COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2015 ONCA 791

DATE: 20151120

DOCKET: C58157

Laskin, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mackenzie McDonald

Appellant

John Hale, for the appellant

Michael Perlin, for the respondent

Heard: October 29, 2015

On appeal from the conviction entered by Justice Gary W.
    Tranmer of the Superior Court of Justice, sitting with a jury, on October 24,
    2013, and from the sentence imposed on January 14, 2014.

Pardu J.A.:

[1]

The appellant was charged with and convicted of aggravated assault. The
    charge stemmed from a confrontation between the appellant and Darren Gibson.
    The appellant was waiting in line at a restaurant when Gibson tried to cut in
    line. A physical confrontation, which lasted about 20 seconds, ensued. It ended
    badly for Gibson. He passed out from the pressure of a headlock applied by the
    appellant, and hit his head hard, on the tile floor.

[2]

The appellant was tried and convicted of the charge in 2010. On appeal,
    this court set aside his conviction because the trial judge did not leave open
    the defence that the confrontation between the appellant and Gibson was a
    consensual fight. A retrial occurred where the appellant was convicted once
    again.

[3]

The appellant advances two arguments before this court. First, the trial
    judges instructions to the jury on the issue of consent were inadequate, and
    effectively took the defence away from him. Second, the trial judge erred in
    refusing to stay the proceedings because of the delay caused by the appellate
    process following the appellants first trial.

A.

The confrontation

[4]

On September 28, 2008, around two oclock in the morning, the appellant
    was standing in line at a crowded Subway restaurant. Gibson walked into the restaurant,
    stood in the line briefly, and then attempted to bypass it. Both the appellant
    and Gibson had been drinking that night.

[5]

There was evidence at trial that, before a fight broke out between the
    two, the appellant put his arm on Gibsons shoulder and complained to Gibson about
    his bypassing the line. Gibson may then have grabbed the appellant by the arm,
    and the two pushed and pulled each other by the arms.

[6]

At some point, the appellant put Gibson in a headlock, and Gibson put
    his arms around the appellants hips. The appellant testified that he tried to
    swing Gibson around and out of the restaurant. Gibson lost consciousness and then
    hit his head on the tile floor. There was a dispute at trial about whether the
    appellant simply released Gibson, or pushed him with some force.

[7]

Parts of the interaction were recorded on a cell phone. However, as
    conceded by the Crown on appeal, the video did not clearly prove or preclude
    any of the versions of events described at trial.

B.

Ground #1: Instructions on COnsent

[8]

The trial judge correctly instructed the jury that consent was not a
    defence if the appellant intended to cause serious bodily harm.

[9]

The impugned jury instructions are as follows:

Consent, or for that matter the absence of consent, is a state
    of mind  Mr. Gibsons state of mind. Consent refers to Mr. Gibsons state of
    mind toward [the appellants] conduct, at the time of that conduct. It is Mr.
    Gibsons actual state of mind, not [the appellants] or anybody [elses] state
    of mind, that is [the] focus of this question.

Consent involves freedom of choice, and knowledge. It is the
    voluntary agreement of Mr. Gibson to the force that [the appellant]
    intentionally applied. A voluntary agreement is one made by a person who is
    free to choose, to agree or disagree, of his own free will.
For an agreement to be voluntary, Mr. Gibson must know what is
    going to happen  what [the appellant] is going to do.
Mr. Gibson does
    not have to know every detail of [the appellants] conduct, but must know of
    its essential nature, and freely decide to let [the appellant] do it. [Emphasis
    added.]

[10]

At
    trial, the appellant objected to the charge on the ground that it effectively
    took the defence away from the jury. He maintains that challenge before this
    court. The appellant submits that these instructions effectively removed the
    defence of consent because the jury was instructed that it had to determine
    whether Gibson consented to everything the appellant did. No one in these
    circumstances would have consented to a headlock rendering them unconscious, or
    sustaining serious head injuries.

[11]

The
    Crown points out that the charge was consistent with a model charge on this
    issue, and submits that the jury would not have believed it was necessary to
    find that the appellant needed to agree to being strangled or dropped on his
    head for consent to exist.

[12]

The
    trial judges instructions on the law and his review of the evidence were
    accurate. However, the jury needed more help relating the evidence to the law
    in a way that was less abstract. In this case, the instructions on the law and
    the review of the evidence were contained in such separate silos that
    significant misunderstanding was possible.

[13]

Several
    scenarios were possible on this evidence:

·

Gibson did not consent to any form of physical contact.

·

Gibson consented to some pushing and shoving, but the appellants
    actions went beyond the scope of Gibsons consent.

·

Gibson consented to the fight, and the headlock and force intentionally
    applied by the appellant was within the scope of the force consented to by
    Gibson.

[14]

The
    trial judge should have related the evidence to the law of consent in a way
    that brought home to the jury the relationship between the law and the evidence
    by discussing, in concrete terms, potential scenarios available on the
    evidence.

[15]

Where
    parties consent to a physical confrontation, it may be impossible to predict
    the exact manoeuvres each will perform. The jury instruction here, that Gibson
    must have known what the appellant was going to do in order to consent to the
    confrontation, could have, in the absence of guidance from the trial judge
    relating the facts to the law, unfairly restricted the defence of consent. This
    was not a case of a knife or shotgun pulled out in the course of a consensual
    fistfight, where the injuring force was obviously outside the scope of any
    consent.

[16]

As
    Doherty J.A. pointed out in
R. v. Rowe
, 2011 ONCA 753, 281 C.C.C. (3d)
    42, at para. 62, the model instructions are not a one-size-fits-all product;
    at best, they provide the basic building blocks for finals and other
    instructions. As noted at para. 66:

jury instructions must be shaped by trial judges and reviewed
    by appellate courts having regard to the purpose those instructions are
    intended to serve. A proper jury instruction is one that fully and fairly arms
    a jury with the information it needs to reach a fair and proper verdict in the
    circumstances of the particular case. Trial judges cannot simply cut and paste
    their charges together using the model instructions in
Watts Manual
. Nor
    can appellate courts review the adequacy of jury instructions without regard to
    the positions taken at trial and the circumstances of the particular case.

[17]

The
    key question is whether the positions of the Crown and the defence were fairly
    put to the jury. As Watt J.A. observed in
R. v. P.J.B.
, 2012 ONCA 730,
    298 O.A.C. 267, at paras. 44 and 49:

The responsibility of the trial judge to relate the evidence to
    the issues raised by the defence involves two components. The first is a
review
of the evidence. The second is a
relation
of the evidence to the
    position of the defence. Except in rare cases, where it would be unnecessary to
    do so, a trial judge must review the substantial parts of the evidence and give
    the jury the position of the defence so that the jury appreciates the value and
    effect of that evidence. Typically, trial judges review the evidence in the
    context of the various issues and indicate what parts of the evidence support
    the positions of the respective parties on those issues. Judicial
review
of the evidence refreshes the jurors memory of the evidence given. Judicial
relation
of the evidence to the issues improves jurors understanding of the particular
    aspects of the evidence that bear on their decision on each essential issue in
    the case.

Jury charges do not take place in isolation, but in the context
    of the trial as a whole. Appellate review of the adequacy of jury charges must
    acknowledge this reality, especially where the complaint is about the extent to
    which the trial judge has reviewed the evidence in final instructions.
    Appellate review on this issue includes consideration of the complexity and
    volume of the evidence adduced at trial, the extent of its review by counsel in
    their closing addresses, the length of trial proceedings, the issues to be
    resolved by the jury, the effect of a more complete and balanced review of the
    evidence, and whether counsel objected to the charge on the ground advanced on
    appeal. The test is one of fairness. Provided the evidence is left to the jury
    in a way that will permit the jurors to fully appreciate the issues raised and
    the defences advanced, the charge will be adequate. [Citations omitted.]

[18]

The
    Crowns position was that Gibson did not consent to any form of physical
    interaction. The defence position was that the appellant had no intention of
    hurting anyone, and that he thought Gibson wanted to fight, based on his
    grabbing the appellants arm. The appellants position was that he found himself
    very suddenly in a struggle with a complete stranger who was quite strong and
    would not let go of him.

[19]

The
    positions of the Crown and defence were put to the jury. However, because of
    the failure to relate the evidence to the law on consent, the jury may have
    thought that unless Gibson specifically consented to everything the appellant
    did and all that happened, consent was not a defence.

[20]

Accordingly,
    the conviction must be set aside and a new trial ordered.

C.

Ground #2: Delay Caused by appellate process

[21]

The
    appellant also submits that unreasonable delay resulted from the Crowns
    unsuccessful attempt to obtain leave to appeal the earlier decision of this
    court setting aside his first conviction.

[22]

This
    courts first decision in this matter was rendered on June 6, 2012. Leave was
    refused on December 13, 2012. The new trial commenced on October 14, 2013. The
    appellant concedes that the delay between leave being refused and the
    commencement of the new trial was within acceptable limits.

[23]

This
    question was conclusively answered by the Supreme Court of Canada in
R. v.
    Potvin
, [1993] 2 S.C.R. 880. At p. 909, Sopinka J. stated that s. 11(b)
    applies to the pre-trial period and the trial process but not to appellate
    proceedings.

[24]

I
    would accordingly reject the appellants argument that the time spent by the
    Crown seeking leave to appeal violated his rights guaranteed by s. 11(b) of the
Charter
.

D.

Disposition

[25]

For
    these reasons, the conviction is set aside and a new trial ordered.

Released: (M.T.) November
    20, 2015

G.
    Pardu J.A.

I
    agree John Laskin J.A.

I
    agree M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Menzies, 2015 ONCA 775

DATE: 20151113

DOCKET: C58533

Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lawrence Robert Menzies

Appellant

Lance Beechener and Eva Taché-Green, for the appellant

Kathleen Healey, for the respondent

Heard: August 24, 2015

On appeal from the convictions entered on March 12, 2013
    by Justice Robert G. Bigelow of the Ontario Court of Justice.

ENDORSEMENT

[1]

Mr. Menzies appeals his convictions on two counts of possession of a
    controlled substance for the purposes of trafficking and one count of
    possession of property obtained by crime. He argues that the verdicts were
    unreasonable, or in the alternative, that the trial judges reasons for conviction
    on the count of possession of property obtained by crime were insufficient.

[2]

The factual circumstances of the offences are as follows. The appellant
    was arrested during the execution of a search warrant in an apartment in which he
    was not a tenant. Moments prior to police entering the apartment, an officer
    stationed on the ground to observe the apartments balcony saw the appellant
    walk from inside the apartment onto the balcony, bend down, and then re-enter
    the apartment. The officer could not observe what the appellant did when he
    bent down. Nor could the officer see the appellants hands or observe whether the
    appellant was carrying anything when he re-entered the apartment.

[3]

There were four men and one woman in the apartment when the police
    entered. The appellant was arrested as he re-entered the apartment from the
    balcony. He was holding approximately $1,740 in Canadian currency in one hand,
    which formed the subject matter of the count of possession of property obtained
    by crime, and a closed knife in his other hand.

[4]

A search of the area of the balcony where the appellant bent down
    revealed a black burlap bag. Inside the burlap bag were two baggies that contained
    the 26 grams of ketamine and 7.9 grams of methamphetamine which formed the
    subject matter of the two counts of possession of a controlled substance for
    the purposes of trafficking. Two smaller baggies of white substances were also
    found outside of the burlap bag. The substances in the smaller baggies did not
    form the subject matter of any of the charges on which the appellant was tried.

[5]

The trial judge found that the only reasonable inference based on all of
    the evidence was that the appellant had knowledge and control of the substances
    inside the burlap bag. He noted that the case was clearly circumstantial and
    stated that the key issue was whether there was any other reasonable inference
    that he could draw from the facts. In concluding that no other reasonable
    inference was available, the trial judge relied on the following facts: (i) the
    appellant was in the same location as where the drugs were found moments before
    police entered the apartment; (ii) the appellant had an unexplained and
    substantial amount of money in his hand at approximately the same time; and
    (iii) the appellant was in a location where narcotics were being used and
    likely trafficked. On this basis, the trial judge convicted the appellant of
    both counts of possession of a controlled substance for the purposes of trafficking.

[6]

The trial judge also concluded that, although he had some concern
    regarding the proceeds of crime count as the trial was proceeding, he was
    satisfied that the proceeds had to have been the proceeds of the commission of
    an offence. The trial judges reasons for conviction on this count consist of
    only one sentence.

[7]

The appellant submits that the trial judge failed to consider reasonable
    alternative inferences available on the evidence and, therefore, the verdicts
    were unreasonable. In addition, the appellant argues that the trial judge
    failed to provide sufficient reasons with respect to the proceeds of crime
    count.

[8]

A verdict will be unreasonable where it could not reasonably have been
    rendered by a judge or a properly instructed jury:
R. v. P. (R.)
, 2012
    SCC 22, [2012] 1 S.C.R. 746, at para. 9. Given that the evidence relied upon by
    the trial judge to establish the
actus reus
of the offences is
    entirely circumstantial, the issue on appeal is whether the trier-of-fact,
    acting judicially, could be satisfied that the appellants guilt was the only
    reasonable conclusion available on the totality of the evidence:
R. v. T.
    (D.D.)
, 2009 ONCA 918, 257 O.A.C. 258, at para. 13;
R. v. Griffin
,
    2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33.

[9]

In considering the reasonableness of the convictions the following facts
    are important. First, the appellant was not the lease-holder of the apartment
    and there was no evidence that he had control over the apartment or the
    balcony. Second, there were illicit drugs located within the apartment which
    the lease-holder acknowledged were his. Third, the possession for the purpose
    of trafficking counts related only to the two baggies, containing ketamine and
    methamphetamine, which were contained in the burlap bag on the balcony, and not
    the two smaller baggies found outside of the burlap bag. Fourth, there was no
    other evidence linking the appellant to the burlap bag.

[10]

In
    our view, the inference drawn by the trial judge regarding the drugs in the
    burlap bag was not the only reasonable inference available. The evidence of the
    police officer observing the balcony was equally consistent with the appellants
    exiting the apartment to discard the two smaller baggies of white powder. It is
    not fanciful or speculative, as the Crown suggests, to infer on the totality of
    the evidence that the appellant had no possession or control over the drugs in
    the burlap bag and that his intention was to rid himself of the substances in
    the small baggies before the police entered the apartment.

[11]

We
    conclude, therefore, that the verdicts on the two counts of possession for the
    purposes of trafficking were unreasonable because the inference drawn by the trial
    judge was not the only reasonable inference available on the totality of the
    evidence.

[12]

With
    respect to the conviction for possession of the proceeds of crime under $5,000,
    while the reasons of the trial judge are obviously brief, when they are
    considered in the context of the record they do not preclude meaningful
    appellate review. We are also not satisfied that the conviction is
    unreasonable. The appellant was found in an apartment that contained large
    quantities of narcotics that were likely being trafficked. He had in his
    possession a knife along with the cash. Unlike the possession for the purposes
    of trafficking counts, there is no other reasonable explanation for his
    possession of the cash which arises from the evidence. We note the appellant
    did not testify and thus offered no alternative explanation for his possession
    of the cash. In these circumstances, we are not persuaded that the verdict was
    unreasonable.

[13]

In
    the result, the convictions for possession for the purpose of trafficking are
    set aside and acquittals on those counts are entered. The appeal is otherwise
    dismissed.

John Laskin J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Montoya, 2015 ONCA 786

DATE: 20151117

DOCKET: C56257

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Elvira Montoya

Appellant

Peter Thorning and Richard Diniz, for the appellant

Dayna Arron, for the respondent

Heard: November 16, 2015

On appeal from the conviction entered on July 10, 2012
    and the sentence imposed on November 28, 2012 by Justice Feroza Bhabha of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant, Elvira Montoya, was convicted of fraud over $5000 and two
    counts of uttering forged documents for her role in assisting a straw buyer
    to obtain a mortgage. The mortgagee bank suffered a loss of $118,873 as a
    result of the fraud. The appellant was sentenced to a 12 month conditional
    sentence and ordered to pay $25,000 in restitution. She appeals her conviction
    on one ground and her sentence on one ground.

[2]

On the conviction appeal, the appellant submits that the circumstances
    surrounding the trial judges
Charter
s. 11(b) ruling gave rise to a
    reasonable apprehension of bias.

[3]

On November 22, 2010, the day the trial commenced, the appellant brought
    an application for a stay of proceedings on the basis of unreasonable delay.
    The trial judge reserved her decision on the application. Because there was
    still a half-day of court time and the first Crown witness was there, the trial
    judge suggested that they proceed with his evidence. The Crown agreed and defence
    counsel did not object. The witness testified for the rest of the day.

[4]

The next day, the appellant discharged her trial counsel and requested
    an adjournment to retain new counsel. The trial judge granted the adjournment
    and dismissed the s. 11(b) application with reasons to follow.

[5]

It took the appellant a long time to retain new counsel. The trial
    resumed more than a year later on December 7-8, 2011. The evidence was not
    completed and additional time was scheduled. On February 13, 2013, the trial judge
    delivered comprehensive reasons for dismissing the s. 11(b) application.

[6]

The appellant contends that this chronology establishes a reasonable
    apprehension of bias in two respects.

[7]

First, the appellant submits that the trial judge should not have heard evidence
    from the main Crown witness (the afternoon of the first trial day) before
    making her s. 11(b) ruling (the start of the second trial day). The appellant
    says that this chronology exposed the trial judge to critical pieces of the
    Crown case and this may have influenced her s. 11(b) ruling.

[8]

Second, the fact that the trial judge delivered her reasons for the s.
    11(b) ruling 15 months after the application, and after hearing two more days
    of evidence, suggests again that her s. 11(b) ruling may have been tainted by
    the evidence she heard.

[9]

We do not accept these submissions. An allegation of reasonable
    apprehension of bias should not be made lightly. That is because, as McLachlin
    C.J. said in
Cojocaru v. British Columbia Womens Hospital and Health
    Centre
, 2013 SCC 30, at para. 22:

There is a presumption of judicial integrity and impartiality.
    It is a high presumption, not easily displaced. The onus is on the person
    challenging the judgment to rebut the presumption with
cogent evidence
showing that a reasonable person apprised of all the relevant circumstances
    would conclude that the judge failed to come to grips with the issues and
    decide them impartially and independently.                                                                                [Emphasis
    added.]

[10]

In
    our view, the appellants submissions on this issue do not come close to the
    cogent evidence required by
Cojocaru
.

[11]

In
    most cases, a trial judge makes her s. 11(b) ruling before any evidence is
    called. However, in light of the exceptionally busy dockets in provincial
    courts, we cannot say this practice must be an invariable one.

[12]

In
    this case, the trial judge indicated that she was inclined to hear from the
    first witness, after indicating that she would reserve her decision on the s.
    11(b) application. This witness had travelled to Australia rather than attend
    on an earlier trial date, and was the subject of a material witness warrant. He
    was present when argument was completed on the s. 11(b) application. Crown
    counsel indicated that he was content to proceed with the evidence of the first
    witness that afternoon. Defence counsel was silent. The trial judges decision
    to hear a few hours of evidence from this witness before she formally dismissed
    the s. 11(b) application the next morning does not give rise to a reasonable
    apprehension of bias. There is nothing in the ruling on that application to
    suggest that it was affected by the evidence heard before the application was
    dismissed.

[13]

Nor
    does the fact that the s. 11(b) ruling was delivered 15 months later once the
    trial had resumed raise a bias concern. During a trial, rulings with reasons to
    follow is a common and necessary practice. The reasons on the s. 11(b)
    application in this case are very comprehensive and address carefully and in
    detail the submissions that the parties, especially the appellant, made at the
    application hearing. There is not even a hint that the ruling was coloured by
    the evidence heard between the day she announced her ruling (the second trial
    day) and the day she delivered her reasons.

[14]

On
    the sentence appeal, the appellant challenges only the restitution portion of
    the sentence; she says that the trial judge did not consider her ability to
    pay, contrary to decisions of this court, including
R. v. Biegus
(1999), 141 C.C.C. (3d) 245 and
R. v. Castro
, 2010 ONCA 718.

[15]

We
    do not accept this submission. There is no doubt that the trial judge was alive
    to the issue of the appellants ability to pay a restitution order. During the
    sentence hearing, the trial judge explored this issue through several questions
    directed at defence counsel. Moreover, in her reasons for sentence, the trial
    judge recorded:

She reports that she currently has no source of income, other
    than casual remuneration for working for Mr. Gonsalves, the father of her son,
    and Mr. Disotti, her current common-law spouse. She reports that she has no
    savings.

[16]

The
    conviction and sentence appeals are dismissed.

J.C. MacPherson J.A.

M. Tulloch J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2015 ONCA 753

DATE: 20151106

DOCKET: C56480

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ha Thi Nguyen

Appellant

Kim Schofield, for the appellant

Peter M. Campbell, for the respondent

Heard:  October 6, 2015

On appeal from the conviction entered by Justice Roberts
    of the Superior Court of Justice, dated June 22, 2012.

By the Court:

[1]

Based on information provided by a confidential informant, augmented by police
    surveillance, police arrested the appellant and charged her with various
    drug-related offences under the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. A search of her Dodge Caravan, incident to arrest, revealed 11.48
    kilograms of marijuana in yard waste bags and another plastic bag. Relying in
    part on information obtained as a result of the arrest, the police then
    obtained a warrant to search the three residences the appellant visited while
    under surveillance. They found 13.551 kilograms of marijuana and 732.97 grams of
    ketamine cut with lidocaine at the appellants house on Autumn Hill Boulevard
    in Maple (the Autumn Hill residence).

[2]

At trial, the appellant unsuccessfully asserted that her arrest and the
    subsequent searches violated her s. 8 and 9
Charter
rights and the
    drugs should accordingly be excluded. She was convicted of three counts of
    possession for the purpose of trafficking and sentenced to a term of
    imprisonment of two years less three days, followed by three years of
    probation.

[3]

The appellant appeals her conviction. She argues that (1) the trial
    judge erred in concluding that there were objectively reasonable and probable
    grounds for her arrest and, (2) even if there were objectively reasonable and
    probable grounds for her arrest, there was no basis to support the inference
    that drugs were being stored at the Autumn Hill residence and therefore no
    basis for the issuance of the warrant to search the house. The appellant also
    applies for leave to adduce fresh evidence and appeal her sentence.

[4]

For the reasons that follow, we dismiss the appeal against conviction,
    we decline to receive the fresh evidence, and we grant leave to appeal sentence
    but dismiss the appeal.

The Arrest

[5]

An arresting officer must subjectively have reasonable and probable grounds
    to make an arrest and those grounds must be objectively justifiable:
R. v.
    Storrey
, [1990] 1 S.C.R. 241, at pp. 250-251.

[6]

Here, the validity of the appellants arrest depended upon information
    conveyed to the police by a confidential informant. The appellant does not suggest
    that the arresting officer did not have an honest, subjective belief that the
    appellant was in possession of drugs. However, she argues that the trial judge
    erred in her assessment of whether the officers grounds for arrest were
    objectively justifiable. Specifically, she asserts that the trial judge failed
    to properly evaluate the factors set out in
R. v. Debot
, [1989] 2
    S.C.R. 1140, namely whether the source was credible, whether the tip was compelling,
    and whether the information was corroborated by police investigation. In
    particular, she says the source was not credible and the tip was not
    compelling. She asserts that, in the totality of the circumstances, the
    officers belief was not objectively reasonable.

[7]

We disagree. The information provided by the informant, coupled with subsequent
    police surveillance, provided objectively reasonable and probable grounds for
    the appellants arrest.

[8]

We address the appellants assertions in turn.

(a) Credible source

[9]

The appellant argues that the trial judge wrongly characterized the
    informant as a reliable and accurate source of information for the following
    reasons: (a) while on two previous occasions the informant had provided
    information leading to drug-related arrests, there was no evidence that those
    arrests resulted in convictions; (b) there is no evidence that the informant
    was told that the consideration promised was contingent upon the information
    leading to fruitful results and that criminal consequences could result if he
    or she provided false information; and (c) the information was provided by
    telephone, which should have heightened the trial judges concerns about its
    reliability.

[10]

We
    reject these submissions.

[11]

The
    informant was not an anonymous tipster or an untested source. The informant was
    known to and carded by police and had no criminal record. As the appellant
    acknowledges, on two previous occasions the informant had provided information
    resulting in drug-related arrests.

[12]

Whether
    or not convictions had yet ensued as a result of those drug-related arrests
    does not detract from the reliability of the informant. Considerable time often
    elapses between an arrest and trial and, in any event, an arrest and seizure of
    drugs may not result in a conviction for any number of reasons unrelated to the
    reliability of the informant.

[13]

The
    appellant relies on
R. v. Ali
, 2014 ONSC 1615 to argue that the lack
    of evidence that the informant was told that his or her compensation was results-based
    and there could be consequences for the provision of false information is
    significant. The circumstances in
Ali

are distinguishable from
    the current case and, in any event,
Ali
does not stand for the
    proposition asserted by the appellant.

[14]

In
Ali
, the Crown conceded that the evidence supporting the informants credibility
    was weak. The informant had no track record and was induced by the promise of a
    monetary reward and consideration on outstanding charges.
The
    Crown acknowledged that the fact the informant was induced could have an effect
    on his credibility
, but asserted that such effects would be minimized by
    the fact that the informant was advised that he or she would receive consideration
    only if the information led to fruitful results and that criminal consequences
    could result if the information were false. The trial judge did not
    specifically adopt this assertion. She simply concluded that the weakness in
    the informants credibility was compensated for by the strength of the other
Debot

factors. In the current case, there are factors supporting the informants credibility
    that were not present in
Ali

 namely that the informant was
    known to and carded by the police and previously provided information leading
    to drug-related arrests.

[15]

Nor
    are we persuaded that, because the police spoke to the informant by telephone
    and were therefore unable to observe the informants demeanour as he or she spoke,
    the credibility of the tip is diminished. As we have said, the informant was a
    known and tested source.

(b) Compelling

[16]

The
    appellant argues that the trial judge failed to consider whether the
    information provided by the informant was compelling and, further, that it was
    not. She says the description of the target was not sufficiently detailed and
    it was unclear whether the informants information was recent.

[17]

We
    do not agree.

[18]

While
    the trial judge did not use the word compelling, she described the information
    provided:

[The target] referenced by a nickname, was a female Asian, who
    had told the confidential informant that she had an amount of marijuana for
    sale and then the female Asian drove her silver Dodge Caravan with the licence
    plate BBTT 163 to  [a home on] Epson Downs [Road], in Toronto, where she keyed
    her way into the front door, went into the house and returned promptly with
    marijuana, green in colour. The female Asian told the confidential informant
    that she had lots more marijuana if the confidential informant was interested.
    The confidential informant left [the home on] Epson Downs Road [the Epson
    Downs residence].

[19]

In
    the context of her reasons, it is clear that the trial judge found this
    information compelling. And, in our view, it was. The information was derived
    from the informants direct interaction with the appellant. It was far from
    bald conclusory statements or mere rumour or gossip:
Debot
, at para.
    62. The combination of the vehicle description, complete with licence plate,
    the specific address where the target sold the informant marijuana and the physical
    description of the target was highly compelling.

[20]

While
    the date the police received the tip and the date the informant met with the
    target were redacted from the Information to Obtain Search Warrant (ITO), the
    compelling nature of the information that was disclosed, coupled with the
    subsequent police surveillance, addressed any concerns arising from the absence
    of this information.

(c) Corroboration

[21]

The
    appellant challenges the sufficiency of the police surveillance in connection
    with the subsequent issuance of a warrant to search the Autumn Hill residence,
    and not her arrest. We agree with the trial judge that the informants tip was
    materially corroborated by subsequent police surveillance before the
    appellants arrest. That surveillance  triggered by the compelling particulars
    provided by the informant  also dispels any concerns about the currency of the
    tip. We recount the surveillance in some detail here to demonstrate this, and
    to provide context for the analysis of the appellants argument below that
    there was no basis for the subsequent issuance of the warrant to search the
    Autumn Hill residence.

[22]

On
    October 2, 2008, the police conducted surveillance on a person they described
    as female, Vietnamese, 5 feet 5 inches, of a slim build, wearing a black
    jacket, and whom they saw leave the Epson Downs residence and get into a silver
    Dodge Caravan with the licence plate BBTT 163.

[23]

The
    police followed her to a home on Clair Road in Toronto (the Clair Road residence),
    where they saw her exit her van, enter the residence carrying a yellow shopping
    bag, and momentarily exit, empty-handed.

[24]

The
    police then followed her to the Autumn Hill residence. They observed her drive
    into the driveway and touch something on the visor of her car and saw the
    garage door open automatically. They watched her get out of the Dodge Caravan,
    retrieve a recycling bin, which she placed in the garage, open the back hatch
    of the Dodge Caravan, retrieve a black gym bag and take it into the garage.
    They saw her exit the Autumn Hill residence shortly thereafter, get back into
    the Dodge Caravan and drive off.

[25]

The
    officers then saw her drive back to the Clair Road residence, park in the
    driveway and wait on the porch of the house while speaking on a cell phone. A
    short time later, they observed a Honda Accord pull into the driveway and an unknown
    Asian female exit the car and meet with the appellant. Shortly thereafter, they
    saw a small Suzuki car pull into the driveway and a second unknown female exit
    that car, open its rear hatch, and remove two large yard waste paper bags that
    seemed full. The appellant then placed these bags in the rear of the Dodge
    Caravan. The appellant then drove off.

[26]

With
    this information, the police stopped the van. The arresting officer smelled a
    strong odour of marijuana. He arrested the appellant.

The Search of the House

[27]

After
    arresting the appellant and finding 11.48 kilograms of marijuana in yard waste
    bags and another plastic bag in her Dodge Caravan, the police conducted a CPIC
    check. The check revealed that the appellants criminal record included a
    conviction on April 28, 2008  just six months before  for possession of 6.882
    kilograms of marijuana. The affiant then completed the ITO with respect to the
    three residences the appellant had visited while under surveillance. He relied
    on the information obtained from the informant, the surveillance, the arrest
    and the CPIC search to support his belief that, by entering these residences,
    he would locate quantities of marijuana. The justice of the peace issued the
    warrant.

[28]

In
    assessing whether a search warrant was validly issued, a reviewing judge does
    not substitute her view for that of the authorizing justice. The reviewing
    judge instead determines whether the justice of the peace issuing the search
    warrant could have granted the authorization, based on the reliable information
    contained in the record, as amplified on review. She does not set aside the
    authorization unless she is satisfied on the whole of the material presented
    that there was no basis for it: see
R. v. Araujo
, 2000 SCC 65, [2000]
    2 S.C.R. 992, at para. 51;
R. v. Garofoli
, [1990] 2 S.C.R. 1421, at pp.
    1452 and 1454;
R. v. Grant
, [1993] 3 S.C.R. 223, at p. 251.

[29]

The
    trial judge noted that the affiant should not have described the appellant as
    having quickly removed the black gym bag from the Dodge Caravan when she
    arrived at the Autumn Hill residence. That information had not been relayed to
    him over the radio. However, given the other substantial, corroborated
    information contained in the ITO, it was not reasonable to infer that it could
    have had any serious influence on the justice who issued the search warrant.

[30]

The
    trial judge concluded that, based on the confidential information and the
    surveillance, it was credibly probable that [the appellant] was storing
    marijuana in one or more of the three places where she was seen to have a
    connection, in particular, in one or both of the addresses, Epson Downs and
    Autumn Hill, where she was known to and seen to have direct access.

[31]

The
    appellant argues that this conclusion was not enough to support the issuance of
    a warrant to search the Autumn Hill residence. She says that the ITO needed to
    support the affiants belief that drugs would be found at that residence. She
    says that, while there was a nexus between the drugs and the Clair Road and
    Epson Downs residences, there was no nexus between the drugs and the Autumn
    Hill residence. She further submits that the evidence that drugs were stored at
    the Epson Downs residence made an inference that drugs were stored at the
    Autumn Hill residence unavailable. The appellant says that the police needed to
    have done more surveillance before arresting her in order to obtain a warrant
    to search the Autumn Hill residence.

[32]

We
    reject this argument.

[33]

The
    appellant was engaged in transactions involving large quantities of marijuana.
    She was observed leaving a yellow shopping bag at the Clair Road residence. She
    was later observed at the same residence picking up two large yard waste bags
    of what was confirmed to be marijuana. Another plastic bag containing marijuana
    was also found in the Dodge Caravan when she was arrested. In between her trips
    to the Clair Road residence, she was observed removing a black gym bag from the
    Dodge Caravan and taking it into the Autumn Hill residence, which appeared (and
    proved) to be her home.

[34]

It
    was a reasonable inference that drugs would be found at the Autumn Hill residence.
    That inference arises from the deposit of the gym bag at the Autumn Hill residence
    (whether or not it was done quickly); the large quantities of marijuana
    involved, which necessitated the storage of the drugs; and the evidence that
    the appellant had access to that residence. The information from the informant
    that there had been drugs at the Epson Downs residence does not make the
    inference that there were drugs at the Autumn Hill residence unreasonable.
    Drugs can be stored at more than one location.

Fresh Evidence and Sentence Appeal

[35]

The
    appellant does not argue that her sentence was unfit when imposed. Counsel for
    the appellant advises that the appellant has been on bail pending appeal for
    two and one half years, without incident. The appellant submits that this
    speaks directly to the trial judges finding that she had a strong risk of
    re-offending. She says that her conduct while on bail, together with the
    proposed fresh evidence that she has been employed at a friends salon and
    cared for her now eighteen-year-old autistic son during this time, renders the
    sentence imposed by the trial judge unfit. Counsel for the appellant urges that
    this court substitute a conditional sentence that would permit the appellant to
    continue to work and care for her son.

[36]

We
    do not see fit to receive the proposed fresh evidence. In imposing the sentence
    that she did, the trial judge specifically considered both that the appellant
    would soon be employed full-time in her friends salon and that the appellants
    autistic son was a significant responsibility  the very matters addressed by
    the proposed fresh evidence.

[37]

The
    sentence imposed by the trial judge, as counsel for the appellant concedes, was
    fit. The fact that the appellant has complied with the terms of her bail
    pending appeal is not a basis to interfere.

Disposition

[38]

We
    dismiss the appeal against conviction, we decline to receive the fresh
    evidence, and we grant leave to appeal sentence but dismiss the appeal.

Released:  AH NOV 06 2015

Alexandra Hoy
    A.C.J.O.

K.M.
    Weiler J.A.

G.
    Pardu J.A.