COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reid, 2019 ONCA 32

DATE: 20190121

DOCKET: C56998, C63536

Watt, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gary Lalute Reid

Appellant

Michael Dineen, for the appellant

Andrew Cappell, for the respondent

Heard: August 23, 2018

On appeal from the conviction entered on December 20,
    2011 and the sentence imposed on April 13, 2013 by Justice Michael G. Quigley
    of the Superior Court of Justice, sitting without a jury.

Fairburn J.A.:

I.
OVERVIEW

[1]

This case arises from a police-citizen
    interaction on March 29, 2010. Police officers were on a Toronto Community
    Housing Corporation [TCHC] property when they came across and spoke with some
    children in a courtyard area. The appellant and his friend were close by. Contact
    between the officers and the two men followed, culminating in the appellants
    decision to run away. He dropped a fully loaded firearm as he ran and was apprehended
    only when he stopped to try and retrieve the gun. The police got to it first.

[2]

The appellants trial commenced with a ss. 9 and
    24(2)
Charter

voir dire
. He claimed
    that he had been subjected to an arbitrary detention before he took flight and,
    therefore, the firearm that he dropped as he ran, and the marijuana discovered
    on him when he was searched incident to arrest, should be excluded from
    evidence. The trial judge dismissed the
Charter

application, concluding that: (i) there had been no detention; (ii) even
    if there had been a detention, it was not arbitrary; and (iii) even if there had
    been an arbitrary detention, the admission of the evidence would not bring the
    administration of justice into disrepute.

[3]

Following the
Charter

ruling, the evidence given on the
voir dire

was applied to the trial proper. The appellant testified, his
    evidence was rejected, and convictions followed on all counts, including
    numerous firearm-related offences, possession of marijuana, and fail to comply
    with firearm prohibition and probation orders.

[4]

The appellant appeals those convictions. He does
    so exclusively on the basis that the trial judge erred in the
Charter
ruling. The appellant also appeals against sentence.

[5]

For the reasons that follow, I would dismiss the
    conviction appeal and allow the sentence appeal, but only to the extent of
    correcting what appears to be a calculation error relating to pre-sentence
    custody.

II.       BACKGROUND FACTS

[6]

The TCHC was concerned about trespassers on its properties.
    The landlord wrote to the Toronto Police Service [TPS], asking that the
    police enforce the
Trespass to Property Act
,
    R.S.O. 1990, c. T.21 [
TPA
], on all TCHC
    properties. The Toronto Anti-Violence Intervention Strategy [TAVIS] unit of
    the TPS was assigned that task.

[7]

At 6:00 p.m. on March 29, 2010, 10 to 12 TAVIS
    officers went to a TCHC townhouse complex located at Grandravine Drive and
    Driftwood Avenue. A map of that property shows it as a large one, containing
    many different buildings, housing units, laneways, parking lots, and outdoor
    common areas. One officer described it as a maze.

[8]

One of the TAVIS officers who testified at trial
    had worked in the area for about two years prior to the encounter with the
    appellant. He described it as a high-crime area, known for its gang and drug
    activity. The officer testified about the real problems that the crime caused
    for the residents of the TCHC property, who he said wanted to live in peace. The
    officers testified about their motivation for being on the TCHC property  to provide
    some community policing, to adhere to the landlords and residents requests to
    show a presence in the area and to deal with trespassers.

[9]

Within 20 minutes of arriving at the property,
    all but four of the TAVIS officers had left. Officers Stratton and Halagian were
    two of the remaining officers. Around 6:20 p.m., they encountered a few young
    boys in a courtyard area around the centre of the complex. A playground was
    nearby. The boys were about ten years of age. The children had asked the
    officers about the use of firecrackers and the officers were encouraging them
    to be safe and seek out adult supervision. While that conversation was taking
    place, the two other remaining TAVIS officers arrived in the courtyard area:
    Officers Asner and Bassett.

[10]

As the discussion with the children continued, two
    adult males started walking toward the officers: the appellant and his
    acquaintance, Frank Paisley. Officers Asner and Bassett spoke with Paisley and
    Officer Stratton spoke with the appellant. While they were speaking, Officers
    Asner and Bassett walked Paisley a number of feet away. They discovered that he
    was in breach of a conditional sentence order and arrested him.

[11]

When Officer Halagian finished speaking with the
    children, he joined Officer Stratton and stood slightly behind him. Officer
    Stratton asked the appellant a few questions: whether he lived at the TCHC
    property, his name, whether he had been in trouble in the past, and his purpose
    for being on the property. The appellant provided his name and volunteered his
    date of birth and home address. He said that he did not live on the TCHC
    property, but that he had family in the area. He also said that he had been
    arrested a long time ago and that he was at the property to produce music and
    help children to not go down the same path as he once had.

[12]

Officer Stratton used his portable radio to run
    a record check on the appellants name. The appellant could hear Officer
    Stratton speak into the radio, and the replies he received. Officer Stratton thinks
    that he told the appellant that he would be on his way once the record check
    was complete. Officer Stratton said that the purpose of the check was to
    determine whether the appellant was subject to any court-imposed conditions
    forbidding him from being on the TCHC property. As the check was being done,
    Officer Stratton recorded the appellants name, date of birth, and address on
    what was referred to as a 208 card.

[13]

When information was received over Officer
    Strattons radio that the appellant was the subject of a weapons prohibition
    order, the appellant bladed his body, meaning that he moved one side of his
    body away from the police. He then tapped a rectangular object on his hip and
    ran. As they ran after the appellant, the police saw a firearm go flying
    through the air. The appellant was tackled when he stopped to retrieve the
    firearm. Several baggies of marijuana were found on him when he was searched
    incident to arrest. The firearm  its serial number removed  was loaded with 14
    bullets in the magazine.

[14]

Officer Stratton testified that the entire
    encounter between the police and the appellant, up to the point he ran, was five
    to seven minutes, give or take a minute or two.

III.      ANALYSIS

[15]

The conviction appeal raises three issues: (1) was
    the appellant detained; (2) if he was detained, was he arbitrarily detained; and
    (3) if he was arbitrarily detained, should the evidence have been excluded under
    s. 24(2) of the
Charter
?

(1)

Was the appellant detained?

(a) Overview

[16]

The first question to be answered on any s. 9
voir
    dire

is whether the
Charter

claimant was detained. If no detention occurred that ends the matter,
    because if there was no detention, there was no arbitrary detention.
    Accordingly, only where there is a detention does the court go on to assess
    whether it was arbitrary in nature.

[17]

The trial judge correctly looked to the question
    of detention first. He found that the appellant had failed to establish on a
    balance of probabilities that he was detained within the legal meaning of that term.
    Officer Strattons questioning of the appellant did not result from singling
    him out, but from the police speaking to both the appellant and Paisley at the
    same time. The trial judge concluded that the police were entitled to ask the
    appellant the questions they did as part of their legitimate community policing
    exercise. Those questions did not create a detention.

[18]

The appellant argues that the trial judge was
    wrong to conclude that he was not detained. Although deference is owed to the
    trial judges findings of fact on a s. 9
voir dire
, the question as to whether the appellant was actually detained in
    light of those facts is reviewable on a standard of correctness:
Grant
, at para. 43. I will now address the appellants arguments
    regarding why he says that the trial judge was wrong to find there was no detention,
    and why I disagree with those arguments.

(b)
    The appellants position on detention

[19]

There are two forms of detention: physical and
    psychological detention. The appellant acknowledges that he was not physically
    detained. Consequently, the issue in this case is whether the appellant was
    psychologically detained.

[20]

Although a psychological detention can arise
    from a legal requirement that an individual comply with a police demand or
    direction, such as a roadside stop, this case involves a different form of alleged
    psychological detention. This case is about whether a reasonable person in the
    circumstances in which the appellant found himself would have concluded that he
    or she had no choice but to stay with the officers and answer the questions
    posed:
R. v. Grant,
2009 SCC 32, [2009] 2 S.C.R.
    353, at paras. 30, 26, 31, 44;
R. v. Suberu
, 2009
    SCC 33, [2009] 2 S.C.R. 460, at paras. 3, 22. In other words, whether a
    reasonable person would have concluded that the choice to walk away had been
    removed.

[21]

The appellant says that the trial judge erred in
    rejecting his position that he was psychologically detained from the moment
    that the police first interacted with him. The appellant maintains that, even
    if he is wrong in that regard, he was certainly detained by the time that
    Officer Stratton made the radio transmission.

[22]

The appellant points to a number of factors in support
    of this position. He argues that he was the subject of a focused
    investigation in a highly intimidating environment. The psychological
    detention was magnified by the fact that the police dealt with Paisley and the
    appellant separately, effectively taking control of them. The appellant also
    argues that being a black man confronted by police in a public housing area
    would have increased his feeling of being psychologically detained. Moreover,
    he contends that he was effectively told that he could not leave until the
    record check came back and, only then, could he be on his way. He says that
    any reasonable person in those circumstances would have understood that he had
    no choice but to cooperate with the police.

(c)
    The appellant was not psychologically detained

[23]

The appellant did not testify on the
voir
    dire
. Although he was under no obligation to do so, he
    bore the onus of demonstrating on a balance of probabilities that he was
    psychologically detained. Accordingly, it was up to him to establish an
    evidentiary record to support that claim:
Grant
, at para. 49.

[24]

In explaining why the trial judge was correct to
    conclude that the appellant was not detained, it is helpful to first focus upon
    the legal meaning accorded the term detained in s. 9 of the
Charter
.  It can be a deceptive term because it has a different meaning in
    everyday language. For instance, the term is sometimes used colloquially to
    describe situations where individuals are slowed down, held up, or prevented
    from being where they want to be when they want to be there. However, in the
Charter

context the words detained in s. 9 and detention is s. 10
    do not reflect the simple act of being slowed down, kept waiting, or even stopped
    by the state. To the contrary, as explained in
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19, the words refer to situations
    involving significant physical or psychological restraint:

Detention has been held to cover, in Canada,
    a broad range of encounters between police officers and members of the public.
    Even so, the police cannot be said to detain, within the meaning of ss. 9 and
    10 of the
Charter,
every suspect they stop for
    purposes of identification, or even interview. The person who is stopped will
    in all cases be detained in the sense of delayed, or kept waiting.
But
    the constitutional rights recognized by ss.  9 and 10 of the
Charter
are not engaged by delays that
    involve no significant physical or psychological restraint
[emphasis added].

[25]

The prerequisite of significant physical or
    psychological restraint as a gateway to rights under ss. 9 and 10 of the
Charter
has been repeatedly reinforced since
Mann
: see for example,
R. v. Clayton
,
    2007 SCC 32, [2007] 2 S.C.R. 725, at para. 66;
Grant
, at paras. 29, 36, 44;
Suberu
, at
    paras. 3, 21, 24:
R. v. Czibulka
, 2011 ONCA
    82, 267 C.C.C. (3d) 276 at para. 20.

[26]

The need for a detention to involve a
    significant physical or psychological restraint reflects a purposive approach
    to s. 9, one that strikes an important balance between ensuring that individuals
    are protected from unjustified state interference, while at the same time making
    sure that the societal interest in effective policing is not threatened:
Grant
, at paras. 19-21;
Suberu,
at para.
    24. A failure to consider whether the police-citizen interaction involves a
    significant deprivation of liberty may result in both overshooting the very
    purpose of the
Charter
provision and
    undervaluing the publics interest in effective policing:
Suberu,
at para. 24. The purpose of s. 9 is not to make individuals
    inviolate from state contact, but to ensure that, where the state actually
    detains an individual (within the legal meaning of that term), the detention
    can be justified upon appropriate grounds:
R. v. Grafe
(1987), 36 C.C.C. (3d) 267 (Ont. C.A.), at p. 271;
R. v.
    L.B.
, 2007 ONCA 596, 86 O.R. (3d) 730 at paras. 51  59;
Grant,
at paras. 26, 35-41.

[27]

I agree with the trial judge that the
    interaction between the police and appellant in this case did not constitute a psychological
    detention.

[28]

In claiming that he was detained, the appellant emphasizes
    that he was a black man in a public housing project who was being questioned
    and ordered around by a uniformed TAVIS officer. He contends that those
    circumstances would have left a reasonable person with the perception that he
    had no choice but to comply. Although we do not know what was actually going on
    in the appellants mind because he did not testify, I agree that the minority
    status of an individual is a relevant consideration in the mix of factors
    informing what a reasonable person in the individuals circumstances would have
    concluded:
Grant,
at para. 44. At the same
    time, there are other individual factors to be taken into account, such as the
    persons physical stature, age, level of sophistication, and so on:
Grant,
at para. 44.

[29]

In addition to his minority status, what we know
    about the appellants circumstances is that, at the time of the interaction, he
    was a 36-year-old man of sufficient physical stature that it took a number of
    officers to arrest him. He interacted clearly and decisively with the police. The
    appellant walked, not away from but toward a group of police officers who were
    interacting with children. The officers were on the TCHC property at the
    request of the landlord and residents who had expressed concerns about
    trespassers.

[30]

It is against that backdrop that the police
    testified about first observing the two adult men. Each of the officers
    testified about what they saw next. Although their evidence differed on some details,
    the trial judge made extensive credibility findings, concluding that each of
    the officers had testified truthfully. I defer to that finding and focus on the
    officers who dealt directly with the appellant.

[31]

Officer Halagian, who was speaking with the
    children, described the men walking at a very slow pace, a conspicuous pace. Although
    the officers acknowledged that it is not unusual for people to try to see and
    overhear police-citizen interactions, the officers thought that the men were
    trying to discover what was being said between the police and children.

[32]

By walking toward the officers, the appellant and
    his friend were not signalling that they did not wish to have contact with the
    police. The police and the men simply met up and started to chat. Importantly,
    the police did not order the appellant to approach them or tell him to stay
    where he was.

[33]

The appellant showed no sign of wanting to leave
    in the following few minutes. Indeed, according to both Officers Stratton and
    Halagian, the appellant was extremely cooperative throughout their interaction
    with him. He was described as being cool. The conversation that ensued was pleasant
    and the officers described the appellant as extremely polite and forthcoming.
    According to Officer Halagian, the appellant appeared to be at ease throughout.
    In fact, given the environment that had preceded the radio transmission, both
    officers testified about their shock at what happened subsequently.

[34]

The pattern of questioning employed by the
    officers made sense in the circumstances. Given that the police were on the TCHC
    property because of the landlords expressed concern over trespassers, asking
    the appellant whether he lived at that location was understandable. Although
    the appellant says that his answer that he had family in the area gave him a
    legitimate reason to be there, that answer did not foreclose further questions
    or discussion. First, it was unclear whether the area to which he was referring
    was even the TCHC property. Second, even if the appellant had family there, he
    did not say he was there to visit them or with their permission. Indeed, the
    reason he gave for being on the property had nothing to do with his family, but
    with music and helping children.

[35]

In these circumstances, particularly with
    children close by, it is understandable why Officer Stratton decided to make
    further inquiries. In his cooperative state, the appellant decided to answer. In
    fact, he even volunteered information that he was not asked for, like his date
    of birth and home address.  I see nothing in that interaction that would have
    caused a reasonable person in the appellants situation to feel like he had no
    choice but to comply.

[36]

The appellant was never touched by the police or
    directed by them. The appellant points to the comment by Officer Stratton that
    he was going to run some checks and then the appellant would be on his way,
    arguing that any reasonable person would have understood that comment to mean
    that he had no choice but to stay until after the record check was completed. I
    disagree.

[37]

While each case is unique and must be assessed
    on its own facts, I agree with the respondents observation that
Suberu

provides helpful insight into whether Officer Strattons
    comment would have triggered a psychological detention. In
Suberu
, an officer attended at a liquor store where someone was attempting
    to use fraudulently obtained gift certificates. Suberu was leaving the store as
    the officer was arriving. Suberu pointed to his accomplice and said, he did
    this, not me, so I guess I can go. The officer followed Suberu to his van, and
    instructed him to Wait a minute. I need to talk to you before you go
    anywhere.

[38]

Suberu was then asked several questions, each
    answered in turn and each eliciting incriminating evidence in the context of an
    active criminal investigation focused upon Suberu and his cohort. Suberu was
    arrested after the officer looked through the vehicle window and saw some
    stolen items.

[39]

Despite his expressed desire to leave (he did
    this, not me, so I guess I can go), and despite the specific direction that he
    wait a minute because the officer needed to talk to him before he went
    anywhere, and despite the fact that the police were investigating a specific
    crime, the majority concluded that Suberu was not detained within the meaning
    of s. 9 of the
Charter
. Against that factual
    backdrop, there was nothing to suggest that Suberu had been deprived of his
    liberty of choice:
Suberu
, at paras. 28, 32
    35. The conclusion that Suberu was not detained underscores the care that must
    be taken when considering when a psychological detention starts  when a
    reasonable person in all of the circumstances would feel there is no choice but
    to comply.

[40]

As the respondent points out, this case stands
    in stark contrast to
Suberu
. Unlike Suberu, until
    he ran from the police, the appellant never expressed a desire to leave or
    tried to walk away. This case is also different in that unlike in
Suberu
, the police were not investigating a recent crime and the appellant
    was not being targeted for a specific investigation into a specific crime. As
    well, unlike Suberu, the appellant was not told that he had to wait. Although
    he was told that he would be on his way after the record check was run, that
    comment was not as forceful as the comment to Suberu to wait because, in that
    case, the police needed to ask him questions before he left. The conclusion
    that there was no detention in
Suberu
supports
    the trial judges conclusion that the appellant was not the subject of a
    significant psychological restraint in this case.

[41]

A comparison between this case and
Grant
is also helpful. Eighteen-year-old Donnohue Grant was
    originally confronted by an officer who stopped him from proceeding along a
    sidewalk and asked him a number of questions. As the majority noted at para.
    47:
The encounter began with Cst. Gomes approaching Mr. Grant (stepping
    in his path) and making general inquiries. Yet the preliminary questioning in
Grant
was considered a legitimate exercise of police powers and a reasonable
    person would not have concluded he or she was being deprived of the right to
    choose how to act in that situation. See also:
R. v. Omar,
2018 ONCA
    975, at para. 37, appeal as of right to S.C.C. filed, 38461. The detention
    commenced only
after
other officers arrived who took up tactical adversarial
    positions, Mr. Grant was
instructed to keep his hands in
    front of him, he was singled out as the object of particularized suspicion and
    the questioning moved from issues of identity to specific questions about
    whether he had anything on his person that he should not:
Grant,
at paras. 48-52.

[42]

Unlike Grant, the appellant in this case was not
    surrounded by a group of officers in tactical adversarial positions. The
    appellant was not asked incriminating questions. He was not instructed to keep
    his hands anywhere. He was not told to move anywhere. He was a grown man, twice
    Grants age, and walked toward the police voluntarily. He was cooperative
    throughout. He answered the questions he was asked and volunteered additional
    information. He showed no signs of wanting to leave until the police radio
    transmission was received.

[43]

In support of his position on detention, the appellant
    relies on the fact that Officer Stratton agreed in cross-examination that he
    had detained the appellant.  I agree with the trial judge that little weight
    can be placed on Officer Strattons use of the term detention, particularly
    in light of the officers qualification about what he meant by detention: I
    was talking to him. If thats detain, then, yes, then I was. Clearly the
    officer was not using the legal definition of detention. In any event, whether the
    circumstances were in law a detention was a legal question for the court to determine,
    not for the officer to dictate to the court:
Hill v.
    Hamilton-Wentworth Regional Police Services Board
, 2007
    SCC 41, [2007] 3 S.C.R. 129, at para. 50.

[44]

The appellant also relies upon the fact that
    Officer Stratton said that if the appellant had tried to leave, he would have
    stopped him from doing so. The appellant contends that the officers
    acknowledgement of what he would have done demonstrates what was actually
    happening. The fact is, though, that until the appellant ran from the police,
    the appellant did not try to leave. What might have happened had events
    unfolded differently does not inform the legal character of what did happen. As
    noted in
Clayton
, at para. 48,
Charter
rights are not breached by intention, but action:

[Officer] intention alone does not attract a
    finding of unconstitutionality. It is not until that subjective intent is
    accompanied by actual conduct that it becomes relevant. We would otherwise have
    the Orwellian result that
Charter
breaches are
    determined on the basis of what police officers intend to do, or think they can
    do, not on what they actually do.

[45]

The appellant also argues that the fact that he had
    a loaded firearm in his pants belies the suggestion that he would have
    voluntarily stayed to speak with the police. It is argued that no reasonable
    person in that situation would have chosen to stay with the police and, therefore,
    the appellant must have felt psychologically detained. I disagree.

[46]

There are myriad reasons why people speak to the
    police. Some may feel a sense of moral or civic duty:
Grafe,
at p. 271. Some may just want to interact with the police. Some may
    make a calculated, strategic choice to speak with the police, thinking that it
    may work to their benefit. There are endless possibilities, too many variables
    and too many unknowns. Whatever the reason, the fact that a person might come
    to regret having spoken to the police, does not turn a non-detention into a
    detention.

[47]

Given that the appellant did not testify on the
voir
    dire
, we simply do not know from the
voir dire
evidence why he decided to stay and engage with the
    police. When the appellant testified during the trial proper, though, he said
    that he was not in possession of a gun when he spoke to the police and,
    therefore, was not worried about having come around the police.
[1]

[48]

I find that a realistic appraisal of the entire
    interaction as it developed, demonstrates that the appellant was not psychologically
    detained over the five to seven minutes, give or take a minute or two, that the
    police dealt with him:
Grant
, at para. 32.

(2) Could the Appellant Have Been Lawfully Detained?

[49]

As I have concluded that there was no detention,
    it is not necessary to consider whether the police could have lawfully detained
    the appellant had he decided to leave. However, as the appellant places heavy
    emphasis on Officer Strattons testimony that he would have done so, and that
    this, in turn, shows that the appellant was detained, I will briefly address
    the issue.

[50]

The trial judge found that, even if there had
    been a detention within the meaning of s. 9 of the
Charter,
it was not an arbitrary detention because:

(i)      of the
    circumstances of the interaction;

(ii)      that
    the inquiry concerning [the appellant] arises directly from the excessive
    interest evidently shown by Mr. Paisley and [the appellant] in the conversation
    ongoing between the officers and the group of youths in the middle of the
    housing complex at Driftwood Avenue and Grandravine in Toronto; and

(iii)     the
    particular facts that informed the officers asking for information from the two
    men  and having regard to the appellate authority that confirms there is no
    arbitrariness in law enforcement and investigation programs like TAVIS and the
    Robbery Reduction Program.

[51]

The appellant first suggests that the trial
    judge erred by relying upon the fact that the police were engaged in community
    policing programs to justify the detention. I do not read the trial judge as
    saying that community policing programs, in and of themselves, act as a
    justification for detaining people. Rather, the trial judge was merely noting
    that community policing programs are not, in and of themselves, arbitrary. I
    agree with that statement.

[52]

While a good portion of policing is predictably
    reactive in nature, responding to and investigating crimes that have taken or
    are taking place, there are important aspects to policing that extend beyond
    the reactive sphere. Meeting the needs of a particular community, liaising with
    the public, and maintaining public order, also constitute important police
    functions that serve the greater public interest. These proactive measures
    are often taken with the full support and cooperation of those affected by the
    measures:
Brown v. Durham Regional Police Force

(1998), 43 O.R. (3d) 223 (C.A.), at p. 246.

[53]

Despite his acknowledgement of community
    policing programs, the reasons for judgment demonstrate that the trial judge
    was alive to the fact that individualized reasonable grounds were required to detain.

[54]

It is common ground that if there was an
    investigative detention, it had to be justified by reasonable grounds to
    suspect that the appellant was trespassing on the TCHC property:
R.
    v. Amofa
, 2011 ONCA 368, 85 C.R. (6th) 265, at paras. 15
     21;
R. v. Peterkin
, 2015 ONCA 8, 319 C.C.C.
    (3d) 191, at para. 56. The appellant says that the police had no grounds to
    suspect that he was breaching the
TPA
when
    they first approached him or at any point during their encounter with him. He
    urges this court to find that the police had no reason to doubt that he was
    visiting his family on the TCHC property and no reason to doubt that he was
    there to do what he said he was: to produce music and encourage children to
    lead law-abiding lives. Accordingly, even if the detention started when the
    record check was conducted, there was no objective basis to support that
    detention.

[55]

Although I do not agree that the appellant was
    detained, a brief investigative detention could have been justified given the
    answers that he gave to certain questions. Reasonable grounds to suspect is a
    lower standard than reasonable grounds to believe. The former involves a
    standard of possibility and the latter a standard of probability:
R.
    v. Chehil
, 2013 SCC 49, [2013] 3. S.C.R. 220, at paras.
    27  28. The inquiry into reasonable suspicion involves a consideration of all
    objectively apparent facts that the person may be involved in the activity
    under investigation. A common sense and practical approach must be taken.

[56]

The facts in this case involve the following.

[57]

The appellant was in a high-crime neighbourhood
    that was experiencing problems arising from trespassers to the TCHC property.
    The police had been specifically requested to enforce the
TPA
. The officers had each described in their notes how they had seen
    the appellant and Paisley loitering. The trial judge found as a fact that the
    descriptions provided by the officers in their evidence seem to fairly fall
    within the ambit of what can reasonably be described as loitering.

[58]

Next, although the appellant said that he had
    family in the area, he did not say that his family lived at the TCHC complex.
    Nor did he say he was there to visit his family or with their permission. Instead,
    he gave a wholly different reason for being present on the property. That
    reason made reference to helping children and there were, in fact, children
    nearby. Those children had been communicating with the police and the trial
    judge found as a fact that the appellant and Paisley had shown excessive
    interest in those communications.

[59]

Despite the appellants suggestion that he was
    present on the TCHC property to help children, as things unfolded, he was found
    to be in the company of a person who was breaching a conditional sentence order
    and, when searched incident to arrest, found to be in possession of marijuana.

[60]

In all of those circumstances, there was a
    sufficient constellation of facts to support the reasonable possibility that
    the appellant was trespassing. If there had been a detention for the short
    period of time needed to run the CPIC check, in all of those circumstances, I
    agree with the trial judge that it would have been justified.

(3) Section 24(2) Analysis

[61]

Although it is not necessary to address s.
    24(2), I will do so as it formed a large part of the appellants submissions on
    appeal. Where a trial judge has considered the appropriate factors, and has not
    come to an unreasonable result, his or her decision is owed considerable
    deference on appeal:
Grant
, at para. 86.   I
    see no error in the trial judges approach.

[62]

The trial judge concluded that, even if he were
    wrong and the appellant was arbitrarily detained, he would not have excluded
    the evidence.  For the trial judge, all
Grant
factors favoured admitting the evidence: (i) any breach would be a low level
    breach; (ii) the impact on the appellants
Charter-
protected interests was very limited and there was a tenuous
    connection between his
Charter
interests and
    locating the firearm; and (iii) the publics overwhelming interest in this
    metropolitan area to curtail gun crime and the seeming omnipresence of illegal
    firearms.

[63]

I agree with the trial judge that if there were
    a s. 9 breach in this case, it was minor and fleeting in nature. I specifically
    defer to the trial judges finding that the police acted in good faith when
    they dealt with the appellant. There was no heavy handedness and the officers
    seemed genuinely motivated by their desire to fulfill the request of the
    landlord and residents of the TCHC property, to be present at that location and
    provide community policing, including enforcing the
TPA
. The officers evidence, accepted by the trial judge, was that the
    interaction was cooperative and cordial.

[64]

The appellant maintains that the trial judge
    erred by failing to consider two factors. First, the officers are said to have
    engaged in an acknowledged pattern of abusing
Charter
rights, by approaching people and treating them in the same way as
    the appellant.

[65]

The officers acknowledged that when on TCHC
    property, they would talk to people and ask them whether they lived there. The
    officers were legitimately on the TCHC property and they were there at the
    specific request of the landlord and tenants
.
They
    could not have accomplished that task without speaking to people. There is no
    evidence to suggest that the police were engaged in a systemic misuse of their
    authority. It was the appellants onus and he failed to meet it.

[66]

Second, the appellant says that the trial judge placed
    too much emphasis on the seriousness of the offence. Indeed, he says that the
    trial judge treated it as the determinative factor. He says that treating the
    seriousness of the offence in that way offends the rule that the seriousness of
    the offence can cut both ways:
Grant,
at
    para. 84. See also:
R. v. Harrison
, 2009 SCC
    34, [2009] 2 S.C.R. 494, at paras. 39  42. While the seriousness of the
    offence cannot be used to overwhelm the s. 24(2) inquiry (
Harrison,
at para. 40), I do not agree with the appellant that the trial judge
    used it in that way.

[67]

Although the trial judge used the word overwhelming
    in his s. 24(2) analysis, he was referring to the fact that the public has an
    overwhelming interest in curtailing gun crime. In my view, that is an entirely
    uncontroversial statement and accords with good common sense. The pervasiveness
    of gun violence in Toronto has become ever-present and ever-concerning. The
    public has an obvious interest in curtailing that form of crime. Recognizing
    that fact did not mean that the trial judge allowed it to overwhelm all other
    s. 24(2) factors. To the contrary, he correctly noted those factors and spent
    some time analyzing the factual backdrop for each. I see no error in that
    approach.

[68]

The gun constituted real and reliable evidence. After
    balancing the
Grant
factors, the trial judge
    concluded [b]oth the community in question and the reputation of the
    administration of justice would be harmed were this court to rule that firearm
    evidence inadmissible. The trial judges conclusion is reasonable and I would
    not interfere with it.

[69]

In these circumstances, even if there had there
    been a s. 9 breach, I agree with the trial judge that the appellant failed to
    meet his burden of showing why the admission of the evidence would bring the
    administration of justice into disrepute.

(4) Sentence Appeal

[70]

The appellant received a global sentence of 11.5
    years and was credited for time served in the amount of four years, leaving an
    additional 7.5 years to serve. He filed a notice of appeal within a week of
    being sentenced. That notice includes both his appeals from conviction and sentence.
    He claims that the trial judge erred in imposing the sentence, but does not
    provide any specifics as to the nature of that alleged error.

[71]

The appellant received legal assistance only on
    the conviction appeal. We heard no submissions from the appellant on the
    sentence appeal. Despite that fact, the Crown addressed the sentence and argued
    that it was fit. For the following reasons, I agree that the global sentence
    was a fit one. There was, however, an error in the way that the pre-sentence
    custody was calculated, and I would vary the sentence accordingly.

[72]

On the fitness point, the trial judge gave
    extensive and careful reasons for how he arrived at 11.5 years as the global
    sentence. I agree with his assessment that this was a very serious offence: carrying
    a deadly weapon in a public place, frequented by people of all ages, including the
    elderly and children who live in that community.

[73]

The trial judge paid careful attention to the
    appellants circumstances. I do not intend to go through all of those factors,
    except to note that at the time that he was sentenced, the appellant was a
    38-year-old man who had already accumulated a lengthy and very concerning
    criminal record. In particular, he had numerous prior gun-related convictions. Some
    of his prior convictions include: multiple possession of prohibited and
    restricted weapon offences; six discrete incidents of firearm offences, at
    least three of which involved loaded prohibited or restricted firearms; several
    related counts of possession of firearms while subject to a prohibition order; and
    trafficking offences and the like.

[74]

The trial judge had careful regard to the
    correct sentencing principles and to all aggravating and mitigating factors. He
    demonstrated his awareness of the jump principle and squarely addressed it.

[75]

Ultimately, the trial judge imposed nine years
    on the possession count and 2.5 years consecutive on the breach of the weapons
    prohibition count, resulting in a total sentence of 11.5 years. All other
    sentences ran concurrent. That was a fit sentence in the circumstances of these
    offences and this offender.

[76]

The trial judge then applied pre-sentence
    custodial credit of four years to the 11.5 year global sentence, leaving 7.5
    years left to serve. As mentioned previously, however, there was an error in
    the calculation of pre-sentence custody. The appellant was arrested on March
    29, 2010. He was sentenced on April 19, 2013. The trial judge said that this constituted
    three years (1,095 days) of pre-sentence custody.
[2]
(Properly calculated, the actual
    amount of pre-sentence custody was 1,118 days.) Not having the benefit of
R.
    v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575 when he
    imposed sentence, the trial judge granted enhanced credit of only 1.3 days for
    every day served. Ultimately, the appellant was granted credit of four years of
    pre-sentence custody.

[77]

There is nothing in the reasons for sentence
    that would justify departing from credit at 1.5 days for every day spent in
    pre-sentence custody. Applying that formula to the 1,118 days actually spent in
    pre-sentence custody, I find that the appellant was entitled to 1,677 days
    credit, or four years, seven months. The remaining sentence to be imposed should
    therefore have been six years, 11 months.

IV.    CONCLUSION

[78]

I would dismiss the conviction appeal. I would
    grant leave to appeal the sentence, allow the sentence appeal, substitute a
    credit of four years and seven months for pre-sentence custody, and vary the
    sentence imposed to one of six years and 11 months to be served.

Released: DW Jan 21, 2019

Fairburn J.A.
I agree. David Watt J.A.
I agree. Grant Huscroft J.A.

[1]

During his testimony at trial, the
    appellant acknowledged that he walked directly toward the police and that
    they most definitely chatted pleasantly. He testified that he only ran from
    the police because he thought he was going to be searched and knew that he was
    in possession of marijuana. The gun came from someone who the appellant ran
    close to. That man threw the gun in the direction of the police. Knowing that
    he may get improperly blamed for the gun, the appellant stopped to try and
    retrieve it. The trial judge rejected the appellants version of events.

[2]

At a later point, the trial judge suggested that there was 1,330
    days of pre-sentence custody.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any document
    or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

[1]

(2.2) In proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice shall

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

(b) on application of the victim or the prosecutor,
    make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that section,
    shall not be published in any document or broadcast or transmitted in any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Saliba, 2019 ONCA 22

DATE: 20190116

DOCKET: C61326

MacPherson, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Saliba

Appellant

Alexander Ostroff, for the
    appellant

Megan Petrie, for the respondent

Heard: January 9, 2019

On appeal from the convictions
    entered by Justice Gisele M. Miller of the Superior Court of Justice, sitting
    with a jury, on March 18, 2015, and from the sentence entered on June 24, 2015,
    with reasons reported at 2015 ONSC 4079.

Reasons for Decision

[2]

The appellant appeals from his convictions for internet luring, sexual
    assault, sexual interference, and invitation to sexual touching involving A.C.,
    when she was 15 years old. He seeks leave to appeal his global sentence of five
    and one half years.

[3]

This was the second trial of the appellant on these charges. At the
    first trial before a judge alone, the appellant pleaded guilty to possession of
    child pornography and was convicted of offences arising from sexual activity with
    another complainant, H.M., for which he received a global sentence of four and
    one half years. He was acquitted of the offences involving A.C. The appellants
    appeal from his convictions involving H.M. was dismissed. The Crown appeal from
    the appellants acquittal was allowed, and a new trial was ordered on the
    charges respecting A.C.

[4]

The appellant admittedly engaged in sexual activity first with H.M. and then
    with A.C. following the end of his relationship with H.M. He met them both on
    MocoSpace, an 18+ chat site. The complainants profiles listed their respective
    ages as 18. However, at the time of their relations with the appellant, H.M.
    was 14 and A.C. was 15 years old. The appellant was 38 years old. He testified
    at both trials that he honestly believed them to be between 16 and 18 years
    old. On retrial, the jury convicted him of all offences involving A.C.

[5]

The appellant submits several grounds of appeal in relation to his
    convictions and sentence for the offences involving A.C. For the following reasons,
    we dismiss the appeal.

A.

Conviction appeal

(1)

The trial judge did not err at the
    second trial involving A.C. in permitting the Crown to lead evidence relating
    to H.M. by way of an agreed statement of fact, nor was a limiting instruction
    required

[6]

The Crown brought a similar fact application for leave to lead detailed
    evidence concerning the appellants sexual relationship with H.M. The trial
    judge was concerned about the possibility of propensity prejudice and that the
    evidence would distract the jury from the essential issues that it was required
    to consider. As a result, she curtailed the permissible evidence to a short,
    agreed statement of fact relevant to the appellants knowledge, before he met
    A.C., that H.M. had lied about her age and he made no inquiries about her age
    on meeting her. The appellant submits that the trial judge erred in including
    in the agreed statement of fact the appellants failure to make inquiries about
    H.M.s age. The appellant submits that, particularly without a limiting instruction,
    there was a risk that the jury would misuse this evidence to conclude that the
    appellant had a specific propensity not to make these inquiries in these
    circumstances and did not do so in relation to A.C.

[7]

We are not persuaded by these submissions. As this court noted in the
    appeal from the first trial, this evidence was relevant to the reasonable steps
    necessary for the appellant to take to confirm A.C.s age, given his knowledge
    that H.M. had lied to him about her age in her MocoSpace profile before he had
    met A.C.: see
R. v. Saliba
, 2013 ONCA 661, 311 O.A.C. 196, at paras. 34
    to 36. The trial judge neutralized the risk of prejudice arising from the
    agreed statement of fact by omitting reference to H.M.s age of 14 years, and
    to the appellants sexual activity with H.M. She also directed the jury to
    decide the case on the evidence and not to speculate. We would not interfere
    with the trial judges discretion to control and admit the evidence as she did.
    Her decision was appropriate and considered.

[8]

Nor did the trial judge err by not giving a limiting instruction. At the
    pre-charge conference, the trial judge expressly raised with counsel whether a
    limiting instruction should be given. Defence counsel was content with the
    charge without a limiting instruction and did not request that one be given. In
    the circumstances, the lack of a request by defence counsel to ask for the limiting
    instruction at trial reflects that its absence was not prejudicial. We see no
    error in the trial judges decision to admit the agreed statement of fact nor
    any trial unfairness or prejudice to the appellant that resulted from its
    admission.

(2)

The trial judge did not err in deciding to leave A.C.s new
    allegations concerning non-consensual acts to the jury

[9]

For the first time at the second trial, A.C. testified that the
    appellant required her to engage, without her consent, in acts of oral sex and
    the insertion of a dildo into her vagina. No objection to the admission of this
    evidence was made by the appellants trial counsel who had elicited the
    evidence about the non-consensual oral sex during A.C.s cross-examination.
    Rather, defence counsel used these new allegations to attack A.C.s
    credibility. Defence counsel did not ask for a mistrial or an adjournment of
    the trial to consider these new allegations and did not indicate they would prejudice
    the calling of defence evidence. The appellant was examined and cross-examined
    on these allegations; he admitted the oral sex but said it was consensual and
    denied the dildo allegation. It was not until the pre-charge conference that
    defence counsel asked the trial judge to remove the new allegations from the
    jurys consideration, which she refused to do. The trial judge held that the
    allegations fell squarely within the count of sexual assault and there was no
    prejudice to the appellant. We do not see any error in the trial judges
    exercise of her discretion to leave these allegations to the jury.

[10]

Nor
    is there any basis for the appellant to argue that his fair trial rights were
    in any way affected by this. The appellant had the opportunity to respond to
    the allegations by way of cross-examination of A.C. and through his own evidence.
    Moreover, the sexual assault count was not particularized and fairly captured
    the allegations.

(3)

The trial judge did not err by entering convictions for the
    same offence

[11]

The
    appellant argues that the two sexual interference counts should have been
    stayed pursuant to
R. v. Kienapple
, [1975] 1 S.C.R. 729 because they
    involved the same acts as, and are subsumed under, the sexual assault count. In
    support of this submission, he points to the trial judges jury charge that
    referenced the same particularized acts for the two sexual interference counts and
    the sexual assault count.

[12]

We
    do not accept these submissions.

[13]

The
    application of the well-established governing principles from
Kienapple
guards against multiple convictions for the same offence, where there is both a
    factual and a legal nexus connecting the offences. However, the decision in
Kienapple
does not prohibit a multiplicity of convictions, each in respect of a different
    factual incident:
R. v. Adjei
, 2013 ONCA 512, 309 O.A.C. 328 at para.
    70, leave to appeal refused, [2014] S.C.C.A. No. 74, citing to
R. v. Prince
,
    [1986] 2 S.C.R. 480, at p. 491.

[14]

While
    there was a factual overlap in the nature of some of the uncontroverted sexual
    activities in which the appellant engaged with A.C., in our view, the evidence
    established clear and distinct factual and temporal instances of unconnected sexual
    activities occurring discretely over different periods of time. This evidence firmly
    and separately grounded the two sexual interference counts as well as the
    sexual assault count.

[15]

The
    sexual assault and two sexual interference counts were particularized as
    occurring between February 1 and March 21, 2010. The sexual interference counts
    were further particularized: count 3 alleged that the appellant touched A.C.
    directly with an object, a vibrator on her vagina and count 4 alleged that he
    touched A.C.s vagina with a part of his body.

[16]

A.C.
    and the appellant testified with respect to the various sexual activities they
    engaged in over the different and separate occasions on which they met: on
    March 6, 2010, the appellant kissed A.C. on the lips in his truck; on March 11,
    2010, they engaged in kissing and touching, and A.C. testified at the retrial
    that the appellant performed oral sex on her; on March 13, 2010, they engaged
    in kissing, oral sex, and A.C. testified that the appellant touched her vagina
    with a vibrator, which the appellant denied; and, during the March break, starting
    March 16, 2010, they engaged in all manner of sexual acts, including sexual
    intercourse and oral sex.

[17]

The
    trial judge declined to stay the sexual interference counts because she found,
    at para. 39 in her Reasons for Sentence, a factual distinction between them and
    the sexual assault count:

I am satisfied beyond a reasonable doubt that there were acts
    of sexual touching  licking and touching of A.C.s body in places other than
    her vagina, the act of fellatio  that occurred which provide a factual
    distinction between the particularized counts of Sexual Interference and the
    all-encompassing count of Sexual Assault. I find there is a sufficient factual
    distinction that a conviction may be entered on all counts.

[18]

We
    see no basis to interfere with the trial judges conclusion not to stay the
    sexual interference counts.

B.

Sentence appeal

(1)

The trial judge did not err in finding that some of the sexual
    acts were non-consensual

[19]

The
    appellant urges that the trial judges finding that some of the sexual acts
    were non-consensual is unreasonable, given the state of the evidence.

[20]

We
    disagree. There was ample support in the record for the trial judges
    conclusion, which is entitled to deference.

[21]

The
    appellant also reiterates his complaint that the trial judge should have
    excluded A.C.s evidence about the new non-consensual acts and not considered
    them for the purpose of sentencing. For the reasons already stated, we are of
    the view that the trial judge properly admitted evidence of the new
    non-consensual allegations. As a result, she was entitled to consider them, and
    it was open to her to find that the non-consensual nature of those acts was an
    aggravating factor on sentencing.

(2)

The trial judge did not consider aggravating factors not
    proven beyond a reasonable doubt

[22]

The
    appellant submits that the trial judge erred by holding the appellants
    calculated grooming of A.C. is a seriously aggravating factor without finding
    grooming beyond a reasonable doubt.

[23]

We
    disagree. The trial judge clearly found that the appellant groomed A.C. and her
    finding was firmly rooted in the ample evidence of the weeks of communications,
    gifts, and expressions of love and devotion in which the appellant engaged to
    obtain A.C.s trust and prepare her for sexual activity with him. This included
    the dozens of communications which Crown counsel highlighted during her
    submissions that demonstrated how the appellant instigated all sexualized
    communications with A.C. and expressly and explicitly urged A.C. to prepare
    herself to receive and instigate sexual contact with the appellant.

[24]

The
    appellant also argues that grooming cannot be an aggravating factor in this
    case because it is possible the jury accepted that the appellant honestly
    believed A.C. to be of legal age, but convicted him because he had not taken
    reasonable steps to confirm that belief.

[25]

We
    do not agree. Even assuming that the appellant honestly believed that A.C. was
    between 16 and 18 years of age, the uncontroverted evidence establishes that
    she was a vulnerable, abused child whom he deliberately exploited, both emotionally
    and sexually. Moreover, if the basis of the appellants convictions was that he
    failed to take reasonable steps, it is nevertheless aggravating that he would fail
    to do so after exploiting a complainants vulnerability for sexual purposes. The
    trial judge was entitled to treat these circumstances as an aggravating factor
    on sentence.

[26]

The
    appellant argues further that the trial judge erred in treating A.C.s willing
    participation in most of the sexual activity with the appellant as a breach of
    trust and an aggravating factor. We do not read the trial judges reasons in
    this way. Her point was not that A.C.s willing participation was aggravating
    but it was aggravating for the appellant to cause A.C. to believe that they
    were in a loving relationship when she was being sexually exploited. As
    demonstrated by the sentencing submissions made by the appellants trial
    counsel, it was understood that the aggravating factor advanced by the Crown
    was the grooming behaviour through which the appellant attempted to gain A.C.s
    trust in order to engage in sexual activity with her.

(3)

The trial
    judge did not treat weak mitigating factors as aggravating

[27]

The
    appellant submits that the trial judge erred in considering his late expression
    of remorse and weak rehabilitative prospects as aggravating factors. We
    disagree. Reading the trial judges reasons as a whole, she properly considered
    these factors as indicating a lack of insight into the crimes that the
    appellant had committed and their effect on A.C., which was highly relevant to the
    appellants potential for future dangerousness: see
R. v. Shah
, 2017
    ONCA 872, at paras. 6-10.

(4)

The sentence was fit

[28]

There
    is no basis to interfere with the five-and-one-half-year global sentence
    imposed by the trial judge. The trial judge properly considered the principles
    of parity and totality. The appellant was convicted of multiple offences,
    including internet luring, which justified a consecutive sentence: see
R. v.
    Rayo
, 2018 QCCA 824, at paras. 130-156. The aggravating features of these
    offences are considerable and more serious than those involving H.M.: the
    appellant spent several weeks in deliberately grooming a particularly
    vulnerable 15-year-old child, who stated she had already been sexually abused
    and on whom the impact of the appellants calculated offences was significant
    and life-altering. As already noted, the appellants expression of remorse was
    late-breaking and his rehabilitative efforts and prospects weak.

C.

Disposition

[29]

Accordingly,
    we dismiss the appeal as to conviction and sentence.

J.C. MacPherson J.A.

L.B. Roberts J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Soltan, 2019 ONCA 8

DATE: 20190111

DOCKET: C62890

Watt, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexandru Soltan

Appellant

Daniel C. Santoro and Zahra Shariff, for the appellant

Jennifer Epstein, for the respondent

Heard: November 6, 2018

On appeal from the conviction entered by Justice Marvin A.
    Zuker of the Ontario Court of Justice on July 4, 2016.

REASONS FOR DECISION

[1]

This is a conviction appeal. The appellant was
    unsuccessful at first instance in his challenge, under s. 8 of the
Charter
, to the validity of a search warrant issued under the
Controlled
    Drugs and Substances Act
, leading to the seizure of drugs
    and other items. The appellant was convicted of various offences, including
    possession for the purpose of trafficking a number of drugs.

[2]

The appellant advances one ground of appeal with
    two parts. He argues that the trial judges reasons, both in refusing leave to cross-examine
    the affiant on the information to obtain the search warrant (the ITO) and in
    concluding that the ITO could reasonably support the issuance of the warrant,
    were insufficient to permit appellate review.

[3]

The inadequacy of reasons is not a free-standing
    ground of appeal. An appellate court must look beyond deficient reasons and
    determine whether the reasons for the decision are patent on the record. A
    functional approach is thus required in the review of the sufficiency of reasons,
    and requires an examination of the evidence and of the submissions of the
    parties: see
R. v. Victoria
, 2018 ONCA 69,

359 C.C.C. (3d) 179, at paras. 44-46;
R.
    v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras.
    42-43.

[4]

The ITO in this case was based primarily on
    information provided by a confidential informant (CI), who personally knew
    the appellant. The CI informed the police that the appellant was dealing a
    variety of drugs from a particular apartment unit, where he said the appellant
    lived. The CI provided details as to the types and quantities of drugs he had
    seen in the appellants apartment, and he said that the appellant was never out
    of drugs. The ITO stated that the CI was immersed within the criminal
    subculture, had provided accurate and reliable information to the police, and
    was motivated by an incentive he or she would receive upon the success of the
    investigation.

[5]

The appellants trial counsel sought leave to
    cross-examine the affiant on two issues: (a) whether the CI had a track record
    of providing reliable information, or whether the statement that he had
    provided information to the [p]olice which has led to active drug
    investigations simply meant that the CI had provided information in the
    subject investigation; and (b) whether the CI had a criminal history which had
    not been disclosed, and whether the issuing justice was therefore misled by the
    statement that the CI had no known history of any charges or allegations
    relating to deceit, obstruct or public mischief.
The ITO contained
    information as to whether or not the CI had a criminal record
,
    but this section of the ITO was redacted in the proceedings before the trial
    judge to protect the identity of the CI.
[1]

[6]

Crown counsel opposed the cross-examination on
    the basis that it did not meet the test that there was a reasonable likelihood
    that cross-examination of the affiant would elicit testimony tending to
    discredit the existence of one or more of the preconditions to the issuance of
    the search warrants:
R. v. Pires; R. v. Lising
,
    2005 SCC 66, [2005] 3 S.C.R. 343, at para. 40;
R. v. Garofoli
, [1990] 2 S.C.R. 1421, at p. 1465. In the course of argument, Crown
    counsel also submitted that, even if the information respecting the CIs proven
    reliability were removed from the ITO, the information provided by the CI would
    meet the
Debot
criteria that it was sufficiently
    compelling, credible, and corroborated to justify the issuance of the warrant:
R.
    v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168.

[7]

The trial judge provided oral reasons declining
    the request to cross-examine the affiant. The appellant says that the oral
    reasons are insufficient to permit appellate review.

[8]

We disagree. The trial judge correctly
    articulated the test for cross-examination of an affiant of an ITO. He then
    identified the areas defence counsel wished to pursue in cross-examination. Unfortunately,
    toward the end of his reasons, the trial judge appears to have moved into considering
    the issue on the
Garofoli
application  when
    he stated that he was satisfied in the totality of the circumstances that the
    information provided by the informant was sufficiently confirmed by the police
    and that on a review of the ITO, [he was] satisfied it was reliable evidence
    that might reasonably be believed on the basis of which the authorization could
    have [been] issued.

[9]

We agree, however, with the respondent that the
    trial judge ultimately considered and turned his mind to the proper criteria,
    and in fact determined that the cross-examination that defence counsel proposed
    (which was limited to two areas, and not the seven possible topics identified
    by appellate counsel) would have made no difference to the outcome of the
Garofoli
application, as there was sufficient other information in
    the ITO to support the warrant. While the trial judges reasons are imprecise
    and unfocussed, when read in the context of the record and the submissions on
    the live issues before him, they demonstrate that the judge seized the
    substance of the matter when he dismissed the motion to cross-examine the
    affiant of the ITO: see
R.E.M.
, at paras.
    42-43. In this case, the substance of the matter was whether the
    cross-examination of the affiant on the proposed areas could elicit information
    that would undermine the existence of grounds for the issuance of the warrant.
    Given the compelling and precise information contained in the ITO and the
    parties submissions on this question, the inadequacy of the judges reasons does
    not prejudice the appellants exercise of his right to appeal.

[10]

Absent an error in principle, a material
    misapprehension of the evidence, or an unreasonable decision, the trial judges
    determination of this issue is entitled to deference:
Garofoli
, at p. 1465;
R. v. Shivrattan
,
    2017 ONCA 23, 346 C.C.C. (3d) 299, leave to appeal refused, [2017] S.C.C.A. No.
    93, at para. 55.

[11]

The reviewing judge was entitled, in the
    exercise of his discretion, to refuse leave for the appellants cross-examination
    on the CIs track record. It was open to the judge  and we would not interfere
    with his conclusion  to find that the CIs credibility and the reliability of
    the information the CI provided could be considered without permitting
    cross-examination on this issue. Nor do we see how cross-examination on whether
    the affiant meant that the CI had been proven reliable on prior occasions or
    simply during the subject investigation would have assisted the judge. The
    affiants statement that [t]he CI in this investigation has provided
    information to the [p]olice which has led to active drug investigations and
    proved to be accurate, credible and reliable is not, in our view, reasonably
    open to the interpretation advanced by the appellant  that the affiant was
    talking only about the current investigation and not any prior investigation.

[12]

As for the proposed line of questioning on the
    CIs criminal record, there was no reasonable prospect that the issuing justice
    would have been misled by comments about the CIs history of charges, and accordingly
    the extent to which this may have affected the reliability of the information
    the CI provided. As already noted, information about whether the CI had a
    criminal record, although redacted from the ITO in the application before the
    trial judge, was available to the issuing justice.

[13]

As for the appellants challenge to the trial
    judges reasons for dismissing the challenge to the search warrants, the
    appellant argues that trial counsels arguments were unfairly curtailed on the
Garofoli
application because the judge had effectively already
    determined the application on its merits when he denied the appellant leave to
    cross-examine the ITOs affiant.

[14]

We do not give effect to this ground of appeal.
    The appellants argument is not borne out by the record. The trial judge heard
    argument on the
Garofoli
application, which
    included some of the same arguments that had been made in the motion to
    cross-examine, as well as additional arguments, including that the CIs
    information was stale and therefore unreliable. The trial judge provided
    reasons for denying the application, which mostly summarized the parties
    submissions. When these reasons are considered in the context of the record, however,
    they demonstrate that he grasped the issue he was to determine, that he
    considered and understood the arguments that were made, and that he disposed of
    the application after identifying and applying the proper test.

[15]

In this case, the information provided by the CI
    was specific and based on first-hand knowledge. The defence acknowledged that
    the information was compelling. The CI had provided credible and reliable
    information to the police in the past, and many of the details provided by the
    CI in this case were corroborated by the police investigation. The information
    provided by the CI met the
Debot
criteria and,
    together with all of the other information that was before the issuing justice,
    justified the issuance of a warrant.

[16]

The appeal is therefore dismissed.

David
    Watt J.A.

K.
    van Rensburg J.A.

David
    Brown J.A.

[1]
This information was available in the draft judicial summary prepared by Crown
    counsel in anticipation of the application moving to step six under
Garofoli.