COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hafizi, 2016 ONCA 933

DATE: 20161214

DOCKET: C59173

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Temorshah Hafizi

Respondent

Iona Jaffe, for the appellant

Howard Krongold, for the respondent

Heard: September 14, 2016

On appeal from the acquittal entered on July 9, 2014 by
    Justice Robert N. Beaudoin of the Superior Court of Justice, sitting without a jury,
    with reasons reported at 2014 ONSC 3547.

Brown J.A.:

I.        OVERVIEW

[1]

The Crown appeals the
    acquittal of the respondent, Temorshah Hafizi, on charges of trafficking
    heroin, possession of heroin for the purposes of trafficking, possession of the
    proceeds of crime, threatening death or bodily harm, and breach of
    recognizance.

[2]

The respondent was named in
    a wiretap order granted under s. 186 of the
Criminal Code
as part of a
    police investigation into a murder in which his son was the prime suspect. The
    order authorized the interception of the respondents private communications
    made from his residence, place of business, and over his cell phone. Based on communications
    intercepted from the respondents cell phone, the police stopped a vehicle in
    which he was a passenger. They found heroin and a significant quantity of cash.

[3]

The trial judge held the
    respondents rights under s. 8 of the
Canadian Charter of Rights and
    Freedoms
had been violated because there were no reasonable and probable
    grounds to believe the interception of the respondents cell phone
    communications might assist in the investigation of the murder. The trial judge
    held the wiretap authorization, as it related to the respondent, was obtained
    on the basis of insufficient and deliberately misleading information. He
    excluded the heroin and cash pursuant to s. 24(2) of the
Charter
.

[4]

The main issue on appeal is
    whether the trial judge erred in finding the respondents s. 8
Charter
rights were violated. I conclude that he did. In his review, the trial judge
    failed to conduct a contextual analysis of the evidence in the Information to
    Obtain (ITO) and, instead, took a piecemeal approach to individual items of
    evidence shorn of their context. As well, the trial judge substituted his view
    of the evidence for that of the issuing justice.

[5]

I would allow the appeal, set
    aside the acquittals, and order a new trial, without prejudice to the right of
    the respondent to renew his constitutional challenge to ss. 185 and 186 of the
Criminal
    Code
at that time.

II.       EVENTS

[6]

In the early morning hours
    of January 22, 2012, Navid Niran was stabbed to death outside a nightclub in
    Ottawas Byward Market district. The respondents son, Ahmed Hafizi, became the
    prime suspect in the ensuing murder investigation. At the time, Ahmed lived
    with his father and worked at his pizza store, Papa Tonys Pizza.

[7]

On February 6, in the course
    of the murder investigation, Detective Constable Chris Benson of the Ottawa
    Police Service swore a lengthy affidavit in support of an application for a
    wiretap authorization under Part VI of the
Criminal Code
. The proposed
    order named four people as Principal Known Persons: Ahmed Hafizi, two of his
    friends  Imran Hakim and Masstfa Jasem  and the respondent.

[8]

The affidavit set out
    grounds to believe Ahmed Hafizi inflicted the fatal wound on the deceased and
    that his friends, Hakim and Jasem, assisted him during and after the
    altercation. The affidavit stated the respondent was believed to have knowledge
    of his sons involvement in the murder and to have blocked police access to his
    son during the initial investigation.

[9]

On February 7, the issuing
    judge granted the wiretap authorization.

[10]

As
    a result of a combination of intercepted communications and tracking device
    data, in late March 2012 the police formed the belief the respondent had
    travelled to the Toronto area for the purpose of obtaining drugs. Upon his
    return to Ottawa, police stopped the car in which the respondent was a
    passenger. The police arrested the driver and the respondent on charges of possession
    of a controlled substance for the purpose of trafficking.

[11]

When
    the police searched the respondent incident to arrest, they found a significant
    quantity of cash and located heroin in two plastic baggies in a cardboard cell phone
    box in the trunk of the car.

[12]

The
    respondent was committed to stand trial following a preliminary hearing.

[13]

The
    respondent applied for an order granting leave to cross-examine the wiretap
    affiant, a declaration his s. 8
Charter
rights had been infringed, and
    an order excluding the heroin and cash.

[14]

At
    the start of the
Garofoli
hearing before the trial judge, the
    respondent abandoned his application to cross-examine the wiretap affiant. As a
    result, the trial judge did not hear any
viva voce
evidence on the
    application.

[15]

The
    record before the trial judge consisted of: DC Bensons affidavit; the wiretap
    authorization; transcripts of the evidence given by nine police officers at the
    preliminary hearing and discovery; the notebook entries of two police officers;
    four surveillance reports; and the respondents criminal record.

[16]

Following
    a four-day hearing, the trial judge granted the application and ordered the
    exclusion of the seized heroin and cash. The respondent pled guilty to one
    count of uttering a threat and one count of breaching his recognizance. As a
    result of the trial judges
Garofoli
ruling, the Crown called no
    evidence in proof of the drug charges, and the respondent was acquitted.

III.      ISSUES

[17]

The appellant
advances two main grounds
    of appeal
:

(i)

In
    his s. 8
Charter
analysis, the trial judge erred by failing
to conduct a contextual assessment of the grounds in support of the
    wiretap authorization against the respondent and by substituting

his own view about the sufficiency of the
    grounds for that of the issuing justice;
and

(ii)

In his s. 24(2) analysis,
the trial judge erred by imputing
improper intentions to the affiant
of the ITO
in the absence of any
viva voce

evidence
from the officer
.

[18]

The respondent submits

the trial judge applied the correct legal principles and his view of
    the sufficiency of the information in support of the authorization, as
    corrected on review, is entitled to deference. As well, the trial judges
    findings on his s. 24(2) analysis are entitled to considerable deference.

[19]

The respondent raises an additional issue. He
    seeks to renew his constitutional challenge to Part VI of the
Criminal
    Code, which the trial judge did not address in light of his decision to exclude
    the evidence against the respondent.

The respondent
    contends Part VI is unconstitutional to the extent it permits communications to
    be targeted where no reasonable grounds exist to believe the interception
will
afford evidence of an offence.

IV.     FIRST ISSUE: DID THE TRIAL JUDGE ERR IN HIS S. 8
CHARTER
ANALYSIS?

A.      DC Bensons Affidavit

[20]

In
    his affidavit, DC Benson listed the two offences in respect of which an
    authorization to intercept was sought: (i) murder and (ii) any conspiracy to
    commit or attempt or being an accessory after the fact to the commission of, or
    any counseling in relation to, murder.

[21]

DC
    Benson relied on police surveillance evidence to form his belief that
    interception of the respondents private communications might afford
    information and evidence of the offences.

[22]

The
    murder took place early in the morning of January 22, 2012.  DC Benson deposed
    that on the afternoon of January 23, police established surveillance at the
    respondents business, Papa Tonys Pizza. Police observed a car registered to
    the respondent in the parking lot, and saw the respondent working in the store.
    Then, at 9:15 p.m., a car parked in front of the store. The car was registered
    to Jasems sister at the address where Jasem lived. According to DC Benson, the
    surveillance officers reported that two males in mid-20s enter the pizza
    shop, and at 9:33 p.m. both males exit the pizza shop and leave in the car.
    The respondent left the store about half an hour later. In the summary section
    of his affidavit, DC Benson deposed the males were believed to be Hakim and
    Jasem.

[23]

On
    January 25, police officers observed the respondent leaving Papa Tonys Pizza
    at 6:15 p.m. and driving in a manner in which he is aware of or trying to
    detect surveillance. While driving on Highway 417 westbound, at the last second
    [he] cut across four (4) lanes to exit at Catherine Street, at which time the
    officers terminated the surveillance.

[24]

The
    next day, January 26, police officers saw the respondent drive away from his
    residence in the morning. He began to conduct obvious surveillance detection
    techniques, which include U-turns, and aggressive driving. The surveillance
    was terminated.

[25]

Later
    that afternoon, the police again set up surveillance at Papa Tonys Pizza. At
    6:45 p.m., they saw Ahmed Hafizi park in the stores rear lot. At 7:22 p.m.,
    two officers went into the store to locate Ahmed. According to DC Benson,
    Temorshah Hafizi identified himself as Ahmed Hafizis father and stated Ahmed
    Hafizi was at home and provided [a number] as a contact number to speak with Ahmed
    Hafizi. The affidavit went on to state that at 7:43 p.m. one of the officers
    left a voice mail message for Ahmed at that number.

[26]

DC
    Benson deposed that at 9:08 p.m., officers observed Ahmed exit the store, get
    into a car driven by another, drive a short way up the street, and then return
    to the pizza shop. Finally, at 9:56 p.m., the officers saw Ahmed leave the
    pizza store and drive to the residence he shared with his father. In the
    summary section of his affidavit, DC Benson stated the respondent was clearly
    preventing police from speaking to his son.

[27]

Commenting
    on the surveillance evidence, DC Benson stated the respondent now has
    knowledge of the actions of his son Ahmed Hafizi on January 22, 2012. As
    evidence of this, he cited driving behavior and obvious signs of use of
    surveillance detection techniques.

[28]

DC
    Benson also included in his affidavit information from informants. One
    informant provided third hand information that the respondent was heard
    saying it was better the victim was killed rather than his son. DC Benson
    cautioned the issuing justice to take a skeptical view of the informants
    information because, to my knowledge, it is second hand information and not
    direct knowledge. He deposed the informants information did not advance
    investigators in this case and can only be treated as intelligence The
    officer did not include the informants information in his summary of grounds
    for belief in respect of the respondent.

[29]

However,
    DC Benson did offer the following as corroboration of one informants third
    hand information about the respondent:

When police attended Papa Tonys Pizza to locate Ahmed Hafizi
    in order to offer him an opportunity to be interviewed, Temorshah Hafizi
    informed police his son was not at the store. However surveillance confirmed
    Ahmed Hafizi was at the store at that time. Clearly Temorshah Hafizi has
    knowledge and is obstructing the police investigation.

B.      The trial judges ruling

[30]

The
    trial judge acknowledged he was not to substitute his opinion for that of the
    issuing judge. He agreed that perhaps it was open to the issuing judge to
    draw the inferences the Crown sought. However, he stated the analysis changes
    completely when the full record is amplified and corrections are made. Yet he
    also concluded that on its face the affidavit in support did not set out
    reasonable and probable grounds to name the respondent as a person whose
    communications may assist in the investigation of the identified offences. The
    trial judge stated: This is not a case of weighing the evidence; the issue
    here is one of sufficiency.

[31]

The
    trial judge then proceeded to consider the three main events concerning the
    respondent: (i) the attendance of two males at the pizza store on January 23;
    (ii) the police attendance at the store on January 26 to interview Ahmed, and
    their ensuing conversation with the respondent; and (iii) the respondents
    driving.

[32]

As
    for the visit of the two males, the trial judge held that while it could
    reasonably be inferred that one of the men was Jasem  there is no basis to
    conclude that the other was Hakim. He went on to state that even if one could
    conclude that Jasem and Hakim entered the shop, there was no reasonable basis
    to infer that the [respondent] met with them much less that he was involved in
    covering up a murder.

[33]

With
    respect to the officers evidence that on January 26 the respondent lied when
    he told police at the pizza store that his son was at home, the trial judge
    held such evidence was greatly undermined when the surveillance evidence
    reveals that Ahmed had indeed left the pizza shop shortly before the police
    officers interviewed his father. As well, the inference that the respondent
    was preventing the police from speaking to his son was completely undermined
    when another officers notes disclosed the son replied later that evening to
    the voice mail message left by the police. The son ultimately contacted the
    police and referred them to his lawyer.

[34]

As
    to the driving, the trial judge held that when the affidavit was sworn, the
    police knew the respondent was out on bail for drug-related offences and his
    recognizance included a condition that he not possess a cell phone. That
    information was not included in the affidavit. The trial judge stated: The
    disclosure of that information completely negates the inference that the
    [respondents] surveillance awareness was due to his knowledge of his sons
    involvement in a murder.

[35]

The
    trial judge also held the informants information was third hand hearsay and
    it is neither compelling, credible nor reliable. The trial judge characterized
    that evidence as one of the four critical elements in DC Bensons affidavit.
    It is difficult to understand why the trial judge so characterized the evidence
    because DC Benson heavily discounted that evidence, cautioned the issuing
    justice to take a skeptical view of it, and did not include it in his summary
    of grounds for belief.

[36]

The
    trial judge also commented that DC Benson did not confine himself to a simple
    recital of the facts, but put glosses on his conclusions.

[37]

In
    the end, the trial judge concluded he was left with the following facts: the
    [respondent] is Ahmed Hafizis father. They live together and, at the time of
    the murder of Navid Niran, they worked together in the family pizza business.
    There is no evidence to link the [respondent] to the murder of Navid
    NiranHere, all we have is the simple fact of a father and son relationship and
    nothing else. As a result, the trial judge concluded [t]here were no
    reasonable and probable grounds to believe that the interception of the
    [respondents] personal cellphone
might
assist in the investigation of
    the murder or an ancillary offence. (Emphasis in original).

C.      The arguments on appeal

[38]

The
    appellant submits the trial judge confused the standard for wiretap
    authorization with the standard for naming an individual as a known person in
    the authorization. The former requires meeting the twin criteria of the best
    interests of the administration of justice and investigative necessity. The
    latter involves a lower threshold  it does not require a demonstration of
    probable cause in respect of each known person, but the showing of reasonable
    grounds to believe the interception of a persons private communications may
    assist in the investigation of an offence.

[39]

The
    appellant argues the trial judge made two errors in his s. 8
Charter
analysis.
    First, he approached his sufficiency analysis in a piecemeal fashion, assigning
    value to each event without regard to its context. Instead, the trial judge
    should have considered each event in light of the other events and determined
    whether, cumulatively, the grounds provided a basis upon which the issuing justice
    could grant the authorization in respect of the respondent.

[40]

Second,
    the trial judge substituted his view of the evidence for that of the issuing justice,
    instead of ascertaining whether sufficient grounds existed upon which the
    issuing justice could have granted the authorization.

[41]

The
    respondent submits the trial judge applied the correct test to his review of
    the evidence. As well, the trial judges view of the sufficiency of the
    information, as corrected on review, is entitled to deference.

D.      Standard of Review

[42]

On
    an appeal from an order made at a
Garofoli
hearing, this court owes
    deference to the findings of fact made by the reviewing judge in his or her
    assessment of the record, as amplified on review, as well as to his or her
    disposition of the
s. 8

Charter
challenge.
     Absent an error of law, a misapprehension of material evidence or a
    failure to consider relevant evidence, we should decline to interfere:
R.
    v. Beauchamp
, 2015 ONCA 260, 333 O.A.C. 87, at para. 89.

[43]

That
    said, the reviewing judge must also be mindful of his or her narrow role in
    reviewing an authorization. The reviewing judge plays a constitutionally vital
    role in guarding against potentially unjustified invasions of privacy
    authorized in
ex parte
proceedings. But warrants and authorizations are
    presumptively valid, and the reviewing judge must not conduct a
de novo
hearing of the
ex parte
application:
R. v. Sadikov
, 2014 ONCA
    72, 314 O.A.C. 357, at paras. 83  84.

[44]

The test a reviewing judge is to apply is whether, in
    light of the record amplified on review, the ITO contained sufficient reliable
    evidence that might reasonably be believed on the basis of which the
    authorizing justice
could
have concluded that the conditions
    precedent required to be established had been met:
R. v. Nero
,
    2016 ONCA 160, 345 O.A.C. 282, at para. 70. If on the amplified record the reviewing
    judge concludes that the authorizing judge could have granted the
    authorization, then he or she should not interfere:
R. v. Garofoli,
[1990]
    2 S.C.R. 1421, at p. 1452. In this process,
the
    existence of fraud, non-disclosure, misleading evidence and new evidence are
    all relevant, but, rather than being a prerequisite to review, their sole
    impact is to determine whether there continues to be any basis for the decision
    of the authorizing judge:
Garofoli,
at p. 1452;
R. v. Hall
, 2016
    ONCA 13, 128 O.R. (3d) 641, at paras. 47  48.

[45]

Failure
    to remain within the bounds of a reviewing judges proper role may justify
    appellate intervention.

E.      Analysis

[46]

As
    the starting point for considering the trial judges analysis, one must recall
    that the threshold for naming a person in an affidavit and authorization as a
    known person, within the meaning of s. 185(1)(e) of the
Criminal Code
,
    is not onerous.  As stated by this court in
Beauchamp
, at para. 105:

Reasonable grounds to believe that a person is involved in an
    offence under investigation are not required.  Nor is it essential that there
    are reasonable grounds to believe that the interception of a persons private
    communications will afford evidence of a listed offence.  Investigators must
    know a persons identity and have reasonable grounds to believe that the
    interception of that persons private communications may assist in the
    investigation of an offence to trigger the identification or known person
    requirement.

[47]

On
    the
Garofoli
application, the respondent did not dispute that
    reasonable grounds existed to obtain a Part VI authorization in respect of his
    son, Ahmed Hafizi, and his two friends, Jasem and Hakim: para. 16. As well, the
    respondent conceded it was reasonable to target his residential and business
    telephone lines because his son lived and worked with him: para. 64. The
    respondent confined his challenge to the inclusion of his cell phone
    communications in the authorization to intercept.

[48]

Despite
    stating the proper standard of review at the outset of his analysis, the trial
    judges reasons disclose he made two closely-connected errors of law in concluding
    insufficient grounds existed to include the respondents cell phone
    communications in the authorization:

(i) He took a piecemeal
    approach to individual items of evidence shorn of their context, instead of
    conducting a contextual analysis of the affidavit material as a whole:
Beauchamp,
at paras. 85-87;
Nero
, at para. 68;
R. v. Spackman
, 2012
    ONCA 905, 300 O.A.C. 14, at para. 223; and

(ii)
    Instead of assessing
whether the ITO, as amplified, contained reliable
    evidence that might reasonably be believed on the basis of which the order

could

have
    issued, the
reviewing judge substituted his view of
    some of the evidence for that of the issuing justice:
Beauchamp
, at
    paras. 85-87;
Nero
, at para. 70.

[49]

There was a larger context that should have informed the trial
    judges assessment of the evidence. By the time the police sought the s. 186 authorization
    in early February, 2012, their investigation had led them to believe the
    respondents son, Ahmed, was the prime suspect in the murder of Navid Niran.
    The police also believed the sons friends, Hakim and Jasem, had been present
    at and assisted the respondents son during the murder.
The police had formed those beliefs based on several sources of information:
    interviews of those present inside and outside the nightclub at the time of the
    murder; video surveillance footage from the nightclub and the surrounding
    neighbourhood; and police surveillance of Ahmed and his two friends. They also
    learned that Ahmed lived with his father and worked at his fathers pizza shop.

[50]

The trial judges rejection of three pieces of evidence contained
    in the ITO resulted from neglecting that larger context.

[51]

The pizza store visit by two males
: First, the trial judge
rejected as supporting evidence
    the police surveillance observations of the visit by two young males to the respondents
    pizza store the day after the murder. It is very difficult to reconcile that rejection
    with the trial judges earlier acknowledgement that one could infer from the
    record that Ahmeds friend, Jasem, was one of the males who visited the pizza
    store  they had arrived driving a car owned by Jasems sister, and Jasem lived
    at the same address as his sister.

[52]

The trial judge went on to conclude there was no reasonable basis
    to infer the respondent met with the males. However, the surveillance evidence described
    by DC Benson recorded: the respondent was in the store at the time; his son was
    not; the males spent over 15 minutes in the store; they left; and shortly thereafter
    the respondent left.

[53]

In his affidavit DC Benson stated both males appeared to have
    entered Papa Tonys Pizza and met with [the respondent] for a brief period of
    time. Although the amplified record disclosed the respondents brother also
    was in the pizza store at the time, what remained in the record continued to
    provide a basis for an inference that the males, one of whom was Ahmeds friend
    Jasem, met with the respondent the day after the murder in the absence of Ahmed.

[54]

The
    respondents driving
: Turning to the evidence of the respondents driving,
    the trial judge noted the amplified record disclosed the respondent was well-known
    to the police for drug-related matters and, at the time of surveillance, was
    out on bail for drug-related offences. That information led the trial judge to
    conclude no inference could be made that the respondents evasive driving was
    due to knowledge of his sons involvement in a murder.

[55]

Yet,
    the police observed two instances of evasive driving by the respondent  the
    first during the early evening of January 25, and the second the following
    morning, on January 26. Both instances had been preceded by the visit of two
    young males to the pizza store the day after the murder in a car registered to
    Jasems sister.

[56]

Placed
    in that larger context, the evidence of the respondents driving, even as
    amplified by the information that he was out on bail on drug-related charges, was
    available to support more than one inference, including the inference advanced
    by DC Benson that the respondent now has knowledge of the actions of his
    sonon January 22, 2012. It is not the reviewing judges role to prefer one
    inference over the other:
Sadikov
, at para. 88. The task of the reviewing
    judge is to assess whether the ITO contained reliable evidence that might
    reasonably be believed on the basis of which the authorization could have
    issued:
Sadikov
, at para. 88. Although a potentially innocent
    explanation cannot be disregarded and may, in a proper case, make an
    inculpatory inference reasonably unavailable, a reviewing judge should not examine
    individual items of evidence out of context in a search for alternative
    exculpatory inferences:
R. v. Liew
, 2015 ONCA 734, 341 O.A.C. 192, at
    para. 46;
Nero
, at paras. 68 and 70.

[57]

The police visit to the pizza store
: The final piece of
    evidence the trial judge rejected concerned the police visit to the respondents
    pizza store on the evening of January 26, 2012. As some officers went into the
    shop, others had the store under surveillance. DC Benson deposed the police
    talked with the respondent who stated his son was at home and provided the
    police with a contact telephone number. DC Benson noted: Surveillance was
    being conducted prior to police arrival and surveillance report confirms Ahmed
    Hafizi was inside Papa Tonys Pizza at the time of [the detectives] visit. In
    the summary portion of the ITO, DC Benson deposed: [The respondent] responded
    by indicating Ahmed Hafizi was at home. Temorshah Hafizi was clearly preventing
    police from speaking to his son.

[58]

The
    trial judge held the amplified record greatly undermined that assertion
    because Ahmed was not working inside his fathers store at the time the police
    spoke with the respondent. Although the trial judge recognized the respondents
    statement that Ahmed was at home is also questionable, he inferred the son
    may have returned to the store without his fathers knowledge.

[59]

The
    amplified record before the trial judge disclosed that as the interviewing
    officers were entering the pizza shop, the surveillance officers saw Ahmed
    leave the shop, go over to a car, and then re-enter the pizza store, where he
    remained until after the interviewing officers had left. Immediately upon
    entering the pizza store, the interviewing officers spoke to the respondent,
    who told them his son had gone home because it was a school night. The
    respondent made that statement notwithstanding the surveillance officers had
    seen Ahmed at the pizza store before the interviewing officers had entered, and
    watched Ahmed continue to work by making pizza deliveries after the
    interviewing officers had left.

[60]

The
    amplified record did not, as held by the trial judge, completely undermine DC
    Bensons statement in the ITO that Ahmed was inside his fathers store at the
    time of the interviewing officers visit. Nor did it completely undermine his
    statement that the respondent was clearly preventing police from speaking to
    his son. Those inferences were open on the record, as amplified. The trial
    judges conclusion to the contrary amounted to an impermissible substitution of
    his view of the evidence for that of the issuing justice.

[61]

The
    trial judges ultimate conclusion that all we have is the simple fact of a
    father and son relationship and nothing else resulted from his assessment of
    the evidence in a piecemeal fashion. When the evidence is assessed cumulatively,
    taking into account the larger context, it went much further: (i) Ahmed was the
    prime suspect in the murder of Navid Niran; (ii) Ahmed lived with his father,
    the respondent; (iii) Ahmed worked at his fathers pizza business and continued
    to do so after Nirans murder; (iv) information obtained by the police led them
    to believe two of Ahmeds friends, Jasem and Hakim, had been present with Ahmed
    at the time of the murder; (v) the day after the murder, at least one of those friends
    visited the pizza shop when Ahmed was not there, but the respondent was, and
    spent about 15 minutes in the store; (vi) the respondent was less than candid when
    he told officers who visited his pizza store on January 26 that his son was not
    there, but at home because it was a school night; and (vii) the respondents
    driving on two occasions strongly suggested he was aware he was under police
    surveillance.

[62]

In
Nero
, this court stated, at para. 125, that [i]t is the effect of the
    evidence taken as a whole that is to be subjected to the standard required, not
    each individual item. The whole is often greater than the sum of its individual
    parts. When approached in that way, and not in a piecemeal fashion, the ITO,
    as amplified, contained reliable evidence that might reasonably be believed on
    the basis of which the authorization
could

have
    issued. It was open to the issuing justice to conclude investigators had
    demonstrated
reasonable grounds to believe that the
    interception of the respondents private communications might assist in the
    investigation of a murder in which his son was the prime suspect.

[63]

The
    request for authorization to intercept the respondents cell phone
    communications did not amount to a mere fishing expedition, as the respondent
    contends. The may assist standard to include the respondent as a Principal
    Known Person was met.

[64]

Accordingly, I would conclude the trial judge erred
in holding that the respondents s. 8
Charter
rights were breached
    because the ITO did not contain sufficient evidence to meet the may assist
    standard in respect of the respondent.

V.      SECOND ISSUE: THE
    RESPONDENTS CONSTITUTIONAL CHALLENGE

[65]

Before
    the trial judge, the respondent argued that Part VI of the
Criminal Code
is unconstitutional to the extent it permits communications to be targeted
    where no reasonable grounds exist to believe the interception
will
afford evidence of an offence. The trial judge concluded he did not have to
    deal with that issue. The respondent seeks to renew his constitutional
    challenge before this court.

[66]

Since
    the trial judge did not deal with this issue, we do not have the benefit of
    reasons from a lower court. Under those circumstances, I would remit the
    respondents application back to a judge of the Superior Court of Justice for argument
    and determination of his constitutional challenge.

VI.     THIRD ISSUE: THE TRIAL JUDGES s. 24(2) ANALYSIS

[67]

Given
    my conclusion that the trial judge erred in finding a violation of s. 8 of the
Charter
,
    it is not strictly necessary to consider the trial judges s. 24(2) analysis.
    However, in the present case the trial judge concluded DC Benson deliberately
    withheld relevant information that would have completely negated the inferences
    he sought to be drawn by the issuing justice: para. 78. He stated: This is
    not a case of inadvertence nor can it be characterized as good faith.

[68]

The
    appellant submits those findings were unsupported by the evidence. The
    appellant notes DC Benson did not testify on the
Garofoli
application;
    the respondent abandoned his application to cross-examine him. The respondent
    argues those findings were open to the trial judge to make, even in the absence
    of any cross-examination of DC Benson.

[69]

With
    due respect to the trial judge, I would accept the appellants submission that
    the amplified record does not support the trial judges conclusion that DC
    Benson deliberately withheld relevant information. Instead, as I have explained
    above, the trial judge erred by failing to assess the evidence as a whole and
    by substituting his view of the evidence for that of the issuing justice.
    There was simply no basis for the trial judges comments about DC Benson, on
    the record that was before him, and they should not have been made.

VII.    DISPOSITION

[70]

For the reasons set out above, I would allow the appeal, set aside the acquittals,
    and order a new trial, without prejudice to the right of the respondent to
    renew his constitutional challenge to ss. 185 and 186 of the
Criminal Code
at that time.

Released: December 14, 2016 (EEG)

David Brown J.A.

I agree E.E. Gillese
    J.A.

I agree Paul Rouleau
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2016 ONCA 935

DATE: 20161213

DOCKET: C61913

Pardu, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gehricko Johnson

Appellant

Gehricko Johnson, in person

Enzo Rondinelli, duty counsel

Gillian Roberts, for the respondent

Heard: December 8, 2016

On appeal from the sentence imposed on December 15, 2015 by
    Justice D. Salmers of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

Mr. Johnson appeals the global sentence of 9 years for armed robbery of
    a bank, possession of a prohibited firearm, possession for the purpose of
    trafficking cocaine and failure to comply with a youth sentence by possessing a
    firearm.

[2]

Duty counsel submits that the sentencing judge erred in two respects:
    (i) by failing to take into account the appellants youth when he imposed a
    consecutive sentence on the possession for the purpose trafficking and (ii) by
    imposing a restitution order without making an inquiry as to the appellants
    ability to pay.

[3]

The sentencing judge referred extensively through his reasons to the
    appellants youth. He made rehabilitation a primary consideration. That he  as
    the Crown submits  sliced the pie differently with respect to consecutive
    versus concurrent sentences does not amount to an error in principle. It was
    within his discretion to do so and the decision is entitled to deference.

[4]

With respect to the restitution order, the sentencing judges reasons,
    read as a whole, reflect that he did consider ability to pay. He determined
    that restitution was an important aspect towards rehabilitation. We also note
    that the appellant did not disclose what happened to the stolen money even
    though he was apprehended within days of the robbery.

[5]

On his own behalf, the appellant submits that the sentencing judge erred
    in commenting that he had three guns when he only had two. He is correct in
    this regard. There were three occasions of gun possession but only two guns.

[6]

However, in our view this would not have affected the fitness of the
    global sentence given the seriousness of the offence and the failure to comply
    with an order requiring him not to possess prohibited weapons.

[7]

For these reasons, leave to appeal is granted but the appeal is
    dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Knezevic, 2016 ONCA 914

DATE: 20161202

DOCKET: C60193

Laskin, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Drago Knezevic

Respondent

Thomas Lemon and Sam Siew, for the appellant

James Lockyer and Alexander Ostroff, for the respondent

Heard: September 26, 2016

On appeal from the acquittal entered on February 27, 2015
    by Justice Thomas Carey of the Superior Court of Justice, sitting without a
    jury.

Gillese J.A.:

[1]

Mr. Knezevic (the respondent)
drove a
    transport truck loaded with raspberries from Oxnard, California to an intended
    destination of Etobicoke, Ontario.  When Canada Border Services Agency (CBSA)
    officers opened the trailer of the respondents truck at the Ambassador Bridge
    border crossing in Windsor, Ontario, they immediately saw two suitcases on top
    of the skids of raspberries.  Together, the suitcases contained 39 kilograms of
    cocaine.

[2]

The respondent was charged with importing and possessing cocaine for the
    purpose of trafficking.

[3]

At a judge-alone trial, the respondent testified.  The defence position
    was that the respondent was a blind courier.  He was acquitted.

[4]

The Crown appeals.

[5]

For the reasons that follow, I would allow the appeal and order a new
    trial.

BACKGROUND IN BRIEF

[6]

The respondent arrived at the Ambassador Bridge border crossing in
    Windsor on June 10, 2011, with 39 kilograms of cocaine in the trailer of his
    truck.  The cocaine was in two suitcases that were atop of skids of raspberries
    that he was transporting.

[7]

He was the sole occupant and driver of the truck.

[8]

The respondent was processed at the border starting at about 4:00 p.m.  He
    declared that he had been away for ten days and that he had one carton of
    cigarettes.  His shipment was randomly selected by the computer for a secondary
    inspection.  He was directed to a secondary on-site inspection area.

[9]

When the CBSA officer searched the cab of the respondents truck, she found
    two cartons of cigarettes.  This caused the officer searching the truck to be
    suspicious of the respondent.  So, too, did the fact that there was clothing in
    the cab of the truck in transparent plastic bags, which was something out of
    the ordinary.  When the officer questioned the respondent about his apparently
    false declaration of one carton of cigarettes, he appeared very nervous.  The
    officer directed the respondent to the off-site secondary inspection area.

[10]

At the off-site inspection area, the respondent spoke with a different CBSA
    officer and confirmed that he had placed the seal on the doors of his truck.

[11]

Under the supervision of several CBSA officers, the respondent backed
    his truck up to the loading dock, cut the seal and opened the trailer doors.  When
    the doors of the truck were opened, the officers immediately saw the luggage
    atop of the skids of raspberries.

[12]

When questioned by the CBSA officers, the respondent said the luggage
    was not his.  He said that he had put the seal on the trailer at the
    shippers but that he didnt look up.  One of the two load bars was in
    place but the other was adjacent to the suitcases, which was inappropriate
    because it could damage the berries.

[13]

The appellant was arrested and the truck was searched.  In the truck
    cab, a CBSA officer found two unused seals from the company for which the
    appellant worked, one of which appeared to have been tampered with.  The
    officer also found a notepad with the notation 18 + 21 = 39 on its face.  Those
    figures correspond exactly to the number of bricks of cocaine found in each
    piece of luggage  18 bricks of cocaine (17.86 kg) were in one suitcase and 21 bricks
    of cocaine (20.96 kg) were in the other, for a total of 39 bricks of cocaine.

[14]

The search of the truck cab revealed a receipt from Ontario, California,
    dated June 6, 2011, in the name of Jesus Gonzalez and a box of disposable nitrile
    gloves.

[15]

At trial, evidence was led that showed that, in his log books, the
    respondent had considerably underreported the length of the stop he made in
    Ontario, California.

[16]

The Crown also led evidence which suggested that it would have been
    unlikely that the luggage was loaded on the truck at the same time as the
    berries.

[17]

The berries were loaded at a facility of Western Pre-Cooling in Oxnard,
    California.  Although video footage from cameras in the loading area was
    created, it was not available at trial because by the time the United States
    Drug Enforcement Administration requested it, on behalf of the RCMP, the video
    footage had already been erased.

[18]

The respondent testified at trial. He said that while the berries were
    being loaded onto his truck, he watched part of the procedure but left for
    about 15 minutes to put on warmer clothes.  When he returned, the truck was
    loaded and he opened the loading dock door to place the load bars.  He said
    that he put one of the two load bars on top of the load, but not positioned as the
    Windsor officers found it.  He denied seeing the luggage on the load when he
    put on the load bars.  After affixing the load bars, the respondent said that
    he went to an office to do paperwork for about 20 minutes.  After that, he drove
    the truck away from the dock, got out and closed the trailer doors, and placed
    the seal on the doors.  He denied seeing the luggage while doing this.

[19]

Evidence from the respondents employer indicated that drivers were
    supposed to check the temperature of the product with a pulp meter.  The
    respondent denied that he checked the temperature of the product, even though
    he had sent a pulp temperature reading to his employer.  The respondent said
    that he merely repeated the temperature listed on the bill of lading.

[20]

The respondent said the first time he ever saw the luggage in the trailer
    was at the secondary inspection site in Windsor.  He said that the notation 18
    + 21 = 39 on the notepad in the cab of his truck referred to toll amounts that
    he had paid on a prior trip and that he used nitrile gloves when he handled food.

[21]

When asked about the receipt in the name of Jesus Gonzalez, found in the
    cab of his truck, the respondent denied that he had met with anyone in Ontario,
    California before leaving for Oxnard.

[22]

The respondent brought a
Charter

application in which he
    sought a stay of proceedings.  He argued that the RCMP was negligent in
    requesting the video camera evidence from the Western Pre-Cooling warehouse in
    Oxnard.  He also sought to exclude the evidence of Mike Thompson, the
    operations manager at Western Pre-Cooling in California responsible for
    reviewing the security camera footage on a daily basis.

[23]

The sole issue at trial was whether the respondent knowingly imported
    the cocaine.  The defence position was that the respondent was a blind
    courier.

[24]

The trial judge acquitted the respondent and, consequently, found it
    unnecessary to deal with the
Charter

application.  However, he went
    on to find that there had been no fault on the part of the RCMP in their
    handling of the request for the video.

THE ISSUES

[25]

The Crown submits that the trial judge erred by:

1.

making findings of fact for which there was no evidence; and

2.

failing to consider the evidence as a whole to determine whether guilt
    had been proved beyond a reasonable doubt.

ISSUE #1    FINDINGS OF FACT FOR WHICH THERE WAS NO EVIDENCE

[26]

In my view, the trial judge erred by making findings of fact based on
    speculation.  As I would order a new trial in this matter, I will point to but a
    single example of this.

[27]

In his reasons for judgment, the trial judge stated:

Given the frequency of car and [truck-jackings] in North
    America, the easily ascertainable route that this truck would  take and the
    likelihood of stops on the way, I cannot conclude that only [the respondent]
    would be in a position to retrieve the drugs.

[28]

There was no evidence before the trial judge of the frequency of car and
    truck hijackings in North America.  Nor was there evidence that the route the
    truck would take from California to the warehouse in Etobicoke was easily
    ascertainable.  Accordingly, those findings were speculative.  It is an error
    of law to make a finding of fact for which there is no supporting evidence:
R.
    v. J.M.H.
, 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 25.

[29]

The trial judge relied on these findings of fact for his conclusion that
    the respondent was not the only person who would be in a position to retrieve
    the drugs.  The significance of that conclusion to the trial judges ultimate
    determination is readily apparent when considered in the context of the defence
    advanced at trial, namely, that the respondent was a blind courier.

ISSUE #2  FAILING TO CONSIDER THE EVIDENCE AS A WHOLE

[30]

The Crown submits that the trial judge erred by failing to consider all
    of the evidence in relation to the ultimate issue of guilt by using a piecemeal
    approach.

[31]

I agree.  This, too, is an error of law that warrants appellate
    intervention at the instance of the Crown:
J.M.H.
, at para. 31.

[32]

By considering, in turn, whether each of the respondents exculpatory
    explanations for a particular piece of Crown evidence could reasonably be true,
    the trial judge effectively required the Crown to prove each individual piece
    of evidence beyond a reasonable doubt.  It is an error of law to subject
    individual pieces of evidence to the standard of proof beyond a reasonable
    doubt:
J.M.H.
, at para. 31; and
R. v. Morin
, [1988] 2 S.C.R.
    345, at p. 359.

[33]

In paragraph 63 of the Crowns factum, several
    examples of this in the trial judges reasons are set out.  The following draws
    heavily from that.  The emphasis in the quotations are those of the Crown.

While at first blush the numbers 18 and 21
    equals 39 on a sheet in plain view in the cab seems an unlikely coincidence,
    [the respondents] explanation that the number relates to tolls is supported by
    the writing beside it (tools for tolls) and a previous receipt for $18 from the
    Kansas Turnpike.

I don't reject his evidence
because he has no receipts given the disorganization of the cab at
    the time it was searched.

I
cannot
    rule out
, on the evidence before me, that [the luggage
    filled with cocaine was] placed there at the Western refrigeration warehouse. I
    do not accept the Crowns assertion that this happening was a near
    impossibility.

I do not think it was likely that this cocaine
    was destined to be unloaded at the Metro warehouse in Toronto, but
I cannot dismiss as completely unlikely
that the opening of the truck and removal of the bags without the
    accused drivers consent or knowledge or both would be
beyond any reasonable possibility.

.

Given the frequency of car and
    [truck-jackings] in North America, the easily ascertainable route that this
    truck would take and the likelihood of stops on the way,
I cannot conclude that only
Mr. Knezevic would be in a position to retrieve the drugs.

I cannot conclude
that the presence of the latex gloves were out of the ordinary or
only consistent with
an
    intent by the accused to hide his fingerprints.

[34]

While
it was appropriate for the trial
    judge to consider each piece of evidence individually, he also had to consider
    the cumulative effect of the evidence as a whole.
Although the
    trial judge twice
stated that he was considering the evidence as a whole,
    on a full and fair reading of his reasons, I do not see that was ever done.  This
    was legal error:
J.M.H.
, at para. 31.

DISPOSITION

[35]

It is clear that the trial judges legal errors affected his verdict of acquittal.
    Accordingly,
I would allow the appeal and order a new trial.

Released: December 2, 2016 (E.E.G.)

E.E. Gillese
    J.A.

I agree. John Laskin J.A.

I agree. David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moore, 2016 ONCA 964

DATE: 20161219

DOCKET: C59387

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Moore

Appellant

Breana P. Vandebeek, for the appellant

Lucas W. Schwalm, for the respondent

Heard: December 8, 2016

On appeal from the convictions entered by Justice J.
    Christopher Corkery of the Superior Court of Justice, sitting with a jury, on
    February 18, 2014.

ENDORSEMENT

[1]

We allowed this appeal and ordered a new trial for reasons to follow.
    These are our reasons.

Background

[2]

Following
a jury trial, the appellant was convicted of
    one count of dangerous driving causing bodily harm and one count of assault
    with a weapon, namely a motor vehicle.

[3]

The charges arose out a road rage incident
    involving the appellant, who was driving a car, and the driver of a van.
    Following a verbal altercation, the van driver followed the appellant's car and
    cut the appellant off near a stop sign. The van driver got out of the van and
    approached the appellant. The appellant initially reversed and then drove
    forward striking the van driver. It was the appellant's position that he was
    scared, tried to avoid hitting the van driver and the van, but lost control of
    his car. The Crown asserted that the appellant struck the van driver
    intentionally.

Issues

[4]

The appellant raises two issues on appeal.

[5]

First, the appellant argues that the trial judge
    erred in failing to find that the police breached his rights under s. 10(b) of
    the
Canadian Charter of Rights and Freedoms

and further erred in failing to exclude the evidence of his formal
    police interview under s. 24(2) of the
Charter
.

[6]

Second, the appellant submits that the trial
    judge erred in his charge to the jury concerning the standard of proof
.

Discussion

(1)

The
Charter
Issue

[7]

Following his arrest for dangerous driving, the
    appellant was able to contact and speak to duty counsel. However, the police
    officer who was going to conduct the formal interview later told the appellant
    that, in addition to the charge for dangerous driving causing bodily harm, he
    was also going to be charged with assault with a weapon. At that time, the
    appellant asked to contact his own lawyers. The interview officer attempted to
    contact the two lawyers named by the appellant. In the meantime, while waiting
    for a call back from the appellants counsel, the arresting officer told the
    interview officer that the appellant had agreed to, and did, speak to duty
    counsel after his arrest. Upon receiving this information, the interview
    officer concluded that the appellant had had an opportunity to consult with
    counsel and continued the interview.

[8]

While the trial judge acknowledged that, under
R.
    v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, the
    appellant would have been entitled to a second opportunity to speak to counsel
    had there been a change in the jeopardy he was facing, he found that the second
    charge did not constitute a change in jeopardy. Both charges arose from the
    same circumstances and the appellant was fully aware of those circumstances.
    Both offences carried the same maximum penalty. And while assault with a weapon
    is a hybrid offence, dangerous driving is a straight indictable offence.
    Further, various cases have made it clear that an accused person need not be
    made aware of the specific charge he or she faces:
R. v. Smith
, [1991] 1 S.C.R. 714, at pp. 14-15;
R. v. Latimer
, [1997] 1 S.C.R. 217, at para. 30.

[9]

In the alternative, the trial judge held that
    even if there had been a breach of the appellant's s. 10(b)
Charter
rights, the appellants statement should not be excluded under s. 24(2)
    of the
Charter
. The interview officer acted in
    good faith. He made efforts to contact that appellant's own lawyers and
    continued the interview only after being informed that the appellant had
    earlier spoken to duty counsel. In any event, the appellant had repeatedly
    stated that he wanted to tell his story to the police. The trial judge was
    satisfied that the outcome would not have been different had the appellant been
    given a further opportunity to speak to a lawyer.

[10]

In our view, in determining whether the
    appellants jeopardy had changed, the trial judge erred in focusing on the fact
    that the charges arose from the same circumstances, that the offences carried
    the same maximum penalty and that the new charge was a hybrid offence.
    Considered in the circumstances of this case, the assault with a weapon charge significantly
    increased the appellants alleged moral blameworthiness in relation to the
    charge in that it required proof that he acted intentionally to harm the van
    driver, rather than simply that his driving constituted a marked departure from
    the norm. This, in turn, markedly increased the potential penalty that the
    appellant faced.

[11]

The Crown argued that the appellant had received
    adequate advice from duty counsel that was sufficient for the new charge since
    the appellant stated in the interview that he had been told by duty counsel not
    to make a statement, but continued with the interview in any event. The Crown
    claimed that the appellant would have provided a statement regardless of any
    advice about the additional charge. We disagree. On the record in this case, it
    would be speculative to assume that the advice, and the accused's reaction to
    the advice, would necessarily have been the same. As we have said, the new
    charge of assault with a weapon was significantly different and carried more
    serious potential consequences than the original charge of dangerous driving causing
    bodily harm. Moreover, it is apparent from the accused's reaction to being
    informed of the new charge that he believed there was something amiss.
[1]
In the particular circumstances
    of this case, we conclude that the police breached the appellant's s. 10(b)
Charter
rights by failing to afford him a second opportunity to speak to
    counsel.

[12]

The trial judge, thus, erred in failing to find
    that the police breached the appellants rights under s. 10(b) of the
Charter
.

[13]

Further, the trial judge's s. 24(2)
Charter

analysis attracts no deference as he did not find a
    breach; nor did he consider all of the relevant
R. v. Grant
, 2009 SCC 32,
[2009] 2 S.C.R. 353
factors.

[14]

In our view, the admission of the evidence would
    have a negative impact on societys confidence in the justice system. We say
    this with specific regard to the three
Grant
factors.
    First, in terms of the seriousness of the
Charter
-infringing state conduct, depriving the appellant of access to counsel
    in the face of his increased jeopardy was serious. Second, this deprivation had
    a serious impact on the protected interests of the appellant, namely the appellant's
    right to make a meaningful and informed choice of whether to speak to the
    police. Third, with respect to societys interest in adjudicating the case on
    its merits, declining to admit the evidence does not undermine the ability of
    the prosecution to proceed. As noted by the Supreme Court in
Grant
, at
    para. 91, there is no absolute rule of exclusion for
Charter
-infringing statements. However, as a matter of practice, courts
    have tended to exclude such statements on the ground that admission on balance
    would bring the administration of justice into disrepute. For the reasons that we
    have explained we consider that to be the case here.

(2)

The Jury Instructions Issue

[15]

We did not call on the Crown to address the
    appellants second ground of appeal. Suffice it to say that we are not
    satisfied that the trial judge erred in his charge to the jury concerning the
    standard of proof.

Disposition

[16]

The appeal is allowed, the convictions are set
    aside and a new trial is ordered.

Janet Simmons J.A.

K. van Rensburg J.A.

B.W. Miller J.A.

[1]

The transcript of the appellants video statement to the
    interview officer demonstrates that upon being informed of the new charge of
    assault with a weapon the appellant said, That cant be right several times
    and stated, It wasnt an assault. It is also noteworthy that the appellant
    had a prior conviction for assault with a weapon.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moussavi, 2016 ONCA 924

DATE: 20161208

DOCKET: C60584

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Moussavi

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Gillian Roberts, for the respondent

Heard: November 3, 2016

On appeal from the conviction entered by Justice Peter
    Tetley of the Ontario Court of Justice on February 20, 2015.

MacPherson J.A.:

A.

introduction

[1]

The appellant was convicted of dangerous operation of a motor vehicle causing
    bodily harm, contrary to s. 249(3) of the
Criminal Code
. At the scene
    of a very serious accident, the appellant answered questions from a police
    officer. He was then given a breath test that he failed. At his trial, the
    appellant argued that the results of the breath test were inadmissible on
    several
Charter
grounds. The trial judge dismissed the appellants
Charter
application in its entirety and convicted the appellant, who now appeals to
    this court.

B.

facts

(1)

The parties and the events

(a)

The collision

[2]

On June 21, 2011, the appellants black BMW struck the rear of Trevor
    Newhooks red Toyota on Highway 407 at approximately 1:35 a.m. The appellants
    BMW was travelling between 171 and 226 km/h just after impact and would have
    been going faster prior to impact. Newhook was driving approximately 105 km/h.

[3]

At the time of the collision, the roadway was dry and well lit. Traffic
    was light. The force of the collision was significant. The two cars ended up
    about 100 meters apart and Newhooks Toyota came to rest about 250 meters from
    the point of impact. There was a great deal of debris on the highway between
    the two cars.

[4]

Newhooks Toyota was all but demolished. Newhook sustained a significant
    laceration to his head and intracerebral bleeding. His injuries had lasting
    effects.

[5]

The appellants BMW tipped over, rolled, rotated, and slid on its roof
    before turning upright and coming to a stop. It was severely damaged.
    Incredibly, the appellant was not injured.

[6]

Allan Reynolds, driving with his wife and son, saw the debris and pulled
    over. He called 911. Michael Armstrong, a tow-truck driver, arrived next.
    Reynolds indicated that he was approached by a man whom he assumed was the
    driver of the dark car (the BMW). Reynolds recalled that man asking what hit
    me?. Armstrong also testified that he was approached by an individual who
    indicated that the Toyota hit his vehicle. The man then walked back toward the
    BMW.

(b)

The appellant and the police

[7]

Constable Bill Gerov arrived at the scene at 1:44 a.m. He spoke to
    Newhook, Armstrong, Reynolds and Reynoldss wife and son.

[8]

Constable Eugene Johnson arrived at 1:47 a.m. He went to the Toyota and
    discovered that the driver was bleeding badly. He then went to look for the
    driver of the BMW. Cst. Johnson noticed the appellant and approached him. The
    appellant was walking towards the police cruiser as the officer approached him.

[9]

When they met, Cst. Johnson asked the appellant if he was the BMW
    driver. The appellant answered that he was.  The appellant said that the other
    vehicle hit him as he was driving back from downtown Toronto. At this point,
    Cst. Johnson detected an odour of alcohol coming from the appellants breath
    and asked whether he had been drinking. The appellant responded that he had.
    Cst. Johnson concluded that the appellant had been consuming alcohol recently
    and directed Cst. Gerov to escort the appellant to Gerovs police cruiser to
    determine whether the appellant was 253 or not.

[10]

Cst.
    Gerov noticed the appellant walking in what he believed to be a nervous
    fashion. Cst. Gerov approached him. He asked whether the appellant was the
    driver of the BMW. The appellant confirmed that he was and indicated that the
    other vehicle hit him. Cst. Gerov detected an odour of alcohol on the
    appellants breath and asked him if he had been drinking. The appellant
    admitted that he had consumed three glasses of wine and two shots of Jägermeister.
    Cst. Gerov testified that he suspected the appellant had alcohol in his blood
    and, at approximately, 1:49 a.m., he directed the appellant to accompany him to
    his police cruiser to perform a sobriety test.

[11]

At
    2:00 a.m., Cst. Gerov demanded a breath sample from the appellant. At 2:04
    a.m., the appellant failed the screening test and, at 2:07 a.m., the appellant
    was arrested. Cst. Gerov read the appellant his rights at 2:08 a.m. After
    arriving at the police station, the appellant consulted duty counsel. He was
    turned over to a qualified technician and provided two further breath samples.

[12]

A
    Crown toxicologist testified that the appellants blood-alcohol concentration
    at the time of the collision would have been between 130 to 170 milligrams of
    alcohol in 100 millilitres of blood.

(c)

The trial judgment

[13]

At
    his trial, the appellant brought an application, alleging breaches of ss. 7, 8,
    9, 10(a) and 10(b) of the
Charter of Rights and Freedoms
. He testified
    on the
Charter
application but not during the trial proper.
    Essentially, he made three arguments.

[14]

First,
    the appellant asserted that he provided a self-incriminatory statement to the
    police at the scene of the accident. He says that these inculpatory utterances
    were statutorily compelled by s. 199 of the
Highway Traffic Act
,
    R.S.O. 1990, c. H. 8 (the
HTA
) and that their admission as part of
    the Crown case establishing his identity as the driver of the BMW violated his
Charter
s. 7 right to silence.

[15]

Second,
    the appellant submitted that he was detained for investigative purposes at the
    scene prior to his arrest and was not advised in a prompt fashion of the reasons
    for the detention, thus infringing s. 10(a) of the
Charter
.

[16]

Third,
    the appellant contended that the demand made under s. 254(2) of the
Criminal
    Code
was not made forthwith once it became apparent to the arresting
    officer that the appellant had alcohol in his body and had been operating a
    motor vehicle within the preceding three hours.

[17]

The
    trial judge dismissed the appellants
Charter
application and
    convicted the appellant of dangerous operation of a motor vehicle causing
    bodily harm.

[18]

The
    appellant appeals.

C.

issues

[19]

The
    appellant frames his issues in this fashion:

(1)

The trial judge erred in admitting the roadside utterances and by concluding
    that they were not statutorily compelled;

(2)

The trial judge erred in finding that there was sufficient evidence,
    absent the compelled statements, to justify taking the breath samples and to
    arrest the appellant; and

(3)

The trial judge erred in finding that the police were permitted to hold
    off providing rights to counsel or to make the Approved Screening Device
    demand over public safety concerns.

D.

Analysis

(1)

Whether the appellants statements were compelled by statute

[20]

The
    starting point for this issue is s. 199 of the
HTA
which provides in
    relevant part:

199. (1) Every person in
    charge of a motor vehicle  who is directly or indirectly involved in an
    accident shall, if the accident results in personal injuries or in damage to
    property apparently exceeding an amount prescribed by regulation, report the
    accident forthwith to the nearest police officer and furnish him or her with
    the information concerning the accident as may be required by the officer under
    subsection (3).

(3) A police officer
    receiving a report of an accident, as required by this section, shall secure
    from the person making the report, or by other inquiries where necessary, the
    particulars of the accident, the persons involved, the extent of the personal
    injuries or property damage, if any, and the other information that may be
    necessary to complete a written report concerning the accident and shall
    forward the report to the Registrar within ten days of the accident.

[21]

The
    personal injuries sustained by Newhook and the amount of damage to property
    were circumstances that required the drivers of the two automobiles to provide
    the police officers with information concerning the accident in accordance with
    s. 199(1) of the
HTA
.

[22]

The
    leading case dealing with statutory provisions like s. 199 of the
HTA
is
R. v. White
, [1999] 2 S.C.R. 417, where the Supreme Court of Canada
    considered a similar reporting requirement under the British Columbia
Motor
    Vehicle Act
, R.S.B.C. 1979, c. 288. In striking a balance between the
    statutory reporting requirements in provincial highway traffic laws and the
Charter
s. 7 right to silence, Iacobucci J., for the majority of the court, explained,
    at para. 75, that the test for compulsion in these circumstances is whether,
    at the time that the accident was reported by the driver, the driver gave the
    report on the basis of an honest and reasonably held belief that he or she was
    required by law to report the accident to the person to whom the report was
    given.

[23]

The
    trial judge was aware of, cited and applied
White
. On the issue of the
    appellants subjective belief, the trial judge said, at para. 134:

The defendant testified that he had an honest and reasonably
    held belief that he was legally obligated to provide information to the police
    and to remain at the scene of the motor vehicle collision. By virtue of a
    combination of his driver training and previous peripheral participation in a
    motor vehicle collision involving his now ex-spouse, I am satisfied, at the
    very least, that the defendant had at least a generalized, non-specific,
    understanding of his duty to report the details of an accident under the
Highway
    Traffic Act
. [Footnote omitted.]

[24]

On
    the issue whether the appellants answers to the initial police questions were
    in fact compelled, the trial judge said, at paras. 145-47:

I conclude that the defendant did not identify himself as [the]
    driver of the BMW as a result of his belief that he had a lawful obligation to
    report his involvement in a motor vehicle accident.

The trial record, and the evidence offered by the applicant on
    the
Charter voir dire
, serve to confirm that the applicants
    motivation was much more basic than that. It is evident that the applicant had
    a self-serving purpose for speaking to the police and did so in order to offer
    an exculpatory declaration of his own involvement in the collision.

The record confirms that the applicant approached Constable
    Johnson. I conclude the applicant volunteered the information requested freely
    and without coercion by statute or otherwise.

[25]

The
    appellant submits that the trial judge erred in so finding. He says that when
    he told the police that he was the driver of the BMW his free will to remain
    silent was overborne by his statutory duty under s. 199 of the
HTA
.
    Accordingly, his
Charter
s. 7 right was triggered.

[26]

I
    am not persuaded by this submission. Whether a statement was compelled by the
HTA
in all the circumstances of a case is a finding of fact. Absent an error in
    principle in applying the test from
White
or a palpable and overriding
    error leading to an unreasonable conclusion, a trial judges determination of
    the issue must be accorded deference.

[27]

In
    my view, there is no basis to interfere with the trial judges conclusion that
    the appellants admission that he was the driver of the BMW was not statutorily
    compelled. The trial judge properly understood and articulated the test from
White
for statutory compulsion and reached a conclusion that was open to him on the
    evidence.

[28]

From
    his comments at the scene to Reynolds and Armstrong, before the police arrived,
    it appears that the appellant was willing to admit that he was the driver of
    the BMW and, importantly, that he was anxious to state his position about the
    collision  that is, that the other vehicle hit him. Nothing changed when the
    police arrived. His interaction with the police was identical to his prior
    interactions with Reynolds and Armstrong. Accordingly, the trial judges
    conclusion that the appellant volunteered the information requested freely and
    without coercion by statute or otherwise is entirely supportable on the
    record.

[29]

Whether
    a roadside statement made by an accused to a police officer after an accident
    is statutorily compelled is a question of fact to be determined based on the
    particular circumstances of each case. There will be instances where the
    accused will in fact be speaking based on a subjective and reasonably held
    belief that he or she must do so. But there will be other cases where the
    accused responds freely, entirely unmotivated by any statutory duty. In the
    latter case, the statements are not protected by the use immunity provided by
    s. 7 of the
Charter
.

[30]

The
    proper balance is struck in
White
, at para. 76:

[C]ompulsion, by definition, implies an absence of consent. If
    a declarant gives an accident report freely, without believing or being
    influenced by the fact that he or she is required by law to do so, then it
    cannot be said that the statute is the cause of the declarants statements. The
    declarant would then be speaking to police on the basis of motivating factors
    other than s. 61 of the
Motor Vehicle Act
.

[31]

In
    this case, the appellant believed that he had to report the accident. However,
    he was not influenced by this fact. The
HTA
did not cause him to
    answer the police questions. Thus, when the police asked him about whether he
    was the BMW driver, he gave his answer freely, as the trial judge found.

(2)

Whether there was sufficient evidence, absent the appellants statements,
    to justify taking the breath samples

[32]

In light of my conclusion on the first issue, it is not necessary to
    address this issue.

(3)

Whether the ASD demand was administered  forthwith

[33]

Constable
    Gerov testified that at 1:49 a.m. he suspected that the appellant had alcohol
    in his blood and, therefore, he directed the appellant to accompany him to his
    police cruiser to perform a sobriety test. At 2:00 a.m., he made the breath
    demand. At 2:04 a.m., the test was administered and the appellant failed. The
    appellant submits that the 11 minute gap between forming the grounds for the
    demand and making the demand were offside the requirement of forthwith in s.
    254(2) of the
Criminal Code
.

[34]

I
    do not accept this submission. The trial judges reasoning on this issue was,
    at para. 154:

While it can be argued that the demand could have been made at
    an earlier opportunity, I conclude the very brief time that passed from the
    point that the defendant was determined to be the driver of the automobile and
    alcohol was detected on the defendants breath to the point of the demand is
    justified by the exigencies inherent in this investigation. In reaching this
    conclusion, I note that the investigation took place in the early morning
    hours, on a major highway, at an accident scene that featured two badly damaged
    automobiles and one injured driver. The debris field resulting from the
    collision was strewn over three lanes of the highway for a distance of
    approximately 100 metres. In these circumstances, the police concern for public
    safety serves to justify and explain the brief period of delay in the
    administration of the approved screening device (see
Quansha
, at
    paragraphs 45-49).

[35]

I
    do not see a problem with this analysis. I would simply add that the Photograph
    Log of the accident scene easily supports the public safety rationale for a
    short delay. The collision was extremely violent and created a large debris
    field on a major public highway.

E.

disposition

[36]

I
    would dismiss the appeal.

Released: JCM DEC 8 2016

J.C. MacPherson
    J.A.

I agree. E.A. Cronk
    J.A.

I agree. David Watt
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pammett, 2016 ONCA 979

DATE: 20161229

DOCKET: C59448 and C60369

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/Appellant

and

Robert Pammett Jr.

Appellant/Respondent

Peter R. Hamm, for the appellant/respondent

Jeremy Streeter, for the respondent/appellant

Heard: December 13, 2016

On appeal from the sentence entered on September 19, 2014
    by Justice J. R. McCarthy of the Superior Court of Justice.

ENDORSEMENT

[1]

Mr. Pammett was convicted of two counts of
    possession of cocaine for the purpose of trafficking, one count possession of
    the proceeds of crime, and one count of fail to comply with a probation order.
    He was sentenced to six and a half years imprisonment, less credit for 34 days
    of pretrial custody.

[2]

There are two sentence appeals. The Crown
    appeals on the basis that the sentence was demonstrably unfit and the sentencing
    judge erred in not imposing a half-parole order pursuant to s. 743.6 of the
Criminal
    Code
, R.S.C. 1985, c. C-46. Mr. Pammett appeals, arguing
    that he should receive additional credit for pretrial custody in connection
    with other, unrelated charges that were eventually stayed.

[3]

For the reasons that follow, we dismiss both
    appeals.

Facts

[4]

Mr. Pammett was identified pursuant to
    Project Shrike, an investigation by the Durham Regional Police into cocaine
    trafficking that began in October 2010. Intercepts of telephone calls and text
    messages established that Mr. Pammett was engaged in cocaine trafficking in the
    city of Peterborough. He was arrested on February 10, 2011 and charged with two
    counts of possession of cocaine for the purposes of trafficking. Further
    intercepted communications acquired by the police after this arrest formed the
    basis of an additional charge of possessing the proceeds of crime (together the
    Shrike charges).

[5]

Following a contested bail hearing, Mr.
    Pammett was released on a recognizance on March 4, 2011. He had spent 23 days
    in jail. On August 15, 2012 Mr. Pammett was re-arrested, and charged with
    distinct cocaine trafficking offences. These charges were based on a different
    police investigation, code-named Project Kingfisher (the Kingfisher charges).
    Mr. Pammett chose not to bring an application for bail in relation to the
    Kingfisher charges. His bail on the Shrike charges was never revoked.

[6]

On April 23, 2014 a jury convicted Mr.
    Pammett of the Shrike charges. On May 15, 2014 Mr. Pammett pled guilty to
    breach of probation, and agreed that sentencing for that offence should take
    place at the same time as the sentencing for the offences for which he had been
    convicted.

[7]

The Crown sought a nine-year global
    sentence. It also sought a half-parole order pursuant to s. 743.6 of the
Criminal
    Code
, relying primarily on an intercepted
    communication between Mr. Pammett and his sister. The Crown submitted that the
    intercepted communication recorded Mr. Pammett making vile and denigrating
    comments about his victims, and established that he delighted in exercising
    control, facilitating addictions, and ruining lives.

[8]

At the sentencing hearing, the defence
    took the position that a global sentence of four years incarceration was
    appropriate. It also argued that Mr. Pammett should receive credit for the time
    spent in custody on the Kingfisher charges, which charges had not yet come to
    trial. At the time of sentencing for the Shrike charges, Mr. Pammett had spent
    approximately 25 months in jail pursuant to the Kingfisher charges.

[9]

On September 19, 2014, Mr. Pammett was
    sentenced to three years for the first possession of cocaine for the purpose of
    trafficking offence, three and a half years consecutive for the second
    possession of cocaine for the purpose of trafficking offence, and one year
    concurrent for the proceeds of crime and breach of probation offences.

[10]

The sentencing judge declined to grant
    the half-parole order, noting that while Mr. Pammett had been convicted of
    serious drug offences, the facts did not reach the level of unusual violence,
    brutality or degradation justifying a s. 743.6 order. Of the aggravating
    factors on sentence listed in s. 10(2) of the
Controlled Drugs and
    Substances Act
, S.C. 1996, c.19

(the
CDSA
), he
    noted that the only one present was a prior criminal record.

[11]

The sentencing judge gave Mr. Pammett
    credit for the 23 days served in custody before receiving bail on the Shrike
    charges. At a 1.5 to 1 ratio, Mr. Pammett received 34 days credit. The
    sentencing judge declined to give any credit for the time Mr. Pammett spent in
    custody on the Kingfisher charges while awaiting trial and sentencing for the
    Shrike charges.

[12]

According to fresh evidence filed on consent
    by Mr. Pammett, on September 3, 2015 the Kingfisher charges were stayed.

Analysis

(a)

Crown Appeal

[13]

The Crown submits that the sentencing judge
    erred in his interpretation of s. 10(2) of the
CDSA
, by treating the aggravating factors listed in that subsection as
    exhaustive. Consequently, the Crown argues that the sentencing judge failed to consider
    the intercepted communication between Mr. Pammett and his sister as an
    aggravating factor on sentence. According to the Crown, the failure to apply
    this aggravating factor resulted in a sentence that is manifestly unfit.

[14]

We do not accede to this submission.
    While the Crown is correct that the aggravating factors listed in s. 10(2) of
    the
CDSA
are not exhaustive, we do
    not read the reasons for sentence as suggesting otherwise.

[15]

The sentencing judge correctly
    identified that the only enumerated aggravating factor present was that Mr.
    Pammett had a prior criminal record. He went on to find that the communication
    between Mr. Pammett and his sister was relevant to the quality, nature and
    extent of those offences and the particulars of harm done to victims, directly
    or indirectly, affected by those offences. Thus, contrary to the submission of
    the Crown, the sentencing judge treated the communication between Mr. Pammett
    and his sister as an aggravating factor on sentence.

[16]

In our view, the sentencing judge
    considered and weighed the relevant aggravating and mitigating factors and
    imposed a fit sentence.

[17]

The Crown also argues that the trial judges
    misinterpretation of s. 10(2) of the
CDSA
tainted
    his decision not to grant a half-parole order. We disagree. He undertook the
    appropriate analysis mandated by
R. v. Zinck
,
    2003 SCC 6, [2003] 1 S.C.R. 41, regarding the imposition of an order under s.
    743.6 of the
Criminal Code
and properly
    exercised his discretion not to make a half-parole order. There is no basis for
    appellant interference with that decision.

(b)

Defence Appeal

[18]

Mr. Pammett submits that he is entitled to
    additional pre-trial credit for the time spent in custody in relation to the
    Kingfisher charges. He advances two arguments.

[19]

First, he says that the stay of the Kingfisher
    charges has resulted in a material change in circumstances pertinent to the
    fitness of his sentence. As a matter of fairness, Mr. Pammett argues that he
    should receive credit for his pre-trial custody.

[20]

The difficulty with this argument is that
    Justice Rosenberg, writing for the majority in
R
. v.
Wilson
, 2008 ONCA 510, 236
    C.C.C. (3d) 285, explicitly rejected it. He concluded that giving an offender credit
    for pretrial custody for unrelated charges would permit an accused to bank
    time spent in custody. Rosenberg J.A. observed, at para. 45:

But, at the end of the day when it comes time
    to sentence an offender the court can only take into account factors that
    relate to the particular offence under consideration. The fact that an
    offender, like the appellant, still happens to be in the appeal system when a
    flaw in relation to a totally unrelated conviction comes to light is not, in my
    view, a principled reason for giving that offender credit for the time he or
    she spent serving the sentence for that unrelated conviction.

[21]

Justice Rosenberg recognized that in
R.
    v. Reid
, 2005 CanLII 14964 (Ont. C.A.) and
R.
    v. Tsai
(2005), 198 C.C.C. (3d) 533 (Ont. C.A.), this
    court appears to have given some credit for pretrial custody on another offence.
    However, he noted, at para. 50, that in both cases the accused was refused
    bail on the second set of charges (the charges that were later withdrawn)
    because he was already on bail for the first set of charges. Thus, in
    part, the time spent in custody for the withdrawn set of charges could be
    attributed to the first set of offences. Justice Rosenberg also pointed out
    that in neither case was the appellant seeking to have the court retroactively
    take into account time served on another charge.

[22]

In the present case, Mr. Pammett did not bring
    an application for bail on the Kingfisher charges and the bail order related to
    the Shrike charges was never rescinded.

[23]

Counsel for Mr. Pammett argues that his client
    should not be punished because he did not bring what would likely have been a
    futile bail application. We do not know why bail was not sought. There may well
    have been strategic reasons at the time for not seeking bail on the Kingfisher
    charges and having the Shrike bail cancelled, for example, risking an order
    under s. 515(9.1) or s. 524(4) or (8) of the
Criminal Code
, which could have affected the amount of credit for pre-trial
    custody under s. 719(3.1) of the
Criminal Code
.
    The fact remains that Mr. Pammett was not in custody
as a result of the
    Shrike charges. Accordingly, there is no basis to credit the time served on the
    Kingfisher charges against the sentence for the Shrike charges.

[24]

The appellant also relies on s. 719(3) of the
Criminal
    Code
, which provides:

In determining the sentence to be imposed on a person
    convicted of an offence, a court may take into account any time spent in
    custody by the person as a result of the offence but the court shall limit any
    credit for that time to a maximum of one day for each day spent in custody.

[25]

This subsection is not available to increase the
    pretrial custody credit applicable to the Shrike charges:
Wilson
, at para. 24.

[26]

The second argument advanced by Mr. Pammett is that the sentencing judge
    erred by not considering the pre-sentence custody on the Kingfisher charges as
    a mitigating factor on sentence. He submits that pursuant to s. 718.2(a) of the
Criminal Code
the sentencing judge was obliged to consider any
    relevant mitigating circumstances relating to the offence or the offender. He
    also relies on s. 726.1 of the
Criminal Code
, which provides that, In
    determining the sentence, a court shall consider any relevant information
    placed before it, including any representations or submissions made by or on
    behalf of the prosecutor or the offender. His argument is that under either
    section the sentencing judge should have considered the pretrial custody on the
    Kingfisher charges.

[27]

The time spent in custody by an offender on unrelated charges can
    be considered in a limited way in determining a fit sentence. As Justice
    Rosenberg stated in
Wilson
at para. 46, a sentencing judge is
    entitled to take into account time spent serving another sentence as part of
    the complete picture for understanding a particular offender. Justice
    Rosenberg cited as one example a situation where an offender with a drug
    problem received treatment while serving his sentence.

[28]

In this case the sentencing judge referenced the fact that while
    in custody on the Kingfisher charges Mr. Pammett worked as a cleaner and was in
    a relationship of some permanence, which was relevant to his rehabilitative
    potential. The sentencing judge also noted the lack of evidence that Mr.
    Pammett either refused or agreed to participate in available programs while in
    custody on the Kingfisher charges.

[29]

This type of limited consideration of the impact of Mr. Pammetts
    time in custody on the Kingfisher charges is consistent with the direction in
Wilson
.
    It would have been an error in law for the sentencing judge to go beyond this
    limited analysis and grant credit for the time served on unrelated charges.

Disposition

[30]

We grant leave to appeal sentence to both the Crown and Mr.
    Pammett, but dismiss both sentence appeals.

K. Feldman J.A.

J.C. MacPherson J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pearle, 2016 ONCA 954

DATE: 20161216

DOCKET: C61098

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rene Pearle

Appellant

Brad Greenshields, for the appellant

Milica Potrebic, for the respondent

Heard: December 13, 2016

On appeal from the conviction entered on May 7, 2015 and
    the sentence imposed on May 7, 2015 by Justice J. Elliott Allen of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant, Rene Pearle, was convicted of two counts of possession of
    cocaine for the purpose of trafficking by Allen J. of the Ontario Court of
    Justice in Kitchener. He was sentenced to three years and nine months imprisonment
    after credit for time served.

[2]

On one count, the Crown alleged that on September 27, 2013 the appellant
    arranged by telephone to meet with Luis Hinojosa at an address in Cambridge
    known as The Cabin where Hinojosa sold the appellant two ounces of cocaine
    that the appellant possessed for the purpose of trafficking. The Cabin was a
    flophouse in Cambridge frequented by local drug dealers and users.

[3]

On the second count, the Crown alleged that on October 1, 2013 the
    appellant purchased one ounce of cocaine from Hinojosa in the visitors parking
    lot of a townhouse complex on Manhattan Circle, again for the purpose of
    trafficking.

[4]

The appellant appeals the convictions on two grounds.

[5]

First, the appellant submits that both convictions are unreasonable.

[6]

With respect to both counts, the appellant asserts that there was no
    evidence that any substance linked to the appellant was cocaine. No cocaine was
    seized in either location and, as a result, there was no Certificate of
    Analysis that any substance exchanged on either occasion was cocaine. If any
    substance was exchanged on either day, it was, says the appellant, as likely to
    be methamphetamine as cocaine because of their similar prices. Accordingly, the
    trial judge could not conclude that the Crown had proved beyond a reasonable
    doubt that the appellant had possessed cocaine.

[7]

We are not persuaded by this submission. The Crown case against the
    appellant was entirely circumstantial. Accordingly, the test is the one stated
    by Cromwell J. in
R. v. Villaroman
, 2016 SCC 33, at paras. 55 and 56:

Where the Crowns case depends on circumstantial evidence, the
    question becomes 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 [Cases and citations omitted].

The governing principle was nicely summarized by the Alberta
    Court of Appeal in
Dipnarine
,

at para. 22.

The court
    noted that [c]ircumstantial evidence does not have to totally exclude other
    conceivable inferences and that a verdict is not unreasonable simply because
    the alternatives do not raise a doubt in the jurys mind.  Most importantly,
    [i]t is still fundamentally for the trier of fact to decide if any proposed
    alternative way of looking at the case is reasonable enough to raise a doubt.

[8]

The Crown case against the appellant, although circumstantial, included
    many intercepted communications between the appellant and Hinojosa, police surveillance,
    physical evidence and expert testimony. The content of the phone conversations,
    including the meaning of coded language as interpreted by an expert witness,
    and the appellants locations flowing from these conversations, lead us to the
    conclusion that the two convictions are far from unreasonable.

[9]

In our view, there is overwhelming evidence that the substance in issue
    in the relevant transactions was cocaine. On October 8, when he was arrested,
    the appellant was in a hotel room with cocaine, 98 unused dime baggies, two
    used dime baggies with cocaine residue, his cell phone and debt lists. Silva,
    the appellants girlfriend, was seen earlier in the hotel room. She was seen
    leaving the premises in a van and was arrested shortly thereafter; she had
    cocaine in a Ziploc bag, similar to the baggies in the hotel room, on her
    person. A few days later, Hinojosa was arrested; he had almost a kilogram of
    cocaine in his residence and a safe at a separate location.

[10]

The reality is that at the relevant times there was a great deal of
    contact between the appellant and Hinojosa and, to a lesser extent, Silva. The
    presence of cocaine in communications and in locations was pervasive. There is
    nothing to suggest that the subject matter of all this activity was methamphetamine,
    not cocaine. The appellants attempt to inject the former substance as a second
    plausible theory based only on one question and answer put to the expert in
    cross-examination is, in our view, fanciful  speculation:
Villaroman
,
    at para. 37.

[11]

Second, the appellant contends that three of the intercepted telephone
    calls between Hinojosa and, respectively, Doug Comeau, Silva and the appellant
    (text message) were improperly admitted into evidence and relied on by the
    trial judge without consideration of, and a ruling on, the test in
R. v.
    Carter
, [1982] 1 S.C.R. 938.

[12]

We agree that the trial judge should have made a ruling on this issue
    and that he erred by saying in his judgment, with respect to one of the calls:
    This is not some exception to the hearsay rule. It is direct evidence of how
    much Hinojosa was charging for one.

[13]

However, this error is of no moment. Even without the three communications
    in issue, the other evidence, described above, overwhelming establishes that
    the substance being possessed for the purpose of trafficking was cocaine.

[14]

The appeal is dismissed.

K. Feldman J.A.

J.C. MacPherson J.A.

C.W. Hourigan J.A.