2017 QCCA 764, 2017 QCCA 764

Gow-Leach c. R. 2017 QCCA 764 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-10-005676-141 (500-01-039514-101 SEQ.ACC.004) PROCÈS-VERBAL D'AUDIENCE DATE : Le 9 mai 2017 CORAM : LES HONORABLES PAUL VÉZINA, J.C.A. ROBERT M. MAINVILLE, J.C.A. PATRICK HEALY, J.C.A. APPELANT AVOCATE JUSTIN GOW-LEACH m e PASCALE GIRARD-GIRARDEAU (Schurman Longo Grenier) INTIMÉE AVOCAT SA MAJESTÉ LA REINE Me CHRISTIAN JARRY (Directeur des poursuites criminelles et pénales) En appel d'un jugement rendu le 29 mai 2014 par l'honorable Marie-Josée Di Lallo de la Cour du Québec, district de Montréal. NATURE DE L'APPEL : Culpabilité - Art. 5(2)(3)

a) et 5(2)(4) de la Loi réglementant certaines drogues et autres substances - Requête pour permission d'appeler déférée - Exclusion de la preuve.

Greffier d’audience : Mihary Andrianaivo Salle : Pierre-Basile-Mignault AUDITION 11 h 17 Début de l’audience. Argumentation de Me Girard-Girardeau. 11 h 43 Suspension de l’audience. 11 h 45 Reprise de l’audience. PAR LA COUR : Arrêt unanime prononcé par l’honorable Paul Vézina, J.C.A. – voir page 3. 11 h 46 Fin de l’audience.

Mihary Andrianaivo Greffier d’audience PAR LA COUR ARRÊT [ 1 ] On May 29, 2014, the Honourable Marie-Josée Di Lallo of the Court of Quebec (Criminal and Penal Division), District of Montreal, found the appellant guilty of two drug related offenses. [ 2 ] The appellant appeals his conviction on the ground that it was based on inadmissible evidence. He appeals as of right pursuant to sub- par. 675(1) a )(

i) of the Criminal Code on questions of law and has brought an application for leave to appeal on questions of fact and questions of mixed fact and law pursuant to sub-par. 675(1) a )(ii). That application was deferred to this panel by a judge of the Court. * * * * * [ 3 ] As a result of the execution of a search warrant issued by a justice of the peace, the evidence before the trial judge included 42.8 grams of cocaine and 309 grams of marihuana found at the appellant’s apartment. The appellant’s conviction could not be sustained if this evidence was excluded.

The appellant unsuccessfully sought to have it excluded under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms (“ Charter ”). The appellant appeals on the ground that the trial judge erred by not excluding this evidence. [ 4 ] The appellant principally submits that the trial judge (

a) did not apply the correct approach to reviewing the sufficiency of a warrant application, (

b) wrongly concluded that the Information to Obtain a Search Warrant (“ITO”), stripped of its erroneous statements, could have afforded reasonable and probable grounds to believe that he had committed an offence under the Controlled Drugs and Substances Act [1] and that evidence of that crime would be found at his apartment, (

c) wrongly concluded that the police officer who swore the ITO had no intention to mislead the issuing justice of the peace, (

d) did not consider the possibility that the conduct of the police officer who swore the ITO was so subversive of the authorization process that the resulting warrant must be set aside to protect that process and the preventive function it serves, and (

e) should have excluded the evidence under subsection 24(2) of the Charter . * * * * * [ 5 ] It is clear from her reasons that the trial judge followed the proper approach to reviewing the sufficiency of the warrant

application. The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to authorize the warrant. [2] In conducting this analysis, the reviewing court must exclude erroneous information from the ITO and may have reference to material properly received as “amplification” evidence. [3] The accused bears the burden of demonstrating that the ITO is insufficient. [4] [ 6 ] Some of the information in the ITO could be considered erroneous.

It is the function of the reviewing judge to determine whether there is any evidence remaining, after disregarding the information found to be erroneous, upon which the search warrant could issue. [5] The trial judge concluded that the ITO, stripped of the erroneous information, nonetheless afforded reasonable and probable grounds to believe that the appellant had committed an offence under the Controlled Drugs and Substances Act and that evidence of that crime would be found at his apartment. [ 7 ] On appeal, we owe deference to the findings of fact made by the reviewing judge in her assessment of the record, as amplified on review, as well as to her disposition of the

section 8 Charter challenge. Absent an error of law, a misapprehension of material evidence or a failure to consider relevant evidence, we should decline to interfere. [6] We find no such error in this case. [ 8 ] We agree with the trial judge that sufficient reliable information remains even after excising the erroneous information.

Suffice it to say that a source known to the police, source “B”, claimed that the appellant, aged between 20 and 25 years old, was a drug courier for Brett Tylor, an individual believed on reasonable grounds to be a drug supplier, and used a grey Honda Accord registered 501 ZBX; source B added that the appellant lived near Harry-Worth Street at Pierrefonds where he stored drugs. Another source – an anonymous citizen who does not wish his name to be known – confirmed that the appellant sold drugs and owned a grey Honda Accord.

The anonymous citizen also provided the exact address of the appellant: 14 460 Pierrefonds Blvd., apartment #7, at Pierrefonds. [ 9 ] The information was reliable. [7] Source B had already supplied the police with reliable information in the past.

The anonymous citizen was also reliable since part of the information he provided were corroborated by source B and the police investigation carried out prior to the issuance of the search warrant. [ 10 ] Indeed, police surveillance and data files confirmed the following parts of the information provided by the sources: the appellant was 22 years old; he owned a grey Honda Accord registered 501 ZBX; the SAAQ data files gave him an address at Pointe- Claire but other data indicated that he paid the electricity bill at 14 460 Pierrefonds Blvd., apartment #7, at Pierrefonds (near Harry- Worth Street).

Moreover, Brett Tylor, the individual believed on reasonable grounds to be a drug supplier, went 3 times in 5 surveillance days to 14 460 Pierrefonds Blvd. at Pierrefonds. The appellant’s vehicle was seen at least once in that building’s rear parking lot. [ 11 ] The trial judge, who had the benefit of observing the police officer who swore the ITO and who testified on the voir dire , also found no deliberate attempt to mislead the justice of the peace who issued the warrant.

That conclusion should not be disturbed. [8] Indeed, an appeal court should generally defer to a finding of credibility by a trial judge unless a palpable or overriding error can be shown. [9] No such error has been shown in this case. * * * * * [ 12 ] We conclude that the search of the appellant’s apartment was not unreasonable within the meaning of

section 8 of the Charter . FOR THESE REASONS, THE COURT : [ 13 ] ALLOWS the appellant’s application for leave to appeal on questions of fact and questions of mixed law and fact pursuant to sub- par. 675(1) a )(ii) of the Criminal Code ; [ 14 ] DISMISSES the appeal on questions of law pursuant to sub- par. 675(1) a )(

i) of the Criminal Code as well as the appeal on questions of fact and questions of mixed law and fact pursuant to sub-par. 675(1) a )(ii) thereof. PAUL VÉZINA, J.C.A. ROBERT M. MAINVILLE, J.C.A. PATRICK HEALY, J.C.A.