Court of Appeal for Ontario

Date: 2018-12-21 Docket: C62473

Judges: Juriansz, Benotto and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Junior Lee Appellant

Counsel

Jeffery Couse, for the appellant Marie Comiskey, for the respondent

Heard: December 17, 2018

On appeal from the conviction entered on April 7, 2015 by Justice John R. McCarthy of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of possession of cocaine for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. His girlfriend Bailey McKanick was also found guilty.

[2] The police obtained information from three confidential informants that the appellant and McKanick were trafficking cocaine from the appellant's car in the Barrie area. The police conducted surveillance to corroborate these tips. In particular, the police orchestrated an undercover purchase of cocaine from the appellant using specific bank notes, the serial numbers of which they recorded.

[3] On October 23, 2012, at about 11:15 p.m., the police stopped the car that the appellant was driving, with McKanick as a passenger. The police boxed the appellant's car in. He was forcefully extracted from the car. Some blows were used to subdue the appellant and to facilitate his arrest.

[4] A search of the appellant at roadside found 4.3 grams of marijuana in his sock. The police also looked down the back of the appellant's pants to determine whether he had a weapon. He did not. At the police station, strip searches were authorized for both the appellant and McKanick. During the strip search of the appellant, he was naked for approximately one minute. Nothing was found. McKanick remained completely naked for about five minutes. The search yielded an ounce of cocaine, which had been secreted in her vagina.

[5] The police obtained a warrant to search the appellant's apartment in Toronto at 88 Park Lawn Road, Apartment #1611 ("Park Lawn"). The police discovered 700 grams of powder cocaine, 700 grams of crack cocaine, and $1,200 in Canadian currency, including the three bills used during the undercover purchase.

[6] At trial, the appellant brought applications under ss. 7, 8, 9, 10(a) and 12 of the Charter as a result of the police conduct during the take down and his strip search at the police station. The trial judge found that none of the appellant's rights had been violated. The trial judge found that the strip search of McKanick violated her s. 8 rights of the Charter but declined to exclude the evidence under s. 24(2): see R. v. McKanick, 2015 ONSC 2128.

[7] Although the appellant challenges all of the trial judge's findings on the Charter application, he focused his submissions on the validity of the search of his apartment. He argues that the Information to Obtain ("ITO") contained insufficient grounds to authorize the search of his apartment. He submits that the issuing justice essentially acted on the assumption that, because the appellant was a drug dealer, the police were entitled to search his apartment. The appellant also argues that the trial judge should have excised from the ITO any reference to the cocaine found secreted on Ms. McKanick's person following her illegal strip search.

[8] On appeal, the respondent argued that, even when reference to the fruits of the McKanick search is excised from the ITO, there was still a sufficient basis to authorize the warrant.

[9] Despite Mr. Couse's helpful submissions, we are satisfied that, even with the McKanick search excised, there was a sufficient basis to obtain the warrant to search Park Lawn.

[10] On the night of the takedown, the appellant and Ms. McKanick were observed in the appellant's car in the Barrie area. The police observed three drug transactions. After the final transaction, the car was driven back to Park Lawn. Using a key fob, the appellant drove into the underground parking lot. He emerged hours later, having changed his clothes. After searching Ministry of Transportation databases, the police learned that Park Lawn was the appellant's mailing address. The police subsequently confirmed with building management that the appellant lived in Unit 1611.

[11] Mr. Couse argues that there was no reasonable basis for the issuing justice to be satisfied that the cocaine discovered on Ms. McKanick originated from the apartment. However, the police were searching for more than just the cocaine. The ITO specified the following items: "Cocaine, Packaging, Currency including and not limited to Canadian $20 bills bearing [3 serial numbers], Debt List, Scales and Telecommunication Devices." In short, the police wished to search for evidence of the appellant's drug trafficking activities.

[12] In our view, there was a sufficient basis to authorize this search, even though the ITO did not contain an opinion from the affiant about the typical behaviour of alleged drug dealers, in terms of where they keep their money, supplies, and tools of the trade. Significantly, the fact that the appellant returned to his home after conducting three drug transactions and then went out again, differently attired, tied his drug trafficking activities to Park Lawn.

[13] We would dismiss this ground of appeal.

[14] The appellant also argues that the combined breaches of the other rights asserted by the appellant warranted a stay of proceedings under s. 24(1) of the Charter. In making this argument, Mr. Couse acknowledges the high threshold that must be met to obtain this remedy.

[15] We are not persuaded that the trial judge erred in his findings of fact, nor in his overall assessment of this evidence. The search of the appellant at roadside was fleeting and benign. His strip search at the police station was not perfect, in terms of its compliance with the guidelines set out in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 101. He should not have been left completely naked at all. However, in the circumstances of this case, it was a minor deviation. Moreover, we see no inconsistency between this finding and the trial judge's finding that McKanick's search amounted to a violation of s. 8. There was compelling evidence that Ms. McKanick was very distressed by the circumstances of her strip search. She was left naked for much longer than the appellant. Focusing on the time that it took, the trial judge did not err in finding that it was not a minor deviation from the Golden guidelines.

[16] Lastly, the appellant argues that the trial judge erred in failing to find that the conduct of the police in effecting the take down infringed his Charter rights. He claims that the approach of the police was heavy-handed in the extreme and that the police were unnecessarily rough with him upon arrest. The trial judge made specific findings of fact on each aspect of this claim. He did so without the benefit of any evidence from the appellant. The appellant has failed to demonstrate why these findings should be disturbed on appeal.

[17] The appeal is dismissed.

"R.G. Juriansz J.A."

"M.L. Benotto J.A."

"G.T. Trotter J.A."