Court of Appeal for Ontario
Before: Weiler, Simmons and Cronk JJ.A.
Between:
Her Majesty The Queen Respondent
and
Daniel Wang Appellant
Counsel:
Daniel Wang, in person Vincenzo Rondinelli, as Duty Counsel
Howard Liebovich, for the Crown
Heard: April 16, 2012
On appeal from the conviction entered by Justice Richard E. Jennis of the Ontario Court of Justice, dated December 3, 2010.
Endorsement
1In our view, it was open to the trial judge to draw the inference that the CPIC check, which led to the discovery of a warrant for the appellant's arrest, was not prompted by the outcome of the unlawful pat down search and would have been conducted in any event. There was no evidence that the CPIC check was done because of the pat down search. Further, it was a matter of common sense that the police would do a CPIC check in the circumstances. That, in turn, led to a lawful search incident to arrest which led to the discovery of the burglary tools.
2We see no other error in the trial judge's findings of fact that formed the basis for his s. 24(2) Charter analysis.
3Finally, we reject the appellant’s submission that the finding of guilt was unreasonable. The eyewitness explained that, to her, the description “white” meant not black. Moreover, the appellant's clothing, shoes and general physical description were similar to that of the prowler; the appellant was found in the vicinity of the attempted break and enter shortly after it occurred; and the appellant was in possession of tools that could have allowed him to commit the attempted break and enter.
4The appeal is therefore dismissed.
Signed:
“K.M. Weiler J.A.” “Janet Simmons J.A.” “E. A. Cronk J.A.”