Court of Appeal for Ontario

Date: 2004-11-03

Docket: C40760

Re: Her Majesty the Queen (Respondent) v. Elija Askov (Appellant)

Before: Doherty, Weiler and Simmons JJ.A.

Counsel: Frank Addario for the appellant Susanne Boucher for the respondent

Heard & Endorsed: November 2, 2004

On appeal from the conviction entered by Justice Heeney of the Superior Court of Justice dated July 29, 2003 and the sentence imposed dated October 10, 2003.

Appeal Book Endorsement

[1] The sole issue is whether the trial judge erred in holding that the objective component of the reasonable and probable grounds standard for arrest was satisfied.

[2] The trial judge accurately reviewed the evidence and referred to five factors that, considered in their totality, satisfied him that reasonable grounds did exist. We see no error in this assessment.

[3] The information provided by the Kingston police, although dated, was properly given some weight by the trial judge. It was also open to the trial judge to infer that the appellant’s presence in the hotel room for a considerable period of time during which his companion may have been using and perhaps selling drugs could implicate the appellant in the subsequent possession of the narcotics placed in his car by the associate. There was also evidence that the appellant assisted the friend in placing the drugs into the appellant’s car.

[4] The trial judge’s finding that the circumstances, considered in their totality, satisfied the objective component on the reasonable and probable grounds standard is a factual finding and is entitled to deference absent error in principle or misapprehension of the facts. We find neither.

[5] The appeal is dismissed.