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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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

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

(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. M.D., 2020 ONCA 290

DATE: 20200514

DOCKET: C65149

Feldman, Harvison Young and
    Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.D.

Appellant

Howard L. Krongold, for the appellant

Catherine Weiler, for the respondent

Heard: November 27, 2019

On appeal from the conviction entered by
    Regional Senior Judge Calum U. C. MacLeod of the Superior Court of Justice on November
    16, 2017, with reasons reported at 2017 ONSC 6776.

Feldman J.A.:

A.

Overview

[1]

The appellant, M.D., was convicted following a
    judge-alone trial of one count of sexual assault, contrary to s. 271 of the
Criminal
    Code
. The central issues at trial were consent and honest but mistaken
    belief in consent.

[2]

On this appeal, the appellant raised a number of
    grounds of appeal relating to the trial judges reasons for disbelieving the
    appellant. It is not necessary to address all of the grounds because I would allow
    the appeal on the first ground and order a new trial.

[3]

As one reason for rejecting the appellants
    evidence, the trial judge stated that he formed the impression that many of
    [the appellants] answers were tailored precisely to the evidence he knew would
    be forthcoming or to the forensic disclosure: at para. 47. It was an error of
    law for the trial judge to criticize the appellant and impugn his credibility
    on the basis that his evidence responded to Crown evidence at trial (or at the
    preliminary hearing), when the appellant was constitutionally entitled to receive
    Crown disclosure and be present at his trial.

B.

Factual Background

[4]

The complainant was a 19-year-old university
    student who had recently been hired by the appellant, a bar manager, to work as
    a hostess at the bar. From the outset of the employment relationship, the
    appellant made sexually suggestive references toward the complainant in person
    and over private messages on various social media platforms, as part of a
    pattern of behaviour that the trial judge characterized as predatory: at
    para. 27. In text messages, the appellant requested that the complainant wear
    revealing clothing at work, including no underwear. Following her second shift,
    he asked her to send him revealing photographs of herself.

[5]

The complainant acknowledged flirting with the appellant,
    but she testified that in order to succeed in the bar industry, it was
    important for the bar manager to like her and staff her on more shifts.

[6]

The allegations forming the basis of the
    appellants criminal charges occurred on the night of February 15, 2015, during
    the complainants fifth shift at the bar. That night, the appellant gave the
    complainant the opportunity to train as a bartender, a much more lucrative
    position, during a private event. Before the shift began, the appellant texted
    the complainant about wearing something hot during her shift. Video footage
    of the bar shows the appellant and complainant flirting and touching throughout
    the night, but the footage ends before the assault allegedly occurred.

[7]

Because the trial turned on the credibility of
    the two accounts of what occurred, it is important to set out both versions.

[8]

The complainant testified that she consumed about
    ten one-ounce shots of alcohol between 10:30 p.m. and 12:30 a.m. that evening, five
    with the appellant. At one point he asked for her phone and she gave it to him.
    Shortly before 1:30 a.m., she asked the appellant for permission to go upstairs
    to get some candy from her coat pocket and tripped on the way up. At the top of
    the stairs she saw the appellant talking to another man, she went over to say
    hi and to get her phone back. After the other man walked away, the appellant
    took out the phone and went through her videos and photos, which included one
    of the complainant having sex with her boyfriend. She tried to grab the phone
    but he held it out of her reach. She then began vomiting in her mouth, and went
    into the washroom where she vomited into the toilet. The appellant came in
    behind her and shut the door. He began rubbing her back and kissing her neck.
    She felt drunk and sick and was not able to speak or move. Once she stopped
    vomiting, she closed the toilet seat. The appellant performed oral sex on her
    as she lay on her back on the floor, without saying anything. He then turned
    her over and penetrated her from behind. She was in and out of consciousness. He
    then stopped and told her to clean herself up; they would get back to work and
    finish this later. She locked the door behind him and looked for her underwear
    which was gone. She did not consent to the sexual activity.

[9]

She remained in the bathroom to gather herself,
    then went to the coat check to get her coat and down to the bar for her boots
    and purse. She saw the appellant outside, got her phone back, and took a taxi
    over to a nearby bar where her boyfriend was working. She arrived around 2 a.m.
    upset and crying. She threw up there as well. When she told her boyfriend that
    the appellant had forced himself on her in the bathroom, her boyfriend used her
    phone to text the appellant accusing him of the attack. At 5 a.m., the
    complainants boyfriend drove her to the hospital to have a sexual assault kit
    performed. She reported the assault to the police some weeks later.

[10]

The appellant testified and told a different
    story. He said that while they were working downstairs, he asked the
    complainant when he was going to see the naked photos of her on her phone. She first
    showed him some photos downstairs at the bar, then they went upstairs and she
    showed him more photos and two videos, including a video of her having sex. At
    that point he held the phone so he could see the video more clearly. Then she
    led him by the hand into the washroom. She spat a few times into the toilet, he
    asked if she was ok, and she said she was.

[11]

The appellant testified that he sat down on the
    toilet and the complainant pulled down her shirt to expose her breasts. She
    told him he was going to see what he saw in the photos, then allowed him to
    remove her underwear. She put her leg up onto the toilet. He inserted his
    finger into her vagina and engaged in cunnilingus. When she stopped responding
    to him, he determined that she was too drunk, like she had hit a wall, so he
    stopped. He picked up her underwear, he said, so she would not be embarrassed
    if someone came in and saw the underwear. He went down and brought back a
    bottle of water. He recalled smoking a cigarette outside and that the
    complainant came and asked for her phone back. He texted her later asking if
    she had left. He also responded to her boyfriends text denying that he had forced
    himself on the complainant.

[12]

As part of the complainants sexual assault kit,
    blood samples were taken at the hospital at 8 a.m. on the morning following the
    alleged assault. At that time, she had a blood alcohol level of 74 milligrams
    of alcohol in 100 milliliters of blood. The toxicologists evidence was that at
    1:30 a.m., the level would have been between 120 and 206 milligrams of alcohol
    per 100 milliliters of blood. The vaginal swab showed male DNA in trace amounts
    belonging to someone other than the complainants boyfriend. The DNA found on
    her underwear  a new pair that she put on at her boyfriends house before
    heading to the hospital  was a match for the appellant and amylase traces were
    consistent with saliva.

C.

Reasons of the Trial Judge

[13]

The trial judge found that the Crown had proven beyond
    a reasonable doubt that the complainant was sufficiently impaired by alcohol
    that she was incapable of providing consent. Moreover, despite noting some problems
    with the complainants testimony, the trial judge accepted her evidence that
    she did not seek out the sexual encounter or consent to it. As a consequence,
    even if consent were possible, it was not given or was vitiated by the
    appellants position of authority.

[14]

The trial judge rejected the appellants defence
    of honest but mistaken belief in consent. In order to successfully invoke this
    defence, s. 273.2(b) of the
Criminal Code
requires the appellant to
    have taken reasonable steps in the circumstances known to him at the time to
    ascertain that the complainant was consenting. The trial judge found that the
    appellants circumstances included knowledge of the complainants level of
    intoxication and the power dynamic inherent in their employment relationship. He
    found that the appellant had made no effort, in light of these circumstances,
    to assess whether the complainant was sufficiently sober to consent.

[15]

Although he noted that the appellant described
    in elaborate detail how matters unfolded and why he believed the complainant
    was inviting him to touch her, the trial judge largely rejected the
    appellants evidence that the complainant initiated the sexual activity and
    that it was entirely consensual: at paras. 36, 45. He gave several reasons for
    rejecting the appellants evidence, at paras. 45-47:

In the first place he denied seeing the
    complainant vomit but he did describe her as spitting into the toilet. It is
    hard to imagine spitting into the toilet as a prelude to a sexual encounter and
    his clear need to downplay the event by describing it as spitting did not
    have a ring of truth.

Similarly he had no convincing explanation of
    why he took the complainants underwear. He was evasive on that point and the
    suggestion made by the Crown that he took the underwear as a trophy seems the
    most likely explanation. He had no good answer for why he could not have taken
    the complainant into his office which was right next to the washroom if this
    was consensual sexual activity. Finally his evidence that she was initially not
    too intoxicated to consent but then suddenly hit a wall and became too
    intoxicated is not credible and is too dependent on split second assessment as
    she succumbed to the effects of alcohol to have any air of reality.

While credibility of evidence cannot be
    assessed purely [by] demeanour, observation of the accused and the manner in
    which he testified is a useful tool. I found the evidence of the accused to be
    delivered in a manner that was bordering on glib. He was clearly an intelligent
    and sophisticated witness who admitted that many of his activities were
    immoral, wrong and perhaps even illegal but he did so with no real conviction.
    I formed the impression that many of his answers were tailored precisely to the
    evidence he knew would be forthcoming or to the forensic disclosure. His
    vagueness about the number of drinks he knew the complainant had drunk, the
    precise timing of her blackout and his inability to describe what happened to
    the complainant after he left her alone in the bathroom left me entirely
    unconvinced.

D.

Issues

[16]

The appellant raises the following issues on the
    appeal:

1)

The trial judge erred in law by rejecting the
    appellants evidence on the basis that he seemed to have tailored his testimony
    to the evidence he knew would be forthcoming and to the disclosure;

2)

The trial judge erred by misapprehending the
    evidence of the appellant and the toxicologist on a number of issues;

3)

The trial judge erred by applying an objective
    test to the appellants defense of honest but mistaken belief in consent; and

4)

The trial judge applied uneven scrutiny to the
    evidence of the appellant and that of the complainant.

[17]

I would allow the appeal on the basis of the
    first ground of appeal and find it unnecessary to address the other three
    grounds.

E.

Analysis

(1)

The trial judges impugned finding

[18]

Among his reasons for rejecting the appellants
    evidence, the trial judge referred to his impression that the appellants
    testimony was tailored precisely to the evidence he knew would be forthcoming
    or to the forensic disclosure: at para. 47.

[19]

The trial judge did not elaborate on this
    comment with specific examples. However, the appellant had attended a
    preliminary inquiry, he had received Crown disclosure, and he heard the
    evidence of all the Crown witnesses including the toxicologist and the DNA
    expert. Due to a procedural anomaly, the accused first testified on a pre-trial
voir dire
having already heard the testimony of the toxicologist and
    the DNA expert. The DNA evidence confirmed that the appellant had performed
    oral sex on the complainant and deposited his DNA in her vagina, but not that
    they had had intercourse. On the
voir dire
, the appellant admitted in
    his evidence that he performed cunnilingus on the complainant and that he
    digitally penetrated her, but denied that he had had intercourse with her, as
    she claimed. The Crown suggests that the trial judge was merely referring to
    this procedural anomaly, which allowed the appellant to tailor his
voir
    dire
testimony having benefitted from knowing the DNA evidence, and to then
    keep his evidence consistent when he subsequently testified in the trial
    proper.

[20]

Regardless of the reason the trial judge drew
    this conclusion, he fell into legal error by using the appellants presence at
    his trial and his receipt of Crown disclosure against him.

(2)

Case law on tailoring

[21]

This court has discussed and explained this
    issue in a number of cases and contexts, including in
R. v. G.V.
, 2020
    ONCA 291, released concurrently with these reasons.

[22]

The issue first arose in relation to Crown cross-examination
    of the accused regarding the disclosure, during jury trials. In
R. v. White
(1999), 132 C.C.C. (3d) 373 (Ont. C.A.), and in
R. v. Schell

(2000),
    148 C.C.C. (3d) 219 (Ont. C.A.), the Crown had tried to suggest to the accused
    in cross-examination that his answers were formed based on his knowledge of
    Crown disclosure.

[23]

In
White
, Doherty J.A. acknowledged the
    basic logic underlying an allegation that the accused tailored his evidence to the
    disclosure, but explained that cross-examination of the accused suggesting such
    reasoning is improper and potentially prejudicial, stating, at para. 20: That
    inference, no matter how logical, cannot be drawn without turning fundamental
    constitutional rights into a trap for accused persons. He directed trial
    judges to ensure that such any such inference in cross-examination be eradicated:
    at para. 20. As the trial judge in that case had given immediate instructions
    to the jury to undercut the improper suggestion put forth by the Crown, the
    appeal was dismissed.

[24]

In
Schell
, the following year,
    Rosenberg J.A. repeated the same admonition against the Crowns insinuation, in
    cross-examination and in a closing address, that the accused was tailoring his
    evidence to the disclosure he had received and the testimony he had heard.
    Rosenberg J.A. stated, at para. 57: It was wrong and unfair for Crown counsel
    to attempt to exploit the appellants exercise of his rights.

[25]

This court has applied similar reasoning in the
    context of judge-alone trials. In
R. v. Thain
, 2009 ONCA 223, 243
    C.C.C. (3d) 230, the trial judges analysis of the credibility of the accused
    included the observation that the appellants testimony came long after
    disclosure was available to him and having regard to the totality of the
    evidence: at para. 15. On appeal, this court approached the case as one of
    first instance, given that the issue was not improper Crown use of disclosure
    against the accused, but improper use of it by a trial judge in his reasons.

[26]

In his analysis, Sharpe J.A. noted two
    circumstances where, contrary to the general principle, the Crown may
    cross-examine an accused regarding disclosure:
Thain
, at para. 24. One
    such situation arose in
White
, where the accused used telephone
    records produced prior to trial to assist with times and dates of meetings with
    the complainant, and the Crown was entitled to bring out that he had had access
    to the records before testifying: see
White
, at para.
22;
R. v. Cavan
(1999), 139 C.C.C. (3d) 449 (Ont. C.A.), at
    para.
45, leave to appeal refused, [1999] S.C.C.A. No.
    600;
R. v. Kokotailo
, 2008 BCCA 168, 232 C.C.C. 279, at paras. 53-58. Similarly,
    the Crown may cross-examine the accused on disclosure to substantiate a claim
    of recent fabrication or concoction of an alibi by the accused: see
R. v.
    Khan
(1998), 126 C.C.C. (3d) 523 (B.C.C.A.), at paras. 51-52, leave to
    appeal refused, [2001] S.C.C.A. No. 126;
R. v. Marshall
(2005), 77
    O.R. (3d) 81, at paras. 69-75, leave to appeal refused, [2006] S.C.C.A. No. 105.

[27]

Sharpe J.A. also referred to
R. v. Peavoy
(1997), 34 O.R. (3d) 620 (C.A.), in which the Crown argued in its closing
    address to the jury that the accused had concocted his evidence after receiving
    disclosure, but never put that proposition to the accused. The court found the
    Crowns conduct unfair and prejudicial both because of the misuse of disclosure
    against the accused and the failure to give the accused the opportunity to
    respond to the charge of recent fabrication:
Peavoy
, at p. 625.

[28]

Taking this jurisprudence into account, Sharpe J.A.
    found that the trial judge in
Thain
had no legal basis to use the fact
    of receiving disclosure against the accused. None of the exceptions applied, nor
    had the Crown ever suggested to the accused that he recently fabricated his
    evidence. Any comment on the accuseds use of the disclosure thus first emerged
    in the trial judges reasons. In these circumstances, Sharpe J.A. concluded, at
    para. 29, that in a judge-alone trial, fairness is undermined if the accused
    has no opportunity to respond to allegations of fabrication on the basis of
    Crown disclosure:

In my view, the fact that the accused enjoyed
    his constitutional right to disclosure had no bearing on his credibility in
    this case and the trial judge erred in law by stating that it did. Even if the
    disclosure might possibly have had a bearing on credibility, trial fairness
    demanded that the accused be confronted with the suggestion and afforded the
    opportunity to refute it or make submissions before being disbelieved on that
    account.

[29]

The issue arose again in
R. v. Jorgge
,
    2013 ONCA 485, 4 C.R. (7th) 170, another sexual assault trial by judge alone.
    In her reasons for judgment dealing with her credibility assessment of the
    accused, the trial judge discounted his evidence because he had had the benefit
    of listening to the legal arguments presented by his counsel and by the Crown
    and therefore understood the issues at stake: 2010 ONSC 8038. At paras. 10-14
    of her reasons, she made several comments that were the subject of the accuseds
    appeal to this court:

Mr.
    Jorgge had the benefit of listening to the various arguments raised by his
    counsel at the
voir dire
. He also understands now that
    consent to sexual relations means more than a woman not protesting as sexual
    activity progresses.

I
    conclude that this evidence given by Mr. Jorgge at the trial when he said that
    unless I gave him something, I was never going to get out of there was
    evidence carefully tailored to fit the arguments raised by the Crown and his
    counsel during the
voir dire
.

I conclude that the evidence given by Mr.
    Jorgge in his statement about the sexual activity that took place on July 18,
    2008, and in particular whether Ms. R. was moving or was inert as she was
    sleeping or passed out, is truthful. I conclude that his commentary given at
    the trial is simply an attempt by Mr. Jorgge to distance himself from any
    concessions made in the statement relevant to the issue of consent now that Mr.
    Jorgge has a better understanding of the issues.

I conclude that his evidence given at the
    trial, when it conflicts with his prior statement, is an attempt to challenge
    the ruling as to the voluntariness of his statement after hearing the capable
    arguments of his counsel. In drawing this conclusion I have considered all of
    the statement and all of Mr. Jorgges evidence at this trial.

[30]

While this court again acknowledged that there
    may be a natural temptation to reason in the way the trial judge did, that
    temptation must be resisted: at para. 12. It subverts an accuseds statutory
    right and obligation to be present at his or her trial under s. 650(1) of the
Criminal
    Code
, which is grounded in the guaranteed
Charter
rights to a
    fair trial and to make full answer and defence: ss. 7 and 11(d). In
Jorgge
,
    this court explained that a trial judge is entitled to consider inconsistencies
    between an accuseds statement to police and his testimony at trial, but may
    not attribute any such inconsistencies to the accuseds presence at the
voir
    dire
.

(3)

Application of the case law

[31]

This case law applies with full force to the
    reasons given by the trial judge in this case. The trial judge fell into the
    same error as in the cases discussed by discounting the appellants credibility
    on the basis that he tailored many of his answers to the case against him,
    which he knew from being present during the proceedings and from the
    disclosure. This reasoning, as in the previous cases, turned the appellants
    constitutional rights into an evidentiary trap.

[32]

The Crown referred the court to two cases that it
    submits may contradict the other authorities:
R. v. Brown
, 2018 ONCA
    9, and
R. v. Roble
, 2004 CanLII 23106 (Ont. C.A.). I do not regard
    either of these cases as undermining the statements of the law as articulated
    by the court in full reasons in
White
,
Schell
,
Thain
,
    and
Jorgge
.

[33]

Brown
was a
    chambers decision denying a motion to appoint counsel under s. 684 of the
Criminal
    Code
. One of the issues the motion judge considered was the potential
    merit of the appeal, including the submission that the trial judge improperly found
    the appellants evidence was tailored to the disclosure he had received. More
    specifically, the trial judge said that his answers had the air of being
    scripted, practiced and tailored:
Brown
, at para. 14. On the s. 684
    application, the motion judge commented that if the trial judges statement was
    made in response to the Crowns closing submissions which referenced
    disclosure, then the trial judges statement could be problematic, but not if
    the trial judge was referring to testimony being scripted to the Crowns case
    at trial: at para. 14. The Crown relies on the latter comment.

[34]

In
Brown
, the motion judge was
    acknowledging that the applicant had an arguable ground of appeal, but one that
    required closer examination of the record in the context of the parties
    positions and submissions at trial. I do not read his comment as intended to depart
    from the jurisprudence I have referred to. He was responding to the parties
    submissions, not articulating a general statement of law.

[35]

Roble
was a
    brief, six-paragraph endorsement by this court. One issue was whether the trial
    judge applied a different standard of scrutiny to the evidence of the
    appellant. In rejecting that submission, the court commented that the trial
    judge was entitled to find that the accused was tailoring his evidence to fit
    the events described and that his specific explanations of various counts were
    tailored, well thought out and convoluted: at paras. 4-5.

[36]

In his reasons, the trial judge in
Roble

characterized the accuseds

evidence

as

well

thought

out; scripted: 2002 CarswellOnt 5994 (S.C.), at para. 41.

For example,
    on one count, the complainant alleged that the accused butted her face and eye
    with a cigarette. The trial judge found the accuseds testimony that a woman
    with a cigarette slapped the complainant to be incredulous and another attempt
    to tailor his evidence: at para. 47. Rather than use the accuseds presence in
    court and access to disclosure as the starting point for impeaching his
    credibility, the trial judge focused on the internal implausibility of the
    accuseds account of the events. It cannot be said that he turned the accuseds
    enjoyment of his constitutional rights into a trap within the credibility
    analysis. Moreover, the issue on appeal was uneven scrutiny of the evidence, and
    this court did not consider whether the trial judges analysis undermined the
    appellants right to be present at the trial and to make full answer and
    defence.

(4)

Conclusion

[37]

For these reasons, I find that the trial judge
    fell into legal error when he reasoned that the appellant tailored his
    testimony to the evidence he knew would be forthcoming or to the forensic
    disclosure. That inference tainted the trial judges legal analysis and
    conclusion.

[38]

The Crown submits that if the court finds an
    error, it should apply the curative proviso in s. 686(1)(b)(iii) of the
Criminal
    Code
. The Crown argues that the tailoring point was only one of many
    reasons the trial judge gave for rejecting the appellants evidence, and that it
    was near the bottom of the list and therefore less significant to the trial
    judges analysis.

[39]

A similar request was made and rejected in
Thain
:
    at para. 38. As in
Thain
, I would not apply the proviso in this case,
    which turned on the trial judges credibility findings. While the tailoring
    issue was only one of the concerns the trial judge had with the appellants
    testimony, there is no basis to believe it was an unimportant one, particularly
    because the trial judge stated that
many
of the appellants answers
    appeared to be tailored to the disclosure and the evidence he knew was coming. This
    error is far from harmless. It goes to the heart of trial fairness and the
    right to make full answer and defence.

F.

Disposition

[40]

I would allow the appeal, set aside the
    conviction, and order a new trial.

[41]

Because of the COVID-19 emergency, the panel
    relieved the appellant from the term of his bail that requires him to surrender
    into custody prior to this decision being released.

Released: K.F. May 14, 2020

K. Feldman
    J.A.

I agree.
    Harvison Young J.A.

I agree. M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McNeill, 2020 ONCA 313

DATE: 20200526

DOCKET: C64688 & C64907

Feldman, Tulloch and Jamal JJ.A.

DOCKET: C64688

BETWEEN

Her Majesty the Queen

Respondent

and

Desiree McNeill

Appellant

DOCKET:
    C64907

AND BETWEEN

Her Majesty the Queen

Respondent

and

John Waechter

Appellant

Ryan Heighton, for the appellant
    Desiree McNeill

Andrew Menchynski, for the appellant
    John Waechter

Brendan Gluckman, for the respondent
    Her Majesty the Queen

Heard: December 3, 2019

On appeal from the convictions entered on
    August 1, 2017 by Justice Robert J. Nightingale of the Superior Court of
    Justice, sitting without a jury, and from the sentence imposed on the appellant
    John Waechter on November 17, 2017.

Jamal J.A.:

A.

overview

[1]

If a search warrant authorizes the police to
    seize and examine any cellphone found in a garage used as a hub for drug
    trafficking, must the police obtain a second warrant to examine a seized cellphone
    belonging to someone who was not a target of the investigation? That is a
    central issue raised in these appeals.

[2]

The appellants, John Waechter and Desiree
    McNeill, appeal their convictions of jointly possessing heroin and crystal methamphetamine
    for the purpose of trafficking. The police had Waechter under surveillance for
    suspected drug trafficking. When they executed a search warrant at a garage in
    Cambridge, Ontario, they found Waechter, McNeill, and three other individuals inside,
    together with a large quantity of drugs.

[3]

The search warrant expressly authorized the
    police to seize electronic devices from the garage and to examine them based on
    the drug offences under investigation. The police seized Waechters cellphone directly
    from him. They also seized what they later learned was McNeills cellphone from
    a coffee table near where she was sitting in the garage. A post-seizure
    examination of the phones revealed text messages confirming that both Waechter
    and McNeill were engaged in drug trafficking.

[4]

At trial McNeill applied to exclude the evidence
    found on her phone because she claimed that the police breached her right to be
    secure from unreasonable search or seizure under s. 8 of the
Canadian
    Charter of Rights and Freedoms
. While McNeill conceded that the search warrant
    authorized the police to seize her phone, she argued that the police needed a second
    warrant to examine it, because Waechter, not McNeill, was the target of the
    investigation and only his privacy rights had been weighed by the justice who
    issued the warrant. McNeill was not even known to the police officers
    conducting the investigation when they obtained the warrant. The trial judge rejected
    this argument, admitted the evidence from McNeills phone, and convicted both
    McNeill and Waechter.

[5]

McNeill now appeals the decision to admit the
    evidence from her phone, and both McNeill and Waechter appeal the
    reasonableness of their convictions.

[6]

As I explain below, I have concluded
that the police did not violate McNeills rights under s. 8 of the
Charter
when they examined her phone. The information to obtain (ITO) in support of
    the warrant contained sufficient information to permit the authorizing justice
    to find that there were reasonable and probable grounds to believe that any
    electronic devices found in the garage  including what turned out to be McNeill
s phone
would contain evidence of the drug
    trafficking offences under investigation. McNeill did not need to be a target
    of the investigation, and the police did not need to obtain a second warrant to
    examine her phone.

[7]

I have also found no basis to challenge the
    reasonableness of the convictions.

The trial judge, acting judicially, could have been satisfied of the
    guilt of McNeill and Waechter as the only reasonable conclusion available on
    the totality of the evidence.

[8]

Waechter had also sought leave to appeal his
    sentence if this court found his convictions on some counts to be unreasonable.
    Because of my conclusion on the reasonableness of the convictions, I need not
    address this issue.

[9]

I would therefore dismiss both appeals.

B.

background

The search warrant

[10]

The Waterloo Police Service obtained a search
    warrant dated November 12, 2015 under s. 11(1) of the
Controlled Drug
    and Substances Act
, S.C. 1996, c. 19 (
CDSA
), authorizing a search
    of a detached garage located on First Avenue and a house on Cedar Street, both
    in Cambridge, Ontario, in relation to the offences of possession for the
    purpose of trafficking heroin and crystal methamphetamine.

[11]

The warrant also authorized the police to search
    for and seize Electronic Devices. The warrants Terms and Conditions expressly
    authorized the police to conduct post-seizure examinations of those devices based
    on the offences set out in this warrant, in relation to the following data:

·

Electronic Communications between September 1,
    2015 and November 12, 2015;

·

Incoming, outgoing, and missed call logs;

·

Audio, video, and still photograph files;

·

Any location services;

·

Data related to the use, ownership, and access
    of the phone; and

·

Data related to the configuration of the mobile
    phone, including internal and external system or program configuration.

The information to obtain the warrant

[12]

The ITO, sworn by Constable Palubiski, set out
    the grounds of the police for seeking the warrant. Based on surveillance and information
    from five confidential informants, the police believed that Waechter was
    trafficking in heroin and crystal methamphetamine from a garage on First Avenue
    and that he was using his mothers home on Cedar Street as a stash house to
    store drugs and cash. The key evidence described in the ITO can be summarized
    as follows:

·

In the summer of 2015, the police began
    investigating Waechter for suspected drug trafficking at an address on Lowrey
    Avenue, Cambridge. The police had him under surveillance and believed that they
    saw him conduct drug transactions at or near this address. On September 1,
    2015, the police executed a search warrant at the Lowrey Avenue address,
    arrested six people (none of whom was Waechter), and seized crystal
    methamphetamine, heroin, crack cocaine, and marijuana.

·

In October 2015, five confidential informants told
    the police that Waechter was trafficking heroin and crystal methamphetamine
    from a trailer or garage at the First Avenue address. This information appeared
    to be corroborated by police surveillance in October and November 2015.

·

In late October 2015, over two days, the police saw
    at least 18 people enter and leave the First Avenue garage after a short time inside.
    Some of these people were known to the police from past drug investigations as
    drug purchasers or addicts. As a result, the police believed that the people
    entering and leaving the garage were buying heroin and crystal methamphetamine
    from Waechter.

·

The police also saw a woman frequenting the
    garage. They believed that she was Waechters drug courier who moved drugs and
    money between the garage and the suspected stash house on Cedar Street.

·

Three of the confidential informants told the
    police that Waechter had one or more cellphones. They gave the police the
    numbers of two of these phones. Officer Palubiski stated that, in his
    experience, drug traffickers use electronic devices to conduct drug deals and
    to store information, including contacts, photographs, videos, and debt lists.
    He believed that Waechter used a cellphone for drug transactions.

The execution of the warrant

[13]

On November 12, 2015, the police executed the
    search warrant at the garage and the Cedar Street residence.
[1]

[14]

The garage was cluttered and messy  a maze of
    furniture, piled drywall, and bicycles. A narrow passageway ran from the front of
    the garage to the back. Because of the clutter, it was hard to see the back of
    the garage from the front.

[15]

The police found Waechter in the front of the
    garage with another individual (who had heroin on him and later pleaded guilty
    to possession for the purpose of trafficking heroin). In the back, in an area
    with two couches and some coffee tables, the police found McNeill (who was
    unknown to the officers) and two others (both of whom have since died). At the
    back of the garage the police also found most of the drugs seized, including:

·

an open small black safe containing three bags
    of heroin (95.38 grams, 8.04 grams, and 13.44 grams), a bag of crystal
    methamphetamine (8.04 grams), empty Ziploc bags, and a weighing scale;

·

a dark grey plastic bag containing two bags of
    heroin (101.77 grams and 100.82 grams);

·

a container of heroin (2.56 grams); and

·

a bag containing crystal methamphetamine (3.83
    grams), a container of heroin (1.06 grams), and Ziploc bags containing
    marijuana (25 grams) and cannabis resin (1.03 grams).

[16]

The street value of the heroin seized was
    between $34,600 and $97,000 and the street value of the crystal methamphetamine
    seized was between $1,024 to $1,281, depending on the weight at which they were
    sold.

[17]

At the back of the garage the police also found
    a large plastic bag containing colostomy bags. When Waechter was arrested, he had
    a colostomy bag attached to him because of a medical condition. In the same
    area the police found Waechters bank statement and wallet, which contained his
    health card and $1,862 cash.

[18]

The police also seized four electronic devices
    from the garage: Waechters cellphone (which he had on him); McNeills
    cellphone (which was on a coffee table in front of the couch where she was sitting,
    but was only confirmed as hers after it was forensically examined); a Samsung
    tablet; and an iPad.

[19]

Post-seizure forensic examinations of McNeill
    and Waechters cellphones revealed text messages  including to each other  that
    undeniably confirmed that both of them were engaged in drug trafficking.

The
voir dire
ruling

[20]

The trial judge dismissed McNeills application
    to exclude her text messages as evidence for an alleged breach of her rights
    under s. 8 of the
Charter
. He ruled that the ITO provided reasonable
    and probable grounds for the warrant, including its Terms and Conditions, which
    authorized the police to conduct a post-seizure examination of any electronic
    device found during the search based on the offences set out in the warrant. He
    also found that the police did not need to specifically identify McNeill as a
    target in the ITO, nor did they need to get a second warrant to search her phone.
    The trial judge therefore found no breach of s. 8.

[21]

He added that, even had he found such a breach, he
    would have admitted the evidence under s. 24(2) of the
Charter
.

The trial decision

[22]

The only issue at trial was whether McNeill and
    Waechter had constructive possession of the drugs; both conceded that, if they
    did, the quantity of drugs found confirmed that their possession was for the
    purpose of trafficking.

[23]

Based on the totality of the evidence, the trial
    judge concluded that the only reasonable inference was that McNeill and
    Waechter jointly possessed the heroin and crystal methamphetamine found in the
    garage for the purpose of trafficking: (i) Waechter conceded, and his text
    messages confirmed, that he had been trafficking drugs from the garage before
    the search; likewise McNeill conceded, and her text messages confirmed, that
    she had been trafficking as recently as the morning of the search; (ii) the drugs
    were found near McNeill and in plain view, with Waechters colostomy bags and
    wallet nearby; (iii) Waechter was observed using what looked like a key to
    enter the garage and text messages between him and McNeill corroborated that he
    had a key to the garage; and (iv) the presence of others did not detract from
    the only reasonable conclusion that McNeill and Waechter were jointly in
    constructive possession of the drugs for the purpose of trafficking.

C.

ANALYSIS

[24]

These appeals raise two main issues. The first issue
    arises only in McNeills appeal; the second issue arises in both appeals:

1.

Did the examination of McNeills cellphone under
    the warrant violate s. 8 of the
Charter
?

2.

Were the convictions of McNeill and Waechter
    reasonable?

[25]

McNeill also argues that, if the examination of
    her cellphone breached s. 8 of the
Charter
, the evidence obtained from
    that examination should have been excluded under s. 24(2). Given my conclusion
    on the first issue, I need not address this argument.

Issue 1: Did the examination of McNeills cellphone under the
    warrant violate s. 8 of the
Charter
?

[26]

McNeills challenge to the search warrant is
    narrow. She concedes that the warrant authorized the police to seize her
    cellphone, but claims that the police infringed her s. 8
Charter
rights
    by examining it after it was seized. She submits that the warrant was unconstitutionally
    overbroad by purporting to authorize a post-seizure examination of
any
electronic device found during the search, because the issuing justice could
    not have been satisfied that there were reasonable grounds to believe that the examination
    of
any

electronic device in the garage would afford evidence of
    the offences. She also claims that the issuing justice did not consider her
    privacy interests when issuing the warrant because she was not a target
    indeed, the investigating officers did not even know about her until they
    searched the garage.

[27]

McNeill also notes that, in
R. v. Vu
,
    2013 SCC 60, [2013] 3 S.C.R. 657, the Supreme Court held that the search of a
    computer requires specific pre‑authorization. To be consistent with
Vu
,
    she says that the police should have obtained a second warrant to forensically
    examine her phone, a two-step procedure mentioned in
Vu
itself. She also
    asserts, more broadly, that this is now constitutionally required whenever cellphones
    of unknown ownership are seized: a first warrant to seize a cellphone; and a
    second warrant to forensically examine it.

[28]

As I will explain, I do not accept this
    submission. I will first address the standard of review of the issuance of the
CDSA
warrant. I will then explain why the issuing justice could find that the ITO
    provided reasonable and probable grounds to authorize a forensic examination of
    any electronic device found during the search of the garage, including
    McNeills cellphone; why the ITO did not need to identify McNeill specifically
    as a target; and why a second warrant or two-step procedure was not
    constitutionally required in this case.

(a)

The standard of review for the issuance of the
CDSA
search warrant

[29]

McNeill asserts that the warrant was unconstitutionally
    overbroad on its face by purporting to authorize the post-seizure examination
    of any cellphone found during the search of the garage. She also asserts that
    the date range (September 1, 2015 to November 12, 2015) in the warrants Terms
    and Conditions for the search of electronic communications was arbitrary and
    overbroad. These arguments require consideration of the standard of review for
    a facial challenge to a search warrant.

[30]

As stated in
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 37, [a] facial
    validity challenge requires the reviewing judge to examine the ITO and to
    determine whether, on the face of the information disclosed there, the justice
could
have issued the warrant (emphasis
    in original). This requires the reviewing judge to consider: (i) the statutory
    threshold for issuing the warrant; and (ii) whether the issuing justice could
    have concluded that this threshold was met.

[31]

Here, the warrant was issued under s. 11(1) of
    the
CDSA
. This provision provides that, on
ex parte
application, a justice who is satisfied by information on oath that there are
    reasonable grounds to believe that a controlled substance or any thing that
    will afford evidence of an offence under the
CDSA
is in a place may
    issue a warrant authorizing a peace officer to search the place for such
    controlled substance or thing and to seize it.

[32]

The standard of reasonable grounds to believe does
    not require proof on a balance of probabilities, but rather only a credibly-based
    probability:
Hunter v. Southam Inc.
, [1984] 2 S.C.R. 145, at p. 167;
Sadikov
, at para. 81. The ITO must provide reasonable grounds to believe that
    an offence has been committed and that there is evidence to be found at the
    place of the proposed search.  If the inferences of criminal conduct and
    recovery of evidence are reasonable on the facts disclosed in the ITO, the
    warrant could be issued:
Sadikov
, at para. 81; see also
R. v. Jacobson
(2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.

[33]

In making this evaluation, the issuing justice
    considers the ITO as a whole, in a common sense, practical, non-technical way,
    and may draw reasonable inferences from its contents:
Sadikov
, at para. 82;
Vu
, at para. 16. The record on a facial
    challenge is limited to the ITO:
Sadikov
, at para. 37;
R. v. Wilson
, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.

[34]

A court later reviewing the issuance of a warrant
    does not substitute its opinion for that of the issuing justice. It instead asks
    whether there was reliable evidence that might reasonably be believed on the
    basis of which the warrant could  not would  have issued:
Sadikov
, at para. 84;
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R.
    253, at para. 40; and
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54. This involves the
    reviewing court asking 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:

Sadikov
, at para. 84;
Morelli
, at para. 40.

[35]

I now turn to apply this standard to the ITO in this case.

(b)

Could the issuing justice have found that the ITO provided
    reasonable and probable grounds to examine any electronic device found in the
    garage?

[36]

There is no debate that
Vu
requires the
    police to have specific, prior authorization to search a computer. The issue is
    whether the ITO
provided constitutionally sufficient
    grounds to support the search of any
electronic device found in the garage,
    including McNeills cellphone. In other words, was the warrant constitutionally
    sound? The answer is found in the record. To understand why this is so, it is
    worth recapping the salient parts of the Supreme Courts ruling in
Vu
.

[37]

In
Vu
, the Supreme Court updated the
    traditional legal framework for search and seizure to protect the unique
    privacy interests raised by computer searches, including searches of
    cellphones. Cromwell J., writing for the Court, ruled that computers are unlike
    physical receptacles, such as cupboards or filing cabinets, which can be
    searched under a search warrant authorizing the search of a place, without
    specific, prior authorization to search the particular receptacle. Computer
    searches create particular privacy concerns that call for specific prior
    authorization: at paras. 2, 39, 48, 51. These privacy concerns arise because of
    the immense amount of personal information that computers can store, often
    automatically generated and retained even after a user thinks it is destroyed,
    and often shared by different users and stored almost anywhere in the world: at
    paras. 40-45.

[38]

Cromwell J. therefore held, at para. 2, that [o]ne
    cannot assume that a justice who has authorized the search of a place has taken
    into account the privacy interests that might be compromised by the search of
    any computers found within that place. Cromwell J. explained that this reality
    imposes a requirement of specific, prior authorization for computer searches,
    at para. 3:

In practical terms, the requirement of
    specific, prior authorization means that if police intend to search computers
    found within a place with respect to which they seek a warrant, they must
    satisfy the authorizing justice that they have reasonable grounds to believe
    that any computers they discover will contain the things they are looking for
. If, in the course of a warranted search, police come across a
    computer that may contain material for which they are authorized to search but
    the warrant does not give them specific, prior authorization to search
    computers, they may seize the device but must obtain further authorization
    before it is searched. [Emphasis added.]

[39]

The relevant principles from
Vu

were reiterated by this court in
R. v. Nero
, 2016 ONCA 160, 334 C.C.C. (3d)
    148, at paras. 158-59:

A computer search requires specific
    pre-authorization. What this means is that if police intend to search computers
    or mobile communication devices found within a place with respect to which they
    seek a warrant, they must satisfy the authorizing justice, by information on
    oath, that they have reasonable grounds to believe that any computer or other
    mobile communication device they discover will contain the things for which
    they are looking:
Vu
, at
    paras. 3, 24.

It follows from this requirement of
    pre-authorization that the ITO must contain sufficient information to permit
    the authorizing justice to find that there are reasonable grounds to believe
    that any computers or communications devices they discover on execution of the
    search will contain what they seek:
Vu
, at paras. 3, 48.

[40]

The trial judge here applied these principles in evaluating the
    constitutional and statutory sufficiency of the ITO. He found that the ITO
    contained sufficient credible and reliable evidence to provide reasonable and
    probable grounds to believe that an offence had been committed and that
    evidence of that offence would be found on any electronic devices in the
    garage. As he explained:

[T]he ITO in this case contains sufficient
    information to establish a reasonably grounded belief that a search of cell
    phones found in the garage premises would contain evidence relevant to
    establish the listed drug offences. The [affiant], Officer Palu[b]iski,
    described the basis for his belief regarding the participation of Mr. Waechter
    and his drug sales of heroin and crystal meth from reliable informants, recent
    surveillance confirming his being involved in drug sales and also confirmed the
    evidence from informants regarding the usage by Mr. Waechter of two phones both
    of which were likely cell phones to conduct his drug business.

[41]

I agree that the ITO contained sufficient information to permit the
    issuing justice to find that there were reasonable grounds to believe that any
    electronic devices found in the garage would provide evidence of drug
    trafficking. In particular:

1.

The police had Waechter under surveillance since the summer of 2015, believed
    that they had seen him engage in drug trafficking at another location, and had found
    evidence of drug trafficking during a search of that location;

2.

Five confidential informants mentioned in the ITO told the police that
    Waechter was trafficking in
heroin and crystal
    methamphetamine, four of whom also mentioned that he was trafficking from the First
    Avenue location;

3.

During their surveillance the police had watched Waechter interact
    with known drug addicts in what appeared to be drug transactions, with many
    people going back and forth from the garage. They had also seen him engage with
    someone they suspected to be a female drug courier;

4.

Three confidential informants advised the police that Waechter had
    one or more cellphones and gave the police the phone numbers; and

5.

The officer who swore the ITO explained that, in his experience, drug
    dealers use cellphones to do drug deals, store contacts, and other drug-related
    information.

[42]

Cumulatively, this evidence provided reasonable and probable grounds
    for the issuing justice to have authorized a post-seizure examination of any
    electronic devices found in the garage.

[43]

McNeill also asserts that the date range in the Terms and Conditions of
    the warrant for the search of electronic communications  from September 1,
    2015 to November 12, 2015  was arbitrary and overbroad. She asserts that the
    ITO did not provide reasonable grounds to believe that relevant electronic
    evidence would be found as far back as September 1, 2015.

[44]

I do not accept this submission. The end date, November 12, 2015, was
    when the warrant was executed at the garage. The earlier date, September 1,
    2015, was when the police executed a search warrant at the Lowrey Avenue
    address, where the police believed Waechter had formerly trafficked and where
    they had found drugs and arrested six people. It could reasonably be assumed
    that after this date Waechter moved his drug trafficking activities elsewhere. Evidence
    related to the move and to Waechters new trafficking operation from the garage
    could reasonably be expected to be found in Waechters electronic communications
    in September 2015. The date range was therefore neither arbitrary nor
    overbroad.

(c)

Did the ITO need to identify McNeill as a target?

[45]

McNeill, however, says that the ITO needed to be
    more specific to justify a post-seizure examination of her phone. She asserts
    that the issuing justice did not consider her specific privacy interests at the
    time of issuing the warrant because the ITO never mentioned her. She was not a
    target of the investigation and was unknown to the investigating officers before
    they searched the garage.

[46]

I do not accept this submission. The ITO did not
    need to mention McNeill or identify her specifically as a target for the
    warrant to authorize a search of her phone (though it should have done so had
    such evidence been available). McNeills argument reflects a misconception of
    the statutory requirement for the warrant and the reasonable grounds standard. The
    police did not have to link the electronic devices to any specific target, but rather
    to the offences under investigation. Section 11(1)(d) of the
CDSA
requires the police to demonstrate reasonable grounds to believe that the
    thing sought will afford evidence
in respect of an offence under this
    Act
 (emphasis added). This provision does not require the police to show
    reasonable grounds to believe that the thing will afford evidence about a
    specific target or named suspect.

[47]

Put another way, a search warrant is an
    investigative tool that should be used to unearth as much evidence as constitutionally
    possible about the suspected offence, rather than just evidence that incriminates
    a particular target because that can lead to prosecutorial tunnel vision. As
    Major J. explained in
CanadianOxy Chemicals Ltd. v. Canada (Attorney
    General)
, [1999] 1 S.C.R. 743, at paras. 15, 24:

On a plain reading, the phrase evidence with
    respect to the commission of an offence is a broad statement, encompassing all
    materials which might shed light on the circumstances of an event which appears
    to constitute an offence. The natural and ordinary meaning of this phrase is
    anything relevant or rationally connected to the incident under investigation,
    the parties involved, and their potential culpability falls within the scope of
    the warrant.

It is important
    that an investigation unearth as much evidence as possible. It is antithetical
    to our system of justice to proceed on the basis that the police, and other
    authorities, should only search for evidence which incriminates their chosen
    suspect. Such prosecutorial tunnel vision would not be appropriate
: see
The Commission on Proceedings Involving Guy Paul Morin:
    Report
, vol. 1 (1998),
per
the Honourable F. Kaufmann at pp.
    479-82. [Emphasis added.]

[48]

Here, whether or not any electronic device found
    in the garage belonged to Waechter,
the ITO provided
    evidence supporting a credibly-based probability that any electronic device, if
    found in the garage  a suspected hub of drug trafficking  would afford
    evidence of the drug trafficking offences identified in the warrant
.

[49]

This evidence included, in particular, information
    from multiple confidential informants that Waechter used cellphones to do drug
    deals; that Waechter was suspected of trafficking drugs from the garage; that many
    suspected drug purchasers (at least 18 of them over just two days in late
    October 2015) were seen going into and out of the garage for what were believed
    to be drug transactions; and that a suspected female drug courier was believed
    to be transporting drugs or cash to and from the garage.

[50]

It is a reasonable inference that, if Waechter
    used cellphones to do drug deals, the cellphones of those with whom he conducted
    drug deals would also contain evidence of drug trafficking. Because the garage
    was a suspected drug trafficking hub, and nothing else, it was similarly
    reasonable to infer from the information provided that anyone inside the garage
    (to whom any of the seized cellphones would belong) was also involved in drug
    trafficking, whether as seller, buyer, supplier, or courier.

[51]

This evidence was therefore sufficient to
    establish reasonable grounds to believe that the electronic devices of any
    persons in the garage would contain evidence of the offences under
    investigation, thereby justifying extending the warrant to cover any cellphone
    found in the garage, no matter whose. The evidence in the ITO was not limited
    to Waechter and the warrant did not target only him, but rather targeted the
    offences under investigation.

[52]

The issuing justice was therefore not required
    to consider the specific privacy interests of McNeill, who was then unknown to
    the police. The issuing justice was, however, required to consider the privacy
    interests of the class of persons whose cell phones might be seized from the
    garage and examined in investigating the offences at issue. Here, in view of
    the information presented in the ITO, I am satisfied that the issuing justice
    did so.

(d)

Were the police constitutionally required to
    seek a second warrant?

[53]

Lastly, relying on
Vu
, McNeill asserts
    that the police were constitutionally required to seek a second warrant to
    examine her phone even if it was lawfully seized under the warrant.

[54]

I do not agree with this submission.

[55]

I first note that, for a search warrant to
    extend to computers,
Vu
does not require the police to specifically identify
    in advance each computer to be searched. The police do not even need to have reasonable
    grounds to believe that any computers will be found in the place. The police
    only need to have reasonable grounds to believe that any computers they
    discover will contain the things they are looking for. As Cromwell J. for the
    Court explained in
Vu
, at paras. 48-49:

Specific, prior authorization means, in
    practical terms, that if police intend to search any computers found within a
    place they want to search, they must first satisfy the authorizing justice that
    they have reasonable grounds to believe
that any computers they discover
    will contain the things they are looking for. They need not, however, establish
    that they have reasonable grounds to believe that any computers will be found
    in the place
, although they clearly should disclose that if it is the case.

If police come across a computer in the course
    of a search and their warrant does not provide
specific authorization to
    search computers
, they may seize the computer (assuming it may reasonably
    be thought to contain the sort of things that the warrant authorizes to be
    seized), and do what is necessary to ensure the integrity of the data. If they
    wish to search the data, however, they must obtain a separate warrant.
    [Emphasis added.]

[56]

As I have discussed above, in my view, the ITO
    met this standard, and therefore provided constitutionally sufficient grounds
    to support the search of any electronic devices found in the garage.

[57]

In support of her argument that the police
    needed a second warrant to search her phone, however, McNeill relies on
    Cromwell J.s comments in
Vu
that, in some cases, authorizing justices
    may find it practical to impose conditions when police first request
    authorization to search, or might prefer a two-stage approach where they
    would first issue a warrant authorizing the seizure of a computer and then have
    the police return for an additional authorization to search the device seized:
    at para. 62. But I note that these comments are framed in terms of what an
    issuing justice may find practical or what they might prefer. They do not,
    on their face, impose a constitutional requirement.

[58]

In this case, while the issuing justice could
    have authorized a seizure of any electronic devices from the garage and then required
    the police to return for a second warrant to search any such devices, this
    approach was not constitutionally mandated. That is because, as I have
    explained above,
the ITO in this case contained sufficient
    information to permit the issuing justice to find that there were reasonable
    grounds to believe that any electronic devices found in the garage would
    provide evidence of drug trafficking. Because of the evidence in the ITO, a one-stage
    approach was constitutionally sufficient in this case.

[59]

The search of McNeills cellphone was conducted
    in accordance with the Terms and Conditions of the warrant and the evidence
    obtained related to the offences specified in the warrant. This was not a case
    where the police lawfully searched an electronic device pursuant to a valid
    warrant for one offence and discovered evidence of another: see e.g.,
R. v.
    Jones
, 2011 ONCA 632, 107 O.R. (3d) 241. Different circumstances may
    require a further warrant to comply with s. 8 of the
Charter
.

Conclusion

[60]

In conclusion, McNeills rights under s. 8 of the
Charter

were not
    infringed. In light of the information in the ITO, the warrant was not
    constitutionally overbroad for permitting the police to examine any cellphone
    found during the search of the garage. McNeill did not need to be named in the
    ITO as a target of the investigation for the warrant to authorize the police to
    examine her phone, nor in this case did the police require a second warrant to do
    so.

[61]

In his reasons, the trial judge explained that even
    if he was wrong in finding no breach of McNeills s. 8
Charter
rights,
    he still would have admitted the evidence under s. 24(2). Because I would find
    no breach of s. 8, I need not address s. 24(2).

Issue 2: Were the convictions of McNeill and Waechter reasonable?

[62]

The trial judge found that the only reasonable
    inference from the totality of the evidence was that both McNeill and Waechter
    were guilty of the joint possession of heroin and crystal methamphetamine for
    the purpose of trafficking. Because neither McNeill nor Waechter had drugs in their
    personal possession, the trial judge relied on their joint constructive
    possession of the drugs in the garage. Constructive possession is where a
    person knowingly has anything in any place, whether or not that place belongs
    to or is occupied by him, for the use or benefit of himself or of another
    person:
Criminal Code
, R.S.C., 1985, c. C-46, s. 4(3)(a)(ii). Joint
    possession is where one of two or more persons, with the knowledge and consent
    of the rest, has anything in his custody or possession, in which case it
    shall be deemed to be in the custody and possession of each and all of them:
Criminal
    Code
, s. 4(3)(b).

[63]

As noted, in finding joint constructive
    possession the trial judge relied on the following evidence: (i) Waechter
    conceded, and his text messages confirmed, that he had been trafficking drugs
    from the garage before the search; likewise McNeill conceded, and her text messages
    confirmed, that she had been trafficking as recently as the morning of the
    search; (ii) the drugs were found near McNeill and were in plain view, with Waechters
    colostomy bags and wallet nearby; (iii) Waechter was observed using what
    looked like a key to enter the garage and text messages between him and McNeill
    corroborated that he had a key to the garage; and (iv) the presence of others
    did not detract from the only reasonable conclusion that McNeill and Waechter
    were jointly in constructive possession of the drugs for the purpose of
    trafficking from the garage.

[64]

Both McNeill and Waechter now argue that their
    convictions were unreasonable and unsupported by the evidence.

[65]

An appellate court can set aside a verdict where
    the verdict is unreasonable, unsupported by the evidence, or both:
Criminal
    Code
, s. 686(1)(a)(i);
R. v. Lights
, 2020 ONCA 128, at para. 29.
    This may occur where a properly instructed jury or judge could not reasonably
    have rendered the verdict, or where the trial judge has drawn inferences or
    made findings of fact that are plainly contradicted by the evidence or
    incompatible with evidence that is not otherwise contradicted or rejected:
Lights
,
    at paras. 30-31; see also
R. v. R.P.
, 2012 SCC 22, [2012] 1 S.C.R.
    746, at para. 9.

[66]

In evaluating the reasonableness of the verdicts,
    I am mindful of the limited grounds for appellate intervention in a wholly or
    largely circumstantial case such as this. It is not this courts role to retry
    the case. Rather, it is the role of the trier of fact to decide whether the
    evidence, when considered in light of human experience and the evidence as a
    whole and the absence of evidence, excluded all reasonable inferences other
    than guilt:
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at
    para. 69.

[67]

The question for the appellate court is thus
    whether the trier of fact, acting judicially, could reasonably be satisfied
    that the accuseds guilt was the only reasonable conclusion available on the
    totality of the evidence:
Villaroman
, at para. 55. It is
    fundamentally for the trier of fact to decide whether another way to view the
    case is reasonable enough to raise a doubt, and to draw the line that separates
    reasonable doubt from speculation:
Villaroman
, at paras. 56, 71; see
    also
Lights
, at paras. 36-39.

(a)

McNeill

[68]

McNeill argues that the trial judge erred in
    finding that the drugs found in the garage were in her constructive possession.
    She says that the trial judge conflated her knowledge of the presence of the drugs
    in the garage with the required element of her control over them. She also says
    that it was a reasonable inference that she was a low-level drug dealer who merely
    bought her drugs from Waechter. She says that she was just a visitor to the
    garage, one of many.

[69]

When viewed through the lens of appellate
    review, I would not accede to McNeills argument. Her argument amounts to
    saying that she was simply in the wrong place at the wrong time, and ignores
    the totality of the evidence, including her presence close to the drugs in the
    open at the back of the garage; her text messages confirming that she was
    engaged in drug trafficking (including that very day); and her text messages to
    and from Waechter that suggested a joint trafficking operation. Nor did the presence
    of others in the garage undercut the trial judges basis to be satisfied that
    the only reasonable conclusion was that both McNeill and Waechter were drug trafficking
    from the garage, even though, as the trial judge noted, they were perhaps
    doing so with others.

[70]

I therefore see no basis to interfere with
    McNeills conviction.

(b)

Waechter

[71]

In a similar vein, Waechter argues that the
    trial judge acted unreasonably in inferring his knowledge of the presence of
    the drugs at the back of the garage from the drugs being in plain view, as he
    was at the front of the garage, and anyway most of the drugs were hidden from
    sight. Waechter acknowledges that his text messages confirm that he was engaged
    in drug trafficking, but argues that the last such message from his phone was on
    November 2, 2015  a full 10 days before the search. By contrast, he notes,
    McNeill continued sending messages related to drug trafficking until shortly
    before her arrest.

[72]

I would not give effect to this argument. There
    was plenty of evidence on which the trial judge could be satisfied that Waechters
    guilt for possession of heroin and crystal methamphetamine for the purpose of trafficking
    was the only reasonable conclusion available on the totality of the evidence: Waechters
    colostomy bags were found near the drugs; his text messages confirmed that he
    had been drug trafficking from the garage; he had texted a drug purchaser that
    he was staying in the garage, and that the garage was home; and McNeills texts
    to Waechter likewise noted that she was locking your [i.e., Waechters] door
    to the garage and suggested that Waechter had a key to the garage
    (corroborating observations made during the police surveillance).

[73]

The trial judge was also entitled to infer Waechters
    knowledge of the presence of the drugs at the back of the garage, and his control
    over them, even though he was at the front of the garage when the search began.
    The trial judge knew that the drugs were not in a clear container or baggie, but
    emphasized that [t]here was no attempt to hide or obstruct the drugs or the
    drug paraphernalia from view. In short, the trial judge found that the drugs
    were out in the open, in full view, a factor that he could consider as relevant
    to Waechters knowledge. He could certainly conclude that the only reasonable
    inference on the totality of the evidence was that Waechter was guilty as
    charged.

[74]

I therefore see no basis to interfere with Waechters
    conviction either.

D.

disposition

[75]

For these reasons, I would dismiss both appeals.

Released: May 26, 2020 (K.F.)

M.
    Jamal J.A.

I
    agree. K. Feldman J.A.

I
    agree. M. Tulloch J.A.

[1]
At the Cedar Street residence, the police seized a digital scale
    and Waechters cellphone bill.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morgan, 2020 ONCA 279

DATE: May 4, 2020

DOCKET: C67536

MacPherson, Benotto and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Morgan

Appellant

Brandon Morgan, acting in person

Matthew Gourlay, appearing as duty
    counsel

Michael Fawcett, for the respondent

Heard: April 27, 2020 by
    teleconference

On appeal from the conviction entered on
    May 15, 2019 by Justice Feroza Bhabha of the Ontario Court of Justice and from
    the sentence imposed on September 23, 2019.

REASONS FOR DECISION

[1]

Brandon Morgan originally appealed his
    conviction and sentence. However, at the hearing, he abandoned his conviction
    appeal and proceeded solely with the sentence appeal.

[2]

The appellant was sentenced to two years less a
    day comprised of 21 months on his conviction for aggravated assault and three
    months consecutive on a total of three counts of failing to comply with court
    orders. The appellant had attacked the victim with a sword in his mothers
    home. The victim was a friend of the appellants mother and had, in fact, acted
    as a surety for the appellant at an earlier point in time.

[3]

The appellant does not dispute that the sentence
    was a fit one at the time that it was imposed. Rather, the appellant submits
    that intervening events, namely the COVID-19 pandemic, have served to render
    the sentence unfit. He seeks a reduction in his sentence as a consequence of
    these events.

[4]

The appellant is currently incarcerated at the Central
    North Correctional Centre located in Penetanguishene, Ontario. In support of
    his position, the appellant refers to the fact that correctional facilities are
    not designed to contend with such a pandemic. It is not possible to maintain an
    appropriate physical distance from other inmates or from staff. The only method
    that the institution has to try and address physical distancing is to keep
    inmates confined to their individual cells. The appellant says that he spends
    all but three hours a day confined to his cell. Of that three hours, only 20
    minutes are provided for the inmate to actually be outside in the fresh air. Meals
    are served to inmates in their cells. The appellant also says that there are
    days when even the three hours are not provided because of staff shortages.

[5]

The appellant says that this confinement, coupled
    with the inherent increased risk of contracting the virus, if it enters the
    inmate population, detracts from the rehabilitative goals of his sentence. The
    appellant notes that the rehabilitative programs that would normally be
    provided to inmates are all canceled because of the pandemic and the need to
    keep inmates in their cells. The appellant says that it is clear that the
    sentencing judge imposed the sentence that she did in an effort to maximize the
    prospect for rehabilitation and now that prospect is being thwarted. The
    appellant says that, had the sentencing judge been aware that these events
    would happen, she would have imposed a lesser sentence to accommodate the
    rehabilitative goal.

[6]

As a result, the appellant seeks a reduction of
    his sentence by one-third such that he would be immediately eligible for parole.
    This would also advance his statutory release date to July and thus ensure his
    almost immediate release from incarceration. The appellant is currently
    eligible to be considered for parole on May 23. However, the appellant says
    that there is no guarantee that he will get parole because he has a criminal
    record and because he would have difficulty showing that he has acceptable
    living arrangements if paroled.

[7]

The respondent says that the appeal should be
    dismissed. The respondent says that the sentence was fit at the time. Indeed,
    the respondent says that the sentence was a lenient one. In any event, the
    respondent says that the sentence remains fit, even taking into account the
    impact of the COVID-19 pandemic. The respondent also says that this court
    should not consider the submission that there is an increased risk and impact
    on inmates in correctional facilities, arising from the COVID-19 pandemic,
    without direct evidence to establish that contention.

[8]

In our view, it is not necessary to decide
    whether this court could take judicial notice of the effects of the COVID-19
    pandemic to the extent to which the appellant would have us do that. We do,
    however, believe that it falls within the accepted bounds of judicial notice
    for us to take into account the fact of the COVID-19 pandemic, its impact on
    Canadians generally, and the current state of medical knowledge of the virus,
    including its mode of transmission and recommended methods to avoid its
    transmission.

[9]

In our view, the appellants submissions fall
    into the category of collateral consequences for sentencing purposes. As
    Moldaver J. noted in
R. v. Suter
, [2018] 2 S.C.R. 496, at para. 48:

The question is not whether collateral
    consequences diminish the offender's moral blameworthiness or render the
    offence itself less serious, but whether the effect of those consequences means
    that a particular sentence would have a more significant impact on the offender
    because of his or her circumstances.

[10]

However, Moldaver J. went on to make a further
    observation in
Suter
that has direct application to the case here. He
    said, at para. 56:

I agree with the Court of Appeal that the
    fundamental principle of proportionality must prevail in every case -
    collateral consequences cannot be used to reduce a sentence to a point where
    the sentence becomes disproportionate to the gravity of the offence or the
    moral blameworthiness of the offender.

[11]

In our view, the sentence imposed on the
    appellant was at the very low end of an acceptable range of sentence for the
    offence of aggravated assault. It was, indeed, a lenient sentence, given the
    injuries sustained by the victim and the fact that the appellant had a criminal
    record. To reduce the sentence any further would result in a sentence that is
    unfit, one that would be disproportionate to the gravity of the offence. As was
    observed by Wagner J. in
R. v. Pham
, [2013] 1 S.C.R. 739, at para. 18:

It follows that where a sentence is varied to
    avoid collateral consequences, the further the varied sentence is from the
    range of otherwise appropriate sentences, the less likely it is that it will
    remain proportionate to the gravity of the offence and the responsibility of
    the offender.

[12]

That result does not mean that there is no
    potential remedy for the appellant respecting the impacts arising from the
    COVID-19 pandemic. We expect that the Ontario Parole Board will take into
    account those impacts in deciding whether the appellant should be granted
    parole. If the Parole Board fails to do so, the appellant has other remedies
    available to him to redress that failure.

Conclusion

[13]

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

J.C. MacPherson J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.