COURT OF APPEAL FOR ONTARIO

DATE: 20040518

DOCKET: C40575

RE: HER MAJESTY THE QUEEN (Respondent) – and – JEFFREY DAVID OLIVER (Appellant)

BEFORE: ROSENBERG, GILLESE AND ARMSTRONG JJ.A.

COUNSEL: Christopher C. Watkins for the appellant Beverly J. Wilton for the respondent

HEARD & ENDORSED: MAY 14, 2004

On appeal from the conviction by Justice Thomas A. Heeney of the Superior Court of Justice dated February 26, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, the trial judge erred in finding there was no s. 8 violation. The validity of the search depended on consent. As the appellant was detained, he should have been given his s. 10(b) rights and given a reasonable opportunity to consult counsel before consenting. However, we are satisfied that the evidence should not be excluded under s. 24(2). We agree with the reasons of the trial judge at pp. 22 and 23 of his ruling in that respect.

[2] As to the reasonableness of the verdict, even without the statements by the appellant in the cruiser, there was an overwhelming case of possession for the purpose of trafficking. The appellant was the driver of the vehicle and there were indicia that he and his companion were drug couriers.

[3] Accordingly, the appeal is dismissed.