COURT OF APPEAL FOR ONTARIO DATE: 20210430 DOCKET: C66194 Fairburn A.C.J.O., Doherty and Sossin JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Daniel Kebede Appellant

David Landesman, for the appellant Lisa Csele, for the respondent

Heard: April 12, 2021 by video conference

On appeal from the conviction entered by Justice H. O’Connell of the Superior Court of Justice, dated October 11, 2018, and on appeal from the sentence imposed on February 25, 2019.

Reasons for Decision

[1] The appellant was arrested and searched as an incident of his arrest. The police found 15.4 grams of crack cocaine in his sweater pocket. The cocaine had been divided into a number of small pieces and placed in separate baggies.

[2] The appellant was charged with possession of cocaine for the purpose of trafficking. At trial, he argued his arrest was unlawful, making the search incident to that arrest a violation of s. 8 of the Charter. The appellant argued the seized cocaine should be excluded under s. 24(2) of the Charter. Without the cocaine, the Crown had no case.

[3] The trial judge rejected this argument, convicted the appellant and sentenced him to 9 months in jail.

[4] The appellant appeals conviction and sentence. At the conclusion of oral argument, we dismissed the conviction appeal with reasons to follow. We reserved judgment on the sentence appeal, pending further information being filed with the court. That information has now been received.

[5] These are the court’s reasons for dismissing the conviction appeal, granting leave to appeal sentence and allowing the sentence appeal.

The Conviction Appeal

[6] Counsel for the appellant advanced three grounds of appeal on the conviction appeal:

• The trial judge erred in finding the arrest was lawful under s. 495 of the Criminal Code.
• The trial judge’s extensive questioning of the Crown’s main witness during the cross-examination of that witness resulted in an unfair trial; and
• The trial judge erred in allowing a police officer to give certain expert evidence.

[7] The appellant abandoned the third ground of appeal.

[8] We did not call on the Crown on the second ground of appeal. We are satisfied the trial judge’s intervention caused no unfairness. The police officer who ordered the arrest of the appellant testified in-chief about various observations that had been made during the investigation. Specifically, he was asked about brief encounters between individuals and persons under surveillance, some of which involved the appellant. The officer testified he believed those brief encounters could be drug transactions, although he did not see any drugs exchanged, except on one occasion, which involved a sale to a police agent.

[9] The officer’s evidence about his belief based on these brief encounters did not materially change during his cross-examination, the judge’s questioning, and the cross-examination after the judge’s questioning. In each instance, the officer testified he believed the encounters could be drug deals. The officer was asked much the same question several times and, while he did not frame his answer in exactly the same language each time, his evidence, taken as a whole, did not change. He believed the transactions could be drug related.

[10] The trial judge’s questions had no impact on the substance of the witness’s testimony, or on the ability of the defendant to properly challenge the Crown’s case. It may have been preferable for the trial judge to have allowed counsel to more fully develop his cross-examination before he engaged in a somewhat lengthy exchange with the witness. However, the interruption did not result in any unfairness.

The Lawfulness of the Arrest

[11] This prosecution turned on the lawfulness of the arrest. If the arrest was unlawful, the search was unlawful and, depending on the outcome of the s. 24(2) Charter application, the seized cocaine may have been excluded from evidence.

[12] The trial judge was satisfied the arrest was lawful. His reasons are not as fulsome as one would hope. [^1] In our view, however, they do satisfactorily lay out the trial judge’s reasoning process.

[13] The trial judge was alive to the terms of s. 495 of the Criminal Code and the controlling case law. He appreciated that a lawful arrest required both an honest belief by the arresting officer that there were reasonable grounds to arrest, and the existence, on an objective assessment, of reasonable grounds to support that belief. The appellant argued that neither existed in this case.

[14] In his review of the evidence, the trial judge clearly appreciated the appellant had not been implicated in any of the surveillance on the days prior to his arrest. He also instructed himself that he could not, when assessing whether there were reasonable grounds to arrest, take into account anything that occurred after the arrest.

[15] Ultimately, after a brief but accurate summary of the grounds upon which the officer said he relied in forming his belief, the trial judge decided that, on the totality of the evidence, the arrest was “bona fides and lawful”. Given the trial judge’s earlier description of the requirements of a lawful arrest, we take his finding that this arrest was “bona fides and lawful” as a finding the officer believed he had reasonable grounds to arrest, and on an objective assessment the evidence supported that belief.

[16] In his submissions, counsel for the appellant focused on the officer’s evidence in cross-examination in which he adopted an answer he had given at the preliminary inquiry to the effect he believed he had reasonable grounds to suspect that the appellant and the other two individuals in the car “each had cocaine” in their possession at the time of the arrest. Counsel correctly submits that mere suspicion, no matter how reasonable, cannot provide the necessary subjective grounds for an arrest under s. 495 of the Criminal Code.

[17] At trial, both counsel addressed the officer’s evidence given at the preliminary inquiry and adopted at trial. The trial judge referred to this evidence in his reasons, albeit somewhat obliquely. It would appear he did not take the officer’s answer at the preliminary inquiry as addressing the question of his grounds for arresting the appellant. The extract from the preliminary inquiry could be read as an indication the officer suspected each occupant of the car to be in actual possession of cocaine at the time of the arrest, a different question than whether there were reasonable grounds to arrest each of the three occupants for possession for the purpose of trafficking.

[18] It would have been better had the trial judge addressed this potentially troubling piece of evidence more directly. Read as a whole, however, we are satisfied the reasons amply demonstrate how the trial judge reached the conclusion he did. The arguments advanced on appeal also demonstrate that the reasons in no way inhibited the appellant’s right to challenge the trial judge’s findings on appeal.

[19] It is fair to say the trial judge did not spend a lot of time in his reasons on the subjective component of the requirements in respect of a lawful arrest. That component moved front and centre on the appeal. It is understandable, when, as in a case like this, the objective grounds for an arrest are so formidable, that a trial judge will not focus in his reasons on whether an experienced police officer, in the face of strong objective grounds for making an arrest, honestly believed he had those grounds.

The Sentence Appeal

[20] The trial judge imposed a jail term of 9 months, although he was clearly impressed with the appellant’s background, his candor when answering questions posed by the trial judge, and the support he had in the community. The appellant had no criminal record. His role as a “runner” in the drug operation was at, or very near, the bottom of the hierarchy of such operations.

[21] On the law, as it stood at the time of sentencing, a conditional sentence was not an available option. Given the amount of cocaine involved, and despite the mitigating factors, the sentence imposed by the trial judge was not unfit.

[22] Subsequent to the sentencing, this court struck down the provision in the Criminal Code that had removed a conditional sentence as a sentencing option in a case like the appellant’s: R. v. Sharma, 2020 ONCA 478.

[23] Given the change in the sentencing landscape, the court allowed counsel to file additional material on sentencing. Having reviewed that material and bearing in mind the trial judge’s reasons for sentence, we are satisfied this is an appropriate case in which to impose a conditional sentence. We come to that conclusion for several reasons:

• the trial judge’s reasons strongly suggest he would have imposed a conditional sentence had it been an available option. Among other things, the trial judge indicated he was convinced the appellant would never re-offend;
• for various reasons, a great deal of time has passed since the appellant was sentenced. He has been on bail and has continued to do well. There have been no new offences, the community support remains strong, and there are very good reasons to believe the appellant can be a valuable member of the community; and
• none of the principles of sentencing would be served by reincarcerating the appellant for some brief time at this stage.

[24] We would allow the appeal and vary the sentence to a conditional sentence. The parties were asked to provide terms of a conditional sentence, should the court decide to impose one. They have done so and, with two minor exceptions, have agreed upon those terms. Counsel were unable to agree on the length of the “house arrest” portion of the conditional sentence (para. 9). In our view, “house arrest” should be in effect for the first six months of the conditional sentence. It flows from that determination that the curfew described in para. 11 of the proposed conditional sentence should be for the remaining three months of the conditional sentence. A copy of the draft conditional sentencing order, agreed upon by the parties, is attached to these reasons. An order in the terms of the draft order should issue with the necessary additions to para. 9 and para. 11.

[25] Given the disposition of the appeal, there is no need for the appellant to surrender into custody before the release of these reasons.

Conclusion

[26] For the reasons set out above, the conviction appeal is dismissed. Leave to appeal sentence is granted, the sentence appeal is allowed, and the sentence is varied to a conditional sentence on the terms set out in the attached draft order.

[^1]: On at least two occasions during his reasons, the trial judge indicated he would provide more detailed written reasons, however, no additional reasons were provided.