Focus On

CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against unreasonable search and seizure

Monday, June 12, 2017 @ 10:38 AM  


Lexis Advance® Quicklaw®
Appeal by the accused, Pasian, from conviction and sentence for drug and weapon offences. The accused was arrested following execution of a search warrant at a residence. Police seized a handgun and drugs from the residence and a vehicle. The trial judge ruled that the Information to Obtain (ITO) was insufficient to support issuance of the warrant. The trial judge conducted the Grant analysis and concluded the drugs and other evidence were admissible pursuant to s. 24(2) of the Charter. The accused was convicted and sentenced to five years' imprisonment. The accused appealed the conviction and sentence. The Crown conceded the concurrent sentence imposed for careless storage of a firearm exceeded the statutory maximum.

HELD: Appeal from conviction dismissed and appeal from sentence allowed to the extent of the Crown's concession. The trial judge did not commit a reversible error in the course of the s. 24(2) Charter analysis. The conclusion that the omission from the ITO of surveillance observations that suggested a potential alternate stash house, and the inclusion of police database material were not false or deliberately misleading or evidence of bad faith, was entitled to deference. Despite its prejudicial nature and marginal relevance, the police database information situated the accused in the drug subculture and provided context for short transactional meetings observed during police surveillance. A fair reading of the trial judgment demonstrated no failure to overlook the deficiencies in the ITO in conducting the Grant analysis. The trial judge's conclusion regarding the ultimate discoverability of the evidence was not speculative given the surveillance evidence of the accused's engagement in an apparent hand-to-hand drug transaction after leaving the residence. In imposing sentence, the quantity of cocaine, the other substances seized, and the loaded semi-automatic firearm supported the trial judge's inference that the accused was a mid-level drug dealer. The sentence imposed was not demonstrably unfit. In accordance with the Crown's concession, the sentence for careless storage of a firearm was reduced from two years to one year. Sentence: Four years and nine months’ imprisonment.

R. v. Pasian, [2017] O.J. No. 2858, Ontario Court of Appeal, E.A. Cronk, R.A. Blair and K.M. van Rensburg JJ.A., June 2, 2017. Digest No. TLD-June122017003