2021 QCCA 193, 2021 QCCA 193

Casale c. R. 2021 QCCA 193 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007099-193 ( 500-01-156779-172 SEQ.001, 500-01-156769-173 ) MINUTES OF HEARING DATE: February 3, 2021 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. MARK SCHRAGER, J.A. CHRISTINE BAUDOUIN, J.A.

APPELLANT COUNSEL steve casale Mtre FRANK ADDARIO (Addario Law Group) Mtre dominique shoofey ( Me Dominique Shoofey ) Mtre JAMES FOY ( Savard Foy ) By videoconference RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre marianna ferraro ( Director of criminal and penal prosecutions) By videoconference On appeal from a judgment rendered on May 8, 2019 by the Honourable Suzanne Costom of the Court of Quebec, Criminal and penal Division , District of Montreal . NATURE OF THE APPEAL: Guilt – Possession of a prohibited weapon.

Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING 9:51 Commencement of the hearing. Identification of counsel. 9:53 Submissions by Mtre Addario.

10:34 Question by the Court and response by Mtre Addario. 10:41 Mtre Addario resumes his submissions. 10:47 Recess of the hearing. 11:02 Resumption of the hearing. 11:03 Mtre Addario resumes his submissions. 11:10 Submissions by Mtre Ferraro. 11:18 Questions by the Court and responses by Mtre Ferraro. 11:22 Mtre Ferraro resumes his submissions. 11:44 Question by the Court and response by Mtre Ferraro. 11:47 Reply by Mtre Addario. 11:49 Recess of the hearing. 12:00 Resumption of the hearing. 12:01 BY THE COURT : Judgment – see page 3. Conclusion of the hearing.

Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] Steve Casale appeals against a judgment rendered on May 8, 2019, by the Honourable Judge Suzanne Costom of the Court of Québec, district of Montreal (the trial judge), who dismissed his application for the exclusion of evidence (ss. 8 and 24(2) of the Charter – 2019 QCCQ 2805 ) and found him guilty of unauthorized possession of a firearm. [ 2 ] A search warrant authorizing a search of the appellant’s residence was issued by a justice of the peace. The appellant argued that there were no reasonable grounds for the issuance of the warrant.

More specifically, he claimed that the Information to Obtain a Search Warrant (ITO) failed to show a link between the evidence sought (related to offences of possession of a firearm and the loaning of money at a criminal interest rate – referred to as loan sharking by the trial judge) and his place of residence and, for these reasons, he filed an application for the exclusion of evidence seized at his home. [ 3 ] In a lengthy detailed judgment, the trial judge considered all of appellant’s arguments.

She concluded that there were reasonable grounds to believe that evidence of loan sharking could be found in the appellant’s home, even though there were insufficient grounds in relation to the illegal possession of firearms. Referring to R. v. Whitaker , 2008 BCCA 174 (application for leave denied by the Supreme Court of Canada) and R. v. Sonne , 2012 ONSC 584 , she was of the opinion that this did not mean that the entire warrant was invalid.

She mentioned that “the overwhelming majority of the ITO addresses activities related to loan sharking activities which includes evidence that Catalano served as Applicant’s driver and bodyguard and, in that capacity, was armed”. [ 4 ] She then severed the ITO, excising the reference to the evidence related to possession of firearms, and was of the view that there remained a valid warrant to search for items related to loan sharking, including various documents, proof of residence and money.

As conceded by the parties, if the police were authorized to enter and search the premises, they would necessarily have found the firearm.

She dismissed the application. [ 5 ] In his appeal, the appellant argues essentially the same issues: 1) the ITO did not contain sufficient information to enable the trial judge (or the justice of the peace) to assess the confidential informant’s credibility and, as such, the judge erred in concluding that there were reasonable and probable grounds to believe that the appellant was engaged in loan sharking activities; and 2) there was no nexus between the alleged offence and the appellant’s place of residence. [ 6 ] The trial judge carefully analyzed these arguments.

In light of the corroborating evidence (mainly police databases and police surveillance), which she examined in its entirety, she wrote that the “holistic view of the evidence leads the Court to conclude that there were reasonable grounds for believing that loan sharking was taking place and that Applicant and Catalano were involved”. The Court does not see any error in this conclusion. [ 7 ] In R. v.

Morelli , 2010 SCC 8 , Fish J., speaking for the majority, reiterated the proper test when reviewing the sufficiency of a warrant, as being “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”. He added that the question is “not whether the reviewing court would itself have issued the warrant, but whether there was

sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that anoffence had been committed and that evidence of that offence would be found at the specified time and place”. [8] To establish reasonable grounds for a search, the appropriate standard is “reasonable probability” or “reasonable belief”: R. v.Debot, (SCC), [1989] 2 S.C.R. 1140. [9] In other words, the reviewing judge must not substitute his or her view for that of the authorizing judge.

If, based on the recordwhich was before the authorizing judge, the reviewing judge concludes that the authorizing judge could have granted the authorization,then he or she should not interfere. This was the case here. [10] In Debot, at page 1168, Wilson J. summarized the issues relating to an informant’s (or source’

s) credibility: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a"tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test.

Rather,I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in onearea may, to some extent, be compensated by strengths in the other two. [11] Even though Debot referred to the concerns to be addressed in warrantless searches, these concerns are also applicable to searchwarrants: R. v. Herta, 2018 ONCA 927 and R. v. Caissey, 2007 ABCA 380, upheld by the Supreme Court (R. v. Caissey, 2008 SCC 65). [12] Sopinka J., writing for the majority in R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421, held that a tip from aninformer, by itself, was insufficient to establish reasonable and probable grounds to justify a search.

However, such a tip could providethe requisite grounds if its reliability was satisfactory as summarized by the test established in Debot: […] I see no difference between evidence of reliability of an informant tendered to establish reasonable and probable grounds to justify awarrantless search (the issue in the cases cited by Lamer J.) and evidence of reliability of an informant tendered to establish similargrounds in respect of a wiretap authorization. Moreover, I conclude that the following propositions can be regarded as having beenaccepted by this Court in Debot and Greffe. (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tipfrom an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what thisentails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the "tip"; (

b) the informer's source of knowledge; (

c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [13] In R. v. Pires, R. v. Lising, 2005 SCC 66, Charron J. recalled that a search warrant is presumptively valid and that the reviewhearing is not intended to test the merits of any of the Crown’s allegations in respect of the offence.

The truth of the allegations assertedin the affidavit as they relate to the essential elements of the offence remains to be proved at the trial. [14] The trial judge scrupulously followed these rules and an appellate court ought not to interfere with the findings of the reviewingjudge absent an error of law or of principle, a palpable and overriding misapprehension of the evidence, or a failure to consider relevantevidence: O'Reilly c. R., 2017 QCCA 1283, par. 52. FOR THESE REASONS, THE COURT: [15] DISMISSES the appeal. FRANÇOIS DOYON, J.A. MARK SCHRAGER, J.A.

CHRISTINE BAUDOUIN, J.A.