Court of Appeal for Ontario
Date: 2006-06-02 Docket: C42377
Re: Her Majesty the Queen (Respondent) – and Marvin Milton Johnson (Appellant)
Before: Weiler, Goudge and Rouleau JJ.A.
Counsel: Christopher D. Hicks, for the appellant Nicholas Devlin, for the respondent
Heard & Released Orally: May 31, 2006
On appeal from the conviction entered on June 2, 2004 and the sentence imposed on June 10, 2004 by Justice Anne M. Molloy of the Superior Court of Justice, sitting alone.
Endorsement
[1] The appellant appeals his conviction and sentence for possession for the purpose of trafficking in crack cocaine. In relation to the conviction appeal there are two issues. The first is whether the trial judge erred in holding that the police had reasonable and probable grounds to arrest the appellant. The second is whether the trial judge erred in holding that the cocaine found in the appellant’s possession was for the purpose of trafficking as opposed to simple possession.
The Evidence
[2] Two officers were on uniformed patrol on Yonge Street. They observed a known crack addict, Warden, outside of the Wellesley subway station. He was pacing back and forth, conduct consistent with a user waiting for someone. They noticed the appellant coming towards the user from an alleyway. He nodded his head in acknowledgment of the user, looked about, reached into his pants pocket and briefly extended his open palm to the user. Warden looked at his palm. The appellant then closed his hand and put it back in his pocket. They walked away together. The two men walked together for a while and then broke apart, walking in separate directions. Neither officer heard if anything was said or could see what was in the appellant’s hand.
[3] Both officers testified that Warden had admitted his crack addiction to them; Constable Ryta had had numerous dealings with Warden and they were all crack-related; Constable Forde said his dealings were related to trespass to property but that whenever he saw Warden he had just come down from crack or was looking for crack.
[4] The officers then called the appellant over. He crossed the street and was arrested for possession of crack cocaine for the purpose of trafficking. He was subsequently searched. The police discovered individually wrapped packages of crack cocaine and an exacto knife with residue. They also found two cell phones.
Analysis
[5] For an arrest to be lawful, there must be both subjective and objective reasonable and probable grounds to believe that an offence has been committed. The appellant submits that there was neither a subjective or objective basis on which to arrest the appellant. The appellant also submits that the trial judge conflated the subjective and objective grounds for arrest and that in so doing she erred. We disagree with these submissions.
[6] The comments and reasons of the trial judge indicate that she was alive to the issues raised here. With respect to the subjective grounds for arrest, Warden’s alleged admission as to his cocaine use coupled with the officers’ observations informed the officer’s subjective belief that they had grounds to arrest the appellant.
[7] In our opinion the trial judge did not conflate the subjective and objective grounds to arrest. She correctly stated that the objective person is a person with the knowledge that the police had. That is, the objective person would know the particular area involved and the particular location within that area was frequently used for drug trafficking. The reasonable person standing in the shoes of the officers would also know of Warden’s drug use. The police also had other information about Warden’s drug use. Evidence that Warden was a known crack user was properly before the court. Information received from individuals can form part of the grounds for a subsequent arrest.
[8] On an objective basis a person standing in the shoes of the police officer would have also seen:
• Warden’s behaviour of pacing in a location known for crack cocaine trafficking;
• the guarded mode of acknowledgment between Warden and the appellant, typical of drug transactions;
• the appellant’s act of showing Warden a small item in his cupped hands, typical of drug deals; and
• both men walking off together.
[9] Having regard to the above factors we are not prepared to second guess the trial judge’s assessment that the police had reasonable and probable grounds, on both a subjective and objective basis to arrest. Her assessment of reasonable and probable grounds is entitled to deference on appeal: R v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.).
[10] The appellant also submits that the Crown did not prove possession for the purpose of trafficking beyond a reasonable doubt The trial judge was entitled to draw the inference she did that the appellant was engaged in possession for the purpose of trafficking and again her conclusion is entitled to deference. We would dismiss the appeal as to conviction.
[11] The sentence of 18 months was fit and proper at the time it was imposed. The appellant served seven months of that sentence. Having regard to the fresh evidence filed, and, in particular, that the appellant, a relatively young man has now been gainfully employed and supporting his family for over a year, we do not feel that any useful purpose would be served by re-incarcerating him at this time. Having served over one‑third of his sentence, he is eligible for parole. The 7 months he has served appears to have had the effect of specific deterrence. As a result, we would grant leave to appeal sentence, allow the appeal as to sentence, set aside the sentence of 18 months and reduce the sentence to time served plus two years probation. The firearm prohibition remains.
“Karen M. Weiler J.A.”
“S.T. Goudge J.A.”
“Paul Rouleau J.A.”