COURT OF APPEAL FOR ONTARIO

CITATION: R. v. James, 2019 ONCA 288

DATE: 20190410

DOCKET: C65315

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Justin James

Respondent

Joseph Hanna, for the appellant

Scott Hutchison and Kelsey Flanagan, for the respondent

Heard: February 27, 2019

On appeal from the acquittal entered by Justice Steven
    Rogin of the Superior Court of Justice on April 30, 2018.

Pardu J.A.:

[1]

The Crown appeals from the dismissal of drug and
    firearms charges against the respondent, which followed a decision by the trial
    judge that police violated the respondents rights guaranteed by s. 8 of the
Canadian
    Charter of Rights and Freedoms
. The trial judge found
    that the Information to Obtain (ITO) did not set out reasonable grounds to
    believe that evidence would be found in the respondents vehicle some 23 days
    after the day on which the target of the investigation,  MD, said he was buying
    cocaine from the respondent. The trial judge excluded the evidence pursuant to
    s. 24(2) of the
Charter
.

The Information to Obtain

[2]

The police were investigating MD for weapons
    offences. They utilized a police agent who discussed purchasing cocaine from
    MD. MD described Primo as his source for cocaine on several occasions. The
    trial judge found that there was a sufficient link in the ITO to provide a
    reasonable basis to conclude that the respondent was Primo. The respondent
    takes no issue with this conclusion on appeal.

[3]

The ITO described a discussion between the
    police agent and MD on December 18, 2015. MD owed the agent three ounces of
    cocaine, apologized for not having it, and said Primo was not coming until
    the next day. During a recorded conversation MD said My guy Primo is an idiot,
    bro I told himI cussed him this morning, I said listen fucking sometimes Ill
    buy fucking a nino off of him and theres like an ounce of fucking pure dust
    but the rest is bomb. I said listen bro I said I dont want no dust. MD said his
    supplier was going to be leaving from L, that place thats two hours from
    here [Windsor]. Police believed Primo was to leave from London, Ontario. There
    was no evidence that Primo did deliver cocaine to MD the next day.

[4]

Over the following weeks MD and the agent
    discuss supplying the agent with cocaine from other sources while MD is on
    vacation. They also discuss the purchase of guns. On January 19, 2016, MD
    delivers nine ounces of cocaine to the agent. There is no suggestion Primo
    was involved. MD and the agent continue to talk about guns and cocaine without
    mention of Primo.

[5]

On February 2, 2016, MD told the agent in the
    early morning hours that he had to go see Primo tomorrow or the following
    morning at the latest to pick up more cocaine, that he pays Primo $15,000
    for the nine ounces and that he wanted to make a profit of $1,000.00. At 6:20
    p.m. MD told the agent that his supplier was delayed because of health problems
    connected to having been shot in the past by police. It so happened that the
    respondent had been shot by police. At 10:49 p.m., MD told the police agent the
    supplier would be there the next day, before noon. The next day, police
    observed the respondent carrying a bag, driving a Lexus and taking the
    westbound exit ramp to the 401 highway.

[6]

On February 3, 2016 the agent met with MD and
    another drug trafficker for lunch. MD said Primo was halfway between Toronto
    and Windsor. The undercover agent thought Primo may have had a place in
    London. MD opened the trunk of his car and showed the agent $50,000. The police
    agent gave him $16,500 and told him to add it to the buy money. MD said he was
    buying a key from Primo. MD said he was texting with Primo and complained
    about Primos behaviour. MD left with another trafficker, saying he was going
    to meet with Primo and later delivered cocaine to the police agent,
    continuing to complain, likely about Primo.

[7]

The police agent continued to deal with MD
    regarding gun transactions but ultimately police decided to conclude the
    investigation. Data bank searches revealed that the respondent was not facing
    any current charges but that he had a criminal record for offences between May
    2003 and February 2007, including drug offences of possession for the purpose
    of trafficking and possession. The ITO said the respondent had been arrested on
    April 2, 2012 for drug offences and that drugs and related trafficking
    paraphernalia were found at the time of arrest. Notably, however, the ITO did
    not reveal that those charges were stayed by the Crown very shortly after they
    were laid. He had a drivers licence showing his address as a street in
    Windsor.

[8]

In sum, the information in the ITO showed that
    the respondent might have been involved in a drug transaction on December 18,
    2015 and that there was a reasonable basis to believe that he had delivered
    drugs to MD on February 3, 2016, despite the obvious concerns that MD might not
    be a reliable narrator about the source of the drugs he sold.

[9]

The search warrant that was issued on February
    26, 2016 authorized the search of a Lexus associated with the respondent for
    Cocaine; Packaging Materials; Cellular phone(s) associated to [a specified
    number]; Debt List(s) (Handwritten and or Electronic).

The trial judges decision

[10]

The trial judge articulated the correct test for
    assessing the sufficiency of an ITO:

The onus is upon
    Mr. James. I remind myself that I am not to substitute my view of the situation
    for that of the issuing Justice. The issue is whether on the basis of the
    information provided whether the warrant could have been issued. See
R.
    v. Morelli
[2010] S.C.R. 253 and
R. v. Sadikov
[2014] O.J. No. 376.

[11]

The trial judge was critical of the police
    failure to disclose that the charges laid against the respondent in 2012 had
    been stayed:

There is
    absolutely no excuse for this non-disclosure. Although I cannot conclude that
    the non-disclosure of that fact in the ITO was deliberate. It seems strange
    that the one fact helpful to Mr. James was not disclosed contrary to the duty
    of the affiant. The affiant had access to all of the police data bases and
    provided details of other convictions, occurrence reports, and myriad other
    pieces of information, all of which he relied upon to get his warrant.

It must be
    observed that none of this information was confirmed except by inference. While
    the police are not required to conduct a trial or give proof beyond reasonable
    doubt to the issuing Justice of the Peace, they were dealing with [MD], who by
    definition was an accused and had a motive to be disingenuous or to mislead.

[12]

The trial judge concluded that he was not
    satisfied that the information set out in the ITO was sufficient to ground a
    credibly based probability that evidence would be found in the Lexus when the
    warrant was sought:

Nevertheless I
    fail to see how there could be reasonable grounds to believe on February 25th
    and 26th, 2016 that he was carrying contraband when he was only mentioned in
    the ITO in respect of dates of December 18th, 2015 and February 3rd, 2016. To
    hold otherwise would allow the authorities to obtain warrants based on a
    persons reputation, in this case as a drug dealer, as opposed to credibly
    based evidence of probability.

The police made no attempt to update their
    information vis-à-vis Mr. James between February 3rd and February 25th. As was
    pointed out in argument, a drug dealer makes no profit in holding his
    inventory. He must sell it. Drugs are transitory and there was no pattern
    demonstrated in the ITO.

This was a 23 day delay. The Crown could not
    point me to any authority that said this was reasonable under the
    circumstances.

To the contrary all the authority points to
    the proposition that a warrant should be executed within a reasonable time of
    issuance so that the information would remain fresh and relevant.

Here, while the
    warrant was executed within a reasonable time there was no evidence before the
    Justice of the Peace that the information was current.

[13]

The trial judge went on to apply the factors
    enunciated in
R. v. Grant,
2009
    SCC 32, [2009] 2 S.C.R. 353
. He recognized that
    there was a reduced expectation of privacy in a vehicle but noted that the
    respondent was detained in public, and concluded that a dynamic detention
    meant the respondent was forced to the ground and handcuffed in the course of
    the arrest. He found the
Charter
violation was
    serious and that police deliberately sacrificed the respondents rights to give
    priority to the weapons investigation targeting MD. He noted that reliance on
    stale information risked the grant of a search warrant based upon the personal
    reputation of an accused, rather than credibly based evidence. He noted the
    misleading nature of the police failure to disclose the stay of the 2012
    charges against the respondent.

[14]

The trial judge was also critical of police for
    quoting verbatim racially pejorative language attributed to MD.

[15]

Thus, he concluded the first two factors, the
    seriousness of the breach and the impact of the breach upon the respondent,
    favoured exclusion.

[16]

Citing
R. v. McGuffie,
2016 ONCA
    365, 131 O.R. (3d) 643,
he noted that the third factor,
    societys interest in adjudication on the merits, usually militates in favour
    of admission of the evidence but will seldom result in the admission of the
    evidence where the first and second factors make a strong case for exclusion.
    He ultimately concluded that the balance of these factors favoured exclusion.

Arguments on appeal

[17]

The Crown argues that the trial judge erred in
    several respects:

1.

He considered only whether the ITO reasonably
    permitted a conclusion that drugs or contraband would be located at the time
    of the search, rather than considering whether other kinds of evidence of drug
    dealing might be found in the car.

2.

He failed to consider specific evidence, failed
    to consider the cumulative effect of the evidence linking the respondent to the
    name Primo and impermissibly weighed evidence contained in the ITO in
    concluding that there was insufficient evidence of a pattern of drug dealing by
    the respondent.

3.

He erred in his application of
Grant
by
    finding that there was serious police misconduct. This finding is untenable
    since the police applied for a warrant. The trial judge also erred in his
    assessment of the impact upon the respondent by concluding that a dynamic
    stop meant that the respondent was forced to the ground and failing to consider
    that the respondent was not the registered owner of the car.

[18]

The respondent argues that the trial judge did
    not err on the following bases:

1.

Before the trial judge, the trial Crown argued
    only that it could be inferred that the respondent had cocaine in the car. The
    Crown should not be able to advance a new argument about other evidence of drug
    dealing for the first time, on appeal.

2.

In any event, the trial judge did not limit
    himself to the prospect that cocaine would be found in the car. In using the
    word contraband he did not exclude drug-related paraphernalia. Further, there
    was no evidence to support the suggestion that paraphernalia was any more
    likely to be found in the car than cocaine.

3.

The ITO does not establish reasonable grounds to
    believe that a pattern of drug dealing existed, justifying an open-ended
    inference that evidence would be found 23 days later. The Crowns position that
    any person believed to have been involved in one or two drug deals can be
    assumed to have drugs in a vehicle in the future is untenable. Such generic
    reputational evidence is not a proper case-specific basis to satisfy the
    statutory criteria for the issue of a warrant under the
Controlled Drugs and
    Substances Act,
S.C. 1996, c. 19.

Analysis

[19]

I extract the following principles from Watt
    J.A.s decision in
R. v. Sadikov
, 2014 ONCA
    72, 305 C.C.C. (3d) 421, at paras. 83-84 and 89:

1)

Warrant review begins from a premise of presumed validity. The onus
    of establishing invalidity falls on the person who asserts it.

2)

The scope of warrant review is narrow. The review is not a
de
    novo
hearing of the
ex parte
application. The reviewing judge does
    not substitute his or her view for that of the issuing judge.

3)

The standard is whether there is sufficient credible and reliable
    evidence to permit a justice to find reasonable and probable grounds to believe
    that an offence has been committed and that
evidence of that offence would
    be found at the specified time and place of search.
Was there reliable
    evidence that might reasonably be believed on the basis of which the warrant
    could have issued?

4)

An appellate court owes deference to the findings of the reviewing
    judge in his or her assessment of the record. Absent an error of law, a
    misapprehension of evidence, or a failure to consider relevant evidence, an
    appellate court should decline to interfere with the reviewing judges
    decision.

[20]

I reiterate that the requirement that a justice
    have reasonable grounds to believe that any drug or evidence of an offence
    under the CDSA is
in
a
    place to be searched is a statutory requirement for the issue of a search
    warrant. Section 11(1) of the CDSA provides as follows:

11

(1)
A justice who, on
ex parte
application, is satisfied by information on oath that
there are reasonable
    grounds to believe that

(a)

a
    controlled substance
or precursor in respect of which this Act has been
    contravened,

(b
)
any thing in which a controlled substance
    or precursor referred to in paragraph (a) is contained or concealed,

(c)
offence-related
    property, or

(d)

any
    thing that will afford evidence in respect of an offence
under this Act or
    an offence, in whole or in part in relation to a contravention of this Act,
    under section 354 or 462.31 of the
Criminal Code

is in a place
may, at
    any time, issue a warrant authorizing a peace officer, at any time, to search
    the place for any such controlled substance, precursor, property or thing and
    to seize it. [Emphasis added.]

[21]

Information in the ITO establishes that the
    respondent might have been involved in a drug transaction on December 18, 2015
    and provides a reasonable basis to believe that he delivered drugs to MD on
    February 3, 2016. However, I agree with the trial judge that this information
    is insufficient to allow a justice to find a pattern of drug dealing or to
    support the conclusion that there was sufficient credible and reliable evidence
    to establish reasonable and probable grounds to believe that evidence, drugs or
    paraphernalia would be found in the car at the time of the search on February
    26, 2016. The trial judges factual conclusion that the evidence was
    insufficient to lead to a conclusion that there was a pattern of drug dealing
    on the part of the respondent is owed deference.

[22]

Evidence of a propensity of a general type of
    offender is a thin basis to justify the issue of a search warrant. As noted in
R.
    v. Morelli
,
2010 SCC 8, [2010] 1 S.C.R. 253
, at para. 79, [t]o permit reliance on broad generalizations about
    loosely defined classes of people is to invite dependence on stereotypes and
    prejudices in lieu of evidence. In
Morelli
, a
    computer technician thought he saw links to child pornography sites on the
    accuseds computer. Some four months later, after the hard drive had been
    formatted, police sought a search warrant, claiming that persons who possessed
    child pornography were the type of persons likely to hoard and copy illegal
    images. Despite the bald assertions made by police officers, the court
    concluded that the ITO did not establish either the veracity of the
    generalization about the alleged type of offender, nor that the accused is in
    fact the type to which the generalization might have applied: at para. 71.

[23]

Implicit in the ITO here is an assertion that
    because the respondent had a dated record for drug offences, might have dealt
    in drugs on December 18, 2015, and could well have done so on February 3, 2016,
    he could be presumed to have drugs or evidence of drug dealing in a vehicle
    more than three weeks later, on February 25 or 26, 2016.

[24]

In
R. v. Rocha,
2012 ONCA 707, 112 O.R. (3d) 742, for example, an informer said he witnessed
    10-15 drug transactions at a restaurant operated by the accused and gave
    specific information about where the drugs were located in the restaurant and
    how they were packaged and transported. The informer made a conclusory
    statement that drugs were stored in the accuseds home without any indication
    of the basis for that statement. This court held that the ITO was sufficient to
    allow a search warrant to issue for the restaurant, but insufficient to allow a
    search of the house. Detailed evidence that the accused and his brother were
    concurrently involved in multiple drug transactions at the restaurant was
    insufficient to lead to the inference that evidence would be found at the home.

[25]

I agree with the trial judges conclusion here
    that the ITO was insufficient to establish reasonable grounds to believe that
    drugs or evidence of drug dealing would be found in the respondents vehicle on
    February 25 or 26, 2016. I am not persuaded that the trial judge confined his
    analysis to the probability that drugs, as opposed to other evidence of drug
    dealing, would be found, given his reference to the need under s. 11 of the
    CDSA to establish that evidence would be found. His use of the word
    contraband was a compendious fashion of referring to the argument made to
    him, which did not distinguish cocaine from other evidence of drug trafficking.

[26]

I am not persuaded that the trial judge made an
    error of law, misapprehended the evidence, or failed to consider relevant
    evidence. He articulated the correct test to be applied by a reviewing judge.
    There is no basis to disturb his decision that the ITO was insufficient to
    support the grant of the warrant for the search of the car on February 25 or
    26, 2016.

Should the evidence be admitted despite the
    breach of s. 8?

[27]

Section 24 (2) of the
Charter
provides that where evidence was obtained in a manner that
    infringed or denied any rights or freedoms guaranteed by this
Charter
, the evidence shall be excluded if it is established that, having
    regard to all the circumstances, the admission of it in the proceedings would
    bring the administration of justice into disrepute.

[28]

Grant
mandates a balancing of the
    following factors in considering whether to exclude evidence connected to a
Charter
violation:

i.

the seriousness of the
Charter
-infringing
    state conduct;

ii.

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

iii.

societys interest in the adjudication of the case on its merits.

[29]

The trial judge considered that the
Charter-
infringing police conduct was serious. He found that the police
    deliberately chose to seek a search warrant based on stale information in order
    to give priority to another investigation  namely, so as not to tip off MD
    regarding the firearms investigation. He found that the ITO was misleading
    because police failed to mention that the 2012 charges were withdrawn within a
    month of being laid, although they had the correct information at hand. He
    indicated: [t]here is absolutely no excuse for this non-disclosure. Although I
    cannot conclude that the non-disclosure of that fact in the ITO was deliberate.
    It seems strange that the one fact helpful to Mr. James was not disclosed
    contrary to the duty of the affiant.

[30]

He found that the impact of the
Charter
-infringing conduct upon the respondent was serious, although he
    acknowledged that there was a lessened expectation of privacy in the vehicle the
    respondent was driving. The respondent was detained in public. The trial judge
    interpreted the dynamic nature of the detention to mean that the respondent
    was forced to the ground and handcuffed during the arrest, in public.

[31]

The trial judge was critical of police for
    including in the ITO verbatim quotes containing racially pejorative
    descriptions of the respondent attributed to MD.

[32]

The trial judge cited
McGuffie
and found that societys interest in adjudication on the merits did
    not outweigh the first two
Grant
factors,
    although the charge was serious and the evidence was crucial to the Crowns
    case.

Arguments on Appeal

[33]

The Crown argues that the trial judge erred in
    many respects in his s. 24(2) analysis. It submits that the trial judge erred
    in his analysis of the seriousness of the
Charter
-infringing police conduct by failing to consider the application
    for a warrant as a signifier of good faith on the part of the police, by
    failing to consider that the failure of the police was a matter of timing only,
    and by interpreting a dynamic takedown as one involving the use of force in
    public.

[34]

The Crown alleges that the trial judge erred in
    his assessment of the impact of the breach on the respondent, again by
    interpreting dynamic as he did, by failing to consider that the respondent
    was not the registered owner of the vehicle in which he was detained, by not
    considering whether the respondent could have been arrested in any event at
    that time, by allowing the vehicle to be searched as an incident to a lawful
    arrest, and by considering the effect of racially pejorative quotes in the ITO.

[35]

The Crown finally alleges that the trial judge
    misconstrued
McGuffie

in considering the final
Grant
factor when he indicated that if the
    first two
Grant
factors strongly favour
    exclusion, then the third factor will no longer militate in favour of
    inclusion. The Crown submits that correctly interpreted, these decisions say
    that if the first two factors strongly point to exclusion then the third factor
    will rarely, if ever, be sufficient to warrant admission of the evidence. However,
    if both of the first two inquiries provide weaker support for exclusion of the
    evidence, the third inquiry will almost certainly confirm the admissibility of
    the evidence:
McGuffie, at para.
63. The
    Crown argues that the first two factors do not strongly support exclusion in
    this case.

Analysis of s. 24(2)

[36]

I would not accept the Crowns arguments.

[37]

The standard of review for a trial judges s.
    24(2) analysis is deferential: [w]
here a trial judge has considered the
    proper factors and has not made any unreasonable finding, his or her
    determination is owed considerable deference on appellate review:
R. v.
    Côté,
2011 SCC 46, [2011] 3 S.C.R. 215,

at para. 44;
R. v.
    Cole,
2012 SCC 53, [2012] 3 S.C.R. 34,
at para. 82.

[38]

The trial judge properly considered each of the
Grant
factors. His conclusion that the seriousness of the
Charter-
infringing state conduct and its impact on the respondent strongly
    favoured exclusion was well-founded.

[39]

The fact that police applied for a warrant does
    not in itself signify good faith. While the trial judge did not find that the
    police deliberately misled the justice by omitting important information, i.e.
    act in bad faith, he also did not conclude that they acted in good faith. The
    missing information about the stay of the 2012 charge was readily available to
    police and they failed to include it, thereby bolstering an essentially
    reputational basis for the warrant. In this case, the error was significant because
    of the dated record, and the limited information provided by MD. There must
    have been good reason for the Crown to almost immediately withdraw the 2012
    charges. It would be speculative to conclude from the arrest on those charges,
    that the respondent was then trafficking in drugs.

[40]

In addition, there was no evidence of
    investigative necessity supporting delay in applying for the warrant. In some
    large investigations, investigative necessity might mitigate the seriousness of
    police conduct amounting to a
Charter
breach,
    however investigative necessity is not a matter for judicial notice. There must
    be evidence. In oral argument the Crown conceded that there was no evidence of
    investigative necessity justifying the delay in applying for the warrant. MD
    was the target of the investigation. The respondent and several others came to
    the attention of police as a result of the investigation of MD. The respondent
    allegedly supplied drugs to MD on one or two occasions. MD had other sources of
    drugs. This court should not speculate about whether investigative necessity
    justified the delay.

[41]

Nor would I conclude that the
Charter
breach was merely a matter of timing. Rather it was a failure to
    comply with a mandatory statutory requirement, to establish reasonable grounds
    that evidence would be found in the place sought to be searched.

[42]

The trial judges interpretation of a dynamic
    arrest was entirely within his purview as fact-finder, and there is no basis to
    interfere with that factual conclusion. The possibility that the respondent
    could have been arrested instead and the car searched incident to arrest is
    speculative and does not address the staleness of the evidence. An officer
    would have to have both a subjective belief based on reasonable, probable grounds
    that the respondent had committed an offence
and
reason to believe that searching the car
at that time
would disclose evidence of
    that offence to justify a search incident to arrest:
R. v. Caslake
, [1998] 1.S.C.R. 51, at para. 19.

[43]

I do agree that the trial judge should not have
    criticized police for their verbatim quotation of remarks attributed to MD. As
    offensive as those remarks were, it was better for police to produce the actual
    evidence to the justice, rather than rely on an interpretation which could have
    been misleading. This criticism by the trial judge was, however, collateral to
    his s. 24(2) reasoning.

[44]

I also agree that there is some ambiguity in the
    trial judges summary of
McGuffie
,
however
    reading his reasons as a whole, he essentially found that the conduct of the
    police amounted to a serious breach of the
Charter
, that the impact on the respondent was substantial, and that
    societys interest in adjudication on the merits did not outweigh these other
    factors.

[45]

I see no basis for appellate intervention and I
    would dismiss the appeal.

G.
    Pardu J.A.

I
    agree A. Harvison Young J.A.

Nordheimer J.A. (dissenting):

[46]

I
    have read the reasons of my colleague. I do not agree with her disposition of
    this appeal. In my view, the trial judge erred in finding that the issuance of
    the search warrant breached the respondents rights under s. 8 of the
Charter
.
    I would also find that, even if a s. 8 breach had been established, the trial
    judge erred in excluding the evidence under s. 24(2). I would allow the appeal,
    set aside the acquittal, and remit the matter to the Superior Court of Justice
    for a new trial.

Section 8 analysis

[47]

It
    is important to remember the context in which this search warrant was issued.
    It was part of a much larger investigation into the smuggling and trafficking
    of firearms as well as the trafficking of cocaine. This larger police
    investigation was code-named Project Kirby. Its principal target was Franco
    Marentette-Derose, who I will refer to hereafter as MD as my colleague has.

[48]

The
    police used a police agent, undercover officers, and had authorization to
    intercept private communications, among other judicial authorizations, as part
    of Project Kirby. From their investigation, the police developed a substantial
    body of evidence that MD was trafficking in both firearms and cocaine. Further,
    through the investigation, it became clear that a person by the street name of
    Primo supplied cocaine to MD. Whether Primo was the only supplier of cocaine
    to MD is not revealed by the evidence gathered by the police.

[49]

Before
    the trial judge, two challenges were made to the search warrant as it related
    to the respondent. One was that there was insufficient evidence to believe that
    the respondent was, in fact, Primo. The other was that the information
    regarding the drug activities, as they related to Primo, was stale-dated.

[50]

The
    trial judge concluded that the evidence was sufficient to establish a
    reasonable belief that the respondent was Primo  although he did,
    subsequently, describe the connection as weak. I do not agree with that
    depiction regarding the connection between the respondent and Primo. The
    evidence establishing the connection was substantial, and included the fact
    that MD said that Primo had, sometime earlier, been shot by the police. Police
    records showed that the respondent had been shot by the police. However, it
    does not matter whether the evidence establishing that the respondent was Primo
    was weak or not. What is important is that the information was sufficient for
    the purposes of the ITO for the search warrant.

[51]

Having
    decided that issue, however, the trial judge then found that the information in
    the ITO was stale-dated. He said:

Nevertheless I fail to see how there could be reasonable
    grounds to believe on February 25th and 26th, 2016 that he was carrying
    contraband when he was only mentioned in the ITO in respect of dates of December
    18th, 2015 and February 3rd, 2016. To hold otherwise would allow the
    authorities to obtain warrants based on a persons reputation, in this case as
    a drug dealer, as opposed to credibly based evidence of probability.

[52]

In
    my view, the trial judge committed three errors of law in reaching his
    conclusion. First, and contrary to what he recited in his reasons as the basic
    principles applicable to his task, it is clear that the trial judge did not in
    fact employ the proper test for reviewing a judicial authorization. Rather than
    deciding whether or not the issuing Justice of the Peace could have granted the
    search warrant, the trial judge proceeded to review and weigh the evidence in
    the ITO afresh and then decided that he would not have issued the search
    warrant. That is not the proper test:
R. v. Garofoli
, [1990] 2 S.C.R.
    1421, at p. 1452;
R. v. Ebanks
, 2009 ONCA 851, 97 O.R. (3d) 721, at
    paras. 20-21, leave to appeal dismissed [2010] 1 S.C.R. ix. As MacPherson J.A.
    said in
Ebanks
, at para. 21:

The sole function of the reviewing
    court is to assess the record that was before the issuing judge, as amplified
    on review, and determine whether the authorization could have issued. This
    review has nothing to do with whether the reviewing court would have issued the
    authorization, as a
Garofoli
application at trial must not become a
    hearing de novo: see
Garofoli
, at p. 1452.

At no point in his substantive analysis did the trial
    judge ask himself the proper question.

[53]

Second,
    the trial judge erred in narrowing his inquiry to whether the ITO established
    that there were reasonable grounds to believe that the respondent was carrying
    contraband on the date when the search warrant was executed. I believe it is
    apparent from a fair review of the trial judges reasons that he was using the
    term contraband to refer to drugs. That was not the proper inquiry. The
    proper inquiry was whether there were reasonable grounds to believe that
    evidence of an offence would be found, either in the vehicle the respondent was
    driving, or in the residence to which he appeared to be connected. The search
    warrant covered both. That evidence could include actual drugs but it could
    also include other items relating to an offence, including identified cellular
    telephones, debt lists, packaging materials, and other materials that could
    connect to the offences being investigated.

[54]

Third,
    and most importantly, the trial judge erred in concluding that the information
    in support of the search warrant was stale-dated. In reaching this conclusion,
    the trial judge said, in part:

As was pointed out in argument, a
    drug dealer makes no profit in holding his inventory. He must sell it. Drugs
    are transitory and there was no pattern demonstrated in the ITO.

[55]

There
    is no rule as to how recent information has to be in order to be relevant:
R.
    v. Dionisi
, 2012 ABCA 20, 285 C.C.C. (3d) 502, at para. 22. In my view,
    the trial judge fundamentally misunderstood the nature of the offences being
    investigated and the respondents possible involvement in them. The information
    from the investigation showed that Primo was not some low level drug dealer
    operating in small quantities that might be sold on a street corner or in a
    back alley. Rather, the information showed that Primo was dealing in much
    larger quantities of cocaine, up to the kilogram level. The activities of large
    scale drug dealers are not transitory.

[56]

Further,
    contrary to the trial judges conclusion, with which my colleague agrees, in my
    view there was a sufficient pattern of drug dealing on the information gathered
    to establish reasonable and probable grounds to believe that drugs or drug
    paraphernalia would be found in the respondents car or residence. It was clear
    that Primo was MDs cocaine supplier, or at least one of them. MD identified
    Primo as supplying him with cocaine on December 18 and then again, about six
    weeks later, on February 3. MD consistently referenced Primo as the person who
    would supply him with the cocaine that the police agent, in turn, was trying to
    purchase from MD. In that context, there was every reason to believe that Primo
    would be in possession of evidence of his drug activities a scant three weeks
    later when the search warrant was executed. Primo was engaged in a continuing
    pattern of supplying MD with cocaine. As I have stated, the evidence
    establishing that the respondent was Primo was substantial.

[57]

Not
    only do these events support this conclusion, so too does the criminal record
    of the respondent. Prior criminal activity  including prior involvement in the
    drug trade  is a relevant factor in determining whether there are reasonable
    and probable grounds for a search:
R v. Pasian
, 2017 ONCA 451, 349
    C.C.C. (3d) 144, at para. 6.

[58]

On
    this point, the trial judge was highly critical of the police for their failure
    to include in the ITO, when mentioning that
the respondent had
    been arrested on April 2, 2012 for drug offences (and that drugs and related
    trafficking paraphernalia were found at the time of arrest), that those charges
    were stayed by the Crown very shortly after they were laid.

[59]

I
    do not quarrel with the point that the affiant should have included that piece
    of information in his recitation of this event. But the trial judges criticism
    of the police, on this point, assumed an importance in his analysis that is
    simply not warranted. I repeat that the charges were stayed. They were not
    dismissed. And we do not know the reason why the charges were stayed. In my
    view, it was still of some relevance that the respondent had been suspected of
    drug activity, at that time, especially when it is put into its proper
    perspective. The respondent has a criminal record which spans from May 2003 to
    February 2007 and includes convictions for possession of a Schedule I substance
    for the purpose of trafficking, failing to comply with a recognizance,
    possession of a Schedule II substance, possession of a loaded prohibited or
    restricted firearm, unauthorized possession of a prohibited or restricted
    weapon, possession of a weapon, dangerous operation of a motor vehicle, failing
    to stop at the scene of an accident, assault, and obstructing a peace officer.

[60]

Against
    that background, and the contemporaneous evidence regarding the drug activity
    involving the respondent and MD, the affiants failure to mention that the
    April 2012 charges were stayed is an entirely minor error that does not, in any
    way, detract from the overall picture presented to the authorizing justice. It
    certainly would not have unduly influenced the Justice of the Peace in terms of
    whether or not to issue the search warrant. And, on review, whether you excise
    the April 2012 charges, or amplify the record by including the stay of those
    charges, neither would result in a conclusion that the Justice of the Peace
    could not have issued the search warrant.

[61]

Returning
    to the issue of the currency of the information, the only authority to which
    the trial judge made reference on the issue of stale-dated information was
R.
    v. Silveira
, [1995] 2 S.C.R. 297. It is not clear how that authority would
    assist on the issue here since that case dealt with a search in exigent circumstances.
    I do note, however, that Cory J., speaking for the majority, discussed the
    problem that the police had in terms of whether they could obtain a search
    warrant in the exigent circumstances that they were confronted with. He
    suggested that one solution to the problem would have been for the police to
    have obtained the search warrant based on information that they had from a week
    or so earlier. In making that suggestion, Cory J. made the following
    observation, at para. 154, which is particularly apt to the situation here:

In this case, evidence existed
    upon which a search warrant might have been obtained before the arrests were
    made. It may be that it would have been preferable for the police to have
    obtained a search warrant based on the earlier transactions prior to that made
    on the day of the arrest At the time of trial, if the search warrant was
    attacked on the grounds that it was outdated, evidence could be adduced of the
    difficulty of providing up-to-date material in circumstances like these and
    that, in light of the necessity of protecting the evidence, the police found it
    necessary to obtain a warrant based on the earlier transactions and
    observations. In the absence of an unreasonable delay between the observations
    and the application, it would be difficult to imagine that the warrant could be
    successfully attacked on the grounds that it was stale-dated. That is the way
    the police should have proceeded.

[62]

A
    more pertinent authority on this subject is this courts decision in
R. v.
    Breton
(1994), 74 O.A.C. 99, 93 C.C.C. (3d) 171 (C.A.). In that case,
    there had been drug transactions in an apartment on September 16 and October 8.
    A search warrant was executed on October 15. One of the challenges to the
    warrant was that there was no information to believe that drugs would be found
    in the apartment on October 15. While that argument found favour with the trial
    judge, it did not find favour with this court. This court concluded that it was
    open to the issuing justice to infer from the earlier transactions that there
    was a probability that drugs would be found in the apartment on the later date.
    In so concluding, this court made reference to an earlier decision where a
    search warrant was issued on July 12 based on a drug transaction from May 3.
[1]
This court noted that, in that earlier case, notwithstanding the time lapse
    this court held that the information was sufficient:
Breton
, at para.
    48.

[63]

Another
    example is found in
R. v. Lucas
, 2014 ONCA 561, 121 O.R. (3d) 303,
    leave to appeal dismissed [2014] S.C.C.A. No 406. In that case, there was a
    challenge to the ITO relied upon to obtain an authorization to intercept
    private communications. The target, Lucas, was believed to be trafficking in
    firearms. Lucas challenged the information in the ITO on the basis that it was
    stale because it referred to activities that had taken place some three years
    earlier. This court rejected that challenge. This court said, at para. 140:

[W]e agree with the trial judge
    that in this case,
the fact that guns had allegedly been
    supplied to Lucas some years before the investigation into the offences
    referred to in the ITO did not undermine the grounds for issuing the
    authorization to intercept his communications
. The ITO provided
    reasonable grounds to believe that Lucas had not disposed of all the guns delivered
    to him by Cooke, that he had supplied guns to the Doomstown Crips in the past,
    and the surveillance evidence from January 2006 indicated that Lucas may have
    been transporting firearms.
The ITO thus provided
    reasonable grounds to believe that Lucas had been and continued to be involved
    in the organized trafficking of a substantial number of weapons
.
    [Emphasis added]

[64]

The
    approach to the question of whether information is so dated such that it cannot
    be relied upon for the purpose of seeking a judicial authorization must be
    undertaken on a common sense and practical basis, taking all of the prevailing
    circumstances into account. As the British Columbia Court of Appeal observed in
R. v. Ballendine
, 2011 BCCA 221, 271 C.C.C. (3d) 418, at para. 54:

Merely because information is
    "dated" does not mean it is "stale". While the length of
    time that has passed is to be taken into account in a reasonable-grounds
    determination, it is but one factor.

[65]

As
    the court in
Ballendine
also observed, on these issues, a court is
    entitled to draw common sense inferences regarding the activities of persons:
    at paras. 53, 55, 57. That common sense point was echoed by this court in
R.
    v. Beauchamp
, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 113:

[I]t would have been open to the authorizing
    judge to infer current criminality from past criminality in the circumstances
    disclosed by the evidence in the affidavit. In considering the capacity of the
    evidentiary predicate to ground a finding of probable cause, it is important to
    keep in mind the investigative objective and the nature of the alleged
    criminality involved.
Ongoing criminal enterprises do not
    come into existence, nor do they disappear overnight. Information that seems
    dated at first blush can retain its relevance.
[Emphasis added.]

[66]

The
    suggestion, implicit in the respondents position, that three weeks after the
    respondent was observed driving from London to Windsor in order to deliver a
    significant quantity of cocaine to MD, he became disassociated from, and
    unconnected with, drug trafficking finds no common sense foundation.

[67]

In
    support of his position, the respondent relies on the decision in
R. v.
    Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253 where a warrant to search for
    evidence of possession of child pornography based on four-month-old information
    was held to have been improperly issued. In my view, the decision in
Morelli
does not assist the respondent. The decision in that case is very much fact
    driven. A particularly salient fact is that the links on the accuseds computer
    to two possible child-pornography websites, that a technician had noticed, were
    gone when the technician returned to view the computer the next day. As Fish J.
    said, at para. 95:

At best, this may be a ground for
    suspicion, but surely the deleted links afford no reasonable and probable
    grounds to believe that the appellant was in possession of child pornography,
    and still less that evidence of that crime would be found upon a search of his
    computer.

[68]

The
    decision in
Morelli
does not preclude reliance on a pattern of
    behaviour as part of the evidentiary foundation for the issuance of a search
    warrant. It merely requires that there be sufficient facts to provide that
    foundation. In
Morelli
, the court found that there were not sufficient
    facts. Here, as I have already explained, there is a pattern of conduct by the
    respondent based on the information that the police had gained from their
    investigation and the criminal record of the respondent. Put simply, there was
    offence specific information establishing a pattern of drug dealing involving
    the respondent.

[69]

My
    colleague draws support for the trial judges conclusion from
R v. Rocha
,
    2012 ONCA 707, 112 O.R. (3d) 742. However, that case also does not assist.
Rocha
involved the sufficiency of an ITO based on an informers tip, and whether that
    tip was sufficiently credible and corroborated to tie drugs to a particular
    residence. The decision does not turn on whether the information was dated,
    nor does it turn on any pattern of conduct.

[70]

The
    trial judge also rejected the Crowns explanation for the delay in obtaining
    the warrant based on the fact that, had the police moved on the respondents
    involvement earlier, it would have curtailed the broader ongoing police
    investigation. In response to this point, the trial judge said:

If they were after the bigger fish
    with respect to the firearms they should have left [the respondent] alone until
    they could achieve their purpose and go after him on the evidence that they had
    at the time.

[71]

It
    is unclear to me what the trial judge meant by on the evidence that they had
    at the time. The evidence that the police had was the evidence they put in the
    ITO. If the trial judge meant that, if the police had nothing further regarding
    the respondent when they moved on the broader investigation, they ought to have
    left the respondent alone, then that view reflects a fundamental
    misunderstanding of large-scale police investigations, and an extremely
    problematic one at that.

[72]

As
    numerous large-scale police investigations have demonstrated, such
    investigations take time. During the course of those investigations, different
    individuals committing different offences may be identified at different times.
    It is common practice to address all such individuals, and all such offences,
    at the time that the broader investigation is completed  the so-called
    take-down day. This is done as a practical matter to avoid undermining the
    broader investigation. This necessary approach does not, of course, remove the
    need for the police to have the requisite grounds for the authorization at the
    time that they obtain it.

[73]

If
    the thrust of the trial judges decision here is, as I fear, that the police
    must either move immediately, when each of those offenders and offences is
    identified, or otherwise walk away from the prosecution of such persons, the
    result will seriously undermine the effectiveness, indeed the viability, of
    these types of investigations. The police will be left with the insolvable
    dilemma of either moving on the more peripheral but still serious offences
    immediately, and thus risk disrupting the larger investigation that often
    reflects more widespread and ongoing offences, or complete their investigation
    and walk away from the earlier offences revealed. Neither of those results is
    palatable in terms of public safety or proper law enforcement. With respect, no
    evidence is required to take into account such common sense real-world
    considerations.

[74]

Further,
    any suggestion that the police should act on such offences and just hope that
    doing so will not jeopardize the larger investigation, imposes on the police a
    requirement to assume an unacceptable risk. It also potentially involves
    placing any police agents and undercover officers who might be involved in the
    investigation, as was the case here, at risk for their safety. No proper
    interpretation of s. 8
Charter
rights compels such intolerable
    choices.

[75]

In
    my view, the ITO established reasonable and probable grounds to believe that a
    search of the respondents vehicle would reveal evidence of drug offences as
    set out in the search warrant. There was therefore a sufficient basis for the
    Justice of the Peace to conclude that the search warrant could issue. There was
    no breach of the respondents s. 8
Charter
rights arising from the
    issuance and execution of the search warrant and the trial judge erred in
    concluding otherwise.

Section 24(2) analysis

[76]

Even
    if I had been prepared to accept that there was a s. 8 breach of the
    respondents
Charter
rights, I would find that the evidence ought not
    to have been excluded under s. 24(2). The three factors to be considered in
    that analysis are well known. They are set out in
R. v. Grant
, 2009
    SCC 32, [2009] 2 S.C.R. 353 , and are:

1.

The
    seriousness of the
Charter
-infringing state conduct;

2.

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

3.

Society's
    interest in an adjudication on the merits.

[77]

The
    trial judge found that the breach of the respondents rights was serious. I
    disagree. First, this was not a warrantless search. The police had obtained a
    warrant from a Justice of the Peace and proceeded properly in doing so.

[78]

Second,
    as I have already discussed, the police had a very legitimate, indeed
    compelling, reason to delay in executing the search with respect to the
    respondent. They could not risk jeopardizing the broader, ongoing investigation
    into serious firearm and drug related offences.

[79]

Third,
    the trial judge took issue with the nature of the search and the fact that it
    involved a dynamic intervention by the police. The trial judge assumed, based
    on his own experience, that this involved the respondent being forced to the
    ground and handcuffed in public. There was no evidence before the trial judge
    as to how the arrest of the respondent had occurred. The trial judge ought not
    to have speculated on the specifics of that arrest without direct evidence. He
    certainly ought not to have done so based on his experience  a subject of
    which the parties would presumably have no knowledge. And he should not have
    done so for the purpose of elevating his view of the seriousness of the breach
    of the respondents rights.

[80]

Fourth,
    the trial judge found that the respondents s. 8 rights had been sacrificed
    by the police for what the police felt was a greater cause  namely, the
    firearms investigation. There is no basis for a finding that the police
    sacrificed the respondents rights. And, as I have pointed out above, there
    was a legitimate broader picture to be considered in the particular
    circumstances of this case.

[81]

In
    my view, assuming a breach of the respondents s. 8 rights, on the facts of
    this case, it fell much closer to the less serious end of the spectrum. The
    search was done in good faith by the police and it was based on a search
    warrant issued by a Justice of the Peace. The prevailing error in the search
    warrant arose from the dated nature of the information in the ITO. The police
    cannot be faulted for believing that information that was only three weeks old
    would not be considered stale for the purpose of the ITO. The first factor
    therefore did not favour exclusion of the evidence.

[82]

In
    terms of the second factor, I accept that almost any time that there is a
    search by police, where it is subsequently determined that the search was not a
    valid one, it involves a serious impact on the
Charter
-protected
    interests of the accused person. It means that the police have availed
    themselves of access to items belonging to an accused person that they had no
    legal right to access. As is always the case, though, the impact of that
    access, on the individual, will vary. In this case, for example, and as the
    trial judge acknowledged, there is less of a privacy interest in a persons
    vehicle, especially where, as was the case here, it is not clear that the
    respondent was the registered owner of the vehicle.

[83]

I
    pause at this juncture to address an issue that the trial judge raised in the
    context of this factor under his s. 24(2) analysis. The trial judge embarked,
    apparently of his own motion, on a discussion of racism and the impact racism
    has on persons generally in our society. It appears that the trial judge
    engaged on this subject because one of the intercepted communications,
    excerpted in the ITO, included offensive language as it relates to black
    people, specifically, certain inflammatory words used to describe them.

[84]

I
    do not understand why the trial judge felt it necessary to engage on this
    topic. It had nothing to do with the issues that were before him. A lot of
    intercepted communications contain offensive language but, if they are
    relevant, they must be referred to in any ITO being used to obtain judicial
    authorization to undertake intrusions into an individuals privacy. There is no
    authority for the police to sanitize such material for the purpose of
    protecting a readers sensibilities. Indeed, if the police did so that would,
    by itself, provide a foundation to challenge the accuracy and completeness of
    the ITO. The fact remains that this entire discussion had no place in the trial
    judges reasons or in his analysis. The fact that it did raises a concern about
    the objectivity of the trial judges analysis of the evidence.

[85]

That
    issue aside, on a proper analysis, I would nevertheless find that the impact on
    the respondents rights arising from the invalid search was serious. The second
    factor would thus favour excluding the evidence.

[86]

The
    issue then becomes, as is so often the case, on which side the third factor
    falls. I note, on this point, that the trial judge found that this third factor
    did not favour admission of the evidence, while at the same time observing that
    he did not know how exclusion of the evidence impacts the Crowns case. I do
    not see how the trial judge drew the former conclusion based on the latter
    statement. In any event, as I shall explain, it seems to me that the impact on
    the Crowns case is obvious.

[87]

These
    were serious offences. They involved not only drug offences but firearms offences.
    The respondent was alleged to be dealing in significant quantities of cocaine.
    Again, I repeat, the respondent was not a low-level neighbourhood drug dealer.

[88]

The
    evidence here was reliable evidence. It was also crucial to the Crowns case.
    As the court noted in
Grant
, at para. 83:

[T]he exclusion of highly reliable
    evidence may impact more negatively on the repute of the administration of
    justice where the remedy effectively guts the prosecution.

[89]

In
    my view, the third factor strongly favours the admission of the evidence.
    Indeed, the pull of the third factor towards admissibility is particularly
    strong where the evidence is reliable and critical to the Crown's case:
R.
    v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 62.

[90]

On
    an overall analysis of the three factors set out in
Grant
, it is clear
    to me that the evidence ought not to have been excluded.

Conclusion

[91]

I
    would allow the appeal, set aside the respondents acquittal, and remit the
    matter to the Superior Court of Justice for a new trial.

I.V.B.
    Nordheimer J.A.

Released: April 10, 2019

G.P.

[1]

R. v. Boyer
(18 June 1992), Toronto,
C6830
(Ont. C.A.)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lall, 2019 ONCA 317

DATE: 20190423

DOCKET: C62785

Simmons, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrece Lall

Appellant

Carlos Rippell, for the appellant

Frank Au, for the respondent

Heard: January 18, 2019

On appeal from the convictions entered by Justice Bruce
    Durno of the Superior Court of Justice on June 23, 2016, arising from rulings
    made by Justice Nancy Mossip of the Superior Court of Justice on November 24,
    2015, January 11, 2016 and March 8, 2016.

REASONS FOR DECISION

Introduction

[1]

The appellant appeals from her convictions for two counts of robbery
    with a firearm. The only issues raised on appeal relate to a motion judges
    rulings concerning the validity of "tower dump" production orders for
    two cell phone towers under which cell phone records that connected the
    appellant to the robberies were produced.

[2]

Between December 2012 and June 2013, the appellants then boyfriend,
    Nakeem Johnson, was involved in a series of robberies in southern Ontario.
    During the robberies, Johnson pointed a firearm at store employees, threatened
    to kill them, and stole store merchandise and store employees property. The Crown
    alleged that the appellant served as a lookout and getaway driver in relation
    to two robberies Johnson committed in Guelph.

[3]

The appeal turns on the motion judge's ruling concerning the validity of
    production orders relating to Johnsons May 2013 robbery of an Aurora camera
    store. Police obtained production orders for cell phone records covering a
    15-minute period proximate to the robbery from two nearby cell phone towers.
    The appellants phone number appeared in those records and showed communications
    with Johnsons phone. Following further investigation, this connection enabled
    the police to identify the appellant as a suspected party to the two Guelph
    robberies.

[4]

It is undisputed that the Information to Obtain the Aurora tower dump
    production orders contained inaccuracies. The inaccuracies pertained to the ITO
    affiants description of what two camera store employees, a Mr. Asselin and a
    Ms. Devries, said in police video statements about cell phone use by one of the
    two perpetrators of the Aurora robbery.

[5]

In four paragraphs of the ITO, the affiant asserted that both employees
    observed one of the perpetrators using a cell phone to communicate with a third
    person. This assertion was not accurate.

[6]

In his video statement, Mr. Asselin did not say he observed either of
    the perpetrators communicating on a cell phone. Rather, he saw one of the
    perpetrators pull out a cell phone and check the time. This happened just
    before the perpetrator put him and Ms. Devries into a bathroom at the rear of
    the store. Mr. Asselin presumed the perpetrators called the driver out front to
    go around back, but he qualified his assumption by saying: [t]his is
    speculation.

[7]

In the initial part of her video statement, Ms. Devries seemed to
    indicate she saw one of the perpetrators use a cell phone to call a third
    person and tell that person to pull around. Later in her video statement, Ms.
    Devries said she saw one of the perpetrators with a cell phone in his hands. The
    perpetrators closed the door to the bathroom where they had put her and Mr.
    Asselin. Then she heard just pull around back, just pull around back. Ms.
    Devries said she did not know whether the perpetrator was saying that into the
    phone or one of the perpetrators was telling the other to send that instruction
    in a text message.

[8]

The appellant challenged the validity of the production orders under s.
    8 of the
Canadian Charter of Rights and Freedoms
and sought the
    exclusion of the resulting evidence under s. 24(2). She requested leave to
    cross-examine the ITO affiant and any sub-affiant, asserting that falsehoods
    and misleading information in the ITO were evidence of bad faith. When leave to
    cross-examine was denied, the appellant asserted that the inaccuracies in the
    ITO had to be excised and that the issuing justice could not have issued the
    warrant based on the remaining information.

[9]

The motion judge denied the appellant's request to cross-examine,
    finding no reasonable likelihood that the proposed cross-examination will
    undermine the basis of the authorization. Ultimately, the motion judge
    dismissed the appellant's s. 8 application because, even following excision and
    amplification, there remained sufficient grounds upon which the Justice of the
    Peace could have granted the production order.

[10]

Following
    these rulings, the appellant pleaded not guilty to the two Guelph robberies
    before a different judge but did not contest a statement of facts filed by the
    Crown. The appellant was convicted and sentenced to a global sentence of four years
    and nine months imprisonment in addition to three months credit for
    presentence custody.

[11]

The
    appellant submits that the motion judge erred in refusing her request for leave
    to cross-examine and ultimately in dismissing her
Charter
application.

[12]

For the reasons that follow, we dismiss the appeal.

Background

[13]

The
    Aurora camera store robbery occurred shortly before 9:00 p.m. on May 14, 2013
    and was over in a matter of minutes.

[14]

On
    June 13, 2013, the police obtained production orders for all records
    pertaining to cellular calls between 8:50 p.m. and 9:05 p.m. on May 14, 2013 from
    two Aurora cell phone towers located near the site of the robbery. The records
    sought included subscriber information, incoming and outgoing calls and text
    messages, and the time and duration of the calls.

[15]

The
    introductory paragraphs of the ITO were entitled Background of Investigation.
    At paras. 3-17 of the Background section, the police officer affiant set out a
    summary of the police report of the robbery, which had been prepared by another
    officer. The summary indicated that two camera store employees, a Mr. Asselin
    and a Ms. Devries, were in the store at the time of the robbery. Further, it
    indicated that two masked males, one with a gun and one with a knife, entered
    the store just as the employees were preparing to close up. The male with a
    knife locked the front door of the store behind him. Once the culprits had obtained
    a quantity of merchandise, they escorted the two employees into a washroom at
    the rear of the store and bound their hands with zip ties. Ms. Devries advised
    the men that the rear door of the store was alarmed and that the alarm would go
    off if they used it to exit. They ignored this comment and eventually went out
    the rear door. The summary included a statement, at para. 12 of the ITO, that
    one of the suspects used his cell phone to contact an unknown person and directed
    that person to come to the back door of the store:

12.     As
    the suspects were engaged in the robbery one of the suspects used his cellular
    phone he contacted an unknown person and directed the unknown person to come
    around to the back door of the store. [Emphasis added.]

[16]

At
    para. 18 of the Background section, the affiant stated that the store employees
    were transported to a police station where they each provided a video
    statement. The affiant stated she had reviewed both statements. At para. 19 of
    the ITO, still in the Background section, the affiant asserted that, in their
    statements, both store employees mentioned observing one of the culprits
    speaking on a cell phone:

19.     DEVRIES
    and ASSELIN both mention in their statements that they observed the suspect
    with a gun on his phone speaking to an unknown person instructing to come
    around to the back door. [Emphasis added.]

[17]

The
    ITO affiant set out her grounds to believe that the records to be seized would
    afford evidence of the robbery at paras. 27-34 of the ITO. In those paragraphs,
    the affiant explained that as a result of her investigative experience she was
    aware that people involved in crimes commonly use cell phones to communicate during
    the planning, execution, and escape stages of a crime. She asserted that both witnesses
    mentioned in their video statements that one of the culprits had used a cell
    phone to communicate with an unknown person. The affiant also asserted that
    obtaining cell phone records, including subscriber information, from cell phone
    towers in the vicinity of the robbery proximate to the time of the robbery
    could assist the police in identifying suspects.

28.     Both
    victims in this case, Christine DEVRIES and Derrick ASSELIN in their video
    statements told police that they observed suspect #1 using his cellular phone
    and communicating with an unknown third party who is believed to have been in
    the getaway vehicle.

31.     The
    evidence  being the data transmissions from the area towers  is relevant to
    the offence because it is known that suspect #1 was observed by both victims
    (DEVRIES and ASSELIN) to have used his cellular phone while inside the Blacks
    store to communicate with an unknown person told to Come around to the back
    door

38.     Both
    victims of the robbery provided police with video statements. Both DEVRIES and
    ASSELIN stated to police that
they observed suspect #1 on his cellular phone
    communicating with an unknown person
and instructing that person to pull
    around to the back door. [Emphasis added.]

The motion judges reasons

(i)

Denying leave to cross-examine

[18]

At
    the conclusion of the argument concerning leave to cross-examine, the motion
    judge gave brief oral reasons for denying leave. She confirmed and supplemented
    those reasons in her written reasons on the s. 8 motion.

[19]

Concerning
    the request for leave to cross-examine, the motion judge said the decision is
    discretionary, and the test is quite a rigorous one to meet. In that regard,
    she noted that the focus of the cross-examination is limited to questions
    directed to establish that there was no basis upon which the warrant could have
    been granted and [t]hat too is a well-established and narrow test.

[20]

In
    the motion judges view, cross-examination would confirm that the ITO was
    sloppy and inaccurate in asserting that both of the witnesses observed one
    of the culprits speaking on his cell phone to an unknown person, instructing
    him to come around to the back of the store. However, she rejected a defence
    submission that the inaccuracies were the result of a deliberate attempt to
    satisfy the need for evidence of cell phone use to justify a production order.

[21]

Based
    on a consideration of the ITO and both video statements as a whole, the motion
    judge said she did not think that the inaccuracies provide[d] prima facie
    evidence of bad faith, or deliberate misleading by the affiant or sub-affiant
    which finding would likely open the door for the defence to cross-examine the
    affiant on the inaccuracies. The motion judge concluded her reasons on this
    issue as follows:

Cross-examination would reveal the admitted inaccuracies. With
    respect to Mr. Asselin, it may reveal [the affiant] overstated the evidence
    with respect to what Mr. Asselin said.
But I disagree with defence counsel
    that the ITO discloses a
prima facie
case for bad faith, or deliberate
    misleading by the officer
.

The focus of the leave application is whether there is a
    reasonable likelihood the cross-examination will undermine the basis of the
    authorization, and my answer to that question is there is no such reasonable
    likelihood
.

All of the evidence the defence needs to make the argument with
    respect to the legal validity of the production order for the tower dump data
    is in his hands. [Emphasis added.]

(ii)

Dismissing the s. 8 motion

[22]

As
    for the s. 8 motion, the motion judge was satisfied that after excising erroneous
    information in the ITO and amplifying it to clarify that both witnesses merely
    observed one of the perpetrators with a cell phone and that Ms. Devries heard a
    transmission of either a call or a text to pull around back, there was evidence
    based upon which a Justice of the Peace could find that a cell phone
    transmission of some kind was made at the time of the robbery. While
    acknowledging that the ITO included inaccuracies about Mr. Asselin observing
    cell phone use and omitted Ms. Devries clarifying comments about not knowing
    whether there was a call or a text, the motion judge concluded that these
    errors did not rise to the level of the type of lie or misrepresentation
    present in
R. v. Morelli
2010 SCC 8, [2010] 1 SCR 253.

Discussion

(i)

Did the motion judge err in denying leave to cross-examine the affiant
    and sub-affiant?

[23]

The
    appellant argues that the motion judge applied the wrong test in denying leave
    to cross-examine the affiant and sub-affiant of the ITO. She submits that the
    motion judge made two discrete but related errors in setting out the test for
    obtaining leave to cross-examine. These errors, in combination, led the motion
    judge to wrongly conclude that cross-examination was unnecessary and that the
    appellant had all she required to argue her s. 8 application.

[24]

First,
    the appellant points to the motion judges statement in her ruling that the
    test for obtaining leave to cross-examine the affiant of an ITO is quite a
    rigorous one to meet. The appellant asserts that, in the face of the Supreme
    Court of Canadas description of the test in
R. v. Pires; R. v. Lising
,
    2005 SCC 66, [2005] 3 SCR 343, the motion judges characterization of the test
    is clearly wrong. In
Pires
, at para. 40, the Supreme Court confirmed
    that the test is neither strict nor onerous; all that is required is a
    showing of a reasonable likelihood that [cross-examination] will assist the
    court to determine a material issue.

[25]

Second,
    the appellant argues that the motion judge erred in requiring
prima facie
evidence of bad faith or deliberate misleading by the affiant or sub-affiant
    in order to support a request for leave to cross-examine. The Supreme Court of
    Canada rejected such a strict requirement in
R. v. Garofoli
, [1990] 2
    S.C.R. 1421, noting, at p. 1464, that cross-examination is unnecessary where a
prima
    facie
case of bad faith is made out without it.

[26]

We
    do not accept these submissions. Read in context, the motion judges statement
    that the test for obtaining leave to cross-examine is quite a rigorous one to
    meet was no more than a reference to the fact that the permissible scope of
    cross-examining the affiant of an ITO is narrow.

[27]

To
    obtain leave to cross-examine the affiant of an ITO, it is necessary to
    demonstrate that the proposed questions will be relevant to the determination
    of whether there was a basis upon which the warrant could have issued. As the
    motion judge correctly noted, the focus of the cross-examination is limited to
    questions directed to establish that there was no basis upon which the warrant
    could have been granted. See
Garfoli
, at p. 1465.

[28]

The
    motion judge went on to quote from para. 41 of
Pires
, where the Supreme
    Court observed that demonstrating false information in an ITO is unlikely to be
    useful unless it can support an inference the affiant knew or ought to have
    known the information was false:

[C]ross-examination that can do
    no more than show that some of the information relied upon by the affiant is
    false is not likely to be useful unless it can also support the inference that
    the affiant knew or ought to have known that it was false
. At this stage,
    a reasonable belief in the existence of the requisite statutory grounds will
    suffice for the granting of an authorization. Upon further investigation, the
    grounds relied upon in support of the authorization may prove to be false. That
    fact does not retroactively invalidate what was an otherwise valid authorization.
    [Emphasis added.]

[29]

From
    the appellants perspective the nature of the inaccuracies in the ITO
    demonstrated bad faith: no reasonable person could have watched the videotaped
    statements and made the errors that were present. Contrary to the statements in
    the ITO, neither witness observed either perpetrator use a cell phone to
    communicate, and viewed as a whole, the video statements were not capable of
    supporting an inference of cell phone use. The appellant wanted leave to
    cross-examine so she could explore how the errors in the ITO came about.

[30]

However,
    as the motion judges reasons on the s. 8 application more fully demonstrate,
    she took a broader view of the inferences available from the videotaped
    statements than does the appellant and a more benign view of the inaccuracies
    in the ITO. The motion judge concluded, at least implicitly, that Mr. Asselins
    evidence
[1]
supported Ms. Devries inference that an accomplice was alerted by a phone call
    or a text message to come to the back of the store. Although the ITO was not
    precise in setting out the two employees evidence, in the motion judges view,
    the nature of the inaccuracies did not, in all the circumstances, raise any
    issue of bad faith.

[31]

Concerning
    the motion judges use of the terminology
prima facie case
, based on
    our review of the record, the motion judge was simply responding to the
    appellants position advanced in oral argument. The motion judge ultimately
    decided that the nature of the inaccuracies did not raise any issue of bad
    faith and therefore did not support the appellants request for leave to
    cross-examine.

[32]

Although
    we consider that another judge could have reached a different conclusion
    concerning whether to grant leave to cross-examine, we are not satisfied that
    the motion judge misstated the test for granting leave or erred in its application.
    Her decision on this issue is entitled to deference: see
Pires
, at
    paras. 46-47.

(ii)

Did the motion judge err in dismissing the appellants
Charter
application?

[33]

While
    acknowledging that a motion judges assessment of whether an issuing judge
    could have issued a production order is entitled to deference (see e.g.
R.
    v. Ebanks
, 2009 ONCA 851, 97 OR (3d) 721, at para. 22), the appellant
    argues that the motion judge in this case made three errors, each of which
    would enable this court to set aside the motion judges decision.

[34]

The
    first two alleged errors are interrelated. We will address them together. First,
    the appellant argues that the motion judge misapprehended the store employees
    evidence by concluding there was reliable direct and circumstantial evidence,
    upon which a Justice of the Peace acting judicially could find that a cell
    phone transmission of some kind was made at the time of the robbery.

[35]

The
    appellant argues that, although both employees saw a cell phone, neither saw
    one of the perpetrators use a cell phone. According to the appellant, Ms.
    Devries claim that she heard a transmission of a call or a text was nothing
    more than speculation  a conclusion that Mr. Asselin acknowledged. The motion
    judges finding that the evidence was equivocal as to whether Ms. Devries
    maintained her original belief that one of the perpetrators made a call or sent
    a text message was therefore irrelevant; either way Ms. Devries was
    speculating. Once the false statements about the store employees observing cell
    phone use were excised, there was no basis left on which the authorizing judge
    could have issued the production orders.

[36]

Second,
    the appellant argues that the motion judge erred in distinguishing
R. v. Morelli
.
    The appellant asserts that, just as in
Morelli
, the misleading
    statements in, and omissions from, the ITO went to the basis for the
    authorization. Moreover, they left the misleading impression that the store
    employees observed cell phone use, when there was no evidentiary basis to
    support a finding of cell phone use. In any event, amplification was not
    available  the errors and omissions were not minor, technical errors  and,
    absent cross-examination, a finding of good faith was not available.

[37]

We
    reject the appellants argument that drawing an inference of cell phone use from
    the witnesses video statements amounted to speculation. The evidence of the
    two employees disclosed that the perpetrators came in the front door of the
    store and supported the reasonable inference that the perpetrators went out the
    back door (because the employees heard the back door alarm). Both employees saw
    one of the perpetrators with a cell phone. Ms. Devries video statement
    included the following excerpts:

[T]he shorter guy pulled out his cell phone. It was an L.G. and
    he looked like he was about to make a phone call

Actually he  now that Im thinking  I heard him say pull
    around back but I dont know if he was saying that into the phone or if it was
    the one guy telling the other guy to text him and say pull around back, but I
    would assume they would call just to get it over with. All I saw was that he
    had his phone in his hands  and then they closed the door and I heard just
    pull around back, just pull around back

It might not have been a phone call. I didnt hear
    any numbers dialed now that I think about it, but he could have had it on
    silent.

[38]

The
    inference that one of the perpetrators used a cell phone to communicate during
    the robbery was compelling on this evidence. This factor, in itself,
    distinguishes this case from
R. v. Morelli
in which the Supreme Court
    found that an affiants statements that a computer technician had seen
    pornography on a computer and had subsequently noted that the pornography had
    been removed were incorrect and that a corrected ITO could not support an
    inference that the accused was in possession of child pornography:
Morelli
,
    at paras. 44.

[39]

In
    this case, the motion judge corrected the ITO by excising the erroneous statements
    about direct observations of cell phone use and substituting the witnesses
    observations of the perpetrator handling a cell phone. The motion judge also
    added Ms. Devries clarification that, on reflection, what she originally believed
    was a cell phone call may have been a text telling a third person to pull
    around back. These were permissible amplifications. See
R. v. Araujo
,
    2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54-59;
R. v. Plant
, [1993]
    3 S.C.R. 281, at pp. 298-99. The motion judge found no evidence of bad faith on
    the part of the police. The amplifications simply presented a more accurate picture
    of the evidence the affiant had in her possession when she swore the ITO. Rather
    than inferences made from direct observations, the amplifications were limited
    to the underlying evidence. Nonetheless, the amplifications gave rise to a
    reasonable inference of cell phone use during the robbery. Thus, there was
    evidence based upon which the issuing justice could have found that a cell
    phone transmission of some kind was made during the robbery and that the cell
    phone tower records would afford evidence of that crime.

[40]

The
    appellants third argument is that the motion judge erred in concluding that
    the authorizing judge could have properly balanced the intrusiveness of the
    states conduct against societys interest in solving crimes. We see no merit
    in this argument. The motion judge correctly recognized that Ms. Devries
    evidence supported the request for records of text messages as well as cell
    phone calls. Moreover, the reasonableness of the request could properly be
    assessed based on the requested time frame and the number of cell phone towers from
    which records were sought. As the motion judge correctly observed, in
R. v.
    Mahmood
, 2011 ONCA 693, 107 OR (3d) 641, this court held that there is a
    reduced expectation of privacy in the type of records sought. The motion judge
    pointed out that the issuing justice is presumed to know that the cell tower
    records produced would interfere with the privacy rights of uninvolved third
    parties and to have weighed the competing privacy interests with the states
    interests in solving serious crimes. She found no evidence that the issuing
    justice balanced these interests unreasonably. We see no basis on which to
    interfere with the motion judges determination.

Disposition

[41]

Based
    on the foregoing reasons, the appeal is dismissed.

Janet Simmons J.A.

P. Lauwers J.A.

G.T. Trotter J.A.

[1]
As noted at para. 61 of the motion judges reasons, Mr. Asselin saw one of the
    perpetrators with a cell phone that was sufficiently operational to reveal the
    time. He also reported that the perpetrators went out the back door of the
    store, having entered through the front.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lynn, 2019 ONCA 277

DATE: 20190408

DOCKET: C66306

Doherty, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Alan Lynn

Applicant/Appellant

Robert Sheppard, for the appellant

Jason Mitschele and Ira Glasner, for the respondent

Heard and released orally: April 4, 2019

On appeal from the sentence imposed on September 7, 2018
    by Justice Alissa K. Mitchell of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The applicant seeks leave to appeal his sentence of 26 months, less
    credit for pre-trial custody of four months, plus two years probation for
    possession of hydromorphone for the purpose of trafficking.

[2]

He submits that this sentence is excessive given the small quantity of
    drugs found in his possession, the fact that he is a drug addict, and given his
    efforts at rehabilitation. In particular, he asserts that the sentencing judge
    gave no consideration to his progress towards rehabilitation.

[3]

We do not agree with this submission.

[4]

The sentencing judge was acutely aware of the applicants addiction and
    his efforts at rehabilitation. Indeed, she had adjourned his sentencing on
    numerous occasions over the course of almost two years to give him an
    opportunity to receive treatment for his drug addiction in a residential
    treatment facility. However, the five-month residential treatment program he
    was to join did not materialize due to a conflict he had with a staff member
    shortly after his arrival. He ultimately failed to appear on the date set for
    his sentencing and the sentencing judge was required to issue a bench warrant
    for his arrest. Prior to the sentencing, the applicant confirmed that he was
    using opiates again. He also committed further offences while on bail pending
    sentence.

[5]

The applicant was trafficking in hydromorphone, a synthetic heroin
    substitute with deadly and destructive effects. Absent exceptional
    circumstances, the sale of heroin, even in small amounts by first offenders who
    are addicts, calls for a penitentiary sentence:
R. v. Farizeh
, [
1994] O.J. No. 2624 (Ont. C.A.)
,
at para. 5.

[6]

The sentencing judge gave detailed reasons for her decision. In addition
    to considering s. 10(1) of the
Controlled Drugs and Substances Act
,
    and the applicants efforts at rehabilitation, she addressed the circumstances
    of his offence, including the small quantity of drugs involved and his personal
    circumstances. She concluded that his stated desire and willingness to receive
    and participate in further addiction counselling and treatment rang hollow and
    made a finding that he did not present with exceptional circumstances. He was a
    victim because his low-level trafficking was a means to feed his drug habit,
    but he was also an offender.

[7]

She stated that the sentence imposed had to deter others and point the
    applicant in a different direction. Given his track record and desperate need
    for effective treatment, she reasonably concluded that a custodial sentence of
    26 months was warranted. She also recommended that his custodial sentence be
    served in an institution where he would receive treatment for his addiction.

[8]

The sentencing judge considered the relevant factors and applied
    appropriate principles. Moreover, she was in the best position to do so. The
    sentence was fit and we see no reason to interfere.

[9]

We note that the applicant will be parole eligible in about a week. We
    are told he has taken some rehabilitative steps. No doubt the Parole Board will
    give careful consideration to his early release on parole.

[10]

Leave
    to appeal sentence is granted, and the sentence appeal is dismissed.

Doherty
    J.A.

S.E.
    Pepall J.A.

Gary
    T. Trotter J.A.