R v Bissky, 2018 SKCA 102

Court of Appeal for Saskatchewan Citation: R v Bissky , 2018 SKCA 102 Date: 2018-12-31 Docket: CACR3017 Between: Andrew John Bissky Appellant And Her Majesty the Queen Respondent Docket: CACR3029 Between: Her Majesty the Queen Appellant And Andrew John Bissky Respondent Before: Jackson, Herauf and Whitmore JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Herauf The Honourable Mr. Justice Whitmore On Appeal From: Provincial Court, Prince Albert Appeal Heard: April 3, 2018 Counsel: Peter A. Abrametz for Mr.

Bissky Wade McBride for the Crown Jackson J.A. I. Introduction [ 1 ] Andrew John Bissky was convicted of trafficking in cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19. He was sentenced to 12 months in custody. Mr. Bissky appeals his conviction. Both the Crown and Mr. Bissky appeal the sentence. [ 2 ] After having obtained a warrant under s. 11(1) of the Controlled Drugs and Substances Act , the police searched Mr. Bissky’s home, where they found 110 grams of cocaine (in various packages) and two cell phones, which were locked in a safe.

On a bedside table, the police also found a small amount of cocaine, presented in lines, and a hollow metal tube, suggestive of personal consumption of cocaine. Subsequent to the search, the police estimated the value of the cocaine to be between $6,000 and $8,800. After forensic examination, however, the cell phones revealed no evidence of trafficking. [ 3 ] At the outset of his trial, Mr.

Bissky challenged the facial validity of the information to obtain the warrant [ITO], arguing that it did not show reasonable grounds to support the granting of the warrant, which he submitted should not have issued, thus giving rise to a warrantless search in contravention of s. 8 of the Charter . The trial judge found the issuing justice could reasonably conclude on the basis of the ITO that Mr. Bissky was in possession of cocaine for the purposes of trafficking.

He thus found there was no Charter breach and admitted the evidence obtained from executing the search warrant and continued with the trial. [ 4 ] In this result, the trial judge convicted Mr. Bissky, largely on the basis of the testimony of an expert witness, Sgt. Beaton, who is a police officer. The expert opined that the amount of cocaine seized from Mr. Bissky’s home, coupled with the way it was packaged, was evidence of trafficking. [ 5 ] In this Court, Mr. Bissky challenges the trial judge’s determination that the search warrant is valid.

He also takes issue with the trial judge’s handling of the expert witness’s testimony, saying the trial judge prevented questions contesting the objectivity of the witness by curtailing his cross-examination. He argues, further, that the verdict is unreasonable or unsupported by the evidence. Finally, he alleges a miscarriage of justice. [ 6 ] Mr.

Bissky appeals his sentence, arguing he should have received, at most, an intermittent sentence, having regard for his lack of record and personal circumstances, which had led him to turn to cocaine. [ 7 ] The Crown also appeals the sentence on the bases that it fails to respect the trial judge’s finding that the quantity of cocaine indicated a more than negligible commercial operation and it does not give effect to s. 718.1 of the Criminal Code or accord with past decisions of this Court. [ 8 ] For the reasons that follow, I would dismiss the conviction appeal and the sentence appeals. II. Conviction Appeal

A. Did the trial judge err in assessing the sufficiency of the ITO to obtain thesearch warrant? 1. Standard of review for this ground of appeal [9] In R v Golschesky, 2013 SKCA 116 at para 60, 423 Sask R 308 [Golschesky], Crown counsel argued that a correctnessstandard of review applies to the trial judge’s assessment of the issuing justice’s decision to let a search warrant issue. On behalf of theCourt in Golschesky, I expressed some scepticism as to correctness being the standard of review to apply in light of R v Campbell, 2011SCC 32, [2011] 2 SCR 549 [Campbell].

I drew specific attention to the decisions of the Court of Appeal for Ontario: R v Grant (1999), (ON CA), 117 OAC 345 (CA) at para 18 [Grant] (leave to appeal to SCC refused, [2001] 1 SCR xii); and R v Ebanks(2009), 2009 ONCA 851 at para 22, 249 CCC (3d) 29 [Ebanks] (leave to appeal to the SCC refused, ), where theCourt of Appeal in each case held that the standard of review to apply in assessing a reviewing judge’s decision is reasonableness. [10] In Grant, Charron J.A. (as she then was), on behalf of the Ontario Court of Appeal, wrote the following: [18] This court is also a reviewing court and the test in Garofoli [ (SCC), [1990] 2 SCR 1421] is applicable on thisappeal.

In addition, the usual deference is owed to the findings of the trial judge in her assessment of the record “as amplified on thereview” and her disposition of the s. 8 application.

In the absence of an error of law, a misapprehension of the evidence or a failure toconsider relevant evidence, this court should not interfere with the trial judge’s conclusion. (Emphasis added) [11] In paragraphs 21 and 22 of Ebanks, MacPherson J.A., on behalf of the Ontario Court of Appeal, compared the function of anappeal court in such circumstances to that of the reviewing court (reviewing the issuing justice’s decision) and found them to be similar.After quoting paragraph 18 of Grant, he wrote, “the appeal court must demonstrate deference to the reviewing judge” (at para 22). [12] In Campbell, when the trial decision was appealed to the Ontario Court of Appeal, the majority, again quoting paragraph 18from Grant, held that the usual deference could not be afforded because the trial judge had misapprehended some of the evidence andfailed to consider the entirety of the information to obtain (R v Campbell, 2010 ONCA 588 at para 21, 261 CCC (3d) 1).

In the result,after excluding the inaccurate statements from the information to obtain, the majority of the Court nonetheless concluded that thecumulative effect of the evidence constituted reasonable grounds to issue the search warrant and, therefore, sustained the conviction. Thematter was further appealed to the Supreme Court. [13] The Supreme Court did not mention Grant by name in Campbell, but Charron J., on behalf of the Court, referred to the “usualdeference” that is shown to the trial judge’s findings (at paras 2 and 11) and agreed with Juriansz J.A. that the appeal should bedismissed.

A standard of deference has also been adopted recently as being the prevailing standard of review in R v Sadikov, 2014ONCA 72 at para 89, 305 CCC (3d) 421, as well as by the Nova Scotia Court of Appeal in R v Brown, 2017 NSCA 44 at para 21, 389CRR (2d) 121. [14] The Court in Golschesky did not need to resolve the standard of review issue because, even on a correctness review, the trialjudge’s decision reviewing the issuing justice’s decision could not be challenged.

On this occasion, however, since I cannot clearly state Iwould have come to the same conclusion as the reviewing judge, it is necessary to determine for this Court what standard of reviewshould be applied to the reviewing judge’s decision. [15] While the Supreme Court has not spoken definitively on the issue, the weight of the authority, including the reference andresult in Campbell, supports a deferential standard of review, as expressed by the Ontario Court of Appeal in Grant.

Absent an error oflaw or a misapprehension of the evidence or the failure to consider relevant evidence, deference is owed to the findings of the trial judgemade in assessing the record and with respect to the disposition of the s. 8 Charter application. 2. Mr. Bissky’s arguments that the trial judge applied the wrong test [16] The trial judge began his analysis with a

summary of the applicable legal principles, and then stated the following (oralreasons on the voir dire): In determining the validity of the search warrant I’m guided by the following principles: that the onus is upon Mr. Bissky to show thatthe information to obtain is insufficient to justify issuance of the warrant as was stated by the Supreme Court of Canada in the 2010decision of Morelli [2010 SCC 8]. Further, that the test is whether the issuing justice could, not would, have issued the search warrant on the basis on this sworninformation to obtain as edited or amplified.

The issue is whether there was some reasonable information on which the search warrantcould have been granted. A search warrant may not be set aside if on any view of its content including all reasonable inferences the issuing justice could concludethat the reasonable -- that reasonable grounds existed for the belief that evidence will be found at the place named. I am to consider thetotality of the circumstances as set out in the information to obtain and as amplified by any additional material presented.

As the information to obtain in this case is mainly comprised of information from confidential informants, I’m to focus on threequestions: whether the source information in the information to obtain was credible, compelling and corroborated by a reliable

independent source . (Emphasis added) [ 17 ] In the result, the trial judge found as follows: Ultimately, the test for issuance of the search warrant is whether there are reasonable grounds to believe that an offence has occurred and evidence of an offence will be found as the issuing justice found here. I consider that the standard is reasonable probability not proof beyond a reasonable doubt or even a prima facie case. I do consider that the information to obtain provided incorrect information in alleging that Mr. Bissky had a criminal record but agree, as was submitted, that it played no

part in the issuance of the warrant. I recognize that the test is not whether I would find the grounds to justify issuing a search warrant but whether the issuing justice reasonably could . I find in this case, considering all of the information contained in the information to obtain that the issuing justice could reasonably conclude that Mr. Bissky was in possession of cocaine for the purpose of trafficking on May 7th, 2016, and that executing the search warrant result[ed] in evidence found at the specified residence in support of that offence.

While it is not the only conclusion that could be drawn from the information to obtain, I find it to be one that could be reasonably found . (Emphasis added) [ 18 ] Mr. Bissky’s ground of appeal, on this point, as expressed in his factum on conviction, is as follows: 17.

The Trial Judge erred in law by applying a subjective test only to the question of whether the ITO contained sufficient evidence such that the Justice of the Peace, acting judiciously, could have issued the Search Warrant, when the law requires, impliedly and inherently, that both subjective and objective grounds exist to justify the issuance of the ITO. [ 19 ] He submits that the trial judge incorrectly stated the test to apply when stating, “The issue is whether there was some reasonable information on which the search warrant could have been granted” (as quoted above). [ 20 ] Clearly, the application of the wrong test to assess the sufficiency of the ITO would be an error of law, but I cannot hold that the trial judge applied the wrong test.

When the impugned sentence is read in context, I do not find the trial judge viewed his task as being only to find “whether there was some reasonable information on which the search warrant could have been granted”. His reference to R v Morelli , 2010 SCC 8 at para 40 , [2010] 1 SCR 253 [ Morelli ], squarely grounds his decision in the governing law, which required him to bring to bear his judicial experience in assessing the sufficiency, credibility and reliability of the evidence to determine whether the search warrant could issue. 3. Mr. Bissky’s specific arguments relating to the sufficiency of the ITO a.

The ITO [ 21 ] The ITO, in material part, reads as follows: 3.2 Unless I say otherwise, information received from a confidential informant was within the personal knowledge of the confidential informant. By personal knowledge I mean that the confidential informant either personally witnessed the event described, obtained the information as a result of a conversation with one or more of the individuals mentioned in the information supplied or obtained it by overhearing a conversation involving one or more of such individuals.

Where the information was obtained otherwise, I have said that the confidential informant does not have personal knowledge of the information supplied. I believe that to be more specific would lead to the identification of the confidential informant. … 3.4 The confidential informants referenced in this information to obtain are different people. The details concerning the credibility of the confidential informants themselves and their performances are as follows: Source A On May 7, 2016, I spoke with Cst. Tyler Ryhorchuk (Cst.

Ryhorchuk) in relation to the information to assess the credibility, reliability and past performance of the confidential informant, now referred to as Source A. Cst. Ryhorchuk told me the following: A. Source A has been providing information to Cst. Ryhorchuk for the past [redacted] months; B. Information provided by Source A has not been used in any previous judicial authorizations; however some of the information provided has been corroborated through investigational techniques, surveillance and other confidential informants; C. Source A is motivated to provide information for financial compensation. D.

Source A [redacted] ; E. Source A claimed first-hand knowledge of the information provided .

Source B On May 7, 2016, I spoke with Cst. Jordan HAMM (Cst. Hamm) in relation to the information to assess the credibility, reliability and pastperformance of the confidential informant, now referred to as Source B. Cst. Hamm told me the following: A. Source B has been providing information to Cst. Hamm for the past [redacted] months; B.

Information provided by Source B has been used in 1 previous judicial authorization leading to the seizure of drugs and charges underthe Controlled Drugs and Substances Act and the Criminal Code; some of the information provided has been corroborated throughinvestigational techniques, surveillance and other confidential Informants; C. Source B is motivated to provide Information for financial compensation and the betterment of the community; D. Source B [redacted]; E.

Source B claimed first-hand knowledge of the information provided. (Emphasis added) [22] With the contents of the ITO in mind, I will now address Mr. Bissky’s arguments, which I would order as follows: (

a) the trial judge relied on conclusory statements only; (

b) the sources did not speak from personal belief, which is what the ITO required; (

c) the reliability of the sources was not proven; and (

d) the trial judge erred by finding that the evidence of the sources was sufficient to support the issuance of the warrant. [23] The ITO also stated that Mr. Bissky had been convicted in January of 2016 of failing to provide a breath sample unders. 254(5) of the Criminal Code. In fact, he was not convicted of this offence. This error was identified in Mr. Bissky’s notice of Charterapplication as another reason why the warrant should not have issued. However, at the opening of the trial, Crown counsel advised thathe and counsel for Mr.

Bissky had “come to an agreement with respect to that one subparagraph” and it would “be excised from theITO”. Nothing more was made of that particular aspect of the ITO. In his reasons on the voir dire, the judge said, “I do consider that theinformation to obtain provided incorrect information in alleging that Mr. Bissky had a criminal record but agree, as was submitted, that itplayed no

part in the issuance of the warrant”. On appeal, Mr. Bissky maintained the position taken at trial on this point. b. The ITO contained only conclusory statements [24] Mr. Bissky correctly submits that an authorization cannot be based exclusively on conclusory statements (see R v Garofoli, (SCC), [1990] 2 SCR 1421 at 1456 [Garofoli]). The underlying information must allow the issuing justice to make aninformed decision.

If a conclusory statement is not supported by other factors, then the record would be insufficient to support theissuance of a warrant. [25] To determine whether the ITO’s statements are more than simply conclusory in nature, Wilson J.’s statements of the law in Rv Debot, (SCC), [1989] 2 SCR 1140 [Debot], and Sopinka J.’s subsequent refinement of Debot in Garofoli areinstructive. [26] In concurring reasons in Debot, Wilson J. proposed that a trial judge ask the following questions (at 1143): (

a) Was the information compelling? (

b) Was the source credible? (

c) Was the information corroborated by a “police investigation prior to making the decision to conduct the search”? [27] Then, in Garofoli (at 1456–1457), Sopinka J., referring to Debot and R v Greffe, (SCC), [1990] 1 SCR 755,developed several propositions for conducting a review of an ITO: Moreover, I conclude that the following propositions can be regarded as having been accepted 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 tip froman 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. [ 28 ] Clearly, the trial judge’s analysis in this case proceeded on the basis of Debot and Garofoli . He assessed the ITO, and the issuing judge’s decision, from the perspective of whether the information from the source was (

a) compelling, (

b) credible and (

c) corroborated. The ITO relied on the two sources and “investigational techniques”. The trial judge considered the totality of the information, including the details of the tips and the reliability of the sources. [ 29 ] On the question of the credibility of the source information, the trial judge focused on the extent of the detail provided (oral reasons on the voir dire ): Here each source provided sufficient information -- or sufficient detail to lead me to conclude that it is compelling. Source A’s information indicates the full name of the person involved as Mr.

Bissky, detailed specific activity of selling cocaine and a specific time as November of 2015. Similarly, source B’s information names Mr. Bissky as involved, at a specific location, involving a detailed activity, possession of a specific substance and amount, ounces of cocaine and additional information about Mr. Bissky, that a specific vehicle was owned by Mr. Bissky. [ 30 ] With respect to corroboration, the trial judge noted that the police information had confirmed that (

a) Mr. Bissky is a real person, (

b) Mr. Bissky lives at an address that source B had identified, and (

c) Mr. Bissky owns a Nissan vehicle that was parked at the identified address. The trial judge observed that there was some indication of past reliability with respect to both source A and source B. With respect to source A, others had corroborated his information. With respect to source B, his information had resulted in the issuance of a search warrant that led to a drug seizure. [ 31 ] Having regard for his reasons considered in light of the ITO, I cannot say the trial judge erred by relying on conclusory statements only. c.

Personal knowledge of the sources [ 32 ] The ITO was supported by an affidavit of a police officer claiming he was satisfied that both sources had “first-hand knowledge” of the information they had provided. However, paragraph 3.2 provides “[u]nless I say otherwise, information received from a confidential informant was within the personal knowledge of the confidential informant”. Nonetheless, the informants indicate they had “first-hand knowledge” regarding their statements. [ 33 ] At trial, Mr.

Bissky challenged the statement in the ITO that the sources had “first-hand knowledge”, when that term was not defined. The question for the trial judge was whether source A’s and source B’s statements, claiming “first-hand knowledge”, constitute something less than “personal knowledge”, as referred to by the affiant in paragraph 3.2 of the ITO. The trial judge equated the two. [ 34 ] Applying his

interpretation of “first-hand knowledge”, the trial judge said the following: There is no evidence showing such a misunderstanding here. Also as the information to obtain indicates that all sources -- or that all source information is based on first-hand knowledge, it is not affected by this being mentioned in an earlier paragraph of the information to obtain and not where the specific information is later mentioned. I find that the statements made were not -- were not conclusory statements, but instead were ones that can be reasonably inferred to be based on personal information.

I thus find the source information to be credible. [ 35 ] On appeal, Mr. Bissky argues the trial judge erroneously inferred “first-hand knowledge” means the same as “personal knowledge”. [ 36 ] In my view, applying the standard of review, deference is owed to the trial judge’s assessment of the evidence in reaching this decision. If anything, first-hand knowledge might be more reliable than personal knowledge, which, as defined in the ITO, includes “overhearing” a conversation. Further, the two terms are often used interchangeably in the case law, including within the same decision.

For example, in R v Fehr , 2004 BCCA 53 , 198 BCAC 135 (leave to appeal to the SCC refused, [2004] 3 SCR viii), the Court referred to “personal knowledge”, while quoting from R v Araujo , 2000 SCC 65 , [2000] 2 SCR 992, regarding the requirement regarding “first-hand knowledge of the facts” (at para 51): [51] It was also suggested in Araujo , supra , that the affidavit should speak from personal knowledge : [48] Finally, while there is no legal requirement for it, those gathering affidavit material should give consideration to obtaining affidavits directly from those with the best first-hand knowledge of the facts set out therein, like the police officers carrying on the criminal investigation or handling the informers.

This would strengthen the material by making it more reliable. In the present case, it might have prevented this case from turning into the mess it is now, still in appeal, after years of litigation on preliminary matters, without any final judgment on the guilt or innocence of the appellants. (Emphasis added) [ 37 ] Thus, in that regard, both the issuing justice and the trial judge could reasonably conclude that personal knowledge and first- hand knowledge should be equated. d. Reliability

[38] Mr. Bissky’s factum refers to R v Shivrattan, 2017 ONCA 23, 346 CCC (3d) 299 [Shivrattan] (leave to appeal to the SCCrefused, ). In Shivrattan, the Ontario Court of Appeal ordered a new trial on the basis the trial judge should havegranted the accused’s request to cross-examine the affiant on certain specified parts of the information to obtain, including informationthat had been provided to the affiant from the property manager of the building where the accused had been living at the time of hisarrest.

The affiant had referred to the property manager’s information as having provided him with the corroboration he had needed. Aconflict, however, appeared to exist between the information to obtain and the manager’s testimony as it had been given in thepreliminary inquiry. [39] In this appeal, relying on Shivrattan, Mr. Bissky argues that the ITO is insufficient because “there was no corroboration ofinformation provided by police investigation from a ‘reliable independent source’”. In particular, Mr. Bissky asserts the following in hisconviction factum: 34.

The trial judge erred in law by concluding that the informants here had “past reliability”, stating at page T128 that source “A” hadbeen corroborated by police investigation, surveillance and other confidential sources, and source “B” had resulted in a search warrantand drug seizure. However, neither confidential informant had ever provided information that resulted in a conviction …. (Emphasis added) [40] In my view, however, Mr. Bissky’s reliance upon Shivrattan to support his claim that the warrant should not have issued ismisplaced.

At trial, the appellant led evidence to contradict the source’s reliability, which thus engaged the trial judge in a subfacialchallenge to the information to obtain. On appeal in Shivrattan, Doherty J.A. explained the difference between a facial challenge and asubfacial challenge: [26] Challenges to the validity of a warrant are described as facial or subfacial. On a facial challenge, counsel argues that the[information to obtain], on its face, does not provide a basis upon which the issuing justice, acting judicially, could issue the warrant.

Asubfacial validity challenge involves placing material before the reviewing judge that was not before the issuing justice. On a subfacialchallenge, counsel argues that the material placed before the reviewing judge should result in the excision of parts of the [information toobtain] that are shown to be misleading or inaccurate. The warrant’s validity must then be determined by reference to what remains in the[information to obtain].

On a subfacial challenge, counsel may also argue that the augmented record placed before the reviewing judgedemonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire [information to obtain]unreliable as a basis upon which to issue a warrant: see Morelli, at paras. 40–41; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, atparas. 37–38; Crevier, [2015 ONCA 619] at para. 74; and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 57. (Emphasis added) [41] Here, Mr. Bissky challenges the ITO facially only.

The trial judge was required to assess the ITO on the same basis as theissuing justice. Neither the affiant’s reliability, nor the sources’ reliability, as such, was challenged by anything external to the ITO: i.e.,no contradictive material was placed before the reviewing judge. Thus, the trial judge was in the same position as the issuing justice andwas required to ask the question whether the ITO could issue having regard for the exact same evidence. [42] Mr. Bissky makes one more argument in relation to reliability.

He submits the sources’ information had not led to aconviction and, therefore, reliability was not proven. In response to this argument, I note that the absence of convictions, resulting from asource’s information in the past, does not mean that a source is unreliable. In R v Parsley, 2016 NLCA 51, 341 CCC (3d) 263, the Courtquickly disposed of a similar argument: [28] The judge’s focus on the fact that the information resulted in only a few arrests belies a misunderstanding of how informerinformation is used.

While a “successful” arrest or prosecution can be evidence of reliability, it does not follow that because there was no“successful arrest or prosecution” the information is unreliable. Many factors go into a police decision to seek a search warrant or toarrest someone, and because they do not choose to do so every time they are provided with information does not mean the information isnot reliable (See Whalen, paragraph 38).

In R v Whalen, 2015 NLCA 7 at paras 38 and 42, 363 Nfld & PEIR 289, the Court makes the same comment but in the context ofcredibility. [43] Having regard for these arguments, I see no basis upon which to intervene on the basis that the information provided by thesources is not reliable. e. Source A’s statement is not current and Source B’s statement does not demonstrate trafficking [44] Mr. Bissky asserts that “a bare assertion (one that is six (6) months old, and a recent assertion that alleges less than the allegedoffence)” cannot meet the standard established in Garofoli.

It is this argument that is really at the heart of Mr. Bissky’s appeal: the trialjudge should have held that the warrant could not issue on the basis of the evidence contained in the ITO. This, however, is an argumentthat engages the deferential aspect of the standard of review directly. [45] Clearly, whether a confidential source is recounting dated information is a factor to be considered on a warrant review: R vTurcotte, (SK CA), [1988] 2 WWR 97 (Sask CA) at 107, but it is only one factor.

A trial judge must be satisfied thatan issuing justice had a record from which he or she could have authorized the warrant. While Garofoli and Debot add considerationsthat should be weighed, where confidential informants make up the majority of an ITO, no decision interpreting Garofoli or the decisionsthat follow hold that the trial judge must excise a dated statement from an information to obtain.

As with all the material contained in aninformation to obtain, a dated statement must be read and understood in the context of the whole of the evidence. [46] More importantly, the case law has consistently upheld the narrow focus of a trial judge reviewing an information to obtain.Mr. Bissky’s argument invites the Court to set a standard for when statements in an information to obtain are no longer current for the

purposes of warrant authorization. Such a ruling would not align with other appellate decisions on warrant review because it would enlarge the scope of the trial judge’s task and reduce the discretion of the issuing justice. The dated nature of information is subsumed within the larger question of whether the authorization could have been granted. [ 47 ] Applying the standard of review articulated earlier, I see no basis upon which to interfere with the trial judge’s decision that the issuing justice could issue the search warrant.

He understood that the issuing justice could act only on sufficiently reliable, credible and corroborated information; but, in this case, there was evidence from the two sources. Each had its own deficiencies, i.e., source A provided dated information and, with respect to source B, the amount of the cocaine had been redacted from the ITO. [ 48 ] In relation to source B, there was no basis from this evidence alone from which one might infer Mr. Bissky had been trafficking.

However, the trial judge could consider the two together and ask whether the information, taken as a whole, could justify the issuing justice’s decision to grant the warrant. Just as the trial judge owed the issuing justice deference on this point, so too must this Court show deference to the trial judge’s assessment of the evidence and his disposition with respect to s. 8 of the Charter . [ 49 ] An appellate court cannot remake the trial judge’s decision on this point.

To state the obvious: the standard of review is, itself, applied to a standard that is deferential, as to whether there was sufficient credible and reliable evidence to permit an issuing justice to authorize the warrant ( Morelli at para 40 ). Unless the trial judge committed an error of law, or misapprehended the evidence or overlooked relevant evidence when he reached that conclusion, his decision is owed the “usual deference” ( Campbell at para 2 ). 4. Conclusion on sufficiency [ 50 ] The trial judge did not err in assessing the sufficiency of the ITO.

This means that there is no basis on the arguments made in this Court to challenge the issuance of the warrant. The trial judge’s s. 8 Charter disposition stands. B. Did the trial judge err by curtailing the cross-examination of the proposed Crown expert witness? 1. Background [ 51 ] When the police searched Mr. Bissky’s home, they found two resealable plastic bags containing cocaine in a locked safe in the basement. The breakdown of the cocaine inside each bag, as detailed at trial, was as follows: (

a) the first resealable bag was unlabelled and enclosed two smaller bags (but contained three bags in total): (

i) bag A had a bagged weight of 28.9 grams of powder cocaine; and (ii) bag B enclosed two smaller bags at a weight of 8.6 grams and 7.3 grams respectively; (

b) the second resealable bag was labelled “Fish” on the outside and enclosed “three baggies of cocaine weighing 28.4, 28.5 and 8.6 grams, respectively”. [ 52 ] The Crown sought to qualify Sgt. Beaton as an expert witness for the purposes of obtaining an opinion as to whether the evidence collected at Mr. Bissky’s home supported an inference of trafficking. As detailed in his expert report, it was the Crown’s intention to solicit Sgt. Beaton’s opinions about what inferences could be drawn from the quantity of the cocaine, its packaging, and the way it would be distributed and concealed.

Sergeant Beaton’s report, details his conclusions: [PACKAGING AND DISTRIBUTION:] The packaging of the cocaine in this investigation is consistent with packaging it in ounce and quarter ounce packages. The lack of smaller sizes of packaging material (i.e., dime bags, tied off comers of sandwich bags) indicates that the powder cocaine seized in this investigation was packaged in bulk for sale to street level traffickers where they would be likely repackaged into smaller sizes for resale.

CONCEALMENT: People involved in illegal activities such as drug trafficking may use concealment methods to hide drugs, money and other things to reduce their risk of being caught by police. These methods may consist of simply putting drugs into the pockets of clothing or containers, to more advanced techniques such as hidden compartments in a vehicle, false bottoms in aerosol containers, or hidden locations in residences.

In this investigation, the powder cocaine was located inside a locked safe in the basement furnace room. … [CONCLUSION:] Based upon the totality of the information I have reviewed and my experience as a drug investigator, I believe the cocaine seized in this investigation was possessed for the purpose of trafficking . Packaging, pricing, distribution trends and usage trends support my opinion. (Emphasis added) [ 53 ] After Crown counsel had reviewed Sgt. Beaton’s qualifications for the purpose of qualifying him as an expert, Mr. Abrametz, counsel for Mr. Bissky, cross-examined on the basis that Sgt.

Beaton’s lack of “objectivity” should be considered as part of that exercise. Mr. Abrametz was prepared to admit Sgt. Beaton is an expert in the areas that had been described, but took the position that he should not be qualified in this case because his report did not show what might normally be expected in the home of a commercial trafficker, notably, weighing devices, cell phones showing evidence of past drug transactions, multiple communication devices, packaging

materials, score sheets, and money, nor did Sgt. Beaton explain the effect of the absence of this evidence on his opinion. Since Sgt. Beaton had failed to bring to the Court’s attention factors that were inconsistent with his conclusion in the report, Mr. Abrametz submitted he should not be found to be independent and impartial and he should not be qualified as an expert: “part of the duty of being objective and non-partisan … is providing all of the evidence to the Court, including evidence that is not consistent with the theory” of trafficking. [ 54 ] Thus, Mr. Abrametz’s first question to Sgt.

Beaton was, “Where is your report?” At that point, Crown counsel objected, saying it was unnecessary to consider the contents of the report in order to qualify Sgt. Beaton as an expert. After hearing submissions, the trial judge was persuaded that the contents of the report, which he had not yet seen, could be relevant to the issue of Sgt. Beaton’s objectivity. In doing so, he said the following: THE COURT: So obviously, I haven’t seen the report.

I don’t know anything about what the report contains except to think that, obviously, Sergeant Beaton wouldn’t be here unless the report is supportive of the charge that’s laid. That’s all. So without knowing what the content of the report is, I can’t be certain that it does or it doesn’t impact on the ability to be qualified as a witness. And so for that reason, without knowing for certain that it will have any impact on it or not, I will allow it to be entered as an exhibit on the voir dire . Ultimately, the content of it and questioning about it may occur if the – if Sergeant Beaton is qualified.

And if not, that’s the end of it. It won’t be admissible evidence. If it is, if he is qualified, the expert opinion then will be admissible, obviously, on the trial proper and any evidence you wish to call to -- to expand on the report or clarify information within the report. That having been said, I guess if there are issues that arise through the cross-examination that you think need to be clarified to address the issue of qualification as an expert, including the obligations to meet the -- goes to the unbiased and not influenced by improper things, I’ll allow that as re-examination on this voir dire .

So for now, the exhibit of the report will be marked as an exhibit on this voir dire . And I guess, as you are tendering it, Mr. Abrametz, it is Exhibit D-1 on the voir dire . (Emphasis added) [ 55 ] Mr. Abrametz then asked questions intending to show Sgt. Beaton was not objective and impartial. He opened up two lines of inquiry. The first was directed to Sgt. Beaton’s allegedly close affiliation with the police force, in general, and with the investigating officers for this case, in particular.

The second was directed to his lack of objectivity because of what were said to be omissions in his report. [ 56 ] No objection was taken to the first line of inquiry, but counsel for the Crown objected to the second on the footing that the matters raised went to the weight that should be attributed to Sgt. Beaton’s report rather than whether he should be accepted as an expert witness. After permitting the cross-examination to continue for what amounts to several transcript pages, the trial judge sought submissions from the parties on whether Mr. Abrametz could continue with this line of inquiry.

He then held that Mr. Abrametz’s questions, as they related to the omissions in the report, were not relevant to the assessment of Sgt. Beaton’s ability to give opinion evidence: THE COURT: … So the issue is the appropriateness of asking questions about what is not included in the expert’s report and the suggestion is that that impacts on the issue of the expert being -- being able to provide a fair and unbiased opinion. And on that basis, given that failure, it will impact on the issue of whether the expert is properly qualified to give opinion evidence or not.

It’s my view that first, that the fact that something is not contained in the report as being a fact that -- that affects the expert’s opinion is an indication of something that’s presumed by the report. And what I mean by that is that if the report doesn’t indicate that there are certain things such as those things that Mr.

Abrametz wishes to raise, and that is points about whether there were scales, whether there were check sheets, whether there was stolen property, whether there was money or numerous other items that are potential, are issues that are most definitely relevant to the issue of the weight that will be attached to the opinion but they don’t affect the issue of whether or not the opinion is fairly provided or not provided in an unbiased fashion. And I don’t find that they affect the -- the expert’s ability to comply to the oath which provide a unbiased and fair opinion.

Those are issues that, as I say, most definitely relate to the issue of weight to be attached and most definitely are relevant to the issue of whether the evidence will prove what the Crown alleges it proves or not. But by failing to mention something, in my view, is just an indication that it’s something -- if it’s not in the report it’s presumed that it doesn’t exist. And I don’t find that relates to the issue of bias or unfairness in ability to meet one’s oath, but rather simply mentioning of what the facts are, not of what facts aren’t in existence .

And so in this circumstance I find that it is most definitely relevant to the issue of weight and relevant to the issue of proof, but not relevant to the issue of the requirement to meet the oath to provide an unbiased report. On that basis I don’t find it’s relevant to the qualification and so I rule that that question is not appropriately asked . (Emphasis added) [ 57 ] With that, the cross-examination, for the purpose of determining whether Sgt. Beaton should be qualified to give opinion evidence, continued. At several junctures thereafter, Mr.

Abrametz attempted to ask the witness about his objectivity and the thoroughness of his opinion. For example, he asked the Court whether he could “ask the witness whether he thinks that he should bring to the Court’s attention issues that would reasonably lead to a different conclusion than that in his report”. The following exchange ensued: THE COURT: So when you say bring to the Court’s attention, you mean bring to the Court’s attention through his report or otherwise? MR. ABRAMETZ: Yes, through his -- ideally through his report, I think, but whether -- and it’s a -- it’s a generalization, a general

question, whether he thinks that an expert has a duty to bring to the Court’s attention factors that would reasonably lead to a different conclusion? THE COURT: Well, I think the problem with the question is that it gets into almost asking the expert to -- to answer the ultimate question or to sit in the seat of a judge in making the determination. … THE COURT: There’s one thing to say that these are factors that are relevant to making a decision, but whether there’s an obligation to - - to address them or not -- I mean, they can be addressed in a number of different ways.

One can be the report -- the report, for example, is based on the facts; what the investigation shows -- and is limited to that only. MR. ABRAMETZ: Yes. THE COURT: And on the basis of that the expert comes to some opinion. … THE COURT: It’s certainly relevant in questioning the expert about the report to ask about the things that aren’t there and it’s certainly a point of argument that -- that if only these things aren’t there and all these other things that usually are – …. THE COURT: -- are not present -- … THE COURT: -- that’ll impact on the issue of whether the report is accepted or it’s not accepted.

But the problem is that there can be so many other things that could be -- could have been facts that will support it. And so the absence of things are certainly relevant and certainly may go to the weight that’s attached, but once again I don’t see how that relates to the issue of the expert’s providing an unbiased, fair opinion. MR.

ABRAMETZ: And Your Honour, I’m just -- I’m basing the question upon White Burgess, you see, and if an expert knows that there’s information inconsistent with their opinion and yet deliberately chooses not to share that with the court, that’s where I see, and that’s where White Burgess, I think, sees the issue of it going to lack of objectivity.

THE COURT: Well, I think it would be appropriate to ask the question, it seems to me, it would be appropriate to ask the question of whether the absence of these things are relevant, but as to whether or not there -- so whether there’s an obligation to raise them -- … THE COURT: -- I think is different from whether or not they’re relevant. MR. ABRAMETZ: Okay. THE COURT: Because the expert’s obligation through preparing an opinion is to analyze whether given these facts and only these facts -- MR. ABRAMETZ: Yeah. THE COURT: -- what conclusions you draw from that.

That by its very nature means that many other things were not present. MR. ABRAMETZ: And I understand, Your Honour, and I -- I agree. I think you -- you’re raising a valid point, absolutely, I agree. I -- I – just that the converse is, is it relevant. And if I may be permitted to ask the witness, then, whether these things are relevant. And the things I would say that are identified in our notice of motion or the application -- the Charter application and -- and that’s in paragraph 2(3) and are those things relevant to an opinion as to trafficking? THE COURT: Okay. MR.

SLOBODIAN: Well, and I don’t have an objection to him asking the expert those questions, just not in relation to him being qualified as an expert. It’s relevant to the conclusion he ultimately reaches in this particular case looking at the particular evidence that is present; that’s relevant. I don’t disagree that if he wants to question him about the lack of scales or the lack of score sheets or other sorts of indicia, that’s relevant to the consideration of the expert in forming the conclusion that he did. It’s not relevant to the issue of whether or not he can provide an unbiased and fair opinion.

THE COURT: I think that’s a fair point. If you were to ask the question about whether it’s relevant and I guess the answer was negative that’s certainly something I’d be taking into account and to what weight you would attach to the opinion that’s given in the report. It wouldn’t affect whether in this case it was an honestly and fairly held opinion that -- that this information from this investigation leads the -- leads the sergeant to the conclusion that he draws. Whether it’s a validly held opinion or not, that’s a live and separate issue. MR.

ABRAMETZ: Well, if I may, Your Honour, put it this way; maybe this conversation maybe is premature. Maybe I haven’t set the

basis for -- and what I’m respectfully submitting is that this goes to objectivity. That’s our view. But I haven’t set that basis. And -- and you see if there are competing inferences and if this issue goes to -- to that question of competing inferences, then it goes -- then it is a question of -- if they are deliberately ignored in terms of being an expert to favour one inference as opposed to the other one, then it goes to objectivity. THE COURT: And it’s my view that it goes to the issue of weight -- … THE COURT: -- and not to admissibility. [ 58 ] Later, Mr. Abrametz returned to the issue of whether Sgt.

Beaton was biased because of what was not contained in his report and whether “the expert had shared his knowledge with the court, even when that knowledge is inconsistent with his conclusions”. On this theme, the trial judge was conclusive: THE COURT: Certainly cross-examination is relevant to assessing objectivity. But I find that those types of questions are questions that relate to the report and relate to the issue of whether the offence is proven.

I find them relevant to the issue of weight, but not to admissibility. [ 59 ] After cross-examination and re-examination on the question of expert qualification had been concluded, the trial judge found that Sgt. Beaton was properly qualified and would be permitted to give opinion evidence in relation to the matters raised in the notice of expert opinion, i.e., whether what was found in Mr. Bissky’s home could be considered evidence of possession of cocaine for the purpose of trafficking. 2. Analysis [ 60 ] On appeal, Mr.

Bissky makes two arguments in his conviction factum relating to the expert witness: 49. … First of all, if an expert witness fails to bring to the court’s attention things that they know are inconsistent with their conclusion, this is a failure of their duty as an expert witness for the court. Secondly, it is relevant, and an accused person such as this appellant should have the right to free and unfettered cross-examination.

This was denied by the trial judge. [ 61 ] In White Burgess Langille Inman v Abbott and Haliburton Co , 2015 SCC 23 , [2015] 2 SCR 182 [ White Burgess ], the Court held that an expert has a duty to provide impartial and independent evidence. After an extensive review of the authorities, Cromwell J., on behalf of the Supreme Court, concluded that “an expert’s lack of independence and impartiality goes to the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted” (at para 45).

Moreover, an expert’s lack of impartiality and independence “should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility” ( R v J.-L.J. , 2000 SCC 51 at para 28 , [2000] 2 SCR 600). [ 62 ] Cromwell J. expanded on these points extensively in White Burgess in paragraphs 52 and 53 , concluding with these words: [53] … A proposed expert witness who is unable or unwilling to fulfill this duty to the court is not properly qualified to perform the role of an expert.

Situating this concern in the “properly qualified expert” ensures that the courts will focus expressly on the important risks associated with biased experts: Hill, Tanovich and Strezos, McWilliams’ Canadian Criminal Evidence , [loose-leaf (Rel 5, 2014) 5th ed (Toronto: Canada Law Book, 2013)] at 12:30.20.50; Paciocco, “Jukebox”, [(2009), 34 Queen’s LJ 565] at p. 595. [ 63 ] Mr. Abrametz sought a ruling from the trial court that Sgt. Beaton was not independent and impartial on two bases. First, he believed that Sgt.

Beaton should have advised the Court that, in other cases, there was more evidence from which a court could infer the accused was trafficking. Second, he believed that Sgt. Beaton should have stated it is possible that another expert, or indeed the trier of fact, could have concluded that the evidence was insufficient for trafficking. [ 64 ] Quite clearly, based on White Burgess , Mr. Bissky was entitled to challenge Sgt. Beaton’s status as an expert on the basis he was not going to provide the court with an impartial and independent opinion.

With that principle in mind, I would not rule out a challenge to an expert’s objectivity on the basis of the contents of the expert’s report in the appropriate case.

The lack of objectivity represented by the report may be so glaring that a trier of fact may be able to say, in the appropriate case, that the proffered expert should not be qualified. [ 65 ] In this case, however, the trial judge did not err by concluding that the challenge to the expert’s opinion was really an attempt to gain a different opinion, i.e., that there was insufficient evidence of trafficking; but that truly is a matter that goes to what weight or effect the trier of fact will give to the opinion.

Simply because an expert is prepared to say that this evidence permits a specific opinion, does not mean the expert is not objective. A challenge to the expert’s impartiality, because the expert was, nonetheless, able to form a contrary opinion, has all the hallmarks of a complaint about the opinion itself. [ 66 ] The trial judge was clearly familiar with White Burgess . He did not curtail, in any way, Mr. Abrametz’s questions regarding Sgt. Beaton’s alleged allegiance to the case before the Court. He permitted Mr.

Abrametz to pursue the line of questioning regarding the contents of the report, initially, and at some length. It was only when it became clear to the trial judge that what Mr. Abrametz really wanted was for the expert to be found partial, because he believed another expert might come to a different opinion, did the trial judge curtail the cross-examination. In these circumstances, the trial judge was correct to say that the omissions from the report went to the question of weight rather than to the independence and impartiality of the opinion-maker. [ 67 ] White Burgess is a significant case.

It permits objectivity to be challenged at the admissibility stage; and it permits objectivity to be challenged when considering what weight is to be given to the expert’s opinion. Nonetheless, the Supreme Court did not contemplate a wholesale attack on experts, with a view to lengthening trials. For example, Cromwell J. emphasized the nature of this new

threshold requirement: [49] This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court.

For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible . In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern.

The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court.

I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence . (Emphasis added) [ 68 ] There was nothing on the face of the evidence revealing that Sgt.

Beaton was assuming the role of an advocate for the position of the Crown or that he was clearly unwilling or unable to carry out his primary duty to the Court. Using the words from White Burgess , the trial judge did not make a specific assessment that Sgt. Beaton was “able and willing to provide the court with fair, objective and non-partisan evidence” (at para 62). Nonetheless, by ruling that questions regarding omissions in the report were best considered in the context of weighing the expert’s opinion, and by permitting Sgt.

Beaton to give opinion evidence, I take the trial judge to have effectively held that he would give objective evidence. [ 69 ] Like the trial judge, I conclude that it was not Sgt. Beaton’s objectivity that was in question but rather it was the basis of his opinion. Thus, I conclude the trial judge did not err by curtailing the questioning of Sgt. Beaton at the point at which he did: i.e., after allowing questioning to take place to a certain extent in order to determine the precise nature of Mr. Abrametz’s objections to the qualification of the expert. C.

Is the conviction unreasonable or one that cannot be supported by the evidence? 1. The trial judge’s decision [ 70 ] In convicting Mr. Bissky, the trial judge said the following in his oral reasons: This is a circumstantial case. There’s no direct evidence that Mr. Bissky was actually selling cocaine. The issue -- it being a circumstantial case is whether or not the only rational -- the only rational conclusion I can draw is that the possession that Mr. Bissky had of this cocaine was -- was for the purpose of trafficking. In that respect I consider a number of things.

Of course, as the issue here has been the intent, I must consider the totality of the evidence and draw an inference as to whether Mr. Bissky had possession for the purpose of trafficking. As text and cases have concluded, each case must be decided on its facts and the main determining issue of intent draw inferences from the quantity of the substance found as well as other relevant indicia. As defence pointed out in this case it really is a case insofar as proof of it being for the possession that is largely based on the issue of the quantity. There was evidence that I considered of personal use. Mr.

Bissky was found in the residence. There was evidence of use of cocaine in the bedroom. And the defence suggests appropriately that this is part of the evidence that I have to consider. Defence suggests that the evidence -- that evidence of personal use should create a doubt as to whether -- relating to the other cocaine found in the residence that it was for anything other than personal use.

The Crown’s case is largely based on the evidence of Sergeant Brad Beaton, who was qualified as an -- as an expert to give opinion evidence on a number of areas relating to cocaine and packaging and sales and values and items of that nature. Clearly, this is a case where there really is no other evidence. There’s no evidence of frequent traffic at the residence. There’s no evidence of scales or no evidence of score sheets, or anything else that are common indicators of trafficking in cocaine. Of course, it’s not that there’s a legal requirement to do that but they are factors to be considered.

And such as they are there, I find as the case -- other cases have -- provides greater support of the notion and the opinion -- the expert’s opinion that the quantity is inconsistent with personal use and is for the purpose of trafficking. It isn’t the law that just because a quantity -- a significant quantity is seized that that automatically means that it amounts to proof that it’s for the -- for the purpose of trafficking. Rather, it requires considering all of the evidence and deciding whether proof of the intention is made out or not.

In this case Sergeant Beaton, in addition to the issue of quantity, relies on the evidence of the packaging which he suggests is consistentwith having it for the purpose of sale.

His evidence is also that part of the reason he comes to the conclusion that the quantity isinconsistent with personal use are factors such as the significant acquisition costs, the quantity that would be used by a high-end user, theready availability of the cocaine and the risks associated with possessing significant quantities; that is risks associated with detection,concerns about the safety from others taking it and concerns about self-regulation if someone is a heavy user. Mr. Abrametz takes or argues that I shouldn’t put much weight on Sergeant Beaton’s opinion for a number of reasons.

First, thatSergeant Beaton acknowledged no memory of speaking to others that were involved in the investigation. Later through cross-examination acknowledged that he did. And -- and it’s argued that that impart reflects a lack of accuracy, a lack of reliability and that theissue is the weight that can be attached to that opinion.

It’s suggested as well that many assumptions are made in the conclusions that are drawn; that is insofar as there being a significantacquisition cost; that no evidence -- no evidence was known to Sergeant Beaton about the accused’s financial means and the ability to --the ability to purchase it. That insofar as use, that there is no knowledge of whether the accused, aside from some use in the bedroom, ofwhat use the accused made and therefore how that relates to Sergeant Beaton’s testaments of the amount of time that that quantity wouldbe used by a user and in particular by [Mr. Bissky].

It’s suggested that there was no evidence of ready availability of cocaine as Sergeant Beaton testified to and it’s suggested that the otherissues raised, the issues about the risks regarding detection, safety, concerns about self-regulation are based merely on assumptions bySergeant Beaton and not by any evidence that’s before the Court to draw that conclusion. In this case having considered all of the evidence, I find that I do accept Sergeant Beaton’s evidence and do conclude that the cocainepossessed by Mr. Bissky was for the purpose of trafficking.

And while it’s accurate to say that there aren’t -- there isn’t evidence about other factors that -- that he has relied on in coming to itsconclusion, the factors he relies on are not different than what many experts in other cases have relied on and which courts have relied onin accepting opinions. There isn’t evidence of specific charges, for example, as to ready availability.

There isn’t evidence before me ofspecific charges in Prince Albert relating to cocaine trafficking charges and possession charges, but it’s a reality that charges of thatnature are before the Court on a daily basis both in the custody and non-custody dockets. The issues regarding the risks that would be inconsistent with possession for personal use to have such a large quantity, those risks andfactors are ones that the courts have previously relied on in accepting expert opinions.

While there isn’t evidence of -- of other factorsthat support it, and this is a case where I conclude that the proof of the case has reached the stage where without any other evidence thatleads to another conclusion the only rational conclusion I can draw is proof beyond a reasonable doubt. I don’t find as was argued that the Morin [2012 SKQB 61] decision is distinguishable from this one. In that case Justice Konkin foundthat a quantity slightly less than this, which was found in a vehicle, was a quantity that was inconsistent with personal use and amountedto proof of possession for the purpose of trafficking.

Like this case, in that case there was evidence of the possession of items that wereconsistent with personal use by someone and nonetheless in that case it didn’t lead to a doubt as to the intention in possessing thecocaine. As I had indicated before, I accept and have considered that this case like all other ones where it is decided individually and on the factsthat are before it. In this case, as I say, I come to the conclusion that the only rational conclusion is that the possession was for thepurpose of trafficking. 2. Standard of review for this ground of appeal [71] Mr.

Bissky submits that the verdict is not one a properly instructed jury or judge could reasonably have rendered: R v Yebes, (SCC), [1987] 2 SCR 168; and R v Biniaris, 2000 SCC 15 at para 36, [2000] 1 SCR 381. In other words, he submits thatthe verdict is unsupported by the evidence. He also argues that the verdict is unreasonable.

In R v R.P., 2012 SCC 22, [2012] 1 SCR 746[R.P.], the Supreme Court held that it is possible to find a verdict that is supported by the evidence to be unreasonable in certaindelineated circumstances: [9] … The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of factessential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding,or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v.

Sinclair,2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19–21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190). [72] I will consider his arguments to the effect that the verdict is unsupported by the evidence first. 3. Sufficiency of the evidence [73] Mr. Bissky alleges the verdict is unsupported by the evidence for these reasons: (

a) Sergeant Beaton misled the court; (

b) volume alone does not create a presumption of trafficking; and (

c) the trial judge erred by failing to assess the weight of the expert’s opinion. I have reproduced the trial judge’s reasons almost in their entirety. For my part, it is clear that the trial judge understood fully thearguments that were being made regarding Sgt. Beaton’s relationship with the police officers who had been investigating the accused.He also did not rely upon the volume of cocaine alone to support the conviction for trafficking. He looked at both the volume and the

manner in which the cocaine was packaged. Nor can it be said that he did not evaluate the expert’s information. He concluded that without more, “the only rational conclusion I can draw is proof beyond a reasonable doubt.” Thus, I conclude that the verdict is supported by the evidence, evidence that included the expert’s opinion. 4. Reasonableness of the verdict [ 74 ] Mr. Bissky submits the verdict is unreasonable for a variety of grounds: (

a) Sergeant Beaton misled the Court about the shelf life of cocaine; (

b) the trial judge should have given greater weight to the argument that the cocaine could have been purchased in the way it was found rather than packaged by Mr. Bissky for further sale; (

c) Sergeant Beaton failed to opine that cocaine can be diluted, meaning that daily consumption can vary (the cocaine in this case had not been tested); (

d) Sergeant Beaton misled the Court by saying that a heavy user would use around one gram a day, while also admitting that daily usage can depend upon tolerance and purity of the cocaine; and (

e) daily usage can vary depending upon one’s mental health. None of these grounds meet the definition of what constitutes an unreasonable verdict as outlined in R.P. (at para 9 ). [ 75 ] The only possible additional argument made under this heading, which would satisfy the requirements of R.P. , is that the expert could not say Mr. Bissky did not possess the cocaine for the purposes of personal consumption. At trial, the following was the evidence on point: Q [Mr. Abrametz] All right. So the answer is yes, there is evidence of personal consumption, right? A [Sgt Beaton] That’s correct. Q Okay.

What is the evidence of trafficking? A The evidence -- my opinion is not whether or not somebody was trafficking. My opinion is that the drugs that were there were possessed for the purpose of trafficking. And I think that the amount of cocaine that was there and the way that it was packaged are the two things that support that opinion. Q All right. All right. Now, can you say that it wasn’t there for personal consumption? A I -- I cannot say that, but in my view, the evidence suggests that it wasn’t there for personal consumption. [ 76 ] It is from this evidence Mr. Bissky argues the trial judge’s conclusion (

a) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (

b) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected. In my respectful view, however, the evidence relating to possible personal consumption does not “plainly” contradict Sgt.

Beaton’s other evidence: quantity and packaging led him to conclude that the cocaine was possessed for the purpose of trafficking. [ 77 ] Further, it can be seen quite clearly from the trial judge’s reasons that he was aware of the circumstantial nature of the case and the evidence that had been elicited during cross-examination regarding the possibility of personal consumption: There was evidence that I considered of personal use. Mr. Bissky was found in the residence. There was evidence of use of cocaine in the bedroom.

And the defence suggests appropriately that this is part of the evidence that I have to consider. Defence suggests that the evidence -- that evidence of personal use should create a doubt as to whether -- relating to the other cocaine found in the residence that it was for anything other than personal use. [ 78 ] Thus, I conclude there is no basis upon which the reasonableness of the verdict can be questioned. 5. Conclusion on reasonableness and sufficiency [ 79 ] There is no basis upon which this Court can say either that the verdict was unreasonable or unsupported by the evidence. This ground of appeal fails.

D. Miscarriage of justice [ 80 ] Mr. Bissky submits there was a miscarriage of justice because the police did not provide full disclosure with respect to the circumstances surrounding the reporting of breaches in his release conditions. [ 81 ] After Mr. Bissky was charged with trafficking, he was released on conditions. A few days later, he was charged with breaching his conditions by either being away from his home after curfew or failing to answer the door. When the police officer returned three days later to arrest Mr. Bissky for breaching his undertaking, Mr.

Bissky was in medical distress, but this sequence of events was not part of the disclosure package. Mr. Bissky was acquitted of the breach charge – not on the basis suggested – but on the footing that the trial judge had a reasonable doubt about whether the accused was away from home or whether he heard the police at his door. [ 82 ] I note that no oral arguments were made in relation to this ground of appeal but, I will say, there is no possible basis for it to

succeed. The claim of a miscarriage of justice appears to be based on police conduct in relation to the arrest warrant that had not been executed on that day due to Mr. Bissky’s medical distress. Without further amplification, this argument appears to be without foundation; and, moreover, has no relevance to the trafficking charge. III. Sentence Appeals 1. Mr. Bissky’s personal circumstances [ 83 ] Mr. Bissky is 33 years of age. He is a journeyman welder. He is single with no dependent children. He was born and raised in a mid-sized northern Saskatchewan community and he owns his own home. Mr.

Bissky had been employed as a welder in Alberta for five years, until he was laid off from work in December of 2015. When he was working in Alberta, Mr. Bissky’s annual income was over $100,000. He has no previous criminal record. [ 84 ] Since being laid off at the end of 2015, Mr. Bissky has worked only sporadically. He has done some odd jobs in welding, roofing and some construction work in terms of residential home renovations. [ 85 ] After being laid off, Mr. Bissky increasingly turned to alcohol and drugs, and the drug of choice was cocaine.

A convergence of factors exacerbated a negative mood: unemployment, substance abuse, a medical emergency and the termination of a relationship, which Mr. Bissky found very difficult. Mr. Bissky explains that he would do cocaine and would drink alcohol and then use a prescribed drug to combat anxiety and depression. Mr. Bissky provided a report from his psychologist. [ 86 ] Since his arrest, Mr. Bissky has returned to full-time employment. He provided a letter of support from his present employer. 2. Sentencing hearing a.

Trial Crown’s position [ 87 ] Crown counsel at trial cited R v Patryluk , 2002 SKCA 33 at 21–22, 217 Sask R 309; R v Pankewich , 2002 SKCA 7 , 161 CCC (3d) 534; and R v McIntyre , 2012 SKCA 111 , 405 Sask R 28 [ McIntyre ], as authority for the proposition that the usual range for trafficking in cocaine is from 14 months at the low-end to four years at the high-end. He submitted that the Court should consider Mr. Bissky to be a mid-range trafficker based on the amount of the seized cocaine. He suggested that a sentence of two years would be appropriate. b. Mr. Bissky’s position [ 88 ] Mr.

Bissky denied selling, administering, transferring, transporting, sending or delivering cocaine, and stipulated that, if the Crown was alleging a commercial aspect to his possession, this was a disputed fact as defined by s. 724(3) of the Criminal Code . He admitted to “giving” or “bartering” cocaine only. [ 89 ] In light of the disputed fact, and in light of Mr. Bissky’s personal circumstances, including the lack of a criminal record and his mental health issues, defence counsel suggested that a fine coupled with probation would be appropriate. c.

Reasons for sentence [ 90 ] The trial judge began by recognizing that cocaine is considered “a hard drug” and that deterrence and denunciation were, therefore, the primary factors in fixing the sentence in this case. He noted the Crown’s position was that the drugs in this case were possessed for “a commercial purpose”. He found this to be a disputed issue that the Crown was required to prove beyond a reasonable doubt.

In his oral reasons, he then stated, “in the circumstances of this case I do not come to that conclusion [of a mid-range trafficker]; that is I am left with a doubt as to whether the drugs possessed by Mr. Bissky, which I have found to be for the purpose of trafficking, were for a commercial purpose”. [ 91 ] He went on to find that Mr. Bissky was addicted to cocaine and there was some evidence that he was using cocaine for his personal use at the residence.

He found it was relevant to take into account the accused’s personal circumstances, which included his employment history, his ensuing unemployment and his anxiety and depression. He noted that the accused had made efforts with respect to counselling, both personal counselling and addiction counselling. He noted the accused’s lack of a record. He concluded that Mr. Bissky is not someone who presents a danger to the public. [ 92 ] He then considered whether the principles of deterrence and denunciation could be served other than by imposing a custodial sentence.

He observed that there were no cases where charges of trafficking or possession for the purpose of trafficking had resulted in a community sentence since the amendments to the Criminal Code had been made removing the availability of conditional sentences. [ 93 ] Finally, after observing that sentencing is an individualized process, requiring him to take into account the accused’s personal circumstances and post-offense efforts at rehabilitation, the trial judge said the following: Certainly the quantity is an aggravating factor, the lack of any prior criminal record is a mitigating factor. Mr.

Bissky’s conduct since the date of this offence is something also to take into account; that is efforts made to deal with the issue of addictions which reduces the risk that Mr. Bissky presents. And recognizing deterrence and denunciation are primary factors, it’s my conclusion that in this case the appropriate sentence is a sentence of 12 months incarceration.

That is the sentence I impose for this offence, being less than the sentence imposed in a number of other situations, but balancing both the aggravating and mitigating factors I come to conclude that that is the minimum sentence that can appropriately be imposed for this offence, and so I impose it.

B. Standard of review with respect to sentencing [94] The Supreme Court’s decision in R v Lacasse, 2015 SCC 64 at paras 41 and 44, 3 SCR 1089, settled the standard of review.An appellate court should not interfere with a sentence unless (

a) the sentence is demonstrably unfit, or (

b) the sentencing judge erred inprinciple, failed to consider a relevant factor or overemphasized an appropriate factor and that error had an impact on the sentenceimposed: see also R v L.V., 2016 SKCA 74 at para 74, [2017] 1 WWR 439. C. The Crown’s sentence appeal [95] Crown counsel states that the trial judge erred in two ways: (

a) by accepting the drug expert’s opinion at trial that the nearly four ounces of cocaine was packaged for sale, but thencontradicting himself by concluding there might be some “other purpose” for the cocaine; and (

b) by imposing a sentence that is not proportionate to the seriousness of the offense or the culpability of the accused, and asentence that focuses primarily on Mr. Bissky’s personal circumstances. [96] The first argument alleges either an error in principle, i.e., the trial judge contradicted himself, or that he failed to consider arelevant factor. However, I see no conflict between what the trial judge decided as part of his conviction decision and what was decidedas part of the sentencing decision. The expert’s report invited the trial judge to find Mr.

Bissky to be a mid-level trafficker: “The lack ofsmaller sizes of packaging material (i.e., dime bags, tied off comers of sandwich bags) indicates that the powder cocaine seized in thisinvestigation was packaged in bulk for sale to street-level traffickers where they would be likely repackaged into smaller sizes forresale”. The trial judge, however, did not indicate that he accepted this aspect of the expert’s report. Indeed, the trial judge was carefulwhen he gave his decision convicting Mr.

Bissky not to specify the scale to which the accused was trafficking (and I repeat): “In this casehaving considered all of the evidence, I find that I do accept Sergeant Beaton’s evidence and do conclude that the cocaine possessed byMr. Bissky was for the purpose of trafficking”. [97] In my view, the trial judge’s reasons for conviction demonstrate that he was alive to the issue that would arise in sentencing,i.e., exactly what was the size or type of trafficking operation that Mr. Bissky was conducting. As an experienced judge, he made nomore rulings on this contested point than what he was required to decide.

While it is true that the trial judge accepted Sgt. Beaton’sevidence, he need not have accepted the whole of it. He was not required to decide that the amount of cocaine, and its distinct packaging,meant Mr. Bissky was a mid-range trafficker. [98] In sentencing Mr. Bissky, the trial judge acknowledged that the defence disputed the extent and type of trafficking in whichMr. Bissky was engaged. He found he had a reasonable doubt as to whether the accused was engaged in commercial trafficking to anysignificant degree. Further, notwithstanding an obvious police interest in Mr.

Bissky lasting over six months, i.e., from the time of SourceA’s information, the only evidence of trafficking available to prove the Crown’s case was that derived from a consideration of thequantity of cocaine and its packaging. Thus, I find the trial judge did not contradict what he found in his conviction decision when hesentenced Mr.

Bissky and, therefore, did not err in principle or fail to consider a relevant factor. [99] The Crown’s second argument is that the sentence is not proportionate to the gravity of the offense and the degree ofculpability of the offender and, therefore, contrary to the fundamental principle of sentencing set out in s. 718.1 of the Criminal Code. Incertain circumstances, the failure to impose what an appeal court finds is contrary to the principle of proportionality can give rise to aquestion of principle.

In this case, however, I am unable to find an error of principle in how the trial judge considered the evidence orhow he balanced the gravity of the offense and the moral culpability of the offender. In the proportionality equation, it is clear that thetrial judge rejected the Crown’s characterization of Mr. Bissky as a mid-level trafficker and he gave full weight to Mr.

Bissky’scircumstances, including his loss of employment and mental health issues, but doing so does not amount to an error in principle. [100] In reality, Crown counsel’s second argument amounts to an allegation that the sentence is demonstrably unfit but, in myrespectful view, Crown counsel is asking this Court to substitute its own view for that of the trial judge. [101] A consideration of ranges and past sentences of this Court are a significant part of as

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