R. v. Reid (E.), 2016 ONCA 524

• Judge: Juriansz, Watt and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 17, 2015
• Jurisdiction: Ontario
• Citations: 2016 ONCA 524;(2016), 351 O.A.C. 154 (CA)

R. v. Reid (E.) (2016), 351 O.A.C. 154 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JN.038

Her Majesty the Queen (respondent) v. Erik Reid (appellant)

(C59670; 2016 ONCA 524)

Indexed As: R. v. Reid (E.)

Ontario Court of Appeal

Juriansz, Watt and Roberts, JJ.A.

June 30, 2016.

Summary:

About a week after two thefts of guns from storage lockers in Port Perry, the police arrested the accused on an unrelated and outstanding warrant. When searched incident to his arrest, he had several .22 calibre bullets in his pocket. The police obtained a warrant to search a storage locker leased to the accused. The core of the information to obtain (ITO) consisted of information provided by a confidential informant (CI) known to the Toronto Police Service. In the locker, police officers found 22 handguns, 13 long guns and over 5,000 rounds of ammunition. All of the handguns and six of the long guns came from the Port Perry storage lockers. The police obtained a second warrant to search the accused's home. Execution of that warrant yielded two more stolen handguns, more ammunition and various items belonging to the victims of one of the Port Perry locker thefts. The accused was charged with 98 firearms offences. The accused sought to exclude all of the evidence found in his storage locker and home. He challenged the issuance of the search warrant for his storage locker, invoking s. 8 of the Charter and asserting that under R. v. Garofoli et al. (1990, SCC), the warrant could not have been issued on the basis of the material included in the ITO. As part of his s. 8 application, the accused unsuccessfully sought leave to cross-examine the author of the ITO. The Crown acknowledged that the redacted ITO provided to defence counsel could not support the issuance of the warrant to search the locker. The Crown invoked step six of Garofoli and provided the trial judge with a draft summary of the redacted parts of the ITO. The trial judge reviewed the draft and provided it to defence counsel. The accused asserted that the summary was so devoid of information that he could not make any submissions on his Garofoli application.

The Ontario Superior Court was satisfied that the step six summary was adequate to permit the accused to make full answer and defence on his Garofoli application. The court relied on the redacted portions of the ITO and found that the warrant could have been issued in reliance upon them. The court dismissed the s. 8 application. The accused pleaded not guilty and agreed that findings of guilt could be recorded on one count of possession of a firearm for the purpose of trafficking, one count of possession of an unregistered firearm with ammunition readily accessible, and 35 counts of possession of unlicensed firearms.

The Ontario Superior Court found the accused guilty on the 37 counts as agreed to by the accused. The court concluded that an appropriate total sentence was 12 years' imprisonment reduced by 36 months for time spent pre-trial disposition custody. The accused appealed the conviction and sought leave to appeal the sentence. On the conviction appeal, the accused challenged, for the first time, the constitutional validity of step six of Garofoli which he asserted offended s. 7 of the Charter. Alternatively, he asserted that the judge erred in dismissing the Garofoli application at trial by relying on the ITO's redacted portions when the judicial summary provided to him, did not make him sufficiently aware of the nature of the excised material to permit him to effectively challenge it.

The Ontario Court of Appeal refused to determine the s. 7 Charter argument as it was raised for the first time on appeal. The court dismissed the alternative ground and dismissed the conviction appeal. The court granted leave to appeal the sentence. The court affirmed the sentence of 12 years' imprisonment. The parties agreed that the trial judge should have awarded the entire 31.5 months of pre-disposition custody at a rate of 1.5:1 to give effect to R. v. Summers (2014 SCC). The court applied the Summers principles and reduced the net sentence by 11 months, to eight years and one month.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - See paragraphs 77 to 96.

Criminal Law - Topic 3099

Special powers - Issue of search warrants - Confidentiality of supporting material - See paragraphs 77 to 96.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - See paragraphs 73 to 76.

Criminal Law - Topic 3118

Special powers - Setting aside search warrants - General - Evidence (incl. amplification evidence) - See paragraphs 51 to 96.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - See paragraphs 51 to 96.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - See paragraphs 26 to 50.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - See paragraph 103.

Criminal Law - Topic 5871

Sentence - Possession and use or sale of weapons or ammunition - See paragraphs 97 to 103.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - See paragraphs 77 to 96.

Counsel:

John Norris, Breese Davies and Owen Goddard, for the appellant;

Alexander Hrybinsky, for the respondent.

These appeals were heard on December 17, 2015, by Juriansz, Watt and Roberts, JJ.A., of the Ontario Court of Appeal. Watt, J.A., released the following judgment for the court on June 30, 2016.