COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2021 ONCA 119

DATE: 20210226

DOCKET: C61879

Strathy C.J.O., Watt and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Ronald Brown

Appellant

Paul J. I. Alexander, for the appellant

Jeffrey E. Pearson, for the respondent

Heard: November 9, 2020

On appeal from the convictions entered
    by Justice Paul M. Taylor of the Ontario Court of Justice, on July 30, 2013,
    and from the sentence imposed on September 26, 2013.

Strathy C.J.O.:

A.

OVERVIEW

[1]

This appeal concerns the application of Step Six
    in
R. v. Garofoli
, [1990] 2 S.C.R. 1421.

[2]

The appellant was arrested and charged with
    various firearms offences. At trial, the Crowns case turned primarily on the
    handgun evidence that had been found by police during their execution of a
    search warrant on the appellants car. The warrants, one for the appellants
    car and one for a dwelling at 121 Dollery Court, were issued on the basis of an
    Information to Obtain (ITO) that relied heavily on the tips of a
    confidential informant (CI).

[3]

The appellant brought an application to
    challenge the validity of the warrants. He asserted that if the warrants were
    quashed, the resulting warrantless search of his car violated his rights under
    s. 8 of the
Canadian Charter of Rights and Freedoms
, and that the
    handgun evidence should be excluded under s. 24(2) of the
Charter
.

[4]

At the request of the
    Crown, the trial judge applied Step Six of
Garofoli
and produced a judicial summary of the
    portions of the ITO that had been redacted in order to protect the CIs
    identity. The trial judge determined that the redacted ITO and the judicial
    summary disclosed reasonable grounds for the warrants to be issued. The trial
    judge rejected the appellants application, upheld the warrants, and admitted
    the handgun evidence.

[5]

After the ensuing trial, the trial judge
    convicted the appellant of all charges and imposed a global sentence of six
    years, less the credit for pre-sentence custody. The appellant has since served
    that sentence.

[6]

The appellant appeals his convictions on the
    ground that the trial judge erred in upholding the warrants. The appellant
    submits that: (a) the ITO did not meet the criteria set out in
R. v. Debot
,
    [1989] 2 S.C.R. 1140; (b) the judicial summary was inadequate; and (c) the
    trial judge erred in relying on redacted information that he could not
    challenge. The appellant argues that if the warrants were erroneously
    authorized, the subsequent search of his car constituted a serious breach of
    his
Charter
rights, and that the admission of the handgun evidence
    would bring the administration of justice into disrepute. Because the handgun
    evidence was essential to the Crowns case, the appellant requests that his
    convictions be set aside, and acquittals entered.

[7]

For the reasons that follow, I would dismiss the
    appeal.

B.

BACKGROUND

[8]

On June 13, 2011, Toronto police obtained two
    warrants under s. 487 of the
Criminal Code
, R.S.C. 1985, c. C-46, to
    search a 1997 Acura motor vehicle that allegedly belonged to the appellant, and
    a residence at 121 Dollery Court.

[9]

The following day, at about 8:41 p.m., a police
    officer, conducting surveillance of the appellant, observed him walking to his car,
    which was parked at another location in Toronto. The officer noted that the
    appellant was holding onto something underneath his shirt at waistband level
    an object that appeared to have some weight.

[10]

The officer observed the appellant enter his car on the drivers
    side, still holding onto the object. Once seated, the appellant reached over to
    the passenger-side airbag compartment, manipulat[ed] something up in that
    area, and closed the lid of the compartment by banging down on it with his
    fist. The officer then observed the appellant start his car and drive off.

[11]

Several police surveillance vehicles followed the appellants car,
    ultimately making the decision to stop it on Black Creek Drive in Toronto. They
    arrested the appellant, and searched his car pursuant to the warrant issued on
    the previous day. They found a loaded semi-automatic handgun in the
    passenger-side airbag compartment. They charged the appellant with various
    firearms offences.

C.

THE ITO and the judicial summary

[12]

As the ITO relied on information provided by a CI, it had been heavily
    redacted before its disclosure to the trial judge and defence counsel. The
    redacted ITO contained the following information about the appellant and his
    alleged offences:

·

In March 2011, the affiant of the ITO learned
    from the CIs handler that a male by the name of Jeffrey Brown was currently
    in possession of a firearm and was dealing drugs. The CI described Mr. Brown as
    male, black, in his twenties, 57 in height, with a medium build. The CI
    disclosed that Mr. Brown owned a four-door green Acura and hung out in the
    Jane and Finch area.

·

The affiant confirmed through investigation that
    the appellant owned a 1997 four-door green Acura.

·

In April 2011, the affiant was informed that the
    appellant was receiving welfare cheques at 121 Dollery Court.

·

In May 2011, police officers conducted
    surveillance at 121 Dollery Court on two occasions, and observed the appellant
    and his Acura vehicle at that location.

·

In May 2011, the affiant learned from the CIs
    handler that Mr. Brown was still in the possession of a firearm.

·

The affiant conducted additional database searches,
    and he ascertained that the appellant was prohibited from the possession of firearms
    due to a conviction for first-degree murder; that the appellant had three
    convictions, including second-degree murder; and that both the appellants
    drivers license and his Acura were registered to an address in Ajax.

·

The affiant discovered from reports in Field
    Information cards that the appellant had been investigated on three occasions
    between 2010 and 2011 in and around the Jane and Finch area. Those reports
    matched the CIs description of Mr. Brown and his car.

[13]

The Crown subsequently produced a second redacted version of the
    ITO, which disclosed portions that had previously been redacted. In particular,
    the new ITO revealed that, on a redacted date in June, the CI had told his
    handler that, Jeffrey Brown has a gun on him.

[14]

The redacted ITO contained the following information about the CI:

·

The CI had worked with police in the past and
    had been assigned a confidential source number.

·

The CI had previously provided information to
    police in relation to drug trafficking, homicides, and shootings. The CIs
    information had led to the seizure of firearms.

·

The CI provided information that he saw Mr.
    Brown in the possession of a firearm and drugs.

·

The CI had no convictions, to date, for
    perjury-related offences.

[15]

The affiant stated that he had no reason to believe the CIs tips
    about the appellant were false or malicious in nature.

[16]

The Crown asked the trial judge to apply
Garofoli
Step
    Six and provided the judge with a summary of the information that had been
    redacted from the ITO. After reviewing the summary and the unredacted ITO, the
    trial judge approved the summary. That summary, in its entirety, read as
    follows:

·

The information provided by the confidential
    informant is current.

·

The confidential informant is a carded and
    registered informant of the Toronto Police Service.

·

The information provided by the confidential
    informant has lead [
sic
] to the seizure of several firearms.

·

The information provided by the confidential
    informant is detailed and specific as it relates to Jeffrey Browns firearm.

·

The means of the confidential informants
    knowledge is disclosed.

·

The confidential informant advised that Jeffrey
    Brown confirmed that wherever Jeffrey Brown is, the firearm is.

·

The confidential informant has been in Jeffrey
    Browns presence many times.

[17]

The defence was provided with this summary. The defence applied for
    and was granted leave to cross-examine the affiant of the ITO.

D.

THE TRIAL JUDGES RULING

[18]

After hearing the submissions of counsel, the trial judge reserved
    judgment. He subsequently dismissed the appellants application to quash the
    warrants and exclude the handgun evidence.

[19]

The trial judge began his analysis by summarizing the jurisprudence
    on judicial review of an authorizing judges decision to grant a warrant. He correctly
    stated that the question before him was whether the search warrants, as
    amplified on review, could have been issued:
R. v. Grant
, [1993] 3
    S.C.R. 223, at p. 251, citing
Garofoli
, at p. 1452.

[20]

The trial judge appreciated that in a case involving a confidential
    informant, the sufficiency of the ITO must be assessed according to the three
Debot
factors: whether the tip is compelling, whether the CI is credible, and whether
    the tip has been confirmed by independent police investigation:
R. v. Rocha
,
    2012 ONCA 707, 112 O.R. (3d) 742, at para. 16, citing
Debot
, at p. 1168.

[21]

The trial judge determined that the redacted ITO contained some
    information on the credibility of the CI, but omitted details such as the CIs
    criminal record. He noted that the ITO was sloppily drafted and used
    remarkably similar language to the phraseology this court criticized in
Rocha
.
    However, he found that there was confirmatory evidence of the CIs tips in
    the form of police observations and street checks. Furthermore,

The Judicial Summary indicates that the
    Informants information is detailed and specific, the means of his knowledge is
    disclosed, the informant has been in the Applicants presence many times, and
    the Informant confirms that the Applicant is always in possession of the
    firearm.

[22]

The trial judge held that, based on the redacted ITO and the
    judicial summary, the
Debot
factors for the issuance of the warrants
    had been satisfied. In the alternative, he mentioned that if he had erred in
    his analysis, his review of the unredacted ITO and the search warrants met the
Debot
standard.

E.

PARTIES SUBMISSIONS

(1)

The Appellants submissions

[23]

The appellant submits that the trial judge erred in finding that the
    ITO satisfied the
Debot
criteria, in applying the
Garofoli
Step Six procedure, and in admitting the handgun evidence.

[24]

With respect to the
Debot
criteria, the appellant contends
    that the CIs tips were neither credible nor corroborated. He argues that the
    ITO disclosed minimal information about the CIs credibility in order to create
    a veneer of honesty, but failed to include essential details, such as the
    CIs motive and full criminal record. The trial judge properly acknowledged
    these omissions, but failed to explain why he concluded that the CI was
    credible. The appellant also submits that the trial judge failed to conduct a
    meaningful analysis of whether the ITO was corroborated. Most of the
    corroborative information obtained by police investigation concerned commonplace
    details about the appellant, and the only other source relied upon by the
    affiant was a dated and unrelated youth criminal record. While the appellant
    also disputes the trial judges finding that the CIs tips were compelling, he asserts
    that in the absence of credibility and corroboration, the ITO cannot stand.

[25]

The appellant further submits that the trial judge erred in his
    application of
Garofoli
Step Six because the judicial summary did not
    provide a reasonable basis on which to challenge the ITO. Moreover, the trial
    judge based his decision to uphold the warrants on redacted information that
    had not been summarized.

[26]

The appellant contests the Crowns argument that if the ITO is quashed,
    the police had reasonable and probable grounds to carry out a warrantless
    arrest and a search incident to that arrest. The appellant maintains that the
    Crown did not adduce any evidence at trial as to whether the arresting officer
    had subjective grounds to justify a warrantless arrest, and that this court
    should not make that inference from the officers evidence.

[27]

The appellant consequently submits that the trial judge should have
    excluded the handgun evidence under s. 24(2) of the
Charter
. The
    affiants sloppy drafting of the ITO, with its omissions, exaggerations, and
    misleading statements, discussed below, pushed the
Charter
breach to
    the serious end of the spectrum. In addition, the impact on the appellants
Charter
rights was significant. The appellant claims that the public interest in
    prosecuting the case cannot tip the balance towards admission of the handgun
    evidence when the other two branches of the s. 24(2) test favour its exclusion.

(2)

The Crowns submissions

[28]

The Crown submits that the trial judges decision is entitled to
    deference. While some of the appellants criticisms of the ITO may be fair, the
    Crown asserts that they do not undermine the basis for the issuance of the
    search warrants. The trial judge was aware of the need to balance the interest
    in protecting the CIs identity with the appellants fair trial rights. The
    trial judge analyzed the
Debot
factors in that context, and found that
    the CIs tips were credible, corroborated and compelling.

[29]

The Crown submits that the trial judge correctly applied
Garofoli
Step Six. He could not have allowed more information to be disclosed, either in
    the judicial summary or in the cross-examination of the affiant by defence
    counsel, without exposing the CIs identity. When the judicial summary is read
    together with the redacted ITO, it demonstrates that the warrants
could
have been issued.

[30]

The Crown submits that if the ITO is struck down, there were exigent
    circumstances to justify the arrest of the appellant and the search of the Acura
    incident to arrest. As a result, the handgun evidence was properly admitted at trial.

F.

analysis

(1)

Applicable principles

(a)

The requirements for issuing a warrant

[31]

A justice issuing a search warrant must have reasonable grounds to
    believe that an offence has been committed. The material in support of the
    warrant must raise a reasonable probability of discovering evidence of the
    crime at the place of the proposed search:
R. v. MacDonald
, 2012 ONCA
    244, at para. 6;
R. v. Herta
, 2018 ONCA 927, 143 O.R. (3d) 721, at
    para. 20, citing
Hunter v. Southam Inc.
, [1984] 2 S.C.R. 145, at pp.
    167-68.

[32]

Debot
confirms that where the ITO is
    based primarily on the information obtained from a CI, the authorizing justice
    must make three inquiries: whether the information about the crime was compelling;
    whether the source of the information was credible; and whether the information
    was corroborated by the police before applying for a search warrant. These are
    not watertight inquiries. Weaknesses in one of the factors may be compensated
    by the strength of others. The totality of the circumstances must be
    considered in order to meet the standard of reasonable probability:
Debot
,
    at p. 1168;
MacDonald
, at paras. 6-7.

(b)

The test for the sufficiency of a warrant

[33]

A warrant is presumptively valid:
R. v. Sadikov
, 2014 ONCA
    72, 305 C.C.C. (3d) 421, at para. 83;
R. v. Pires; R. v. Lising
, 2005
    SCC 66, [2005] 3 S.C.R. 343, at para. 30. A party challenging the issuance of a
    warrant bears the onus of demonstrating that it was not validly issued.

[34]

The trial judge correctly identified the test for the sufficiency of
    a warrant. A reviewing court is not entitled to conduct a rehearing of the
    application for the issuance of a warrant, or to substitute its opinion for
    that of the authorizing justice. As stated by Sopinka J. in
Garofoli
,
    at p. 1452, [i]f, based on the record which was before the authorizing judge
    as amplified on the review, the reviewing judge concludes that the authorizing
    judge
could have
granted the authorization, then
    he or she should not interfere (emphasis added). See also
R. v. Araujo
,
    2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51;
R. v. Reid
, 2016 ONCA
    524, 132 O.R. (3d) 26, at para. 73, leave to appeal refused, [2016] S.C.C.A.
    No. 432.

(c)

Garofoli
Step Six

[35]

In
R. v. Crevier
, 2015 ONCA 619, 330 C.C.C. (3d) 305,
    Rouleau J.A. provided a detailed description of the
Garofoli
Step
    Six procedure. Step Six arises in the context of an accuseds challenge to a
    search warrant that is issued on the basis of a CIs tips. In order to protect
    the CIs identity, the ITO containing the CIs tips is redacted before its
    disclosure to the accused. The ITO may consequently become incapable of
    supporting the warrants authorization. Step Six allows the Crown to rely on
    the unredacted ITO to defend the warrants validity. In so doing, Step Six
    attempts to address the underlying tensions between the courts duty to protect
    the confidential communications of CIs and police officers, and the
    constitutional right of the accused to make full answer and defence.

[36]

When Step Six is invoked, the trial judge provides defence counsel
    with a summary of the redacted portions of the ITO:
Garofoli
, at p.
    1461. The summary is usually drafted by the Crown and is then vetted by the
    judge before it is provided to the defence.

[37]

A summary is just that: By its very nature, a summary is general,
    not detailed. Its predominant characteristics are conciseness and brevity:
Reid
(2016), at para. 88. However, the summary must provide the accused with
    sufficient information to mount both a facial and sub-facial challenge to the
    ITO, and to question whether the affiant made full and frank disclosure
    regarding the reliability of the CI and of their tips:
Crevier
, at
    para. 83. This would also include information related to the three
Debot
factors, namely whether the CI is credible, and whether the information is
    compelling and corroborated:
Crevier
, at para. 84.

[38]

In determining whether or not to uphold a warrant, the trial judge
    can consider the unredacted ITO, but only if satisfied that the accused is
    sufficiently aware of the nature of the redacted material such that they can
    mount a challenge in argument or by evidence. Put another way, the judicial
    summary of the redacted material provided to the accused, combined with the
    redacted ITO, must be enough to ensure that the accused is in a position to
    exercise his or her right to make full answer and defence. Only then can step
    six be employed:
Crevier
, at para. 43.

[39]

Once in receipt of the judicial summary, the defence, using evidence
    from Crown disclosure, evidence from the preliminary hearing, and/or evidence
    from other sources, such as cross-examination of the ITOs affiant, may attempt
    to persuade the trial judge that the unredacted ITO cannot justify the issuance
    of the warrant.

(d)

The standard of review on
Garofoli
applications

[40]

A trial judges decision on a
Garofoli
application is
    entitled to deference. An appellate court should not interfere with that
    decision in the absence of an error of law, a misapprehension of the evidence,
    or a failure to consider relevant evidence:
R. v. Reid
, 2017 ONCA 430,
    at para. 8.

(2)

Application of the principles

[41]

It is important to contextualize this case in the evolution of the
Garofoli
Step Six jurisprudence. This courts judgment in
Rocha
was released
    more than a year after the ITO was sworn on June 13, 2011. Thus, while the
    trial judge had the benefit of
Rocha
when he heard the application in late
    2012 and early 2013, and when he issued his reasons on July 30, 2013, the
    affiant of the ITO did not have the benefit of
Rocha
s guidance when
    he swore the ITO. Moreover, the development of the
Garofoli
jurisprudence
    was at a relatively early stage at the time the application was heard. As
    defence counsel put it, they were in a new frontier of the law.

[42]

I now turn to the requirements of
Debot
, set out earlier.

(1)

The
Debot
Factors

(i)

Was the CI credible?

[43]

While the three Cs of
Debot
are to be considered
    together, I agree with the appellant that if the CIs credibility is weak, it
    can impact the assessment of the other two factors. Evidence that appears to be
    compelling may be rendered less so if the credibility of the CI is weak. Corroboration
    of evidence of low credibility obviously carries less weight than corroboration
    of evidence of high credibility.

[44]

Typically, the authorizing justice will be concerned to know the
    CIs criminal record, their track record in providing useful information to
    police, and whether they had a particular motive for providing the information
    to police.

[45]

Here, the appellant notes that the affiant did not disclose the full
    criminal record of the CI, or whether there were any outstanding charges, to
    the authorizing justice. The affiant simply stated that the CI had no
    convictions, to date, for perjury related offences. The affiant testified that
    at the time of drafting the ITO, it was not his practice to inquire about the
    CIs criminal record, and that he obtained the information stated above from
    the CIs handler. He candidly acknowledged, on cross-examination, that the
    language he had used to describe the CIs criminal record was no longer part of
    the acceptable lexicon.

[46]

The appellant argues that in light of
Rocha
, the affiants
    odd language and omissions with respect to the CIs criminal record made the
    CIs credibility weak. The appellant emphasizes that the Crown counsel at trial
    had conceded the ITOs insufficient details, and that the trial judge had criticized
    the same in his decision. The appellant asserts that the trial judge failed to
    explain how he came to his conclusion about the CIs credibility, and draws our
    attention to the affiants other omissions.

[47]

In particular, the appellant submits that the affiant failed to disclose
    any motive the CI might have had for assisting police, such as financial or
    other consideration, public spiritedness, or some form of
animus
.
    There was also no meaningful information as to the CIs reliability, whether
    the CI had previously provided false or unreliable information, or whether the
    CIs tips had led to convictions in the past.

[48]

The Crown acknowledges that there is some merit to the appellants
    submissions about the embarrassing shortcomings in the ITO. The language is
    sloppy, referring, for example, to the appellant having a previous conviction
    for first-degree murder when, in fact, he had been charged with first-degree
    murder, but convicted of second-degree murder. In addition, the Crown noted
    that the affiants failure to disclose the CIs criminal record was
    inexcusable. However, unlike the trial Crown, the appeal Crown did not concede
    that the CIs credibility was weak. He submitted that the trial judge was alive
    to all these shortcomings, and yet he made no finding that the affiant
    deliberately misled the authorizing justice.

[49]

I am inclined to agree with the Crowns position. The redacted ITO
    stated that:

The [CI] has provided information to police in
    the past and has been assigned a confidential source number. There is no
    indication that the information provided would be false or malicious in nature
as the confidential source has been proven in the past to be
    reliable
. [Emphasis added.]

[50]

Moreover, the judicial summary disclosed that the [CI] is a carded
    or registered informant of the Toronto Police Service, and that the
    information provided by the [CI] has lead [
sic
] to the seizure of
    several firearms. The fact that the CI was formally registered on police records
    spoke to their reliability, as did the fact that the CI had previously provided
    information leading to the seizure of firearms  the very crime at issue here. While
    it would have been preferable for the affiant to have included information
    about the CIs motive, it can be inferred that the CI had some motive for
    providing the information, although no motive for providing false or misleading
    information, and a history of providing reliable information.

[51]

In summary, while the trial judge did not thoroughly explain why he
    found the CI to be credible, and while there were some shortcomings in the
    affiants disclosure of the CIs criminal record, track record, and motive,
    these were balanced by the CIs history as a registered police informant with
    a record of providing reliable information that had led to the seizure of
    firearms. Deference is owed to the trial judges conclusion on this factor.

(ii)

Was the CIs information corroborated?

[52]

The appellant submits that the police only corroborated the CIs
    information in relation to neutral details that would have been known to
    anyone. Specifically, the police corroborated:

·

the colour and make of the appellants vehicle
    a four-door green Acura;

·

the description of the appellants appearance
    a black male in his twenties, 5 7 tall, medium build; and

·

the fact that the appellant was a drug dealer
    and hung out in the Jane and Finch area of Toronto.

[53]

I agree with the respondent that the corroborative effect of some of
    this information is minimal when viewed in isolation. However, the information
    cannot be viewed in isolation. When taken together, as it must be, the
    information of the CI was corroborated by the polices independent inquiries. A
    police database check confirmed the appellants birth date, and the fact that
    he owned a four-door green Acura. The ITO also disclosed that the affiant had obtained
    police Field Information cards, indicating that the appellant had been
    observed on March 23, 2010, February 15, 2011, and April 2, 2011 in the Jane
    Street area. On one of those occasions, the appellant produced his drivers
    licence as identification, and on two of those occasions, he was observed in the
    Acura registered under his name.

[54]

In addition, on two occasions in May 2011, police observed the
    appellant at 121 Dollery Court, the location where his welfare payments were
    sent. On the first occasion, May 17, he was observed leaving the dwelling,
    entering the Acura which was parked in the driveway, and driving away. On the
    second occasion, May 30, he was observed leaving the dwelling, walking up to
    the drivers side of the vehicle, removing something from the front of the
    vehicle, placing it under his sweater, and returning to the dwelling.

[55]

As this court explained in
MacDonald
, at para. 20, police
    are not obliged, before conducting the search, to confirm the very criminality
    alleged by the tipster. There was, therefore, corroboration of the CIs information
    on the appellant. The police confirmed the fact that the appellant drove a
    four-door green Acura, and that he hung out in the Jane and Finch area.
    Although the CI was not able to identify the appellants residence, police were
    able to corroborate the appellants ownership of the Acura and his connection
    to 121 Dollery Court, where they observed both the appellant and his Acura.

(iii)

Was the CIs information compelling?

[56]

The appellant submits that he has limited ability to assess whether
    the CIs information was compelling because the redactions were substantial,
    and the judicial summary was thin. He argues that, based on the information
    available to him, there was no compelling evidence to indicate that a firearm
    would be found in either the Acura or the residence at 121 Dollery Court at the
    time of the search. He relies on
Herta
, at para. 51, in which this
    court found that the CIs statement that the accused would not go anywhere
    without the gun was not sufficiently compelling to justify a search at any
    location the accused had attended as [t]his would have turned [the accused]
    into walking, ready-made grounds for belief.

[57]

To assess whether the information was compelling, it is necessary to
    examine both the redacted ITO and the judicial summary. The summary indicates
    that the CI had been in the appellants presence many times; that the CIs
    information about the firearm was detailed and specific; that the means of
    the CIs knowledge was disclosed; and that the CIs information was current. The
    summary also mentioned that the CI had advised his handler that wherever
    Jeffrey Brown is, the firearm is.

[58]

This information is compelling because it established that the CI
    was familiar with the appellant, that the CIs observations were first-hand,
    and that the information was current. The CI was able to give a detailed and
    specific description of the firearm, which indicated that the CI had personally
    seen it. Furthermore, the appellant confirmed to the CI that he always had the
    firearm with him. Read together, the redacted ITO and the judicial summary established
    that the CIs information was compelling.

[59]

Despite the appellants submissions, I do not regard this as a case
    similar to
Herta
. In
Herta
, there was little information
    about the CIs credibility, and the court found that corroboration was weak.
    The court rejected the proposition that if a CI has seen someone with a gun at
    some point in the past, [it] means a search warrant can necessarily [be issued]
    for any place attended by that person in the future. In this case, the CIs similar
    statement was based not on speculation, but on what the appellant had said
    about his own possession of his weapon: effectively, I carry it wherever I
    go.

(iv)

Conclusion on the
Debot
factors

[60]

In conclusion, the trial judge was alive to the shortcomings in the
    ITO, and appropriately recognized that some of them were attributable to the lack
    of judicial guidance at the time of its preparation. The trial judge applied
    the
Debot
factors and did not find that the shortcomings reflected a
    deliberate attempt by the police to mislead the authorizing justice. The trial
    judge concluded that the information in the ITO was credible, compelling, and
    corroborated. The trial judges reasons demonstrate no misunderstanding of the
    evidence and no error of law. The trial judges decision is entitled to
    deference. I would not give effect to this ground of appeal.

(a)

Garofoli
Step
    Six

[61]

The appellant submits that the trial judge committed two additional
    errors in applying
Garofoli
Step Six. First, the trial judge failed to
    appreciate that the judicial summary was inadequate; and second, the trial
    judge relied on information that was contained in the unredacted ITO and was
    not summarized. I do not accept either submission.

[62]

On the first point, I note that the appellant not only had the
    benefit of the judicial summary, but also of a cross-examination of the
    affiant, which was conducted with leave of the trial judge. More importantly,
    the judicial summary complied with the suggestions set out in
Crevier
.
    It described the
nature
of the redacted
    information. The appellant, armed with the ITO, the judicial summary, and the
    cross-examination, had sufficient information to mount a facial or subfacial
    challenge to the ITO, and to argue that the requirements of
Debot
had
    not been met. That his challenge failed was not due to his inability to effectively
    challenge the ITO.

[63]

On the second point,
Crevier
, at para. 90, states that [t]o
    the extent that the accused is not sufficiently equipped to challenge certain
    redactions, the trial judge must not consider them. The trial judge followed
Crevier
and made it clear that his reference to the unredacted ITO was an alternative
    in case he erred in his analysis of the
Debot
factors. As I would
    uphold his analysis on the
Debot
factors, I consider it unnecessary to
    address this submission.

(b)

Other issues

[64]

Although the trial judge suggested a Step Seven to
Garofoli
,
    which would permit an appellate court to review the unredacted ITO, I do not
    find it necessary to address that issue, and have not opened the sealed ITO
    packet.

[65]

Nor do I find it necessary to address the respondents alternative
    submission that exigent circumstances permitted the police to conduct a
    warrantless search of the appellants car, pursuant to ss. 487.11 and 495(1)(a)
    and (b) of the
Criminal Code
.

G.

Disposition

[66]

For these reasons, I would dismiss the appeal.

Released: February
    26, 2021  G.R.S.

George R. Strathy C.J.O.

I agree. David Watt J.A.

I agree. B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Budlakoti, 2021 ONCA 163

DATE:  20210315

DOCKET: M52091 (C68739)

MacPherson
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent
(Respondent/Responding Party)

and

Deepan Budlakoti

Applicant
(Appellant/Moving Party)

Deepan Budlakoti, appearing in person

Ian Kasper, appearing as duty counsel

Samuel Greene, for the responding party

Heard: February 11, 2021 by video conference

REASONS
    FOR DECISION

A.

introduction

[1]

The applicant Deepan Budlakoti seeks an order
    pursuant to s. 684 of the
Criminal Code
for the appointment of counsel
    to represent him on his appeal of two orders made by Labrosse J. of the
    Superior Court of Justice during the applicants criminal trial in Ottawa.

B.

facts

[2]

The applicant was charged and convicted of a
    number of firearm offences. He has made post-trial applications that are
    currently proceeding in the Superior Court. He has not been sentenced. He is an
    inmate at the Ottawa-Carleton Detention Centre (OCDC).

[3]

Prior to the commencement of his trial in the
    Superior Court, the applicant brought two applications for
habeas corpus
before the trial judge.

[4]

The first
habeas corpus
application
    sought an order declaring that the applicants current meal program at the OCDC
    was unlawful and that he be provided meals suitable to his dietary and
    religious restrictions.

[5]

The second
habeas corpus
application
    sought orders directing improvements in internet and phone access, access to
    professional visits, additional yard time, access to medications, and various
    documents to support his applications.

[6]

The first
habeas
application was filed
    under the
Criminal Proceedings Rules for the Superior Court of Justice (Ontario)
, S.I./2012-7
, Form 1. The second application
    did not refer to any criminal or civil rules.

[7]

The Crown sought to have the
habeas
applications dismissed under r. 6.11(2) of the
Criminal Proceedings Rules
.
    The Crown argued that none of the applicants grievances amounted to
    deprivation of liberty, as required for
habeas corpus
relief.

[8]

The application judge summarily dismissed the
    claims pursuant to the
Criminal Proceedings Rules
. He said:

In considering the
habeas corpus
applications
    before the Court we must determine if the Respondents claims amount to an
    unlawful deprivation of liberty.

In the present circumstances the Respondent is
    seeking accommodation on several issues: nutrition, for health and religious
    reasons and the inability to conduct his legal proceedings outside of the
    normal schedule for inmates. Clearly these matters do not go to the nature of
    the detention and they certainly do not amount to a more restrictive form of
    confinement.

I cannot find any suitable ground for the
    order sought. It is simply a misuse of the prerogative writ of
habeas
    corpus
as the present circumstances do not involve a change to the level
    of confinement, nor do they engage a further deprivation of liberty.

[9]

The applicant has filed a Notice of Appeal with
    respect to Labrosse J.s decision to summarily dismiss his
habeas corpus
applications.
    He has been denied legal aid funding for counsel for the appeal. Accordingly,
    he makes this application, pursuant to s. 684 of the
Criminal Code
,
    for the appointment of counsel to represent him on the appeal.

C.

issues

[10]

The issues on the application are:

1.

Does this court have jurisdiction to make a s.
    684 order in this appeal?

2.

If the answer to question (1) is Yes, should a
    s. 684 order be made?

D.

Analysis

(1)

The jurisdiction issue

[11]

The applicant maintains that because the
    Superior Court exercised its criminal law powers through the
Criminal Proceedings
    Rules
in making its decision on the two
habeas corpus
applications, he has a right of appeal to this court pursuant to s. 784 of the
Criminal
    Code
.

[12]

The respondents says that this court does not
    have jurisdiction to grant a s. 684 funding order because the appeal is civil,
    not criminal, in nature.

[13]

I agree with the applicant on this issue, but
    only on a narrow technical basis. I note that the applicant's first
habeas
    corpus
application was commenced under the
Criminal Proceedings Rules
and the two applications were dismissed pursuant to those rules. In the
    Superior Court, the Crown appeared to concede that the applications were
    criminal in nature when it moved to have them dismissed in the criminal
    proceedings. In my view, it should not be open now to the respondent to resile
    from that position on appeal, to the detriment of the applicant.

(2)

The merits issue

[14]

Pursuant to s. 684 of the
Criminal Code
,
    this court may appoint counsel in a criminal appeal, funded by the Attorney General,
    where it is desirable in the interests of justice that the applicant should
    have legal assistance and he lacks the means to hire counsel. In assessing the
    interests of justice, the court must consider the merits of the case. The
    applicant must meet the modest standard of having an arguable ground of
    appeal. Appeals that have no merit cannot be helped by the appointment of
    counsel. The applicant must also show that appointed counsel is necessary
    having regard to whether he is capable of effectively advancing his grounds
    without a lawyer and whether the court can decide the appeal without counsels
    assistance:
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at
    paras. 14 and 22;
R. v. Sauve
, 2018 ONCA 755, at para. 18.

[15]

The respondent, fairly, does not dispute that
    the appellant does not have the means to retain counsel and would struggle to
    effectively advance an appeal himself if there were an arguable ground of
    appeal. The respondents position is that there is no arguable ground of
    appeal.

[16]

Habeas corpus
is
    an ancient writ that protects a person from unlawful confinement:
May v.
    Ferndale Institution
, 2005 SCC 82, at para. 19. To be granted relief, an
    applicant must 1) establish that they have been deprived of liberty and 2) raise
    a legitimate ground upon which to question its legality. Once both are
    established, the onus shifts to the respondent to show that the deprivation of liberty
    is lawful:
Mission Institution v. Khela
, 2014 SCC 24, at para. 30;
May
,
    at para. 74.

[17]

In the context of prisoner claims, there are
    three different deprivations of liberty that may be challenged: an initial
    deprivation; a substantial change in conditions amounting to a further
    deprivation of liberty; and a continuation of the deprivation of liberty, which
    was lawful but has become unlawful:
R. v. Gamble
, [1988] 2 S.C.R. 595,
    at pp. 637-38.

[18]

In
Gamble
, the court expanded the
    availability of
habeas corpus
and held that it can be used to obtain
    declaratory relief under s. 24(1) of the
Charter
.

[19]

On this application, the applicant makes a
    single argument, namely, that his application has merit because he is entitled
    to
Charter
s. 24(1) relief as established by
Gamble
. The
    applicant asserts that, on the basis of the evidentiary record, his appeal has merit
    in two respects: (1) a failure to provide appropriate meals to him (generally,
    a
Charter
s. 7 concern) and (2) a failure to provide appropriate
    resources to ensure that he could prepare for his trial (generally, a s. 7 or
    s. 11(d) concern).

[20]

I am not persuaded by this submission. I say
    this for two reasons.

[21]

First, in the Superior Court the applicant did
    not seek
Charter
s. 24(1) declaratory relief. In his first
    application, he did not invoke the
Charter
at all, despite his claim
    that the food he was served was inadequate because of his religious beliefs.
    The only relief sought in the first application was an order that he be served
    with food that met his health and religious needs. In his second application,
    he explicitly invoked his right to a full answer and defence. However, the only
    relief sought was several orders requiring that he be provided with various
    items and access to various resources. Given that a
Charter
remedy was
    never sought, it cannot be said that the applicant is entitled to s. 24(1) declaratory
    relief.

[22]

Second, I see no error in the application judges
    conclusion that the circumstances alleged by the applicant relating to food,
    medication, internet, phone, documents, yard time, and professional visits do
    not go to the nature of the detention and do not amount to a more restrictive
    form of confinement. There is nothing in the record to suggest that the
    applicant is being treated worse than the general inmate population at OCDC
    or that his form of confinement or detention is one in which the actual
    physical constraint or deprivation of liberty  is more restrictive or severe
    than the normal one in an institution:
R. v. Miller
, [1985] 2 S.C.R. 613,
    at p. 641.

[23]

For these reasons, the applicant has not
    persuaded me that a s. 684 order is appropriate in his appeal.

E.

disposition

[24]

The application is dismissed.

J.C. MacPherson J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Budlakoti, 2021 ONCA 290

DATE: 20210504

DOCKET: M52430 & M5244

(C68739)

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

(Moving
    Party/Responding Party)

and

Deepan Budlakoti

Appellant

(Responding
    Party/Moving Party)

Samuel Greene, Brian G.
    Whitehead and Adrien Iafrate, for the moving party (M52430) and responding
    party (M52444)

Deepan Budlakoti, acting in person, responding party
    (M52430) and moving party (M52444)

Heard and released orally: May 3, 2021 by video
    conference

REASONS FOR DECISION

[1]

On December 15, 2020, Mr. Budlakoti was convicted of several firearms
    offences. He has outstanding post-trial
Charter
litigation ongoing in
    the Superior Court, seeking relief that includes a stay of his convictions. He
    has not yet been sentenced.

[2]

Two motions are before the court, one by the Crown and one by Mr.
    Budlakoti. They arise out of the two Notices of Appeal Mr. Budlakoti has
    submitted to this court.

[3]

The two Notices of Appeal challenge separate decisions:

1.

The Notice of Appeal filed October 26, 2020 challenges the September 21,
    2020 decision of Justice Philips summarily dismissing a pre-trial application
    by Mr. Budlakoti and other inmates seeking a stay of criminal proceedings and
Charter
damages as a result of alleged breaches of s. 7 of the
Charter
as a
    result of Ottawa Carleton Detention Centres response to the pandemic during
    his pre-trial detention (the
Charter
Appeal); and

2.

The Notice of Appeal, a revised version of which was filed December 29,
    2020, challenges the October 16, 2020 decision of Justice Labrosse summarily
    dismissing two
habeas corpus
proceedings brought by Mr. Budlakoti
    challenging the conditions at the Ottawa Carleton Detention Centre at which he
    continues to be detained ( the
Habeas
Appeal). In particular, he
    asserts (1) a failure to provide appropriate meals to him and (2) a failure to
    provide appropriate resources to ensure that he could prepare for his trial.

[4]

At present, only one Court of Appeal file number, C68739, has been
    assigned to both Notices of Appeal.

[5]

Turning first to the Crowns motion, the Crown seeks an order directing
    that the
Charter
Appeal be quashed on the basis that it is an appeal
    of an interlocutory order in a criminal matter for which there is no statutory
    or other right of appeal:
R. v. Meltzer
, [1989] 1 S.C.R. 1764.

[6]

We agree that Mr. Budlakoti has no right to launch an interlocutory
    appeal.  Mr. Budlakoti has not yet appealed his conviction. Should Mr.
    Budlakoti wish to challenge the October 26, 2020 decision which is the subject
    of his
Charter
Appeal, his recourse is to seek to do so in the context
    of an appeal against conviction, pursuant to s. 675 of the
Criminal Code
.
    Accordingly, the Crowns application is granted and an order shall issue
    quashing the
Charter
Appeal.

[7]

In his motion, Mr. Budlakoti asks the court to reconsider the March 15,
    2021 decision of MacPherson J.A. refusing his application for the appointment
    of counsel under s. 684 of the
Criminal Code
to act on his behalf on
    the
Habeas
Appeal. MacPherson J.A. accepted that Mr. Budlakoti does
    not have the means to retain counsel and would struggle to effectively advance
    an appeal himself if there were an arguable ground of appeal. However, he
    concluded that it was not in the interests of justice that Mr. Budlakoti have
    legal assistance because he did not have an arguable ground of appeal in the
Habeas
Appeal.

[8]

Mr. Budlakoti argues that MacPherson J.A. erred in concluding that he
    did not have an arguable ground of appeal.

[9]

Justice MacPherson considered and applied the correct legal test in
    concluding that counsel should not be appointed under s. 684. Mr. Budlakoti
    does not point to any material change in circumstances in the form of
    information or evidence that was not before MacPherson J.A. Moreover, we agree
    with his assessment of the merits.

[10]

Accordingly,
    Mr. Budlakotis motion for the appointment of counsel is dismissed.

[11]

The
Habeas
Appeal shall be scheduled for argument on September 7, 2021.

Alexandra Hoy J.A.

C.W. Hourigan J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Burgess-Champagne, 2021 ONCA 306

DATE: 20210507

DOCKET: C68778

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Burgess-Champagne

Appellant

Robert Burgess-Champagne,
    acting in person

Amy Ohler, appearing as duty
    counsel

Joseph Selvaratnam, for the
    respondent

Heard and released orally: May 5, 2021
    by videoconference

On appeal from the sentence imposed by Justice
    Ronald M. Laliberté of the Superior Court of Justice on October 14, 2020.

REASONS FOR DECISION

[1]

The appellant pleaded
    guilty to one count of possession of fentanyl for the purpose of trafficking,
    one count of possession of cocaine for the purpose of trafficking, one count of
    possession of property obtained by crime, and one count of conspiracy to commit
    an indictable offence. The trial judge found the facts supported findings of
    guilt on each count and convicted the appellant accordingly.

[2]

The trial judge
    originally sentenced the appellant on June 12, 2020. He rejected the defences
    proposed blended sentence and noted that the court could not circumvent
    Parliaments intent to have trafficking be ineligible for conditional
    sentences. The trial judge found that a fit and proper sentence was a global
    term of 24 months less one day, followed by 12 months probation. However, he
    adjourned imposing the sentence until October so the appellant could spend time
    with his dying mother. When the matter returned on October 14, 2020, the
    parties made submissions regarding the availability of a conditional sentence
    after this courts decision in
R. v. Sharma
, 2020 ONCA 478, 152 O.R. (3d) 209, and
    whether the trial judge was
functus officio
.

[3]

The trial judge
    found that a conditional sentence was not a fit and proper sentence for the
    appellant. Considering the totality of the circumstances, he concluded that a
    conditional sentence was not consistent with the principles of sentencing,
    specifically denunciation, deterrence, proportionality, and the degree of the
    responsibility of the offender.

[4]

On appeal, the
    appellant submits that the trial judge erred by not exercising restraint and
    over emphasizing the principle of parity, given that a conditional sentence is
    now available. He also argues that the trial judge failed to freshly consider
    whether a conditional sentence could be fashioned that was consistent with
    sentencing principles in the circumstances.

[5]

We see no error
    in principle in the trial judges analysis, and the sentence is not unfit. The
    trial judge carefully considered the request for a conditional sentence on the
    second sentencing hearing and provided thorough and compelling reasons for
    rejecting the request. There is no basis for appellate interference.

[6]

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

Alexandra Hoy J.A.

C.W. Hourigan J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Castellano, 2021 ONCA 272

DATE: 20210426

DOCKET: M52353 (C67190)

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Applicant/Respondent

(Respondent)

and

Daniel Castellano

Respondent/Applicant

(Appellant)

Molly Flanagan, for the applicant/respondent
    Crown

Nathan
    Gorham, for the respondent/applicant Daniel Castellano

Heard: April 23, 2021 by video
    conference

ENDORSEMENT

OVERVIEW

[1]

Pursuant to s. 679(6) of the
Criminal

Code
,
R.S.C. 1985, c. C-46, the Crown applies for an order
    revoking Coroza J.A.s bail release order, dated January 29, 2021, which
    extended the release of the respondent, Daniel Castellano. Mr. Castellano
    opposes the Crowns application.

[2]

In the event I grant the Crowns application,
    Mr. Castellano brings his own application for release pending appeal.

[3]

For reasons that follow, I am revoking the bail
    release order and denying Mr. Castellanos request for release pending appeal.

MATERIAL FACTS

[4]

On August 13, 2019, Harvison Young J.A. ordered Mr.
    Castellano released on bail pending his appeal of his April 30, 2019 convictions.
    Those convictions related to an explosion inside a pickup truck parked at a
    tractor repair business.

[5]

At the time of the explosion, Mr. Castellano was
    in a dispute with the owner of the tractor repair business. During the
    execution of a search warrant at Mr. Castellanos residence, the police found
    an arsenal of weapons, including pipe bombs in various states of manufacture,
    as well as loaded handguns.

[6]

In connection with the explosion in the pickup
    truck, Mr. Castellano was convicted of mischief to property, two counts of
    possessing a dangerous weapon, and placing an explosive device in the pickup
    truck. The discovery of the arsenal and the explosives led to his conviction
    of twelve counts of possession of substances intended to be used to cause an
    explosion, and three counts of careless storage of a firearm. He was also
    convicted of possessing stolen property found during the search, and possession
    of marijuana. Mr. Castellano received a sentence of 1,888 days in custody after
    credit for pre-trial custody of 142 days.

[7]

On May 3, 2019, while awaiting his sentencing,
    the trial judge revoked Mr. Castellanos bail. In doing so she relied on her
    finding that Mr. Castellano had made admissions that at the material time he
    was waging a war. She also relied on Mr. Castellanos beliefs about the
    police and a labour union attacking his property as indicative of some sort of
    instability on the part of Mr. Castellano, thereby increasing his risk to the
    public. Mr. Castellano remained in custody until released pending appeal by
    Harvison Young J.A.

[8]

On several occasions, Harvison Young J.A.s bail
    pending appeal order was amended on consent to extend Mr. Castellanos release,
    most recently by Coroza J.A. on January 29, 2021, who ordered his bail extended
    until May 1, 2021. Mr. Castellanos bail release was uneventful for more than
    18 months, until March 28, 2021.

[9]

On March 28, 2021, as the result of complaints
    from neighbours about explosions they believed had occurred in the direction of
    Mr. Castellanos property, police officers executed a search warrant on his
    property. The police discovered and seized ammunition. They also discovered and
    seized a container of acetone, pipes, and fittings, items police believed were capable
    of being used in bomb-making.

[10]

Mr. Castellano was not present at the time of
    the search. He later complained to a neighbour that items had been stolen from his
    property.

[11]

When police visited the property again on March
    30, 2021 and arrested Mr. Castellano, his vehicle was searched. Mail that did
    not belong to him and lock-picking kits were found in his possession.

[12]

Mr. Castellano has now been charged with: (1)
    disobeying Coroza J.A.s bail order by possessing ammunition in breach of the
    terms of that order, contrary to s. 127 of the
Criminal

Code
;
    (2) possession of break-in instruments, contrary to s. 351(1) of the
Criminal

Code

(relating to the lock-picking kits); (3) possession of stolen
    property, contrary to s. 354(1)(a) of the
Criminal

Code
(relating to the mail); (4) theft of mail, contrary to s. 356(1)(a)(i) of the
Criminal

Code
; and (5) possession of an explosive substance with intent,
    contrary to s. 81(1)(d) of the
Criminal

Code

(collectively,
    the new charges).

[13]

All the new charges are either for straight
    indictable offences, or hybrid offences that are deemed to be indictable
    offences pending Crown election.

[14]

Mr. Castellano has now been released on the new charges
    pursuant to an Ontario Court of Justice bail release order dated April 21, 2021.
    The parties agreed that the terms of that order are essentially identical to
    the terms imposed by Coroza J.A.

[15]

Mr. Castellano remains in custody pending the
    disposition of the applications now before me.

ISSUES

[16]

The Crown brings an application before me
    pursuant to s. 679(6) of the
Criminal

Code

to revoke
    Coroza J.A.s bail release order of January 29, 2021.

[17]

Mr. Castellano contests the Crowns application but
    applies for bail pending appeal in the event I do revoke Coroza J.A.s release
    order.

[18]

I will address the two applications in turn.

ANALYSIS

A.

The Bail Release Order of Coroza J.A. Is Revoked

[19]

By virtue of s. 679(6) of the
Criminal

Code
, s. 524(3) of the
Criminal

Code

is
    incorporated into the bail pending appeal regime. By virtue of s. 524(3)(b), I
    am required to cancel Mr. Castellanos release if I find there are reasonable
    grounds to believe that [Mr. Castellano] has committed an indictable offence
    while being subject to the  release order.

[20]

The Crown may face challenges, identified in
    the arguments before me, in establishing several, if not all, of the new
    charges. There are, however, reasonable grounds to believe Mr. Castellano has
    committed an indictable offence while subject to Coroza J.A.s release order. I
    need only refer to the items found in Mr. Castellanos truck to make the point.
    The proposed
Charter

challenge to the search that led to the
    discovery of those items may prove successful, or Mr. Castellanos explanations
    may be credited after trial, but those are trial matters. It is not contested
    before me that lock-picking kits and mail not belonging to Mr. Castellano, some
    of which has now been reported stolen, were found in a place that he apparently
    controlled.

[21]

This is enough to require that Coroza J.A.s
    order for release be revoked, and I do so.

B.

THE Application for Bail PENDING APPEAL is Denied

[22]

Although the onus is on Mr. Castellano to
    demonstrate that he should be released pending appeal, it is convenient to
    begin with the Crowns position.

The Crowns position

[23]

The Crown does not contest the finding of
    Harvison Young J.A. that Mr. Castellanos appeal is not frivolous. Nor does it
    dispute that, on the balance of probabilities, Mr. Castellano will surrender
    himself into custody in accordance with the terms of the order. The contest is
    about whether he has demonstrated on the balance of probabilities that his
    detention is not necessary in the public interest.

[24]

The Crown contends that, even prior to the new
    charges, Harvison Young J.A. found it was a close case as to whether Mr.
    Castellano had established that the reviewability interest outweighed the
    enforceability interest. The Crown argues there have been two material changes which
    now show that enforceability must predominate.

[25]

Most importantly, Mr. Castellano faces new and
    related charges, which heightens the need to protect the public.

[26]

Moreover, a driving consideration in Harvison Young
    J.A.s decision was concern that the inherent delay in moving appeals forward
    could result in Mr. Castellano serving most of his sentence before having had
    the opportunity to challenge the underlying convictions on appeal. Mr.
    Castellano acknowledges that he is days away from perfecting his appeal,
    assuring it can be heard without significant delay.

[27]

The Crown submits that the balance has now
    shifted, requiring Mr. Castellanos detention pending appeal.

[28]

The Crown also points out that the sureties Mr.
    Castellano proposes were his sureties when the new charges arose. The Crown
    submits the new charges now call into question the sureties ability to assure
    the public safety.

Mr. Castellanos position

[29]

In support of his application for release
    pending appeal, Mr. Castellano notes that public safety was the primary concern
    when he first applied for release pending appeal. He had just been convicted in
    connection with explosives offences allegedly related to a business dispute,
    and of being in possession of loaded handguns and bomb-making material at a
    time when the trial judge believed him to be mentally unstable with paranoid
    delusions. According to Mr. Castellano, events since then have not aggravated the
    concern about the risk he poses to public safety; they have lessened it.

[30]

Specifically, more than 18 months passed without
    incident before the new charges. By their nature, Mr. Castellano submits those new
    charges do not demonstrate an immediate threat of violence to anyone.

[31]

Indeed, further investigation has now shown the
    explosions allegedly heard on Mr. Castellanos property leading to the search
    warrant had not, in fact, occurred on his property, but on a neighbours land.
    More importantly, Mr. Castellano says the new charges he faces, especially the
    charges that might arguably appear to raise the risk of violence, are weak.

[32]

The ammunition was found in one of the three
    buildings on the property, and there are contradictions in the disclosure
    relating to which of the buildings it was. Mr. Castellano shares access to the
    property with the three sureties. The inference that he possessed the
    ammunition is no stronger than the inference that any one of them may have done
    so, an outcome that will lead to his acquittal unless the strength of the Crown
    case changes.

[33]

Although Mr. Castellanos post-search complaint
    about items missing from the property can be used to attempt to link him
    circumstantially to the acetone, pipes, and fittings, the Crown will be
    challenged in proving that those items were possessed for the purpose of
    bomb-making. The acetone was in a quantity suitable for domestic cleaning and
    was discovered stored with other cleaning products. The pipes are small and thin,
    and arguably less suitable for bomb-making than larger pipes would be. There are
    no apparent signs that the items were being used to build an explosive device. The
    investigating police force has now conceded that an expert witness cannot
    assert, based on the evidence, that the acetone, pipes, and fittings were
    possessed for the purpose of bomb-making.

[34]

Mr. Castellano has also offered what he submits to
    be credible, innocent explanations for his possession of the lock-picking kits
    and the mail that did not belong to him.

[35]

In the circumstances, Mr. Castellano submits he
    has discharged his onus of establishing that he should be released pending
    appeal on the terms contained in Coroza J.A.s bail release order. He suggests
    that if I credit the Crowns submission that the new charges weaken confidence
    in the sureties, the order can be augmented by preventing him from being
    outside his home unless accompanied by one of the sureties, and that an
    electronic monitoring order can be made.

The enforcement interest outweighs the
    reviewability interest in this case

[36]

Notwithstanding the thoughtful arguments Mr.
    Castellano advanced before me, in my view, a thoughtful, dispassionate person
    informed of the circumstances of the case and respectful of societys
    fundamental values would conclude that the enforcement interest outweighs the reviewability
    interest.

[37]

First, in my view, the deep concern about public
    safety arising from the nature of the charges under appeal is now heightened by
    the new charges. Mr. Castellanos original release was a close case because
    the nature of the offences, and the circumstances in which he was convicted of
    those offences, posed a risk to the public of calamitous harm. Mr. Castellano
    has now been arrested on related offences. I appreciate the weaknesses in the
    new charges, and that Mr. Castellano is presumed to be innocent of them, but
    ultimately a bail release determination is an exercise in risk assessment. The discovery
    of ammunition and potential bomb-making material on property Mr. Castellano has
    been accessing is a matter that would concern a reasonable member of the
    public, in all the circumstances. His re-release would imperil public
    confidence in the administration of justice.

[38]

Even leaving the ammunition and bomb-making
    charges aside, there are reasonable grounds to believe that while on bail
    release Mr. Castellano possessed break-in instruments in his vehicle, where
    they could be readily accessed while he was mobile, and stolen mail. I agree
    with the Crown that the commission of any indictable offence while on bail
    release for violent offences works to undermine confidence in the public safety
    by raising the risk that the bail order, which is expected to assure public
    safety, may not be respected.

[39]

Allowing for the fact that it was difficult to
    assess the strength of Mr. Castellanos grounds of appeal, Harvison Young J.A.
    expressed the preliminary view that the grounds of appeal presented before her were
    not strong. That observation has not been called into question before me. Accordingly,
    Mr. Castellano is not able to marshal the strength of his appeal as a basis for
    prioritizing the reviewability concern.

[40]

This is no longer a case where detaining Mr.
    Castellano presents the risk of making the appeal moot on the basis that he would
    likely serve his sentence pending appeal. The appeal can now be prosecuted
    without the same concern for delay that influenced Harvison Young J.A. to come
    down on the side of release.

[41]

I agree with the Crown that there are new
    concerns about the sufficiency of the proposed sureties, given the new charges.
    Moreover, part of Mr. Castellanos proposed defence to the ammunition charge as
    shared before me is that the Crown will be unable to prove whether the
    ammunition was possessed by him or rather by one of his sureties. This is a
    legitimate defence for him to advance at his trial, but it does not enhance
    confidence in his release that either he or his sureties possessed ammunition
    on property to which he has access.

[42]

In the circumstances, even bearing in mind his
    suggestion that additional conditions could be added, Mr. Castellano has not
    convinced me that the reviewability interest takes precedence over the enforceability
    interest.

CONCLUSION

[43]

Mr. Castellanos bail release is revoked and his
    application for release pending appeal is denied. The draft orders revoking Mr.
    Castellanos bail release and for his arrest that were submitted by the Crown
    with its application will issue.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ceasor, 2021 ONCA 54

DATE: 20210129

DOCKET: C68597

MacPherson, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeremey Ceasor

Appellant

Neha Chugh, for the appellant

Nicolas De Montigny, for the respondent

Heard: in writing

On appeal from the sentence imposed by
    Justice Deborah A. Kinsella of the Ontario Court of Justice on July 15, 2020.

REASONS FOR DECISION

[1]

On March 20, 2020, the appellant pleaded guilty
    to a number of weapons offences. The parties made a joint recommendation for a
    six month sentence to be imposed on a future date due to the pandemic. In the
    meantime, the appellant was released on bail.

[2]

On June 12, the appellant was arrested and
    charged with two offences, including breaching his release order:
Criminal
    Code
, R.S.C., 1985, c. C-46, s. 145.

[3]

On July 15, the appellant pleaded guilty to the
    s. 145 offence. The parties jointly proposed a sentence of time served (the 33
    days the appellant spent in custody from June 12 to July 15). The sentence was
    not imposed at the time because after pleading guilty the appellant made
    statements suggesting that he did not breach his release order. On July 15, the
    trial judge also imposed the six month sentence on the earlier weapons charges.

[4]

On August 4, the sentencing judge granted the
    accuseds application to strike his guilty plea on the s. 145 charge. The
    defence suggested that the 33 days of pre-sentence custody which was previously
    applied to the s. 145 charge could and should be shifted to the weapons charges
    for which the sentence was about to start. The Crown disagreed.

[5]

The sentencing judge agreed with the Crown. She
    said:

Because if the idea was it was going to be
    used on these charges, I have now struck the plea. I mean ultimately if
    something changes and these charges resolve, hed certainly still have that
    time in the bank, if I can call it that. But it may be that its not time that
    is available to be used in any other fashion because that wasnt the intention.

[6]

The appellant contends that the sentencing judge
    erred in reaching this conclusion. His position is that the pre-trial custody
    tentatively assigned by both parties to the later breach offence could be
    shifted to the weapons offence once the sentencing judge had set aside the
    appellants guilty plea to the breach offence. We do not accept this
    submission.

[7]

The starting point is s. 719(3) of the
Criminal
    Code
which provides:

In determining the sentence to be
    imposed on a person convicted of an offence, a court may take into account any
    time spent in custody by the person as a result of the offence.

[8]

Against this backdrop, there is a long line of
    cases holding that s. 719(3) does not permit an offender to bank custodial
    time for unrelated offences. To give credit for time spent serving a sentence
    for another offence would distort the sentencing regime: see, for example,
R.
    v Wilson
, 2008 ONCA 510, at paras. 40-45;
R. v. Pammett
, 2016
    ONCA 979, at para. 20; and
R. v. Perkins
, 2017 ONCA 152, at para. 30.

[9]

In this case, the entire focus of both parties
    was on the issue of credit for pre-trial custody in relation to the breach of
    recognizance offence. The parties reached an agreement on that issue. That
    agreement remains in place and can be implemented if the appellant is convicted
    following a guilty plea or a trial of that offence. However, if that does not
    come to pass, there is no connection between the two sets of offences the appellant
    faced. Accordingly, as Rosenberg J.A. said in
Wilson
, at para. 45:
    But, at the end of the day when it comes time to sentence an offender the
    court can only take into account factors that relate to the particular offence
    under consideration.

[10]

The appeal is dismissed. The appellant shall
    surrender into custody at the institution from which he was released within 72
    hours of the release of these reasons, failing which a warrant shall issue for
    his arrest.

J.C.
    MacPherson J.A.

Gary
    Trotter J.A.

Harvison
    Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chambers, 2021 ONCA 337

DATE: 20210520

DOCKET:
C64868

Juriansz, van Rensburg and
    Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcia Chambers

Appellant

Mark C. Halfyard, for the appellant

Brian Puddington and Leanne Siu, for
    the respondent

Heard: May 5, 20201 by video
    conference

On appeal from the conviction entered by
    Justice Todd Ducharme of the Superior Court of Justice, sitting with a jury, on
    September 25, 2017.

Juriansz
    J.A.:

[1]

The appellant appeals her conviction of
    possession for the purpose of trafficking in cocaine and marijuana. The police
    executing a search warrant found the drugs in her bedroom in an apartment she
    shared with her adult son. She was arrested away from the residence shortly
    before the execution of the search warrant. The sole issue at trial was whether
    the Crown could establish the appellants knowledge of the drugs found in her
    bedroom. The defence theory at trial was that an available and reasonable
    inference was that during the short delay while the police were attempting to
    gain entry to the residence, the son moved the drugs into the appellants
    bedroom.

[2]

The appellant raises three grounds of appeal:

1. the trial judge erred in failing to exclude
    police opinion evidence about the appellants demeanour and in failing to
    instruct the jury to disregard that evidence;

2. the trial judge failed to instruct the jury
    that if any reasonable inference other than guilt was available, they must
    acquit, and he failed to highlight the other dangers of relying on
    circumstantial evidence; and

3. the verdict was unreasonable as there was
    insufficient evidence to establish knowledge beyond reasonable doubt.

[3]

I would allow the appeal on the first ground, find
    it unnecessary to discuss the second, and would reject that third.

(1)

The Demeanour Evidence

[4]

Before executing the warrant at her residence,
    the police arrested the appellant at a shopping plaza a few minutes away. The
    police blocked her vehicle, identified themselves as police and arrested her.
    No drugs were found in her car or on her person.

[5]

At the outset of trial, the Crown sought to
    introduce demeanour evidence by having the police witnesses attest to how she
    behaved in their opinion. The trial judge stated flatly, Their opinion is not
    admissible. He ruled that the police can say she appeared nervous but nothing
    about their opinion about her demeanour.

[6]

During the trial, various police officers testified
    about the appellants demeanour at the time of her arrest as well as at the
    residence while the officers searched it.

[7]

Constable Griffin testified:

She was cooperative with us. As soon as I
    started to explain that we had a search warrant for the residence and for the
    car she became very nervous, very, her demeanour was just, I would, I would, I
    would call it upset.
She didnt say anything to us. She did not answer any
    questions.

She did answer to her name and during the
    search we had located identification for her. [Emphasis added.]

[8]

Constable Hart also testified she appeared
    nervous upon being arrested.

[9]

Constable Reynolds testified about the
    appellants demeanour when she was returned to the residence. He testified she
    appeared very nervous, very agitated in a very agitated state. Asked what
    made him say that, he responded, her demeanour to me appeared that
she wasnt
    answering questions put to her
 (emphasis added). Asked to describe her
    appearance, he answered:

The best way to describe it would be that she
    appeared to be like a deer caught in headlights.

I dont know how better to describe it than
    that; very staring, not blinking a lot, just very wild, like, you know, a very
    pronounced stare with respect to her eyes. Her demeanour was very nervous. To
    me she was not presenting. She appeared as such to the point where it was
    obvious based on her reaction to us being in the home and us there to execute a
    search warrant, that she appeared to be very concerned with respect to that.

[10]

In cross-examination, Constable Reynolds agreed
    he was not a trained psychologist. He disagreed with suggestions that the
    appellant may have been upset at seeing her son in handcuffs and hearing that
    drugs and bullets had been found in her sons room. He said:

Her demeanour was a deer caught in the
    headlights. The, from my understanding at that point, that the drugs that were
    located in [the sons] room werent of a significant quantity to warrant that
    reaction or her demeanour. But as you stated, it is possible that, you know,
    her son being under arrest, the drugs that had been found in the residence at
    that point, could have been a contributing factor to her demeanour. But I dont
    believe that that was the, the full scale of her, of her reaction

(2)

The Pre-Charge Conference

[11]

At the pre-charge conference, defence counsel raised
    the police testimony about the appellants demeanour. The trial judge indicated
    he would be telling the jury they should be extremely reluctant to rely on this
    evidence, and added:

I regret letting it in. Saying that she looks
    like a deer trapped in the headlight and then attempting to quantify what that
    meant when you put other perfectly reasonable scenarios to the officer, I
    shouldnt have let the evidence in. Its, in my thinking its akin to post-offence
    conduct and there are numerous other reasons that she might look like that. So,
    Ill be dealing with demeanour.

[12]

Defence counsel then asserted that Constable Canning
    had testified that the appellant had been uncooperative and that the jury might
    say well, she didnt cooperate with the police officer. Defence counsel was
    concerned that the jury might think there was an onus on her client to say
    anything to the police.

[13]

The trial judge said he did not have a note that
    Constable Canning said the appellant was uncooperative. Defence counsel
    insisted he had said at one point she was not cooperative. After the Crown
    stated that they did not have a note of Canning saying the appellant was not
    cooperative, the trial judge stated, Well, Im not going to say anything about
    that.

[14]

Defence counsel was mistaken in attributing the
    testimony to Constable Canning. It was Constable Griffin who had testified the
    appellant did not say anything to the police and would not answer any questions,
    and it was Constable Reynolds who said she was not answering questions put to
    her.

[15]

After the trial judge read to counsel what he
    proposed to say in his charge about the elements of the offence, including about
    the police testimony that the appellant looked like a deer caught in headlights,
    defence counsel said he had nothing further to say.

(3)

The Charge

[16]

As he had indicated at the pre-charge conference,
    the trial judge said to the jury:

Constable Reynolds testified that [the
    appellant] appeared to be very nervous and agitated and she looked like, a lot
    like a deer in the headlights. Now, in my view, this evidence does not really
    help you. There is no evidence that Constable Reynolds knew [the appellant], or
    what her demeanour is usually like, and there are several reasons why she might
    appear to be nervous and upset. The police were searching her home. She and her
    son were in handcuffs, and there was mention of drugs being found in her sons
    room.

[17]

The trial judge said nothing to the jury about
    the police testimony that the appellant had not answered the questions of the
    police (other than identifying herself).

[18]

The trial judges charge also contained the
    standard instructions:

My references to the evidence are only to help
    you remember it and to show how it relates to the issues in this case. If my
    memory of the evidence is different from yours, its yours that counts. You
    find the facts and base your decision on your memory of the evidence, not mine,
    nor that of counsel.

Now, our law also permits me to comment or
    express opinions about issues of fact. If I do that however, you do not have to
    reach the same conclusion. You, not I, determine what happened in this case.

(4)

Analysis

[19]

The trial judges instructions to the jury were
    deficient in two respects.

[20]

First, the charge left it open to the jury to
    rely on evidence that was not admissible. Before the police witnesses
    testified, the trial judge had ruled their opinions about the appellants
    demeanour inadmissible. At the end of the testimony, the trial judge
    acknowledged the police witnesses had gone beyond testifying about their
    observation of the appellants demeanour and had offered opinion evidence about
    the appellants demeanour. Telling the jury that he viewed the evidence as not
    helpful, while leaving the jury free to apply their own view of it, left open
    the prospect that the jury might rely on the evidence. The trial judge should
    have instructed the jury clearly and unambiguously to disregard the evidence.

[21]

Second, the charge lacked a clear instruction
    that the jury could not draw anything from the appellants post-detention
    silence, which was her constitutional right. While the trial judge and neither
    counsel had a clear recall of Constable Griffins testimony that the appellant
    didnt say anything to us. She didnt answer any questions, members of the
    jury may well have noted and remembered the testimony. The instructions should
    not have left open the prospect that the jury might use the evidence for an
    impermissible purpose by reasoning that if the drugs were not the appellants
    she would have answered their questions.

[22]

These deficiencies in the charge to the jury
    rendered the trial unfair and would necessitate a new trial.

(5)

Unreasonable verdict

[23]

I would reject the appellants submission the
    verdict is unreasonable. The evidence in this case, considered as a whole, was
    reasonably capable of supporting the verdict.

[24]

Cocaine worth $287,000, marijuana worth $70,000
    and additional drug paraphernalia, such as digital scales, were found in various
    places in the appellants bedroom. Her ODSP receipt, her lease for the
    premises, and her passport were also found in the bedroom. The lease indicated
    she was paying $1600 a month in rent while receiving $1912 in disability
    support according to the ODSP receipt. High-end watches were also found in her
    bedroom. She was in possession of three cell phones when arrested.

[25]

In my view a correctly instructed jury could have
    rejected the theory of the defence, that the appellants son placed the drugs
    and other items in various spots throughout his mothers bedroom during the
    brief period the police were attempting to gain entry to the premises, and
    could have concluded the appellant was guilty.

(6)

Conclusion

[26]

I would allow the appeal, quash the convictions,
    and remit the matter to the Superior Court of Justice for a new trial.

Released: May 20, 2021 RGJ

R.G. Juriansz J.A.

I agree. K. van Rensburg J.A.

I agree. Sossin J.A.