Six grams of illicit substance found upon appellant's arrest, 47 grams more seized in his house
The Ontario Court of Appeal recently upheld a trial judge’s finding that there were reasonable and probable grounds to search the new residence of a man suspected of cocaine trafficking.
From December 2015 to May 2016, police led a large investigation called “Project Diablo” on a high-level cocaine trafficking ring in Barrie. Police identified the appellant as the supplier of Christopher Szymanski, another cocaine supplier.
Over a few months, the officers surveyed the appellant and saw him having short encounters with various individuals while in a car, and having meetings with Szymanski. They believed that the appellant was associated with drug trafficking. They secured search warrants for his two residences in Royal Oak Drive and in Gibbon Drive.
The officers arrested the appellant in Royal Oak Drive and found six grams of cocaine on his person. They searched his residence, took his cellphone from there, then seized 47 more grams of cocaine at the Gibbon Drive residence.
The appellant filed a motion challenging the validity of both search warrants and seeking to exclude the seized evidence based on an alleged breach of his rights under s. 8 of the Canadian Charter of Rights and Freedoms.
The trial judge made the following findings:
- There was no deliberate attempt on the part of the officer to mislead the issuing justice in the information to obtain (ITO)
- There were sufficient grounds to issue the search warrant for Gibbon Drive based on the police surveillance and the evidence given by their confidential informants
- The warrant for Royal Oak Drive was invalid
- The cellphone seized in Royal Oak Drive should be admitted under s. 24(2) of the Charter
- Admitting the cellphone would not bring the administration of justice into disrepute
The judge convicted the appellant of possession of cocaine for the purpose of trafficking and trafficking cocaine under ss. 5(1) and 5(2) of the Controlled Drugs and Substances Act, 1996.
Issuing justice not misled by police
In R. v. Gomboc, 2022 ONCA 885, the Ontario Court of Appeal dismissed the conviction appeal. First, the court ruled that the trial judge made no palpable and overriding error by finding that the police officer did not mislead the issuing justice.
According to the appellate court, the judge comprehensively tackled this issue in his reasons, found Officer Forest’s ability to provide rational explanations impressive, and said that the officer answered questions directly.
Second, the Court of Appeal held that the appellant’s conduct established a credibility-based probability that he was participating in drug trafficking and that there was evidence in his new residence at Gibbon Drive.
The judge noted the following:
- Police officers observed the appellant leaving and returning to his former residence at Royal Oak Drive after engaging in activities consistent with drug transactions
- A confidential informant told police that the appellant kept a cocaine press in this residence
- The appellant continued this pattern of conduct after moving to Gibbon Drive
Lastly, the Court of Appeal rejected the appellant’s argument that it should conduct a new s. 24(2) analysis for the evidence seized from both residences. The court considered it unnecessary to do a new s. 24(2) test since it found no s. 8 breach relating to Gibbon Drive.