R. v. Sadikov (S.) et al.,

• Jurisdiction: Ontario
• Judge: MacFarland, Watt and Epstein, JJ.A.
• Neutral Citation: 2014 ONCA 72
• Citation: (2014), 314 O.A.C. 357 (CA),2014 ONCA 72,305 CCC (3d) 421,314 OAC 357,(2014), 314 OAC 357 (CA),314 O.A.C. 357
• Date: 26 June 2013
• Court: Court of Appeal (Ontario)

R. v. Sadikov (S.) (2014), 314 O.A.C. 357 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JA.035

Her Majesty the Queen (appellant) v. Sadyk Sadikov and Elizabeth Harding (respondents)

(C52976; 2014 ONCA 72)

Indexed As: R. v. Sadikov (S.) et al.

Ontario Court of Appeal

MacFarland, Watt and Epstein, JJ.A.

January 27, 2014.

Summary:

A police undercover investigation focussed on rampant drug trafficking and use at Club 338. Four times during the investigation, an undercover officer bought powder cocaine at Club 338 from a man who told the officer that his name was "Alex". He said he lived nearby. "Alex" was Sadyk Sadikov, one of the two respondents in this appeal. The undercover operation ended on October 20, 2008. Shortly after 4:00 that morning, police executed warrants under s. 11 of the Controlled Drugs and Substances Act (CDSA) simultaneously at Club 338 and at a second-floor apartment at 306 Adelaide Street West (306 Adelaide), a short distance from the Club. Shortly thereafter, they forcibly entered 302 Adelaide Street West (302 Adelaide) without a warrant. The search at 306 Adelaide yielded drugs, a gun, money and two pitbulls. Police arrested the only occupant at the apartment, the respondent Harding, Sadikov's sometime girlfriend. The warrantless search at 302 Adelaide revealed drugs and a gun. After the entry, the premises were secured until a search warrant could be obtained. Police arrested Sadikov at Club 338 when they executed the search warrant at the Club. At the respondents' joint trial, the presiding judge quashed the search warrants for 306 and 302 Adelaide, then excluded the evidence of drugs, guns, and money found there on execution of the warrants. The judge acquitted the respondents of all charges arising out of the searches and seizures at 306 and 302 Adelaide. The Crown appealed the respondents' acquittals, alleging that the finding of constitutional infringement and the exclusion of the evidence obtained during the search were procedurally and substantively flawed. Only the trial judge's decision in connection with the warrant for 306 Adelaide was at issue.

The Ontario Court of Appeal allowed the appeal on the basis that the trial judge exceeded the scope of permissible warrant review. Her reasons reflected a de novo reweighing and preferential ordering of inferences, an exercise that was beyond her authority. The court set aside Sadikov's acquittal and ordered a new trial on the charges originating in the items seized at 306 Adelaide. The same result followed for Harding, who had not participated in the warrant review at trial, but took advantage of the admissibility ruling that fell with the setting aside of the order finding the search unconstitutional.

Criminal Law - Topic 3058

Special powers - Search warrants - Setting aside - Procedure - The respondents, Sadikov and his sometime girlfriend, Harding, were charged with drug offences - A search warrant executed at a second floor apartment at 306 Adelaide Street yielded drugs, a gun, money and two pitbulls - Harding was the only occupant at the apartment at the time - The trial judge found and listed several deficiencies in the information to obtain (ITO) for the warrant and concluded that "Based on the amplification evidence and the deficiencies referred to above, I am persuaded that there was no objective basis for the belief that there were reasonable grounds to associate Mr. Sadikov with the 2nd floor unit of 306 Adelaide and that narcotics would be found in that location. The warrant must therefore be quashed." - The Crown appealed, seeking a new trial based on procedural error in the review of the search warrant issued for 306 Adelaide, specifically that: (1) the trial judge was wrong to quash the warrant for sub-facial invalidity once she refused Sadikov leave to cross-examine the affiant; and (2) the principle that animated the rule in Browne v. Dunn precluded any findings adverse to the credibility of the affiant and the reliability of the information he provided in the ITO - The Ontario Court of Appeal rejected these two specific complaints - Nothing in the controlling jurisprudence expressly or by necessary implication supported the proposition that refusal of leave to cross-examine the affiant precluded a sub-facial challenge to the reliability of the ITO's contents - The precedents seemed to support a contrary conclusion - Second, reliance by analogy on the principles that underpinned the rule in Browne v. Dunn was misplaced - See paragraphs 42 to 51.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The respondents, Sadikov and his sometime girlfriend, Harding, were charged with drug offences - A search warrant executed at a second floor apartment at 306 Adelaide Street yielded drugs, a gun, money and two pitbulls - Harding was the only occupant at the apartment at the time - The trial judge found and listed several deficiencies in the information to obtain (ITO) for the warrant and concluded that "Based on the amplification evidence and the deficiencies referred to above, I am persuaded that there was no objective basis for the belief that there were reasonable grounds to associate Mr. Sadikov with the 2nd floor unit of 306 Adelaide and that narcotics would be found in that location. The warrant must therefore be quashed." - The trial judge then excluded the evidence obtained as a result of the search - The respondents were acquitted as a result - The Ontario Court of Appeal allowed the Crown's appeal and ordered a new trial - The trial judge exceeded the scope of permissible warrant review - "The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued" - The trial judge's reasons reflected a de novo reweighing and preferential ordering of inferences, an exercise that was beyond her authority - See paragraphs 52 to 103.

Criminal Law - Topic 3117

Special powers - Setting aside search warrants - General - Cross-examination of affiant - [See Criminal Law - Topic 3058 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See Criminal Law - Topic 3058 ].

Criminal Law - Topic 5214.93

Evidence and witnesses - Admissibility and relevancy - Voir dire - Use of evidence taken during - The Ontario Court of Appeal stated that "A voir dire, even a voir dire in a judge-alone trial, is a separate proceeding from the trial itself ... Evidence taken on a voir dire forms no part of the evidence at trial unless the parties expressly agree to its incorporation ... The issues in play in each voir dire determine the evidence that is relevant, material, and admissible in that proceeding. But without express incorporation of the evidence adduced on one voir dire as evidence on another, the evidence on the first inquiry is not available for use in the later voir dire. It follows that reliance on evidence that has not been adduced or incorporated by a reference on a voir dire into admissibility may compromise the admissibility ruling. Disciplined application of Rules 30 and 31 of the Criminal Proceedings Rules ensures that the evidentiary predicate on each admissibility inquiry is clearly and properly defined and rulings on admissibility are made in accordance with the correct governing principles." - See paragraphs 100 and 101.

Evidence - Topic 4716

Witnesses - Examination - Cross-examination - On testimony to be contradicted - [See Criminal Law - Topic 3058 ].

Evidence - Topic 4726

Witnesses - Examination - Impeaching credibility - Duty to give witness opportunity to explain - [See Criminal Law - Topic 3058 ].

Narcotic Control - Topic 2028

Search and seizure - Search warrants - Issuance of - The Ontario Court of Appeal discussed the standard for issuance of search warrants under s. 11 of the Controlled Drugs and Substances Act - See paragraphs 80 to 82.

Narcotic Control - Topic 2030

Search and seizure - Search warrants - Judicial review - [See Criminal Law - Topic 3113 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See Criminal Law - Topic 3058 ].

Cases Noticed:

Browne v. Dunn (1894), 6 R. 67 (H.L.), refd to. [para. 24].

R. v. Parsons - see R. v. Charette.

R. v. Charette (1977), 17 O.R. (2d) 465 (C.A.), affd. [1980] 1 S.C.R. 785; 33 N.R. 158, refd to. [para. 93].

R. v. Erven, [1979] 1 S.C.R. 926; 25 N.R. 49; 30 N.S.R.(2d) 89; 49 A.P.R. 89, refd to. [para. 30].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 30].

R. v. Dela Cruz (R.R.) (2007), 214 Man.R.(2d) 160; 395 W.A.C. 160; 220 C.C.C.(3d) 272; 2007 MBCA 55, refd to. [para. 30].

R. v. Gauthier, [1977] 1 S.C.R. 441; 10 N.R. 373, refd to. [para. 30].

R. v. Kematch (S.D.) et al. (2010), 251 Man.R.(2d) 191; 478 W.A.C. 191; 252 C.C.C.(3d) 349; 2010 MBCA 18, refd to. [para. 32].

R. v. Voss (1989), 33 O.A.C. 190; 50 C.C.C.(3d) 58 (C.A.), refd to. [para. 33].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 37].

R. v. Wilson (N.R.) (2011), 305 B.C.A.C. 254; 515 W.A.C. 254; 272 C.C.C.(3d) 269; 2011 BCCA 252, refd to. [para. 37].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 39].

R. v. Mahal (K.) (2012), 297 O.A.C. 376; 113 O.R.(3d) 209; 2012 ONCA 673, leave to appeal denied (2013), 453 N.R. 400 (S.C.C.), refd to. [para. 45].

R. v. Giroux (L.) (2006), 210 O.A.C. 50; 207 C.C.C.(3d) 512 (C.A.), leave to appeal denied [2006] 2 S.C.R. viii; (2006), 361 N.R. 393 (S.C.C.), refd to. [para. 49].

Hunter v. Southam Inc. - see Southam Inc. v. Hunter et al.

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 81].

R. v. Law (E.C.) (2002), 175 B.C.A.C. 318; 289 W.A.C. 318; 171 C.C.C.(3d) 219; 2002 BCCA 594, refd to. [para. 81].

R. v. Jacobson (M.G.) (2006), 209 O.A.C. 162; 207 C.C.C.(3d) 270 (C.A.), refd to. [para. 81].

R. v. Vu (T.L.) (2013), 451 N.R. 199; 337 B.C.A.C. 268; 576 W.A.C. 268; 2013 SCC 60, refd to. [para. 82].

R. v. Shiers (J.G.) (2003), 219 N.S.R.(2d) 196; 692 A.P.R. 196; 2003 NSCA 138, refd to. [para. 82].

R. v. Campbell (N.M.) (2010), 270 O.A.C. 349; 261 C.C.C.(3d) 1; 2010 ONCA 588, affd. [2011] 2 S.C.R. 549; 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 83].

R. v. Ebanks (N.) (2009), 256 O.A.C. 222; 97 O.R.(3d) 721; 2009 ONCA 851, leave to appeal denied [2010] 1 S.C.R. ix; 404 N.R. 386, refd to. [para. 84].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 84].

R. v. Grant (O.) (1999), 117 O.A.C. 345; 132 C.C.C.(3d) 531 (C.A.), leave to appeal denied (2001), 266 N.R. 399; 150 C.C.C. (3d) vi (S.C.C.), refd to. [para. 89].

Counsel:

Nick Devlin and Jason Mitschele, for the appellants;

Dirk Derstine and Janani Shanmuganathan, for the respondent, Sadyk Sadikov;

David E. Harris, for the respondent, Elizabeth Harding.

This appeal was heard on June 26, 2013, by MacFarland, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following decision for the court on January 27, 2014.