COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bridgman, 2017 ONCA 940

DATE: 20171204

DOCKET: C62323

Pardu, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Arthur George Bridgman

Appellant

Andrew Furgiuele and Cara Barbisan, for the appellant

Brian G. Puddington, for the respondent

Heard: September 22, 2017

On appeal from the convictions entered by Justice
    Harrison S. Arrell of the Superior Court of Justice, sitting with a jury, on September
    22, 2015.

Fairburn J.A.:

OVERVIEW

[1]

On September 22, 2015, a jury found the
    appellant guilty of three counts of possession for the purpose of trafficking
    in oxycodone, percocet, and clonazepam. He appeals his convictions.

[2]

The charges arose from evidence seized during
    the execution of a search warrant at the appellants home. The police located
    numerous prescription drugs. A search incident to the appellants arrest
    produced a cell phone. The police later extracted text messages said to be
    related to drug trafficking from the phone. The trial judge admitted the
    messages and instructed the jury that they could be used for the truth of their
    contents.

[3]

This appeal turns on two questions:

1.

Were the text messages properly admitted into
    evidence?

2.

Was the jury properly instructed regarding the
    use of the text messages?

[4]

The answer to both of these questions is yes. I
    would dismiss the appeal for the reasons that follow.

BACKGROUND

[5]

The police watched the appellants home over a
    number of days. They saw people coming and going from his residence. A car
    would arrive, someone would quickly enter the residence, then leave, get back
    into the vehicle, and the car would drive away. The police believed this
    recurring activity to be consistent with drug trafficking. They obtained a
    search warrant.

[6]

The appellant was home when the police executed
    the warrant. The police located oxycodone, percocet, and clonazepam pills
    throughout the residence. Some of the pills were in the wrong pill bottles and
    some were in bottles that did not correspond to the appellants name. The
    police also located drug paraphernalia. The appellant took responsibility for
    possession of the drugs.

[7]

The appellant was arrested at home during the
    execution of the warrant. A search incident to the appellants arrest uncovered
    more pills, $5,000 cash, and a cell phone that was located in his pocket.

THE TEXT MESSAGES
VOIR DIRE

(a)

The Facts

[8]

The police obtained a warrant to search the
    contents of the seized phone. The lawfulness of the actual search was conceded.

[9]

The police located multiple text messages that
    had been sent and received over a three-day period, totaling 30 incoming and 10
    outgoing messages. For purposes of this judgment, the term outgoing message
    refers to those messages sent from the phone. The term incoming message
    refers to those messages sent to and received by the phone.

[10]

The admissibility of the outgoing messages was
    not in issue at trial. This was a reasonable position given that there was
    ample evidence that the outgoing messages constituted admissions by the
    accused:
R. v. Evans
,

[1993] 3 S.C.R. 653, at pp. 668-69. Although
    the appellant testified before the jury that he did not use the text message
    function on his phone, denying any knowledge of the text messages that had been
    extracted, he accepted that the phone was his and it was on his person when he
    was arrested. There was also one incoming message addressed to Art,
    constituting further circumstantial evidence connecting the appellant to the
    phone and the text messages.

[11]

The outgoing messages in this case were classic
    admissions and, assuming relevance, would have been admissible as a party
    admission exception to the hearsay rule:
R. v. Foreman
(2002), 62 O.R. (3d) 204 (C.A.), at para. 37, leave to appeal
    refused, [2003] S.C.C.A. No. 199;
R. v. Osmar
,
    2007 ONCA 50, 84 O.R. (3d) 321, at para. 53, leave to appeal refused, [2007]
    S.C.C.A. No. 157; and
Evans
,

at pp. 664-69. Standing on their own, though,
    the outgoing messages had no probative value. Their relevance rested entirely
    on their relationship to the incoming messages. As such, the incoming messages became
    the focus of the admissibility
voir dire.

[12]

The incoming text messages originated from nine different
    phones. They included messages like:

·

Can I come by at lunch for a few ps?

·

[D]o you whant those things the p.

·

[Y]ou dont sell harder than oxys right?

·

[C]an i buy a few sleeping pills off you
    tomorrow? if u cant teext call moms cell love n miss u.

[13]

The Crown elicited evidence during the trial
    proper that p is a common street term for percocet and that oxy is a common
    street term for oxycontin.

[14]

During the second day of trial, in the absence
    of the jury, Crown counsel expressed his intention to produce the text messages
    the following morning and then close his case. The next morning, defence
    counsel voiced his objection to the admissibility of the text messages for the first
    time, maintaining that they were implied assertions, the same as those at issue
    in
R. v. Baldree
,

2013 SCC 35, [2013] 2 SCR 520. Defence counsel took the position
    that they were presumptively inadmissible hearsay.

[15]

When the trial judge expressed understandable
    concern about the timing of the defence objection, defence counsel said that he
    made a tactical decision not to raise the matter earlier out of concern that
    the Crown could take steps to remedy perceived deficiencies in establishing why
    the text messages should be admitted. As defence counsel put it: it was my job
    to remain silent for fear that things could have been rectified.

[16]

The trial judge excused the jury for the day and
    embarked upon an admissibility
voir dire
the following
    morning.

[17]

The Crown called two witnesses. Sgt. Vuyk, the
    officer who had performed the work on the cell phone, was qualified on consent
    as an expert in the area of extracting text messages. Sgt. Vuyks evidence was largely
    directed at the question of threshold reliability. He testified that he had
    used two tools in the extraction exercise, one for outgoing and one for
    incoming messages. He then took the extracted messages and merged them into a
    single document in chronological order. He testified that the document
    contained every text message located on the phone.

[18]

Det. Bell, the officer-in-charge of the
    investigation, also testified. Det. Bells evidence was largely directed at the
    question of necessity. He testified that he did not take any steps to locate
    the individuals associated to the phone numbers for the incoming messages. He acknowledged
    that once the text messages had been located, he did not think it was necessary
    to follow-up with those who had sent the messages to the appellants phone.

[19]

Det. Bell had been involved in hundreds of drug
    investigations over the course of his career. While he acknowledged that a
    subscriber check could have been done on the numbers for the incoming messages,
    he stated that, in his experience, people operating in the drug subculture
    often have fake names assigned to their phones.

[20]

Det. Bell testified that at most he could think
    of three times when he had successfully convinced someone to provide a
    statement to the police and could think of no situation where a person had come
    to court to testify that they had purchased drugs from an accused. He explained
    that for those living in the drug subculture, its almost the worst thing that
    you can be identified as, as a snitch or informant, so they stay well clear of
    that.

(b)

The Admissibility Ruling

[21]

Defence counsel maintained that, because the
    Crown was seeking the admission of presumptively inadmissible hearsay evidence,
    it was for the Crown to bring an application for admission. The trial judge rejected
    this position, construing the application as one brought by the defence to
    exclude evidence. Accordingly, the application was dismissed with written
    reasons to follow before the end of the trial.

[22]

The written reasons were delivered two days following
    the conclusion of the trial. The admissibility analysis largely focused on the
    principled exception to the hearsay rule. Relying heavily on the number of text
    messages involved, and the unlikelihood that the declarants would testify about
    their desire to purchase drugs, the trial judge concluded that the twin
    criteria of threshold reliability and necessity had been met. He also found
    that the text messages were highly probative and had no prejudicial effect. The
    text messages were admitted as hearsay statements.

[23]

The written ruling also appears to hold that the
    text messages were admissible as original circumstantial evidence, constituting
    evidence of trafficking under the rule relating to documents in possession of
    the accused. It should be noted, however, that the parties agree that the jury
    was only charged on a hearsay purpose for the messages.

ISSUES AND ANALYSIS

I.

Were the Text Messages Properly Admitted?

(a)

The Parties Positions

[24]

The appellant maintains that
because the
    messages contain implied assertions, akin to the implied assertion in
Baldree
, the only route to admissibility was the principled approach to the
    hearsay rule. According to the appellant, the trial judge erred in respect to
    both threshold reliability and necessity when he applied the rule. The
    appellant also claims that he was prejudiced by not learning the purpose for
    which the text messages were admitted until receiving the draft jury charge.

[25]

The Crown takes the view that, although the text
    messages were used for a hearsay purpose, there was no need to consider
    admissibility under the principled approach to the hearsay rule. He encourages
    this court to find that text messages found on an electronic device located in
    the possession of an accused are
prima facie
admissible
    for the truth of their contents under the documents in possession rule. If he
    is found to be wrong in this submission, then the Crown maintains that the
    trial judge committed no error in his analysis of threshold reliability and
    necessity.

[26]

Finally, Crown counsel argues that the
    parties knew from the outset that the messages were admissible for the truth of
    their contents and, in any event, even if there was uncertainty around this
    use, no prejudice resulted.

[27]

The submissions raise three discrete, but
    interrelated issues. I propose to address them in the following order.

[28]

I will first consider the appellants submission
    that the lack of clarity about the purpose for which the text messages were
    admitted created unfairness and, essentially, resulted in a miscarriage of
    justice. Second, I will consider whether the incoming texts were admissible
    under the principled exception to the hearsay rule. This analysis leans heavily
    on
Baldree.
The analysis is of particular importance on appeal given
    that the texts were left with the jury as admissible for the truth of their
    contents. Third, I will consider whether the texts were admissible as documents
    found in the possession of the appellant.

(b)

Clarity Around the Purpose for Admission

[29]

Crown counsel at trial advanced two alternative arguments for the
    admission of the incoming text messages at the
voir dire
:

(a)
    admissibility for a hearsay purpose under the principled approach; or (b)
    admissibility under the documents in possession rule for a hearsay purpose and
    as original circumstantial evidence.

[30]

After the trial judge ruled the messages
    admissible, with written reasons to follow,
defence counsel asked for
    clarification on the purpose for which the evidence could be used. He
    specifically noted that the Crown had advanced a dual purpose for admission.
    The trial judge replied that it would be for whatever purpose the Crown is
    going to allege its going to be called for, ruling that the evidence would be
    heard first.

[31]

On a few occasions over the next few days, defence counsel
    renewed his request for an articulation of the use to which the text messages
    could be put. The trial judge said that it would depend on submissions after
    all of the evidence had been heard.
It was only after the
    draft jury charge had been distributed, at the end of trial, that it became
    clear that the jury would be permitted to use the text messages for a hearsay
    purpose.

[32]

As with all
admissibility
questions, the first issue to be addressed is the purpose for which
    the evidence is sought to be tendered. The answer to this question will necessarily
    inform the relevance of the evidence, the admissibility analysis to be
    conducted, and the legal conclusion reached: S. Casey Hill, David M. Tanovich
    & Louis P. Strezos,
McWilliams Canadian Criminal Evidence
, loose-leaf,

5th ed. (Toronto: Canada Law Book, 2013), at para. 24:30.

[33]

I
agree
with the
    appellant that the answer to this question remained elusive until the end of
    trial, when the draft charge made it clear that the evidence was admissible for
    a hearsay purpose. Even so, I see no prejudice arising from the after-the-fact articulation
    of the purpose for which the evidence could be used. The record reveals that
    everyone proceeded on the assumption that the text messages were being elicited
    for a hearsay purpose. Moreover, the appellant has not suggested that he would
    have done anything differently had the trial judge earlier stated that the jury
    would be permitted to use the text messages for a hearsay purpose.

[34]

Whether the messages were admitted for a hearsay
    purpose or as original circumstantial evidence, the appellants position would
    have been the same. He testified that he did not use the text messaging
    function on his phone. He denied any involvement in the text messages,
    suggesting someone else must have been using his phone for this purpose.
    Regardless of whether the text messages were admitted for a hearsay purpose or
    as original circumstantial evidence, it is hard to imagine that the appellants
    evidence would have been any different or that the defence would have unfolded
    any differently. No suggestion to the contrary has been advanced. Quite simply,
    no prejudice resulted from the lack of clarity on this point.

[35]

This is not to say, however, that this manner of
    proceeding should be encouraged. Although it is understandable and even
    laudable that the trial judge was concerned about moving this jury trial
    forward, and that defence counsels late-in-the-day objection to the admission
    of the text messages threatened its efficient progress, the purpose for admission
    should have been addressed at the outset and guided the approach to
    admissibility.

[36]

One can well imagine situations where a lack of
    precision on the purpose for admissibility might well cause prejudice. For
    instance, prejudice might result where a party takes a step that would not have
    been taken had the party known the purpose for admission in the first place. While
    the purpose for admission of evidence may evolve with the fluidity of a trial,
    it is open to the parties to raise these evolving issues as they arise. Although
    prejudice did not result in this case, this finding should not be construed as supporting
    a free-floating approach to admissibility.

(c)

The Principled Exception to the
    Hearsay Rule

(i)

Standard of Review

[37]

The standard of review for a hearsay admissibility ruling is one
    of correctness:
R. v. Duong
,

2007 ONCA 68, 84 O.R. (3d) 515,
    at para. 54. Absent manifest error, the findings of fact upon which the ruling
    rests must be accepted.

[38]

A correctness standard applies to the ultimate question of
    whether the trial judge properly applied the criteria relevant to the
    admissibility of the evidence to the facts as found by the trial judge:
R.
    v. Merz
(1999), 127 O.A.C. 1, at para. 49, leave to appeal refused, [2000]
    S.C.C.A. No. 240. Absent a demonstrated error, decisions regarding whether the
    circumstances support threshold reliability and necessity, and the balance
    between probative value and prejudicial effect, are owed deference:
R. v.
    Carroll
,

2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 112, leave to
    appeal refused, [2014] S.C.C.A. No. 193.

(ii)

Hearsay and Implied
    Assertions

[39]

The defining feature of hearsay evidence is that it constitutes an
    out-of-court statement by a non-testifying declarant that is tendered to prove the
    truth of its contents:
R. v. Bradshaw
,

2017 SCC 35, 349
    C.C.C. (3d) 429, at para. 1;
R. v. Khelawon
,

2006 SCC 57, [2006]
    2 S.C.R. 787, at para. 56; and
Baldree
,

at para. 30. The
    unknown people sending the text messages are the out-of-court declarants in
    this case.

[40]

Hearsay is presumptively inadmissible because of the accepted
    dangers arising from this type of evidence. Declarants may have misperceived or
    wrongly remembered facts, been unintentionally misleading in the account given,
    or knowingly made a false statement. Eliciting statements in the absence of
    declarants deprives the trier of fact of the opportunity to observe their demeanour
    and see the potential concerns over reliability fully explored:
Baldree
,

at paras. 31-32;
Khelawon
,

at paras. 2, 35; and
Bradshaw
,
    at paras. 20, 26.

[41]

The presumptive rule against the admission of hearsay evidence applies
    equally to express and implied assertions tendered for the truth of the
    assertion. The truth of an implied assertion hinges on the truth of the
    declarants underlying belief:
Baldree,
at para. 39. Both implied and
    express assertions elicited to prove the truth of what the person not called
    as a witness is alleged to have asserted trigger the application of the hearsay
    rule:
Baldree
, at para. 4.

[42]

For example, in
Baldree
the Supreme Court concludes that
    no meaningful distinction can be drawn between a declarant who says that an accused
    is a drug trafficker and a declarant who asks to buy drugs from the accused. The
    express and implied assertions of fact are the same: the accused is a drug dealer.
    When elicited for the truth of the assertion, they both constitute hearsay
    evidence and they are both presumptively inadmissible.

[43]

The presumption can be displaced only where the evidence fits
    within a categorical exception to the rule or satisfies the principled exception:
Khelawon
,

at para. 42; and
R. v. Mapara
,

2005
    SCC 23, [2005] 1 SCR 358, at para. 15. The principled exception focuses on the well-known
    criteria of threshold reliability and necessity:
Khelawon
,

at
    para. 47. Even where these twin criteria are met, judges retain a residual
    discretion to exclude an out-of-court statement where its probative value is
    outweighed by its prejudicial effect:
Khelawon
,

at para. 49.

[44]

In this case, the trial judge concluded that the text messages were
    admissible under the principled approach.

(iii)

Threshold Reliability

[45]

On the issue of threshold reliability, the appellant maintains
    that the trial judge erred by: (a) failing to consider that there was no
    evidence that the appellant was the intended recipient of the incoming
    messages; and (b) failing to consider that the text messages taken from the
    phone constituted incomplete communications.  I will address the appellants
    arguments in this order.

[46]

The appellant testified
    that he did not use the text message feature on his phone. He testified that
    the messages must have been sent and received by someone else. He relies upon
    this testimony to support his submission that the trial judge erred in his
    assessment of threshold reliability by failing to consider that there was no
    evidence that the appellant was the recipient of the messages.

[47]

This submission cannot
    succeed. The first time the court heard that the appellant did not use the text
    message feature on his phone was when he testified after the Crown had closed
    its case, after the admissibility ruling had been made.

[48]

Even if the appellant had
    testified on the
voir dire,
it would not have made a difference to admissibility. There was considerable
    evidence that the incoming texts were directed to the appellant. It was his
    phone. He was in possession of it at the time of his arrest. The appellants
    first name is Arthur. One of the text messages was directed to Art my friend.

[49]

There was ample evidence
    allowing the matter to be left with the jury for their consideration. The
    appellants suggestion that he was not the intended recipient of the messages
    did not impact threshold reliability or admissibility in general.

[50]

As for the submission
    that the trial judge also erred by failing to consider that the text messages
    were incomplete, I do not agree. During the trial proper, the Crowns expert
    acknowledged that there may have been missing messages. Although he said that
    he had retrieved every message stored on the phone, he was unable to say
    whether there were messages that may not have been saved on the phone. Nor
    could he say whether the incoming text messages had been read.

[51]

Notably, the
    admissibility ruling was made before any of the evidence upon which the
    appellant relies was elicited. During the
voir dire
,

the defence attacked threshold reliability only on the basis that the
    Crown had not, by that point, called evidence regarding the meaning of the
    terms used in the text messages, like p and oxy. The completeness of the text
    message record was not challenged during the
voir dire
.

[52]

Even if the expert had
    been asked about the completeness of the record during the
voir
    dire
,

it would not have made a difference to threshold
    reliability. Although the appellant advances the incontrovertible position that
    in some situations, where parts of conversations are missing, statements may be
    taken out of context, this is not one of those cases:
R. v.
    Ferris
(1994), 149 A.R. 1 (C.A.), at
    paras. 17-23, affd [1994] 3 S.C.R. 756.

[53]

Standing alone, many of
    the text messages are clear and open to little interpretation. For instance,
    questions like, do you whant those things the p, you dont sell harder than
    oxys right, and can I buy a few sleeping pills off you tomorrow, require
    little effort by way of interpretation. When considered in context, others also
    take on clarity. For example: Cmon bud reply the ol lady is bugging she doesnt
    get her own til Monday so far ur on our xmas list dont ruin it; or an incoming
    message saying [w]e need u again today from a person who had written and
    asked for ps the previous day.

[54]

It is hard to imagine
    how a cross-examination would probe any serious issues about
perception, memory, narration, or
    sincerity in relation to the above statements. They were committed to a
    permanent electronic record. Although the expert acknowledged that there could
    be text messages missing, there was no evidence that the messages retrieved were
    anything but an accurate reflection of the statements made.

[55]

The quantity of the
    messages, repeating patterns of requests for different types of drugs, only
    enhances their threshold reliability:
Baldree
,

at para. 71. The majority in
Baldree
relied upon a passage taken from I.H. Dennis,
The
    Law of Evidence
,

4th ed. (London: Thomson Reuters/Sweet & Maxwell,
    2010), at p. 708, to make the point that one or two callers might be mistaken,
    or might even have conspired to frame the defendant as a dealer, but it defied
    belief that all the callers had made the same error or were all party to the
    same conspiracy.

[56]

This court has
    previously accepted that where there are multiple drug calls, threshold
    reliability may be enhanced:
R. v. Malcolm-Evans
,

2016 ONCA 28, at para. 7; see also
R. v. Belyk
, 2014 SKCA 24, 433 Sask.R. 195, at paras. 24-25. The
    principle is simple. The more people who write to someone about obtaining
    drugs, the less likely it is that the declarants are all suffering from the
    same misperception, wrongly remembering something, engaged in unintentionally
    misleading behaviour, or all knowingly making false statements.

[57]

Although every hearsay
    question is informed by its own facts, one statement about obtaining drugs may
    be explained by some alternative explanation  a wrong number, a wrong
    impression, or a wrong understanding. But multiple statements that have the
    same theme may render implausible any explanations other than that the
    originators of the communication are asking for drugs.

[58]

It was open to the trial
    judge to conclude that the text messages met the test for threshold
    reliability. There is no error in his approach.

(iv)

Necessity

[59]

On the issue of necessity, the appellant alleges that the
    trial judge erred by failing to properly apply the requirements placed on the
    police to track down declarants, requirements said to be set out in
Baldree.

[60]

It must be remembered
    that
Baldree
involved
    a single phone call by a declarant who gave his address to the police officer when
    they spoke. In these circumstances, the majority maintained that the police
    should have taken the steps that were open to them at the time that the call
    took place, to find the declarant.

[61]

Yet, as noted by the
    trial judge, even the majority judgment in
Baldree
was careful to distance itself from a categorical
    rule related to necessity when it came to drug-purchase calls:
Baldree
,

at para. 70. The majority in
Baldree,
at para. 72, commented on the fact that the number of callers may
    inform necessity: The Crown cannot be expected, where there are numerous
    declarants, to locate and convince most or all to testify at trial, even in the
    unlikely event that they have supplied their addresses. See also:
Baldree,
at para. 107; and
R. v. Gerrior
,

2014 NSCA
    76, 348 N.S.R. (2d) 354, at para. 52.

[62]

Unlike
Baldree,
there was evidence in this case regarding why the police did not
    take steps to locate the declarants. Det. Bells evidence has been reviewed previously.
    He had detailed experience with drug investigations. The trial judge relied
    heavily on this evidence and his findings are entitled to deference.

[63]

Moreover, threshold reliability and necessity
    work in tandem. The more reliable a statement, the less important the necessity
    analysis may become. The criterion of necessity and reliability are said to
    intersect and should not be considered in isolation:
Khelawon
,

at para.
    77. As they coexist in this symbiotic relationship, they may impact one
    another:
Khelawon
,

at paras. 77, 86; and
Baldree
,

at paras.
    72, 96. The trial judge did not err in finding this to be the case here.

(v)

The Balancing
    Exercise

[64]

The
appellant has not argued that the trial
    judge made an error related to the ultimate balancing of probative value
    against prejudicial effect. The appellant does not point to any particular
    prejudicial effect from the admission of the messages. While prejudice can
    arise from the risk that a jury may misuse evidence, there was no risk here. The
    probity of evidence does not create prejudice. I can see no prejudice arising
    from the evidence in this case.

(vi)

Conclusion

[65]

The appellant has
    failed to show an error in the approach to the principled exception to the
    hearsay rule.

(d)

The Documents in Possession Rule

(i)

General Approach to the Rule

[66]

I now turn to the Crowns primary argument, that the text
    messages were admissible under the documents in possession rule and that the
    trial judge was right to admit them on this basis.

[67]

The documents in possession rule is one of long-standing: see
Rex
    v. Smart & Young
(1931), 55 C.C.C. 310 (Ont. C.A.), at p. 313;
R.
    v. Turlon
(1989), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 190;
R. v.
    Ansari
, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 116; and
B.C.
    Securities Comm. v. Branch
,

[1995] 2 S.C.R. 3, at p. 33. The rule
    applies to paper and electronic documents alike:
Ansari
,

at
    para. 154; and
R. v. An
,

2015 ONCA 799, at paras. 15, 17.

[68]

The rule is designed to permit the admission of documents in two
    different circumstances for two different purposes.

[69]

First, the rule allows for the admission of documents found in personal,
    constructive or joint possession of an accused as original circumstantial
    evidence of their contents to establish the accuseds connection to or
    complicity in the matter to which the documents relate:
Ansari
,

at
    para. 116. Second, where evidence exists that the accused has recognized, adopted
    or acted upon the documents found in possession, the documents may be admitted
    as an exception to the hearsay rule, allowing the trier of fact to consider
    them for the truth of their contents. As noted in
B.C. Securities Comm.
,

at p. 33, if the party in possession has recognized, adopted or acted on
    the document an admission of acceptance of its contents as true may be
    inferred.

[70]

This court addressed the dual nature of the admissibility
    doctrine in
Turlon
. The court adopted as correct the following passage
    from Hodge M. Malek & Sidney L. Phipson,
Phipson on Evidence,
18th
    ed. (London: Sweet & Maxwell, 2013), at 37-10, pp. 1326-27, which remains
    substantively unchanged today:

Documents which are, or have been, in the possession of a party
    will   generally be admissible against him as
original (circumstantial)
evidence to show his knowledge of their contents, his connection with or
    complicity in, the transactions to which they relate, or his state of mind with
    reference thereto. They will further be receivable against him as
admissions
(
i.e.
exceptions to the hearsay rule) to prove the
truth
of their contents if he has in any way
recognised, adopted or acted
upon
    them.

[Emphasis in original.]

[71]

Text messages are documents containing
    out-of-court statements. I reject the position that
Baldree
forecloses their admissibility under the documents in possession
    rule. When text messages are found in possession, they may be considered for
    admission as either original circumstantial evidence or hearsay. It all comes
    back to the purpose for admission.

(ii)

Documents in
    Possession as Original Circumstantial Evidence

[72]

If a document found in possession is elicited
    for a non-hearsay purpose  as original circumstantial evidence showing the
    accuseds connection to or complicity in a matter  then the hearsay rule is
    not activated:
R. v. Black
,

2014 BCCA 192, 309 C.C.C.
    (3d) 484, at paras. 36-38, 40-41; and David M. Paciocco & Lee Stuesser,
The
    Law of Evidence
, 7th ed., (Toronto: Irwin Law, 2015), at p. 117
. This is true even where documents may contain out-of-court
    statements that can be understood as express or implied assertions if tendered
    for the truth of the assertion.

[73]

In
Baldree
,

at para. 36,
the majority was careful to point out that [n]o evidence is hearsay
    on its face. its admissibility depends on the
purpose
for which it is sought to be admitted (emphasis in original). The
    key to the hearsay finding in
Baldree
is that
    the court was satisfied that the declarants statement was elicited for the
    truth of the implied assertion, that Mr. Baldree was a drug dealer: see
Baldree,
at para. 37. The majority specifically observed that the evidence
    was not tendered as circumstantial evidence that the respondent was engaged in
    drug trafficking:
Baldree
,

at para. 39.

[74]

Accordingly,
Baldree
does not stand for the proposition that anything that can be
    construed as an implied assertion is necessarily hearsay. This becomes even
    more clear when one considers that
R. v. Ly,
[1997]
    3 S.C.R. 698, affg (1996), 193 A.R. 149 (C.A.), remains good law:
Baldree,
at paras. 52-53.

In
Ly,
the court commented upon the
    admissibility of an unknown declarants out-of-court statement, setting up a
    time and place for a drug drop. The statement was referred to as one of intention,
    or a statement tendered to establish the alleged drug transaction, and hence
    not tendered for the truth of its contents:
Ly,
at para. 3.

[75]

Baldree
does not disentitle a party
    from seeking the admission of a document found in possession as original
    circumstantial evidence. This includes text messages. The critical question is
    the purpose for which the document is tendered. It is up to the party seeking
    to admit the text messages to clearly articulate the non-hearsay purpose for
    which they are admissible.

[76]

Of course, resort to this doctrine cannot
    constitute an end-run-around the hearsay rule. If the circumstantial value of
    the evidence turns on the truth of the assertion made by the non-testifying
    texter, then the traditional hearsay concerns will be present.

[77]

If, though, the relevance of the evidence does
    not depend on the truth of the assertion, the text messages may be admitted on
    the basis that they constitute original circumstantial evidence relevant to an
    issue at trial. By way of example only, text messages may constitute original
    circumstantial evidence connecting the accused to a location, transactions, or
    people, or demonstrating knowledge, state of mind and so on. I emphasize that
    these are only examples and should not be considered a complete or aspirational
    list.

[78]

The fact is, though, that at the end of trial in
    this case, the messages were used for a hearsay purpose. Reasoning backwards
    from how the text messages were used, the alternative basis for admission endorsed
    in the trial judges written reasons  original circumstantial evidence  does
    not accord with the purpose to which the text messages were ultimately put. As
    such, this basis for admission requires no further comment.

(iii)

Documents in Possession as Hearsay

[79]

As for the second prong of the documents in
    possession rule, which constitutes an exception to the hearsay rule, the Crown also
    argues that all of the incoming text messages constitute admissions that were
    adopted. He argues that the adoption crystalized in two specific situations where
    the appellant is said to have responded to incoming messages.

[80]

Crown counsel also argues that by virtue of
    coming to rest on the phone found in his possession, the messages were adopted
    within the meaning of the documents in possession rule. Although
it is
    important to recall that the documents in possession rule speaks in terms of
    documents being recognised, adopted or acted upon (emphasis omitted), these
    reasons focus on the Crowns argument of adoption:
Turlon
,

at
    p. 191.

[81]

As above, documents can become admissions for the proof of their
    contents where the accused has adopted the statement:
B.C. Securities Comm.
,

at p. 33; and
Turlon
,

at p. 191. This is really just a
    restatement of the adopted admissions rule, with the added requirement that the
    document must be found in the accuseds possession.

[82]

In the context of oral statements, an adoptive
    admission is a statement made by another person in the presence of the accused,
    where the accused can be said to have adopted the statement. Adoption occurs
    only where the accused expressly or impliedly assents to the truth of the
    statement. Adoption can occur by a variety of means, including words, actions,
    conduct, or demeanour:
R. v. Robinson
,

2014 ONCA 63, 118 O.R. (3d) 581, at
    para. 48, citing David Watt,
Watts Manual of Criminal Evidence
(Toronto: Thomson Carswell, 2013), at para. 36.04.

[83]

In circumstances that call out for a reply,
    adoption may also be interpreted from silence:
Robinson
,

at paras.
    48-49. As Martin J.A. noted in
Regina v. Baron and Wertman
(1976)
, 14 O.R. (2d) 173
    (C.A.), at p. 187: The silence of a party will render statements made in his
    presence evidence against him of their truth if the circumstances are such that
    he could reasonably have been expected to have replied to them. See also:
Regina
    v. Eden
(1969), 2 O.R. 161 (C.A.), at pp. 163-64. In
    these circumstances, silence allows for an inference of assent, also referred
    to as adoption.

[84]

Crown counsel relies upon two series of text
    messages to show what is said to be adoption by words:

December 13, 2010: 10:35 a.m. to 1:26 p.m.

Incoming: u awake yet?

Outgoing: I live

Incoming: Can I come by at lunch of a few ps?

Outgoing: What time is lunch

Incoming: 12

Outgoing: Ok

Incoming: Thanks. Cya soon

[The conversation then continues about a different meeting time and
    place.]

December 15, 2010: 10:39  11:29 a.m.

Incoming: hey it is rob you at home

Outgoing: Im home coum by

Incoming: do you whant those things the p
[1]

[85]

As for the first series of exchanged messages on
    December 13, 2010, there is clear evidence of adoption. The implied assertion
    is that the person wants to come by for ps because the appellant sells
    percocet. By agreeing to allow the person to come by, the appellant can be said
    to have impliedly assented to the truth of the assertion. This is a classic
    adoptive admission. The documents in possession rule would permit admissibility
    of this series of text messages for a hearsay purpose.

[86]

As for the series of messages exchanged on
    December 15, 2010, I do not see them in the same light. There was no response
    to the question do you whant those things the p. There is simply no basis
    upon which to construe explicit or implicit adoption.

[87]

Just because a text message arrives on a cell
    phone does not mean it has been adopted. Even where it can be said that a
    message has been read, this does not constitute adoption sufficient to generate
    an exception to the presumptive rule of inadmissibility.

[88]

Allowing such easy passage of hearsay evidence
    into a trial, merely because an out-of-court statement lands on an accuseds
    electronic device, would seriously compromise trial fairness. An accused should
    not be rendered vulnerable to the whims of others and messages they may send by
    way of electronic communication. It cannot be that the mere act of receiving a
    message on ones electronic device constitutes the act of adoption, thereby
    transforming the statement into an adoptive admission.

[89]

Other
than the one series of messages set out
    above, there is no evidence of the appellant recognizing, adopting or acting on
    the messages.

[90]

In relation to a few of the messages, there is some
    evidence to the contrary. Some of the messages were received after the
    appellant had already been arrested. For example, the message pertaining to
    whether the declarant could buy a few sleeping pills came in following the
    appellants arrest. Not only was he not in possession of his phone any longer,
    but he could not adopt something he could not possibly read.

[91]

In the end, only the one series of text messages from December
    13, 2010 could be considered adopted admissions under the documents in
    possession rule. Despite the fact that they could have been admissible on this
    basis, the jury was not charged respecting how to approach adoptive admissions.

[92]

The necessary elements of such a charge are discussed in
Robinson
,

at paras. 48-58, and more recently in
R. v. Zvolensky
,

2017
    ONCA 273, 135 O.R. (3d) 401, at paras. 150-53, leave to appeal filed October
    19, 2017. Had this been the sole basis for admissibility, the jury charge would
    have fallen short of the mark as the messages were treated as general hearsay
    and not as adoptive admissions.

(iv)

Conclusion

[93]

Despite the potential admissibility of some of the text messages
    under the documents in possession rule, given how the jury was instructed in
    this case, the rule cannot justify admissibility on appeal. Despite this fact,
    as discussed previously, the text messages were properly admissible under the
    principled exception to the hearsay rule and the jury charge accorded with this
    purpose. I will now discuss the charge.

II.

Was the Jury Properly Instructed on the Use to
    be Made of the Text Messages?

[94]

The appellant raises two
    matters respecting the charge. He argues that: (a) given that by the end of
    trial the Crown had conceded that he could not prove that the appellant had
    read or sent the text messages, the trial judge was wrong to leave the text
    messages for a hearsay purpose; and (b) the charge was inadequate as it related
    to the dangers associated to the text messages.

(a)

The Crowns Closing

[95]

I do not agree that the
    Crowns closing undermined the hearsay character of the text messages.

[96]

In advancing this
    position, the appellant latches onto Crown counsels acknowledgement in the
    pre-charge conference that he was very clear with the jury in his closing
    that he did not prove absolutely that Mr. Bridgman read those texts that were
    incoming and we couldnt say that hes the one that sent them. The relevant
    passage in the Crowns closing argument is as follows:

[S]omebody must have been
    comfortable enough to send that type of explicit message to Mr. Bridgman when
    they know that there is going to be receptiveness to it. Who randomly just
    sends out to the world a text message that  where that person wishes to engage
    in criminal activity. So, does that mean that Mr. Bridgman read it? No, I cant
    prove that. Does this prove that Mr. Bridgman sent those reply messages? I
    cant prove that, when you look at it in isolation, but when you look at the
    totality of it, the $5,000.00 of cash in the pocket, the oxycodone 80s in his
    pocket.  In my submission when you look at it as a whole, again  there is an
    inescapable and irresistible inference of one thing, that Mr. Bridgman is a
    drug trafficker.

[97]

The appellant maintains
    that this passage demonstrates that the Crown moved away from a hearsay purpose
    for the messages. I disagree.

[98]

In the context of the
    closing as a whole, the Crowns position is clear. Although Crown counsel noted
    the obvious, that he could not prove that, standing on their own, the text
    messages were sent or received by the appellant, considering the evidence as a
    whole, the jury was well positioned to come to this conclusion. Crown counsel threaded
    this idea throughout his closing submissions, including posing the following
    rhetorical question for the jurys consideration in response to the appellants
    evidence that someone else must have been using his phone for text messaging:

But I have to ask you, is
    it reasonable to think that somebody is going to be a drug trafficker of prescription
    pills and use somebody elses phone to engage in that business, hoping that
    they have possession of the phone when people reply or that theyll have access
    to the phone when somebody might text them and say, hey, I need some pills now,
    at lunch? That defies common sense.

[99]

The Crown clearly advanced
    the position that it was the appellants phone and that he was the one using
    the text messaging function.
The Crown did not
    resile from his position that the text messages came back to the appellant. Nor
    did he resile from his position that they could be used for a hearsay purpose.

(b)

The Content of the Charge

[100]

The
    appellant takes the position that there is a fundamental flaw in the trial
    judges charge. He argues that the trial judge erred by leaving the impression
    that the text messages were reliable hearsay, and that the jury should have
    been notified of the hearsay dangers affecting the ultimate reliability of the
    messages. I do not accept this submission.

[101]

The
    question of ultimate reliability is for the jury:
Khelawon
,

at
    para. 3. Ultimate reliability is determined by the trier of fact, assessing
    whether and to what degree the statement should be believed and relied upon to
    determine the issues in the case:
Bradshaw
,

at para. 39. This
    determination is made against the backdrop of all of the evidence:
Khelawon
,

at para. 3.

[102]

The
    charge brought home to the jury their need to carefully consider the text
    messages. The trial judge commenced by explaining that hearsay evidence occurs
    when one person tells you what another person says and that person is not here
    to tell you directly. He explained that hearsay evidence is generally excluded
    because it is not considered reliable for the following reasons: The person
    is not under oath, is not cross-examined and you cannot watch the person give
    their testimony in person.

[103]

Having
    explained the dangers of hearsay evidence, the trial judge went on to explain
    that there was an exception in this case

the text
    messages. The appellant maintains that by referring to the text messages as an
    exception, the jury would have understood this to mean an exception to the hearsay
    dangers. I disagree.

[104]

Read
    in context, the jury would have understood the trial judge to be referring to
    an exception to what he had just described as the typical rule that hearsay is
    not admissible. His comment was immediately followed by reference to the same
    hearsay dangers he had just reviewed:

There was an exception that you heard in this trial being the
    text messages to Mr. Bridgmans cell phone. The people who made these texts are
    unknown and they were not here to tell you the context in which these texts
    were sent, what they meant,
or even if
    they were meant for Mr. Bridgman
.

[Emphasis added.]

[105]

The
    trial judge then reviewed for the jury the Crown and defence positions
    respecting the messages, positions that were repeated later in the charge when
    summarizing the global positions of counsel. The trial judge specifically
    adverted to the defence position regarding the absence of reliability attaching
    to the record of text messages later in his charge.

[106]

The
    hearsay portion of the charge was completed with the following observation: It
    is for you to decide how much or how little you rely on this evidence but I
    emphasize it is only one part of all the evidence you heard and you must
    consider all of the evidence in reaching your decision.

[107]

By
    the end of the charge on hearsay, the jury knew to treat the text messages with
    caution, knew the dangers associated to them, and knew that they had to
    consider whether they were even meant for the appellant. The jury charge was
    adequate to the task.

CONCLUSION

[108]

I
    would dismiss the appeal.

Released: December 4, 2017

Fairburn J.A.

I agree G. Pardu
    J.A.

I agree Grant
    Huscroft J.A.

[1]

Although Crown counsel relies upon an outgoing text message
    following the inquiry about p as part of this string of text messages, it is
    an outgoing message to a different number and, therefore, not part of the same
    text conversation.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Butters, 2017 ONCA 973

DATE: 20171211

DOCKET: C61595

BETWEEN

Hoy A.C.J.O., Doherty and Feldman JJ.A.

Her Majesty the Queen

Respondent

and

Steven Butters

Appellant/Applicant

Janani Shanmuganathan and Erin Dann, for the appellant

Ian Bell, for the respondent

Heard and released orally: December 7, 2017

On appeal from the conviction entered on July 14, 2015 and
    the sentence imposed on June 8, 2016 by Justice Graham R. Wakefield of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant raises two grounds of appeal from conviction.  Neither can
    succeed.  The totality of the evidence, particularly in the absence of any
    evidence from the defence, fully justified the conclusion that the piece of
    crack cocaine in Mr. Taggerts possession came from the appellant through the
    intermediary of Ms. Anthony.  The verdict was not unreasonable.

[2]

The trial judges characterization of the transfer from Ms. Anthony to
    Mr. Taggert as occurring immediately after the transfer from the appellant to
    Ms. Anthony is not a misapprehension of the evidence.  On the totality of the
    evidence including the police testimony, the two transfers were closely connected
    in time.

[3]

The conviction appeal is dismissed.

[4]

The appellant seeks leave to appeal the sentence of 12 months imposed by
    the trial judge.

[5]

We agree with the appellant that the trial judge erred in law by failing
    to take into account that this was a one-off transaction for a very small
    amount of crack cocaine - 0.2 grams - for $20, apparently as a favour for a
    friend and for no profit.  Further, in emphasizing the appellants criminal
    record as a reason to give a significant sentence, the trial judge failed to
    consider the positive steps the appellant had taken to rehabilitate himself
    while living on terms of effective house arrest with his parents, including
    obtaining employment.  Finally, although the trial judge considered the
    significant immigration consequences of a sentence over 6 months for the
    appellant, he declined to take them into account as a mitigating factor
    because, in view of the appellants record, he viewed the appropriate sentence
    as well beyond 6 months.

[6]

In our view, an appropriate sentence for this appellant, given the low
    level of moral culpability for this particular offence and his significant
    progress in turning his life around, is around 6 months, which is at the low
    end of the range referred to in
R. v. Woolcock
, 2002 O.J. No. 4927
    (C.A.).

[7]

In accordance with
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739
    given the immigration consequences of a sentence of 6 months or more, it is
    appropriate to reduce the sentence to one that is under 6 months.  In our view,
    an appropriate sentence in all the circumstances is 160 days.  We credit the
    time the appellant has served in pre-sentence custody and any time spent in
    custody since his sentence as totalling 160 days.  His full sentence has
    therefore been served.

[8]

In the result, leave to appeal sentence is granted, the appeal is
    allowed and the sentence is varied as stated.

Alexandra Hoy
    A.C.J.O.

Doherty J.A.

K. Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chen, 2017 ONCA 946

DATE: 20171205

DOCKET: M48356 (C61724)

Simmons, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fang Chen

Appellant

Erika Chozik and Caitlin Pakosh, for the appellant

Kevin Wilson and Kiran Gill, for the respondent

Heard: October 18, 2017

On appeal from the convictions entered by Justice Stephen
    J. Hunter of the Ontario Court of Justice on January 15, 2010, and from the
    sentence imposed on January 15, 2010.

By the Court:

Introduction

[1]

In January 2010, the appellant and her common law spouse, Liang Chen,
    pleaded guilty on the same day to four offences relating to several marijuana
    grow-operations. The appellant also pleaded guilty to one count of breach of
    recognizance.
In addition to 135 days of time served, the
    appellant was sentenced to a six-month conditional sentence with no house
    arrest plus 12 months' non-reporting probation. Various forfeiture orders were
    also made.

[2]

The appellant is a Chinese citizen. She came to
    Canada in 2005 and became a permanent resident in 2007. In February 2016, after
    being informed that her 2010 convictions make her inadmissible to Canada and
    that she was being referred for an admissibility hearing, the appellant sought
    and was granted an extension of time to appeal.

[3]

On appeal, the appellant submits that her guilty pleas
    were invalid because she was uninformed of the potential immigration
    consequences and because the facts read in did not support her pleas. In
    addition, she asserts that the lawyer who represented both her and her husband on
    the guilty pleas, Randall Barrs, was in a conflict of interest. Further, she
    claims she was deprived of effective assistance of counsel because Mr. Barrs failed
    to review the Crowns disclosure with her, failed to obtain her version of
    events, and failed to advise her of available defences.

[4]

The appellant also seeks leave to appeal sentence. She
    says the sentence imposed is unfit because the sentencing judge failed to
    consider its immigration consequences. Further, she claims that the forfeiture
    orders were grossly disproportionate to any culpability and that there was no
    evidence the forfeited property was proceeds of crime.

[5]

On consent, the parties have filed fresh evidence to
    address the issues on appeal. However, the appellant moves to strike Mr. Barrs
    affidavit, filed by the Crown. She asserts that Mr. Barrs failed to fulfill his
    responsibilities under the Procedural Protocol regarding allegations of
    ineffective assistance of counsel, was unresponsive on critical issues, and
    refused to answer proper questions.

[6]

For the reasons that follow, we decline to strike Mr.
    Barrs affidavit, we dismiss the conviction appeal and we deny leave to appeal
    sentence.

The Guilty Plea and Sentencing Proceeding

[7]

The appellant was originally charged with 14 offences arising from her
    alleged participation in a conspiracy involving 11 other accused, including her
    husband, and several marijuana grow-operations. On January 15, 2010, she and
    her husband pleaded guilty to four offences:
conspiracy to
    produce marijuana; possession of marijuana for the purpose of trafficking;
    theft of electricity; and theft of water
. The appellant also pleaded
    guilty to breach of recognizance. The other charges pending against the
    appellant were withdrawn.

[8]

The appellant and her husband were initially
    released on bail following their arrests in June 2009. The appellant was
    detained in custody on September 1, 2009 after being arrested at her place of
    employment while not in the presence of her surety, contrary to the terms of
    her recognizance. Her husband retained Mr. Barrs shortly thereafter. The guilty
    pleas were entered on January 15, 2010 after the trial Crown made a time-limited
    sentencing offer to the appellant and her husband through Mr. Barrs.

[9]

At the outset of the guilty plea proceeding, the
    sentencing judge noted that the offences were indictable matters and asked if
    the appellant and her husband waived the formal putting of an election. Mr.
    Barrs responded that they did and further that the charges, the effect of
    pleading to an indictable offence and the position of counsel had been
    explained to them. He also stated that he had signed directions and that the
    appellant and her husband understand that sentence is within Your Honours
    discretion.

[10]

The appellant was assisted by an interpreter on
    the guilty pleas. Nonetheless, she responded guilty when asked how she pleaded
    to the first charge on which she was arraigned.

[11]

The facts read in by the trial Crown on the
    joint guilty pleas indicated that the police had found grow-operations, or
    dismantled grow-operations, at several residential addresses in the
    Belleville-Kingston area. Further, the purchase of four of the locations had
    been brokered by a co-accused real estate agent. And the appellants husband
    had arranged for a nominee owner to attend one of the locations prior to the
    purchase and had also arranged for the nominee owner to open the bank account
    from which the mortgage payments were paid.

[12]

The appellants husband was observed at three of
    the addresses as well as at a Belleville storage locker where marijuana plant
    material and grow equipment were found. He and two co-accused rented the
    storage locker. Receipts for building materials associated with the grow-operations
    were found in the closet of a bedroom occupied by the appellant and her husband
    at 30 Amanda Drive, Toronto  a house owned by the appellant.

[13]

Police arrested the appellant, her husband, and
    two co-accused at 30 Amanda Drive  which the trial Crown asserted was
    "the base of operations for this bunch." That address also housed
    vehicles that had been observed by officers in Belleville. One of the vehicles,
    a minivan, was registered to the appellant.

[14]

The grow scheme was characterized as
    "extremely sophisticated" and as involving theft of hydro totaling
    $53,168.50, theft of water totaling about $14,730.00, and about 24,000 plants. Further,
    the trial Crown noted that about seven residential properties in Belleville,
    Kingston, and Brighton were involved in the conspiracy, with equities totaling
    about $1,000,000.

[15]

In sentencing submissions, although she had
    previously sought an 18-month conditional sentence for the appellant and a two-year
    conditional sentence for the appellants husband, the trial Crown chose to cap
    herself at one year for both, along with various forfeiture orders. The trial
    Crown also noted that the appellants pre-trial custody had been very hard
    time.

[16]

In his sentencing submissions, Mr. Barrs
    explained that the appellant did not speak English and was alienated from a
    co-accused also in custody, such that her pre-trial custody had essentially
    amounted to solitary confinement. Mr. Barrs confirmed that both the appellant
    and her husband were permanent residents of Canada. He also noted that both had
    agreed to forfeit a substantial amount of money and property and submitted that
    should be considered in mitigation of sentence.

[17]

Before Mr. Barrs could complete his sentencing submissions, the sentencing
    judge expressed an inclination impose a six-month conditional sentence with no
    house arrest. Accordingly, in addition to time served of 135 days, the
    appellant was sentenced to a six-month conditional sentence with no house
    arrest plus 12 months' non-reporting probation. She was also ordered to forfeit
    30 Amanda Drive and her personal possessions located there, her minivan, and
    her cash bail of $25,000. Other property forfeited included the homes where the
    grow-operations were located as well as her husbands cash bail.

The appellants fresh evidence

[18]

The
    appellant filed affidavits from herself and her husband as fresh evidence on
    appeal.

i) The appellants affidavit

[19]

In her affidavit, the appellant says, among other things, that she
    first met Mr. Barrs on January 15, 2010, the day of her guilty pleas.
[1]
She says she and Mr. Barrs
    met for 10 to 15 minutes with the assistance of an interpreter in the cells.
    According to the appellant, Mr. Barrs did not discuss the disclosure, the
    evidence against her, or the strengths and weaknesses in the Crowns case. Moreover,
    he did not ask for her version of events or for any explanation of the Crowns
    evidence.

[20]

Further, although she told Mr. Barrs she did not participate in the
    offences, he advised her that because her husband was involved, and she did not
    oppose him or try to stop him, she was also guilty. She does not recall Mr.
    Barrs telling her that she could only plead guilty if she was in fact guilty. Mr.
    Barrs had her sign a document in which she agreed to plead guilty to various
    offences and told her what the sentence would be, including the forfeitures. The
    appellant denies that she signed a retainer agreement.

[21]

Mr. Barrs also told her someone else from his firm was representing
    her husband but that person was unable to attend that day. He advised her that
    it was a conflict of interest for him to act for both her and her husband in
    the same proceeding but did not explain why. He simply asked her to agree he
    could represent both that day. In response to her inquiry about deportation, he
    asked if she was a permanent resident. When she said yes, he told her the pleas
    and sentence would not impact deportation. When she asked if there was any way
    to avoid forfeiting her house, Mr. Barrs said if it was not forfeited to the
    Crown, the bank would seize it.

[22]

The appellant says that based on the evidence discussed at her bail
    hearing and other appearances, she understood that the general allegation was
    that all accused had been involved in a marijuana grow-operation. She also
    understood that equipment the Crown alleged was for a marijuana grow-operation,
    documents relating to renovations, and a receipt for a lamp were found in her
    house. She asserts that she had never been involved in a grow-operation, did
    not know what the equipment was for and that the documents found in her house
    were not hers and did not suggest they were related to a grow-operation.

[23]

The appellant deposes that she would never have pleaded guilty had
    she known the immigration consequences of her guilty pleas and of the sentences
    imposed.

[24]

The Crown cross-examined the appellant about her background and role
    in the offences but did not cross-examine her concerning her claims about Mr.
    Barrs conduct and advice.

ii) The appellants husbands affidavit

[25]

Mr.
    Chen asserts that he retained Mr. Barrs in the fall of 2009 to bail out his
    wife.
[2]
He says Mr. Barrs told him that it was normally a conflict of interest to
    represent both and that he would get another lawyer from his office to
    represent the appellant.
[3]
The retainer agreement Mr. Chen signed referred only to Mr. Barrs representing
    Mr. Chen. Mr. Chen says he asked Mr. Barrs to represent his wife as she was in
    custody. Mr. Barrs told him not to worry; Mr. Barrs knew how to arrange it.

[26]

Mr.
    Chen says Mr. Barrs did not review the disclosure with him or discuss the
    evidence against him in any detail. Rather, Mr. Barrs said the police had Mr.
    Chen under surveillance for a long time. However, there was nothing on the
    surveillance against the appellant; she might be okay after a trial. If Mr.
    Chen pled guilty the appellant would be released from custody; otherwise, Mr.
    Chen would have to pay for an expensive trial and his wife would not be
    released.

[27]

Mr.
    Chen says he asked Mr. Barrs about immigration consequences and that Mr. Barrs
    told him if the sentence was less than two years, he and his wife would not be
    deported.

[28]

Mr.
    Chen recalls Mr. Barrs asking him to sign a document on January 15, 2010 in
    which he agreed to plead guilty to various charges and to the imposition of various
    forfeiture orders  and also to a one-year conditional sentence requiring house
    arrest. Although the document did not refer to immigration consequences or any
    conflict of interest it did say that by pleading guilty Mr. Chen was admitting
    that he was actually guilty.

[29]

The
    Crown did not cross-examine the appellants husband.

The Crowns fresh evidence

[30]

The
    Crown filed an affidavit from Mr. Barrs and two affidavits from Donald MacAlister,
    an Ontario Provincial Police officer and one of the lead investigators into the
    marijuana grow-operations forming the subject matter of the charges.

i) Mr. Barrs evidence

[31]

In
    his affidavit, Mr. Barrs notes that the 30-day appeal period for the
    appellants case expired on February 15, 2010. His practice is to keep criminal
    files for five years. Although he looked for the appellants file following her
    initial request in January 2016, his office no longer has it.
[4]
His recollection is that documentation seized at the appellants home connected
    her to many of the grow-operations.

[32]

On
    January 15, 2010, Mr. Barrs met with the appellant in the cells at the
    Belleville courthouse with an interpreter. According to his recollection, the
    appellant was quite conversant with the case and knew the strength of the case
    against her. He says he believes that a date for preliminary hearing had been
    set for January 15, 2010
[5]
and that the Crowns non-custodial sentencing offer would have been off the
    table after that date. It is not his practice to have anyone plead guilty
    unless they have instructed him in writing that they are guilty. He would have
    advised the appellant there was a strong case against her
[6]
and would have indicated what the expected sentence would be. In terms of the
    appellants immigration status, he says he would have clearly advised [her] of
    the possible immigration consequences and that would have been reflected in
    the direction she signed. Mr. Barrs asserts that as a result of the plea
    agreement, the appellant was released from custody on January 15, 2010. He
    claims that she was very happy with the result he was able to negotiate for
    her. He also asserts that he can state with certainty that much of [the appellants]
    affidavit is false.

[33]

Mr.
    Barrs was cross-examined at length on May 4, 2017. He was a difficult and
    combative witness, a subject to which we will return. However, we note that throughout
    his cross-examination, Mr. Barrs maintained that he would not have permitted
    the appellant to plead guilty unless she acknowledged her guilt. He also
    maintained that he advised her she could be deported as a result of her guilty
    pleas and sentence. Mr. Barrs claimed the appellant signed a retainer agreement
    on January 15, 2010.

ii) Officer MacAlisters evidence

[34]

In
    his affidavits, Officer MacAlister outlined some of the investigative steps
    taken in relation to the grow-operations forming the subject matter of the
    charges. He also attached a number of photographs and documents taken at or
    seized from 30 Amanda Drive. The evidence he believed linked the appellant to
    the conspiracy included:

·

remnants of a grow-operation were found in the basement of 30
    Amanda Drive, including (untested) plant material on the floor, shelving with
    neon lamps and a boxed in basement window;

·

evidence the appellant owned 30 Amanda Drive;

·

evidence the appellant was the owner of and had recently
    purchased a Dodge Caravan police had observed at and travelling between the
    various grow-operations and had followed to 30 Amanda Drive;

·

the appellant, her husband and two other co-accused were found sleeping
    at 30 Amanda Drive and there was evidence implicating the appellants husband
    and the other co-accused in the conspiracy (for example, one co-accused was the
    owner of a property containing a grow-operation; the other co-accused had
    attended the storage locker where grow-op equipment was found; the appellants
    husband rented the storage locker and had been observed travelling between the
    various grow-operations);

·

a Home Depot packing slip in the appellants name relating to the
    purchase in Belleville of building materials delivered to one of the grow-op
    locations;

·

banking documents indicating tens of thousands of dollars had
    passed through the appellants accounts during the period of the investigation;
    and

·

Canada Revenue Agency documents indicating the appellants annual
    income for 2008 was $6,594.00.

[35]

In
    addition, Officer MacAlister attached a summary of the appellants July 17,
    2009 police statement to his affidavit. According to it, in her statement the
    appellant explained that she purchased 30 Amanda Drive in December 2008 with
    money ($42,000) she brought from China. She claimed she had a low interest rate
    mortgage requiring payments of $2300 per month. She asserted that her husband
    earned over $2000 per month and that she had two tenants who paid $1040 per
    month in rent. She also said various unnamed individuals paid her to use her
    van on the various occasions, including May 13-14, 2009 when the van was
    observed at various Kingston and Belleville grow-operations.

[36]

Officer
    MacAlister was cross-examined on his affidavit. During his cross-examination,
    he acknowledged that the case against the appellant was based on circumstantial
    evidence and that there were triable issues in relation to the evidence.

Should Mr. Barrs evidence be struck out?

[37]

The
    appellant moves under Rule 34.15 of the
Rules of Civil Procedure,
R.R.O.
    1990, Reg. 194,
[7]
to strike Mr. Barrs evidence on the grounds he was unresponsive on critical
    issues and refused to answer proper questions. In the alternative, she asks
    that an adverse inference be drawn in relation to his credibility.

[38]

As
    we have said, Mr. Barrs was a difficult and combative witness during
    cross-examination. He was also disdainful and disrespectful of both the process
    and appellants counsel.

[39]

For
    example, on numerous occasions he referred to the process as nonsense, a waste
    of time, an abuse of process, a scam or other similar descriptors. Although respondents
    counsel was present, he took it upon himself to question the relevance of some
    of the appellants counsels questions or called them stupid. He also accused
    appellants counsel of coaching the appellant.

[40]

That
    said, taking account of the passage of time and the fact that he is no longer
    in possession of his file, in the main, Mr. Barrs responded to questions
    relating to his representation of the appellant based on his present
    recollection and his review of the transcript of the guilty plea proceeding.

[41]

In
    our view, it was not unreasonable for Mr. Barrs to refuse to review the
    voluminous Crown disclosure to assist him in responding to questions about his
    assessment of the strength of the Crowns case. What is relevant for the
    purpose of this appeal is his assessment of the case while it was progressing
    and the advice he gave to the appellant at the relevant time.

[42]

As
    for Mr. Barrs failure to produce his account(s) relating to his representation
    of the appellant and her husband, we note that we have no evidence that the
    parties themselves are not in possession of any such accounts. And while we
    agree that Mr. Barrs should have looked for his accounts, any electronic
    correspondence he may still possess, and for any courier receipt regarding
    picking up the disclosure, any failure to do so does not support the requests
    to strike his evidence or draw an adverse inference against his credibility.

[43]

Mr.
    Barrs has given evidence that he is no longer in possession of his file. We see
    nothing in the record to support the appellants counsels suggestion that he
    found his file, or part of it, in January 2016 and is refusing to produce it.
    The appellant did not move for an order requiring Mr. Barrs to search his
    electronic records for his account(s); any correspondence pertaining to this
    matter; or the courier receipt but instead brought this motion on the return
    date of the appeal hearing. At this stage, the suggestion that any electronic
    records that may exist would support the appellants position on appeal is speculative.

Were the appellants guilty pleas informed?

[44]

To be valid, a guilty plea must be voluntary,
    unequivocal, and informed:
R. v. R.T.
(1992),
    10 O.R. (3d) 514 (C.A.), at para. 14. The appellant does not take issue with
    the first two prongs of this test.

[45]

To be informed, the accused must be aware of the
    nature of the allegations and the effect and consequences of the plea:
R.T
.
, at para. 14; see also
R.
    v. Quick
,
2016 ONCA 95,
    129 O.R. (3d) 334.

[46]

During oral argument, appellants counsel acknowledged
    that if we accept Mr. Barrs evidence that he advised the appellant of
    potential immigration consequences in that she could be deported if she pleaded
    guilty, then we could conclude that her guilty pleas were informed.

[47]

The appellant deposed that Mr. Barrs told her
    there would be no impact on deportation based on her guilty pleas or sentence.

[48]

For several reasons, we accept Mr. Barrs
    evidence and reject the appellant's evidence on this point.

[49]

First, certain key aspects of Mr. Barrs
    evidence are confirmed by the record or not disputed. For example, he deposed
    that he obtained a handwritten direction that the appellant signed with the
    benefit of an interpreter. Although the content is not confirmed, the existence
    of a direction was placed on the record and is acknowledged by the appellant.
    Further, although they do not agree with Mr. Barrs about the content of the
    discussions, both the appellant and her husband acknowledge that the
    immigration consequences of their pleas were discussed. In addition, Mr. Chen
    confirms that the direction he signed stated that he would be pleading guilty
    to certain offences and that by
pleading guilty he was admitting his
    guilt. We find it inconceivable that Mr. Chens direction contained such an
    acknowledgment but the appellants did not.

[50]

Second, we find Mr. Barrs assertions that he
    would not have allowed the appellant to plead guilty had she professed her
    innocence to be entirely credible and consistent with his standing as a
    criminal lawyer with 40 years of experience.

[51]

Third, the appellant deposed that she told Mr.
    Barrs she was innocent and asked why she had to plead guilty. He allegedly told
    her that because her husband was involved, and she did not try to stop him, she
    was guilty. We find this evidence not only self-serving but preposterous. Moreover,
    we reject the submission that we should view this as a mere misunderstanding
    based on interpretation issues. There is no evidence to that effect.

[52]

Fourth, several aspects of the appellant's
    affidavit and cross-examination are implausible. As but one example, her claim
    that she purchased the van that was spotted travelling between grow-operations
    for her tenant because he was her husbands friends relative and a refugee
    claimant who could not purchase a vehicle  and her further claims that she loaned
    the van to other individuals for cash to help pay the monthly payments, not
    knowing what they used it for  while acknowledging she drove another vehicle
    simply make no sense.

[53]

Fifth,
given that it is acknowledged that
    immigration consequences of the pleas were discussed, we find the claims by the
    appellant and her husband that Mr. Barrs told them there would be no impact on
    deportation or that they would not be deported if the sentence was less than
    two years implausible.

[54]

In 2010, at
the time of the guilty pleas, the
Immigration
    and Refugee Protection Act
, S.C. 2001, c. 27 (the "IRPA"),
    provided that a permanent resident would be inadmissible to Canada on grounds
    of "serious criminality" under s. 36 or "organized
    criminality" under s. 37. At the time, a permanent resident could appeal ones
    inadmissibility for a finding of serious criminality under s. 36, if sentenced
    to a term of imprisonment of less than two years
[8]
,
    but had no right of appeal with respect to a finding of organized criminality.

[55]

Even assuming Mr. Barrs was unaware of the
    provisions of s. 37, it is implausible that he would advise a client there
    would be no immigration consequences if sentenced to a term of imprisonment of
    less than two years. The only significance of a sentence of imprisonment of
    less than two years was that a person found inadmissible had a right of appeal.
    What is more plausible is Mr. Barrs evidence of what he told the appellant and
    her husband, that is, the guilty pleas
could
result in deportation. Mr. Chen is a case in point. Even though he was
    convicted of conspiracy, immigration authorities apparently proceeded against
    him under s. 36 only  and, although inadmissible, he succeeded in his appeal
    on compassionate and humanitarian grounds.

[56]

Based on the foregoing reasons, where the
    appellant and her husbands evidence conflict with the evidence of Mr. Barrs,
    we accept the evidence of Mr. Barrs. We are satisfied that Mr. Barrs informed
    the appellant that, if she pleaded guilty, there could be immigration
    consequences in that she could deported. Accordingly, we would not give effect
    to this ground of appeal.

Was Mr. Barrs in a conflict of interest?

[57]

We do not accept the appellants submission that
    she was deprived of effective assistance of counsel because Mr. Barrs was in a
    conflict of interest.

[58]

This issue calls for a fact-specific inquiry. Based
    on the evidence that we accept, Mr. Barrs met the appellant for the first time
    on January 15, 2010. On that day, the trial Crown offered favourable terms for
    guilty pleas for both the appellant and her husband. The offer was time-limited,
    and the trial Crown was firm in her position concerning to which offences the
    parties should plead, the sentences she would seek, and the forfeiture orders that
    should be made.

[59]

Mr. Barrs was obliged to convey the Crowns offer
    to both the appellant and her husband. On Mr. Barrs evidence, which we accept,
    both the appellant and her husband acknowledged their guilt, and both wanted to
    accept the Crowns offer.

[60]

Given these facts, we are not persuaded that the
    interests of the appellant and her husband were immediately and directly
    adverse. Nor are we satisfied that there were factors present that could
    reasonably be perceived as affecting judgment:
Canadian National
    Railway Co. v. McKercher LLP
,
2013 SCC 39, [2013] 2 S.C.R. 649
,
at para. 38, citing
D.
    W. M. Waters, M. R. Gillen and L. D. Smith, eds.,
Waters Law of
    Trusts in Canada
, 4th ed. (Toronto: Carswell, 2012), at p. 968
; see also
R. v. Baharloo
,
2017 ONCA 362, 348 C.C.C. (3d) 64, at para. 36. When Mr. Barrs went
    to Belleville on January 15, 2010, he did not anticipate representing the
    appellant or her husband on guilty pleas that day. Having regard to the firm
    position taken by the trial Crown in her offers and the fact that both accused
    acknowledged their guilt, we are not persuaded Mr. Barrs was faced with any
    conflict in his duty of loyalty by representing both the appellant and her
    husband on their guilty pleas.

Was the appellant deprived of effective
    assistance of counsel?

[61]

We also reject the appellants submission that
    she was deprived of effective assistance of counsel because Mr. Barrs failed to
    review with her the Crowns disclosure, failed to obtain her version of events,
    and failed to advise her of available defences.

[62]

On Mr. Barrs evidence, the appellant was
    conversant with the case against her, and he advised her that the Crown had a
    strong case such that it was his opinion she would be committed for trial
    following a preliminary inquiry. Based on our review of the fresh evidence
    record, this was a reasonable assessment. Moreover, in agreeing to plead
    guilty, the appellant acknowledged that she was guilty of the offences forming
    the subject matter of the Crowns offer. For the reasons outlined above, where
    the appellants evidence differs from that of Mr. Barrs, we prefer Mr. Barrs
    evidence. In our view, the appellant has failed to establish that any
    shortcomings in Mr. Barrs representation give rise to a miscarriage of
    justice. See
R. v. G.D.B
.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-29.

Did the facts read in by
    the Crown on the guilty pleas support findings of guilt?

[63]

Although the facts read in on the guilty pleas
    were sparse in terms of connecting the appellant to the conspiracy to produce
    marijuana, and, in turn, the other offences relating to the grow-ops, we are
    satisfied they were sufficient, in combination with the appellants guilty
    pleas, to support findings of guilt. In particular, the following assertions
    together with the appellants guilty pleas established the appellant was
    involved in the conspiracy and was guilty of the other offences arising from
    the grow schemes:

·

the appellant owned 30 Amanda Drive;

·

30 Amanda Drive was the base of operations for
    the conspirators, some of whom owned and actively operated several sophisticated
    marijuana grow houses, involving significant thefts of water and electricity
    and about 24,000 plants;

·

30 Amanda Drive housed vehicles seen during the
    course of police surveillance, including a vehicle owned by the appellant; and

·

receipts for building materials associated with
    grow schemes were found in the bedroom closet of the appellant and her husband
    at 30 Amanda Drive.

[64]

Viewed in combination with the appellants
    guilty pleas, the facts read in established that, even though she was never
    seen at any of the grow-operations, the appellant knew of the grow-operations
    and what they entailed and provided assistance to those who actively operated
    them.

The sentence appeal

[65]

As noted above, the appellant seeks leave to appeal sentence. She submits
    the sentence imposed is unfit because the sentencing judge failed to consider
    the immigration consequences of the sentence. Further, she claims that the
    forfeiture orders were grossly disproportionate to any culpability and that
    there was no evidence that the money and property forfeited were proceeds of
    crime.

[66]

The appellants argument concerning the immigration consequences of
    the sentence is premised on an assumption that a conditional sentence qualifies
    as a term of imprisonment within the meaning of ss. 36(1) and 64(2) of the IRPA,
    such that her sentence of 135 days of time served plus a six-month conditional
    sentence qualified as serious criminality under those sections, making her
    inadmissible to Canada under s. 36(1) and removing any right of appeal by ss.
    64(1) and (2).

[67]

In its recent decision in
Tran v. Canada (Public Safety
    and Emergency Preparedness)
, 2017 SCC 50, released after
    this appeal was argued, the Supreme Court of Canada clarified that a
    conditional sentence does not qualify as a term of imprisonment within the
    meaning of ss. 36(1) and 64(2) of the IRPA. As the conditional sentence has
    been served and it is not argued that the period of 135 days of time served and
    a six-month conditional sentence is otherwise unfit, it is not necessary that
    we deal with this argument.

[68]

As for the appellants arguments concerning the forfeiture orders,
    we observe that they were part of the plea offer the appellant accepted. We
    also observe that the other aspects of the sentence the sentencing judge imposed
    were quite lenient  a six-month conditional sentence (as opposed to the 12
    months the Crown requested) with no house arrest, followed by 12 months
    probation without reporting conditions, in addition to 135 days of time served.
    In these circumstances, we do not accept the appellants argument that the
    forfeiture orders were disproportionate.

[69]

The appellant also argues that there was no evidence that the
    property and money subject to the forfeiture orders were proceeds of crime.
    However, the basis on which the forfeiture orders were made is unclear. The formal
    orders are not in the appeal record. Had the appellant pursued the issue of the
    forfeiture orders in a timely manner, the orders would likely have been
    available.
[9]
In any event, if there was no valid underlying basis for making the forfeiture
    orders, we are satisfied that the appellant would have pursued this issue
    before now. In all the circumstances, leave to appeal sentence is denied.

Disposition

[70]

Based on the foregoing reasons, the conviction appeal is dismissed
    and leave to appeal sentence is denied.

Released:

DB                                         Janet
    Simmons J.A.

DEC -5 2017                          K.
    van Rensburg J.A.

David
    Brown J.A.

[1]

During his cross-examination, Mr. Barrs initially asserted
    that he spoke to the appellant by telephone a number of times prior to January
    15, 2010. He later agreed that he communicated with her through her husband.

[2]

In his cross-examination, Mr. Barrs disputed that he was
    retained specifically to conduct a bail review for the appellant. His position
    is that he was retained to act for both parties and that if a plea agreement
    had not been reached he would have conducted a bail review for the appellant
    which would have been contested.

[3]

Although Mr. Barrs acknowledged on his cross-examination that
    he would have had Mr. Chen sign a waiver at their initial meeting, he
    maintained the conflict was potential and that he agreed, initially, to act
    for both Mr. Chen and the appellant.

[4]

In correspondence with appellants counsel and during his
    cross-examination, Mr. Barrs also noted that certain files older than five
    years that were stored in the basement of his office had been lost due to water
    damage.

[5]

During his cross-examination, Mr. Barrs initially asserted
    that the January 15, 2010 date was for a conference and that the plan was to
    set a date for a preliminary inquiry when they finished the conference. Later
    he said he did not think the preliminary was set to begin that day, but he was
    not sure. On reviewing the information, it appears that January 15, 2010 was
    the date for a continuing pre-trial for the appellant and her husband. By that
    date, three co-accused had already pleaded guilty and another had set a date
    for a preliminary inquiry in March 2010.

[6]

During his cross-examination, Mr. Barrs indicated his view of
    the case was that the appellant would be committed for trial following any
    preliminary inquiry.

[7]
Section 2(1) of the
Criminal Appeal Rules
, SI/93-169,
    states:
Except where otherwise provided by the Code, a statute or these rules,
    the
Rules of Civil Procedure

where
    appropriate and with necessary modifications apply to criminal appeals.

[8]
Section 64(2) of the IRPA. Section 24 of
the
Faster Removal
    of Foreign Criminals Act
, S.C. 2013, c. 16, amended s. 64(2) of the
IRPA
to allow a person found inadmissible to Canada on grounds of serious
    criminality to appeal only if he or she had been sentenced to a term of
    imprisonment of less than six months.
Section 24 of
The
    Faster Removal of Foreign Criminals Act
came into
    force on June 19, 2013.

[9]

The appellant relies on the contents of an e-mail from a
    Government of Canada case officer to assert that her house and its contents
    were forfeited as proceeds of crime rather than as offence related property.
    However, we fail to see how this unsworn document that contains no information
    concerning the basis of the case officers knowledge is evidence of anything.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Christiansen, 2017 ONCA 941

DATE: 20171204

DOCKET: C62282

Epstein, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Christiansen

Appellant

Joseph Wilkinson, for the appellant

James D. Sutton and Christa Reccord, for the
    respondent

Heard: November 28, 2017

On appeal from the conviction entered on December 1, 2015
    by Justice Douglas C. Shaw of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

Ryan Christiansen was convicted after a jury trial of two counts of
    possessing narcotics for the purpose of trafficking, and one count of possessing
    proceeds of crime, $21,500. The narcotics, oxycodone and cocaine, were seized
    under warrant from a leased unit, 105-212 Miles St. in Thunder Bay (the Unit).
    The money was discovered when a search warrant was executed at Mr.
    Christiansens home.

[2]

When the investigation commenced, the police suspected that Mr.
    Christiansen was engaged in drug trafficking in association with a
    co-principal, Mr. Tony Napolitano, out of a clothing store called Limited
    Edition. Surveillance of the men ultimately linked Mr. Napolitano to the Unit,
    which he was renting and that he had attended on several occasions. On April 9,
    2013, Mr. Christiansen was seen entering the Unit carrying a white box. A short
    time later he left carrying a different box.

[3]

The police suspected that the Unit was Mr. Christiansens and Mr.
    Napolitanos stash house. That same day they sought and obtained a general
    warrant pursuant to s.487.01 permitting covert entry into the Unit.

[4]

In the Case Overview of the Information to Obtain (ITO) the affiant
    disclosed that the general warrant is being sought to gather information that
    the evidence of trafficking is presently located inside the [Unit], to support
    the issuance of a
Controlled Drugs and Substances Act
(
CDSA
) Warrant
    to search.  A general warrant was ultimately issued for that purpose. It
    authorized the location and observation of narcotics, as well as the recording
    of evidence and the seizure of samples.

[5]

When they entered the Unit pursuant to the general warrant the police
    confirmed the presence of narcotics. Relying on these observations, they secured
    a
CDSA
s. 11 warrant authorizing the search and seizure of evidence at
    the Unit and then at Mr. Christiansens home. This evidence led directly to Mr.
    Christiansens convictions.

[6]

Mr. Christiansen appeals his convictions. His grounds of appeal relate
    both to the jury charge and to the trial judges decision upholding the general
    warrant.

[7]

The challenges to the jury charge include the decision of the trial
    judge to leave
Criminal Code

s. 21(2) to the jury as an avenue
    of conviction. Mr. Christiansen says that s. 21(2) should not have been left
    with the jury because there was no air of reality in the evidence for common
    purpose liability that s. 21 (2) provides for.  Moreover, the trial judge
    failed to instruct the jury on the elements of s. 21(2). He simply read them
    the provision. This raised the prospect that jurors might have taken an
    impermissible path to conviction.

[8]

The Crown concedes the trial judge erred in these respects.

[9]

In disposing of this appeal, however, we need not determine the legal
    significance of these conceded jury direction errors, or resolve whether there
    were other mistakes in the jury direction, as claimed. Rather, we are allowing
    this appeal based on the improper use of the general warrant.

[10]

General warrants under s. 487.01 authorize the use of investigative
    techniques, procedures or devices, or other things to be done, that would
    otherwise constitute unreasonable searches. Subsection 487.01(c) restricts
    general warrants to cases where there is no other [legislation] that would
    provide for a warrant, authorization or order permitting the technique,
    procedure or device to be used or the thing to be done. The Supreme Court
    dealt with this legislative restriction in
R. v. TELUS Communications Co.
,
    [2013] 2 S.C.R. 3, [2013] S.C.J. No. 16. Justice Moldaver explained, at para.
    80, that this requirement ensures that general warrants are to be used
    sparingly when the investigative technique is truly different in substance
    from an investigative technique accounted for by another legislative
    provision. He explained that s. 487.01(c) serves to ensure that general
    warrants may not be used as a means to circumvent other authorization
    provisions that are available but contain more onerous pre-conditions.

[11]

In this case, the general warrant was issued, in substance, for the same
    investigative technique available under
CDSA
, s. 11, namely, to search
    the Unit.  The police could not satisfy the requirements for a search under
CDSA
,
    s. 11 because they did not have reasonable and probable grounds to believe
    there was evidence at the Unit. In effect, the police used the general warrant
    for the impermissible purpose of circumventing the standards required for obtaining
    a
CDSA
s. 11 warrant.

[12]

As a result, the trial judge erred in not quashing the general warrant. In
    our view, there was no basis in the ITO enabling a reasonable issuing judge to
    conclude that s.487.01(c) was satisfied.

[13]

The Crown appropriately concedes that if the general warrant is invalid,
    Mr. Christiansens conviction cannot stand, for if a trial judge was to exclude
    the evidence obtained as a result of the general warrant, Mr. Christiansens
    finding of guilt could not be sustained.

[14]

We therefore allow the appeal, set aside the convictions against Mr. Christiansen,
    and order a new trial.

Gloria
    Epstein J.A.

David
    M. Paciocco J.A.

I.V.B.
    Nordheimer J.A.