a verdict is impeached as
    unreasonable is to consider whether the verdict is one that a properly
    instructed jury, acting judicially, could reasonably have rendered:
R. v.
    Yebes
, [1987] 2 S.C.R. 168, at p. 185;
R. v. Biniaris
, 2000 SCC
    15, [2000] 1 S.C.R. 381, at para. 36. The test imports not only an objective
    assessment, but also, to some extent at least, a subjective evaluation:
Biniaris
,
    at para. 36.

[72]

The
    test requires us to determine what verdict a reasonable jury, properly
    instructed, could judicially have rendered. In doing so we are required to
    review, analyze and, within the limits of appellate disadvantage, weigh the
    evidence. We must examine the
weight
of the evidence, not its bare
    sufficiency:
Biniaris
, at para. 36.  Our entitlement to review the
    evidence adduced at trial, to re-examine and reweigh it, is only to determine whether
    the evidence, as a whole, is reasonably capable of supporting the verdict
    rendered:
R. v. Burns
, [1994] 1 S.C.R. 656, at p. 663.

[73]

In
    deciding whether the verdict is one that a properly instructed jury acting
    judicially could reasonably have rendered, we must ask not only whether there
    is evidence in the record to support the verdict, but also whether the jurys
    conclusion conflicts with the bulk of judicial experience:
Biniaris
,
    at para. 40;
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at para.
    28. We must ask whether a jurys verdict is supportable on
any
reasonable
    view of the evidence and whether proper judicial fact-finding applied to the
    evidence
precludes
the conviction:
W.H.
, at para. 2.

[74]

The
    test and inquiries described above are expressed in terms of a verdict reached
    by a jury. They are equally applicable to cases such as this where the verdict
    under review is that rendered by a judge sitting without a jury. That said, the
    review for unreasonableness is different when the verdict is that of a judge accompanied
    by reasons for judgment. In judge alone cases, an appellate court may be able
    to identify some flaw in the evaluation of the evidence, or in the judges
    analysis, that will serve to explain the unreasonable conclusion the judge has
    reached:
Biniaris
, at para. 37.

[75]

In
    cases tried without a jury, the unreasonableness analysis required under
R.
    v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R. 190, involves scrutiny of the
    logic of the judges findings of fact or inferences drawn from the evidence admitted
    at trial:
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 15,
    44. Under this test, an appellate court can interfere where a trial judge draws
    an inference or makes a finding of fact that is:

i.

plainly contradicted by the evidence relied upon by the judge for that
    purpose; or

ii.

demonstrably incompatible with evidence that is not otherwise
    contradicted or rejected by the trial judge:
Sinclair
, at para. 16.

After-the-fact Conduct

[76]

Evidence
    of after-the-fact conduct is a kind of circumstantial evidence that invokes a
    restrospectant chain of reasoning. The trier of fact is invited to infer from a
    subsequent act, state of mind, or state of affairs that a prior act was done or
    that a state of mind or of affairs existed at a material time in the past:
R.
    v. Figueroa
, 2008 ONCA 106, 232 C.C.C. (3d) 51, at para. 33;
R. v.
    Salah
, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 225.

[77]

The
    inferences drawn from evidence of after-the-fact conduct, as with any inference
    drawn from any item of circumstantial evidence, must be reasonable according to
    the measuring stick of human experience:
Figueroa
, at para. 33. The
    inferences drawn from evidence of after-the-fact conduct, once again as in all
    instances of circumstantial evidence, will depend on:

i.

the nature of the conduct;

ii.

the fact the proponent seeks to have inferred from that conduct;

iii.

the positions of the parties; and

iv.

the totality of the evidence.

Inference drawing is situation-specific, anathema to a
    set of prefabricated rules:
Figueroa
, at para. 33;
Salah
, at
    para. 226.

[78]

It
    is for the trier of fact to choose among reasonable inferences available from
    the evidence of after-the-fact conduct. Among the inferences that may be
    available is that an accuseds conduct was culpable:
Figueroa
, at para.
    35;
Salah
, at para. 227.

Circumstantial Evidence

[79]

Two
    brief principles that govern proof by circumstantial evidence merit brief
    mention.

[80]

The
    first has to do with the standard of proof required in cases involving
    circumstantial evidence. There is no legal requirement for a special
    self-instruction on circumstantial evidence. To convict, a trial judge must be
    satisfied beyond a reasonable doubt that the only rational inference that can
    be drawn from the circumstantial evidence is one of guilt:
R. v. Griffin
,
    2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33.

[81]

The
    second principle assumes particular significance when, as here, arguments are
    advanced that individual items of circumstantial evidence are explicable on
    bases other than guilt. It is essential to keep in mind that it is the
    cumulative effect of all the evidence that must satisfy the criminal standard
    of proof, not each individual item which is merely a link in the chain of
    proof:
R. v. Morin
, [1988] 2 S.C.R. 345, at p. 361;
R. v. Uhrig
,
    2012 ONCA 470, at para. 13.

[82]

Often,
    individual items of evidence adduced by the Crown examined separately lack a
    very strong probative value. But it is all the evidence that a trier of fact is
    to consider. Each item is considered in relation to the others and to the evidence
    as a whole. And it is all the evidence taken together, often greater than the
    sum of individual pieces, that is to be considered and may afford a basis for a
    finding of guilt:
Uhrig
, at para. 13. See also:
Côté v. The King
(1941), 77 C.C.C. 75 (S.C.C.), at p. 76.

The Principles Applied

[83]

For
    several reasons, I would not give effect to this ground of appeal.

[84]

First,
    the trial judge did not equate opportunity with guilt. It is fundamental that
    we are to read the trial judges reasons as a whole to determine whether they
    reflect error. When this approach is followed, it is clear that evidence of
    opportunity was simply one of several items of circumstantial evidence, the
    cumulative effect of which the trial judge measured against the criminal
    standard of proof in reaching her conclusion that the appellants guilt had
    been proven beyond a reasonable doubt.

[85]

Second,
    the trial judge recognized that mere proximity of the appellant to the firearm
    was not a sufficient basis upon which to find established the elements of
    knowledge and control essential to a finding of constructive possession of the
    gun. Nonetheless, proximity was a circumstance worthy of consideration in assessing
    the adequacy of the evidence as a whole to establish guilt.

[86]

Third,
    it was an inevitable consequence of the finding that the gun was not in the
    drivers side footwell when Devonish entered the car and, by necessary
    implication, was not there when he was driving, that it was put there after the
    vehicle was pulled over by police and before Cst. Dales noticed it when he
    ushered Devonish back to the drivers door. On the findings of the trial judge,
    there was only one person in close proximity to the gun: the appellant.  And
    the firearm was in a position consistent with having been placed there by the person
    who occupied the passenger seat: once again, the appellant.

[87]

Fourth,
    the trial judge was entitled to consider the appellants conduct at the scene
    of the vehicle stop and his flight thereafter as supportive of culpability
    associated with the firearm.

[88]

In
    the result, I am not satisfied that the verdict is the product of impermissible
    speculation rather than reasonable inference, or that it is cumbered by legal
    error or misapprehension of evidence. The verdict is not unreasonable.

[89]

For
    these reasons, I would dismiss the appeal from conviction.

THE SENTENCE APPEAL

[90]

It
    is common ground that, without the benefit of the decision of the Supreme Court
    of Canada in
Summers
, the trial judge did not award the appellant
    sufficient credit for the time spent in pre-sentence custody.

[91]

The
    trial judge calculated the credit for pre-sentence custody  a total of two
    years eight months and nine days  on a 1:1 basis rather than on a 1.5:1 basis
    as mandated by
Summers
. As a result, she reduced the sentence she
    determined was fit  seven years three months  by a total of 32 months nine days,
    rather than by a total of 48 months 14 days.

[92]

To
    give effect to the appropriate credit for pre-sentence custody, I would reduce
    the
remanet
of the appellants sentence by a further 16 months and 5
    days.

CONCLUSION

[93]

In
    the result, I would dismiss the appeal from conviction. I would grant leave to
    appeal sentence and allow the appeal from sentence by reducing the
remanet
by 16 months 5 days to reflect proper credit for pre-sentence custody.

Released: January 13, 2016 (DW)

David
    Watt J.A.

I
    agree P. Lauwers J.A.

I
    agree David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Su, 2016 ONCA 58

DATE: 20160119

DOCKET: C59484

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yunhua Su

Applicant/Appellant

Peter Lindsay, for the appellant

Jeffrey Pearson, for the respondent

Heard: January 18, 2016

On appeal from the decision of the Summary Convictions
    Appeal Court dated September 12, 2014 by Justice Hugh K. OConnell of the
    Superior Court of Justice, allowing the appeal from the acquittal entered on March
    5, 2013 by Justice Peter N. Bourque of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

This is an application for leave to appeal from summary conviction pursuant
    to s. 675(1)(a) of the
Criminal Code
. If leave is granted, the
    appellant appeals her conviction for driving over .80 contrary to s. 253(1)(b)
    of the
Criminal

Code
.

[2]

Assuming that the test for leave to appeal has been met, we would
    dismiss the appeal. The officer is obliged to administer the approved screening
    device without delay unless the officer has a concern that the reading obtained
    by administering the test will be reliable. If the officer has a concern about
    fresh mouth alcohol, the officer may briefly delay in administering the test.
    Despite the submissions of the appellant, we are of the opinion that in this
    case there was no evidence that the officer had such a concern. We agree with
    the SCAJ that the trial judges analysis sits on a footing of speculation as to
    possibility of fresh mouth alcohol having been present. There was no breach of
    the appellants
Charter
rights. While it is not necessary to deal with
    the s. 24(2) analysis based on our conclusion, we also agree with the SCAJ that
    the trial judges analysis respecting s. 24(2) was faulty and that even if
    there had been a Charter breach the evidence ought not to have been excluded.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ting, 2016 ONCA 57

DATE: 20160120

DOCKET: C58999

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Suet Stacy Ting

Respondent

Chris de Sa, for the appellant

Philip Campbell and Eva Tache-Green, for the respondent

Heard: September 8, 2015

On appeal from the acquittals entered by Justice B.A.
    Allen of the Superior Court of Justice, on June 2, 2014.

Miller J.A.
:

Overview

[1]

An investigation into a large-scale drug network led police to a mixed
    commercial and residential plaza. The police obtained a warrant (the First
    Warrant) to search one of the rear apartments in the plaza, where they
    believed an Asian woman known as Momo sold drugs.

[2]

Acting on incorrect information about the layout of the plaza, the
    police entered the respondents basement apartment, mistaking it for an
    entrance to a landing that would lead to the target apartment. At the same
    time, the police entered the target apartment through an entrance in the rear
    of the plaza. Though the police quickly realized that this basement apartment
    did not connect to the target apartment, they nevertheless searched the apartment.

[3]

As a result of the search, the police concluded that the respondent, and
    not the occupant of the rear apartment, was in fact Momo. After an hour and
    forty minutes, the search was stopped so the police could obtain a second
    warrant (the Second Warrant) to continue the search of the basement apartment.

[4]

On the second search, the police found methamphetamine and cocaine. As a
    result, the respondent was charged with two counts of possession of controlled
    substances for the purposes of trafficking.

[5]

On a
voir dire
, the First Warrant was held to be invalid
    because it failed to describe the precise location to be searched. The
    respondents apartment was not the target apartment listed in the warrant.

[6]

The Second Warrant was also held to be invalid, as the police were still
    present in the apartment at the time they received the Second Warrant.
    Alternatively, the application judge found that the Second Warrant was also insufficiently
    precise and was invalid on its face.

[7]

After weighing the
Grant
factors, the application judge
    excluded the evidence under s. 24(2) of the
Canadian Charter of Rights and
    Freedoms
. The respondent was subsequently acquitted of both charges.

[8]

For the following reasons, I would dismiss the appeal and uphold the respondents
    acquittals.

Facts

(1)

The Investigation

[9]

In April 2011, police from Durham and York Region began Project
    Gladiator, an investigation into a large-scale drug network that they believed
    to be operating throughout the Greater Toronto Area.

[10]

One
    of the individuals at the centre of the investigation was Alireza Kharizfar.
    Surveillance and intercepted communications from Kharizfar led to a woman known
    as Momo, who was believed to be one of his crystal methamphetamine suppliers.

[11]

Following
    an intercepted conversation between Kharizfar and Momo on September 15, 2011,
    police followed Kharizfar to 4204 Dundas Street West, which is a mixed commercial
    and residential plaza. The police believed he was at that address for a drug
    transaction.

[12]

The
    police observed Kharizfar entering and exiting one of the plazas front-facing doors.
    This door was labelled 4204B (the Target Door). The police later observed
    Kharizfar going in and out of the Target Door on two other occasions, where an
    Asian woman was seen opening the door for him.

[13]

Based
    on the information obtained through Project Gladiator, the police concluded
    that the woman observed at the Target Door was Momo.

[14]

The
    police then searched the registrations of the vehicles in the parking lot. Two
    of these vehicles were registered to Valerie Pham. A check with Toronto Hydro showed
    that Tammy Pham, Valeries sister, was the hydro subscriber for the rear unit
    of 4204B Dundas Street West.

[15]

After
    observing the Asian woman believed to be Momo at the Target Door on several
    occasions and comparing her to Valerie Phams drivers licence photo, an investigating
    officer concluded that Valerie Pham was Momo.

[16]

As
    discussed below, this identification was later found to be incorrect.

(2)

The First Warrant

[17]

Police
    obtained building layout information from Toronto Fire Services, which
    indicated that 4204B Dundas Street West was divided into two, two-storey
    residential units, one front and one rear. The information also showed that the
    address had one front and at least one rear door. On the ground floor there was
    also a commercial unit occupied by Dominos Pizza.

[18]

Based
    on this information, police believed that the rear apartment could be accessed
    through both the Target Door and one of the rear entrances.

[19]

Having
    concluded that Valerie Pham was Momo, and that her sister was a tenant of the
    rear unit, police obtained the First Warrant to search 4204B (rear unit)
    Dundas Street, West and Valerie Phams vehicles for evidence of drug
    transactions.

[20]

The
    police executed the First Warrant on November 30, 2011.

[21]

Two
    teams of officers entered 4204B at 6:00 a.m., one through the Target Door at
    the front of the plaza, where Kharizfar had been observed, and the other through
    one of the rear entrances. As planned, the team at the rear entrance entered
    and searched the rear unit, which was Phams residence.

[22]

The
    team entering through the Target Door, however, was surprised to discover that it
    did not lead to Phams residence, either directly or via a common corridor. Instead,
    it led down a staircase directly into a basement apartment.

[23]

Until
    the police entered the Target Door, they did not know that it opened into the
    basement apartment, or that the basement apartment even existed.

[24]

On
    their descent down the staircase, the police encountered the respondent, Suet
    Stacy Ting.

[25]

The
    police entered the basement apartment. It was immediately apparent that there
    was no access from the basement apartment to Phams apartment.

[26]

The
    police detained Ting, at first believing her to be Pham.

[27]

The
    police proceeded to search the basement apartment and one of Tings cell
    phones. They saw a quantity of what they believed to be crack cocaine in plain
    view. They also seized, among other things, $600 and six cell phones.

[28]

At
    some point, suspicion about Momos identity shifted from Pham to Ting, and
    police decided to seek a new warrant for the basement apartment.

(3)

The Second Warrant

[29]

At
    7:40 a.m., one hour and forty minutes after the search of the basement
    apartment began, a detective instructed the officers to discontinue the search until
    they obtained a new warrant. Ting was arrested and an officer remained in the
    basement apartment to secure it.

[30]

Seven
    hours later, the police obtained the Second Warrant. The address on the warrant
    was specified as the residence of 4204B Dundas Street, West, Toronto,
    Ontario. It did not specify which of the three residential units at 4204B was
    to be searched.

[31]

The
    amended Information to Obtain (ITO) in support of the Second Warrant included
    the following information:

a. Just after 6:00am, investigators entered the front door of
    4204B Dundas Street West.

b. Upon entry, investigators learned there is only one
    apartment behind the door for 4204B. Investigators originally believed 4204B
    was separated into two units one in the front and one in the rear of the
    building. Investigators entered the apartment and located a female inside.

c. In plain view, investigators located a small quantity of
    crack cocaine and marihuana.

d. Investigators had difficulty identifying the lone female at
    the residence. The female appeared to be Valarie PHAM, however she identified
    herself as Suet (Stacey) TING (15-JAN-1965).

e. Investigators learned the rear unit can not be accessed
    through the front door.
The front door (4204B) is the door KHARIZFAR
    attended each time to pick up or sell drugs.
[Emphasis in original.]

[32]

The
    second ITO also set out that [i]nvestigators have determined the actual
    apartment unit for Momo is 4204B and not 4204B (rear) as originally believed.

[33]

Armed with the Second Warrant, police returned to the
    basement apartment and resumed the search. They found 70 grams of
    methamphetamine and 6.6 grams of cocaine. Ting was charged with two counts of
    possession of controlled substances for the purposes of trafficking under the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19, s. 5(2).

The
Voir Dire

(1)

Validity of the Warrants

[34]

On
    a
voir dire
, the application judge ruled that the First Warrant was invalid
    on its face, as it lacked an adequate description of the premises to be
    searched.

[35]

She
    found that 4204 Dundas Street West had a rather complicated structure and the
    ITO did not describe the property in such a manner as to allow the justice of
    the peace to appreciate where the door to be entered and the residence to be
    searched were situated in the building structure. (at paras. 59, 62).

[36]

The
    application judge went on to find the Second Warrant invalid, on the basis that
    the police were still present in the apartment at the time they received the
    Second Warrant.

[37]

In
    any event, even if the information had been obtained through a valid warrant,
    the application judge held that the Second Warrant was invalid on its face. The
    Second Warrant simply identified the target as the residence of 4204B, and
    did not specify which of the three apartment units were to be searched. It did
    not rectify the imprecision in the First Warrant in any appreciable way.

[38]

The
    application judge went on to find that there were insufficient reasonable and
    probable grounds to issue the warrants.

(2)

Exclusion of the Evidence

[39]

The
    application judge considered whether the evidence should be excluded under s.
    24(2) of the
Charter
, which provides that where evidence is obtained
    in a manner that infringes a persons
Charter
rights, it shall be
    excluded if its admission would bring the administration of justice into
    disrepute.

[40]

The
    application judge followed the three inquiries set out in
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, to assess whether the admission
    of the evidence obtained in the searches would bring the administration of
    justice into disrepute. These inquiries assess:

1.

the seriousness of the
Charter
-infringing state conduct;

2.

the impact of the breach on the
Charter
-protected interests of
    the accused; and

3.

societys interest in the having the case adjudicated on its merits.

[41]

With
    respect to the seriousness of the infringement, the application judge
    characterized the police conduct as being on the more serious end of the spectrum.
    In particular, she identified the following:

·

the imprecision in the description of the residence was not a
    technical error, but the result of a substandard investigation, a failure of
    due diligence [and] neglect to take the steps necessary to understand the
    layout of the building;

·

the police who entered the basement apartment quickly realized
    they were in the wrong apartment;

·

the police accessed text messages from Tings cell phone, which
    was not part of the original investigation and which was done without a warrant;
    and

·

the search continued for one hour and forty minutes before being
    halted. Even then, an officer remained in the apartment for seven hours under
    the invalid warrant before a new warrant was obtained.

[42]

Although
    the application judge characterized the initial error as a result of a reckless
    and substandard investigation, she found that the subsequent conduct
    remaining in the apartment and carrying on with the search despite knowledge
    that they were not where they were supposed to be  crossed the line into a
    flagrant disregard of Ms. Tings rights.

[43]

With
    respect to the impact of the breach on Ting personally, the application judge
    characterized this as being on the more severe end of the spectrum (at paras.
    90-91):

The police entered the apartment in the early morning hours and
    found Ms. Ting in her night wear. Over a half dozen officers were in her small
    apartment at one time. They proceeded to walk through her private living space,
    searching, videotaping and seizing items. They accessed texts on the Nokia
    cellphone without authority.

This was a flagrant invasion by the police of the private and
    personal spheres of Ms. Tings life and home. The court must dissociate itself
    from that conduct.

[44]

With
    respect to societys interest in having the case adjudicated on its merits, the
    application judge noted that [d]rugs of the nature seized in the case before
    me have become a serious threat to the well-being and security of many
    communities.

[45]

Her
    overall conclusion was that the nature and the extent of the infringement of
    the
Charter
rights meant that the long-term interest of the
    administration of justice would not be served by admitting the evidence in this
    case. She therefore ordered the exclusion of the methamphetamine and cocaine.

[46]

As
    a result, the respondent was acquitted of both charges.

Issues on Appeal

1.

Did the application judge err in finding that the warrants were invalid?

2.

Did the application judge err in excluding the evidence under s. 24(2)
    of the
Charter
?

Analysis

(1)

Did the application judge err in finding that the warrants were invalid?

(a)

Facial Validity of the Warrants

[47]

Broadly
    defined, a search warrant is an order issued by a justice of the peace that authorizes
    the police to enter a specified place to search for and seize specific property:
    see
A.G. (Nova Scotia) v. MacIntyre
, [1982] 1 S.C.R. 175, at 179.

[48]

An
    adequate description of the place to be searched is a fundamental component of
    a search warrant. Its importance cannot be overstated: see
R. v. Le
,
    2011 MBCA 83, 270 Man.R. (2d) 82, at para. 77; James A. Fontana and David
    Keeshan,
The Law of Search and Seizure in Canada
, 8th ed (Markham:
    LexisNexis Canada Inc., 2010) at 87-92.

[49]

Without
    an adequate description of the premises, the issuing justice of the peace would
    not be assured that he or she is not granting too broad an authorization, or an
    authorization without proper reason. The police officers called on to execute
    the search warrant would not know the scope of their search powers. Further, those
    subject to the warrant would be left in doubt as to whether there is valid
    authorization for those searching their premises.

[50]

Accordingly,
    a warrant that does not adequately describe the place to be searched is invalid.
    As articulated in
Re McAvoy
, [1970] N.W.T.J. No. 5 (Terr. Ct.), at para.
    50,:

To avoid search warrants becoming an instrument of abuse it has
    long been understood that if a search warrant fails to adequately describe the
    offence, fails to accurately describe the premises to be searched, or fails to
    give an accurate description of the articles to be seized then it will be
    invalid.

[51]

Just
    what constitutes an adequate description will vary with the location to be
    searched and the circumstances of each case. With respect to a multi-unit,
    multi-use building, as seen in this case, it is not enough to simply provide a
    street address that distinguishes the building from others. The description must
    adequately differentiate the units within the building, as those in a
    multi-unit dwelling have the same expectation of privacy as those in a
    single-unit dwelling. The Supreme Court of Canada articulated this point in
R.
    v. Campbell
, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 15:

[The accuseds] expectation of privacy in his room within the
    townhouse is just as high as that of a resident of a single dwelling unit. In
    drafting ITOs proposing to search more than one unit within a multi-unit
    dwelling, this principle should be reflected by clearly setting out reasonable
    and probable grounds for each unit to be searched.

[52]

In
    this case, although the First Warrant was specific about the premises to be
    searched, it specified an apartment other than Tings. The premises specified
    was 4204B (rear unit). This rear unit was where police believed drugs were
    sold by Pham, who was the target of the investigation at that time.

[53]

On
    its face, therefore, the First Warrant did not authorize a search of Tings basement
    apartment. It targeted a different apartment and a different person. The application
    judge did not err in her conclusion to invalidate the First Warrant.

[54]

The
    application judge then invalidated the Second Warrant on the basis that the
    police failed to leave Ms. Tings apartment when they realized, or ought to
    have realized, that the First Warrant was invalid, and were still present at
    the time the Second Warrant was obtained.

[55]

The
    application judge did not err in this conclusion. Had the police promptly
    vacated the apartment, however, the initial entry would not have precluded
    obtaining a second warrant for the basement apartment on the information contained
    in the initial ITO plus the new information clearly identifying the premises to
    be searched as the basement apartment.

[56]

However,
    the Second Warrant also failed on the basis of facial invalidity, that is, for
    inadequately describing the premises to be searched.

[57]

The
    Second Warrant specified the residence of 4204B as the place to be searched.
    This description could have equally signified any of the three residential
    units in the building and the application judge did not err in finding that this
    made the Second Warrant facially invalid.

[58]

That
    being said, the Crown submits that the second ITO made it clear that the
    warrant was intended for the basement residence. I agree that the application
    judge erred in finding the ITO to be ambiguous in that respect. There is only
    one residence in the basement of the building, and there is only one door that
    can be used to access it.

[59]

It
    is not enough, however, for the ITO to accurately describe the premises to be
    searched. For a search warrant to fulfill its functions, those who are relying
    on it  including police officers who are executing it and third parties whose
    cooperation is sought  must not be required to look past the warrant to the
    ITO. The warrant itself must be clear and limited on its face with respect to the
    location to be searched: see
Re Times Square Book Store and the Queen
(1985), 21 C.C.C. (3d) 503 (Ont. C.A.), at 513; and
R. v. Parent
(1989), 47 C.C.C. (3d) 385 (Y.C.A.), at 396-97.

[60]

A
    function of a warrant is to guide and limit the actions of the police officers.
    A warrant that is ambiguous cannot perform that function. Neither can the
    subject of the warrant know whether the police are authorized to search the
    premises.

[61]

Had
    the warrant specified the residence of 4204B, basement apartment, it would have
    been sufficiently precise. But the residence of 4204B was impermissibly
    ambiguous. It is no answer that in this case the officers nonetheless executed
    the second warrant at the correct residence. In reality, they were not guided
    by the warrant, but by their personal knowledge of the premises to be searched:
    see
R. v. St-Pierre
(1998), 204 N.B.R. (2d) 172 (Q.B.), at para. 16.

[62]

The
    application judge did not err in quashing the Second Warrant.

(b)

The Use of Amplification Evidence

[63]

The
    role of a judge reviewing a search warrant is not to ask whether she would have
    granted the warrant were she the issuing judge, but to determine whether the
    warrant could have been issued: see
R. v. Garofoli
, [1990] 2 S.C.R.
    1421, at 1452.

[64]

In
    doing so, the application judge may be permitted to rely on amplification
    evidence, which is additional evidence presented at the
voir dire
.
    There are limitations to the use of amplification evidence, as set out in
R.
    v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 42-43:

Amplification evidence is not a means for the police to adduce
    additional information so as to retroactively authorize a search that was not
    initially supported by reasonable and probable grounds.

Rather, reviewing courts should resort to amplification
    evidence of the record before the issuing justice only to correct some minor,
    technical error in the drafting of their affidavit material so as not to put
    form above substance in situations where the police had the requisite
    reasonable and probable grounds and had demonstrated investigative necessity
    but had, in good faith, made such errors.

[65]

In
    this case, the application judge did not use amplification evidence to validate
    the search warrants. She concluded that this was not some minor, technical
    error, but that the police had gone into the wrong unit (at paras. 62, 63).
    This was a finding of fact that the application judge was entitled to make, and
    it is entitled to deference on appeal.

[66]

The
    Crown maintains that on the basis of the amplification evidence at the
voir
    dire
 particularly that the Target Door led to the basement apartment
    the First Warrant was sufficient to authorize the search of the basement
    apartment. The Second Warrant was, according to the Crown, not strictly
    necessary, but was obtained to err on the side of caution.

[67]

The
    Crown argues that the evidence on cross-examination set out how the
    investigation was always centered on whatever premises was behind the Target
    Door. The Crown submits that when the police entered Tings basement apartment,
    they entered the correct place  correct in the sense that it was the place
    where the transactions with Momo were believed to have occurred and correct in
    that Ting was Momo, not Pham.

[68]

I
    do not agree with this submission. The police did not know of the basement
    apartment when swearing the ITO. They could not obtain a warrant for a
    residence whose existence was unknown to them.

[69]

It
    was not enough that they believed that the Target Door was a gateway to some
    location where a drug transaction had likely taken place. They did not know
    where the Target Door led. As it happens, the Target Door in fact led to a
    single residence. But at the time they believed otherwise: that it may have opened
    to a landing that led to individual residences.

[70]

Amplification
    cannot be used to provide evidence that was not known to the police at the time
    the ITO was sworn: see
Morelli
, at para. 43.

[71]

Even
    on its face, the First Warrant did not authorize the police to enter the Target
    Door. Though they did not know this until they entered the basement apartment
    and realized that they were mistaken about it providing access to the rear unit,
    it was not merely a technical error that can be corrected on the basis of an
    amplified record.

[72]

A
    premises that is not specified on a search warrant cannot become the right
    place simply because the police conclude that it ought to have been the
    original target, and would have been but for their mistaken chain of reasoning.
    It is the warrant that makes the premises the correct premises (in terms of authorization),
    not the plan of action in the minds of the investigating officers. This is the
    same conclusion reached in the factually similar case cited by the application
    judge:
R. v. Silvestrone
(1991), 66 C.C.C. (3d) 125 (B.C.C.A.), at 131.

[73]

Neither
    can the Second Warrant be saved by amplification evidence. It did not specify which
    residential unit at 4204B was to be searched. This failure to precisely
    describe the premises to be searched is an error on the face of the warrant.
    This is a problem that cannot be cured on amplification of the record.

(2)

Did the application judge err in excluding the evidence under s. 24(2)
    of the
Charter
?

[74]

As
    outlined above,
Grant
sets the framework for assessing whether evidence
    should be excluded under s. 24(2) as a result of a
Charter
breach. This
    determination is owed considerable deference, unless the assessment of facts is
    unreasonable, or the judge made a palpable and overriding error in her analysis:
    see
R. v. Beaulieu
, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5.

[75]

On
    the first
Grant
inquiry, the application judges conclusion was
    reasonable: the s. 8 infringement was at the more serious end of the spectrum.

[76]

However,
    the application judge overstated the degree of fault of the police in obtaining
    the invalid First Warrant. The misidentification of Pham as Momo and the mistaken
    description of the premises in the warrant were errors, but they were not the
    result of substandard investigative practice or a failure to conduct due
    diligence.

[77]

I
    agree with the Crown that the police acted reasonably in relying on the
    information about the building layout that was provided to them by Toronto Fire
    Services. They had been advised that there were two, two-storey residential
    units in the building. They had no reason to look beyond this information. It
    was reasonable in the circumstances to conclude that there were no other
    residential units, and that the Target Door must therefore lead the to the rear
    unit.

[78]

Similarly,
    the initial entry into the basement apartment was not substandard practice. The
    police had reasonable grounds to seek a warrant to enter Phams apartment, and
    reasonably believed that the Target Door led to Phams apartment.

[79]

What
    was problematic was the decision to search the basement apartment when it was,
    or should have been, immediately obvious that the police did not have the
    authority to be present there. The officers in the basement apartment knew that
    there was a second team of officers executing the warrant through a rear door.
    When the team that entered through the Target Door did not meet up in the same
    residence as the rear door team, they had to know that one of the teams was in
    the wrong place. At the very least, the police knew that they did not have a
    warrant to search two separate apartments.

[80]

Knowing
    that they were in premises not authorized by the search warrant, and in the
    absence of exigent circumstances, the police ought to have left the premises
    immediately and sought a further warrant. Contrary to the Crowns characterization
    of events, this is not what occurred; up to seven police officers continued to
    search a small apartment for one hour and forty minutes before discontinuing.

[81]

As
    the application judge concluded, it is this continued action, rather than the initial
    and modest infringement, that renders the police conduct in the case serious.

[82]

With
    respect to the second factor, the impact of the
Charter
infringement on
    the accused, it is unsurprising and entirely reasonable that the application
    judge found the impact on the accused to be of a high severity, similar to the
    breach of her
Charter
rights.

[83]

Finally,
    regarding societys interest in having this case adjudicated on its merits, the
    application judge appropriately noted the seriousness of the crime of drug
    trafficking, and the threat to the well-being and security of many
    communities posed by these kinds of drugs.

[84]

The
    third inquiry is a matter of assessing the harms to individuals and groups in a
    society caused by the offence in question. The application judge correctly characterized
    the standard set by s. 24(2) of the
Charter
, through the interpretation
    given in
Grant
, as an objective one  of safeguarding societys
    interests  rather than responding to public outcry or expression of public
    concern. Although we can reasonably expect that articulations of public concern
    will most often correspond to actual public interest, it is the latter that is
    the focus of the third branch of the
Grant
inquiry.

[85]

As
    the application judge noted,
Grant
does not stipulate a mechanical balancing
    exercise. All an application judge can do is consciously bear in mind the three
    factors and determine as best she can whether the admission or the exclusion of
    the evidence better serves the interest of maintaining justice in a society
    ruled by law. The application judge did so, and her conclusions in this matter
     that the
Charter
breaches in this case are sufficiently serious to exclude
    the evidence  are entitled to deference.

Disposition

[86]

I
    would dismiss the appeal and uphold the respondents acquittals.

Released: KF JAN 20 2016

B.W. Miller J.A.

I agree. K. Feldman
    J.A.

I agree. J.C.
    MacPherson J.A.