Court of Appeal for Ontario
Before: Doherty, MacPherson and Sharpe JJ.A.
Between
Her Majesty the Queen Respondent
and
Francis Adrian Caravaggio Appellant
Counsel: Heather Pringle and Kate Oja, for the appellant Catrina Braid, for the respondent
Heard and released orally: April 13, 2012
On appeal from the convictions and sentence entered on March 8, 2011 by Justice Wolfram U. Tausendfreund of the Superior Court of Justice.
ENDORSEMENT
1The appellant was convicted of trafficking in a Schedule 1 drug contrary to the Controlled Drugs and Substances Act and was sentenced to 15 months. He appeals both conviction and sentence.
Conviction Appeal
2The sole issue raised on the conviction appeal is whether the trial judge erred in dismissing the appellant’s Charter motion to exclude evidence of the drugs found in his possession when he was arrested.
3We see no error in the trial judge’s ruling that the police officer who found the drugs on the search incident to the appellant’s arrest had reasonable and probable grounds for the arrest.
4The officer had information from an unnamed informant that the appellant was selling drugs from his vehicle. The informant had been used by the officer on prior occasions and had provided reliable information. The informant was known to be involved in the drug subculture. He provided details as to the description of the appellant, the colour and specific make of the appellant’s car and the appellant’s residence. The police officer corroborated that information by running a CPIC check to determine the appellant’s identification and address and by going to a location near the appellant’s residence where he observed a man whose appearance corresponded to the information he had been given in the car described by the informant. The car was parked in an alley near a café known for drug-dealing. The motor of the car was running and a male person was leaning through the window of the car speaking to the appellant.
5While the officer could not say that he observed a drug transaction between the appellant and the other man, their interaction certainly was suspicious and at least consistent with a drug transaction. When combined with the information obtained from the informant, the officer’s observations of the appellant, his vehicle and its location, there was sufficient basis for the trial judge to find that the officer had reasonable and probable grounds to arrest the appellant.
6We do not agree with the submission that the trial judge’s reasons were inadequate. The trial judge did confront the inconsistencies in the evidence of the police officers and he explained why he found reasonable and probable grounds despite those inconsistencies.
7Accordingly, the conviction appeal is dismissed.
Sentence Appeal
8We do not agree that the trial judge erred by failing to give adequate consideration to the possibility of a conditional sentence in the circumstances of this case. The trial judge specifically considered that option but found that it would be inconsistent with the fundamental purposes and principles of sentencing as he found the appellant to have engaged in drug trafficking entirely for personal commercial gain and in light of the appellant’s prior criminal record which includes six convictions and two drug convictions. Moreover, the appellant breached his bail pending this appeal, was re-arrested and is currently serving another sentence for another drug offence. In these circumstances, a conditional sentence would be, to say the least, problematic.
9Accordingly, leave to appeal sentence is granted but the sentence appeal is dismissed.
“D. Doherty J.A.”
“J.C. MacPherson J.A.”
“Robert J. Sharpe J.A.”
