DATE: 20010713 DOCKET: C34323
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. PARNELL BROWN (Appellant)
BEFORE: DOHERTY, ROSENBERG and MOLDAVER JJ.A.
COUNSEL: Andras Schreck for the appellant
Rick Visca for the respondent
HEARD: July 11, 2001
On appeal from the conviction imposed by Justice R. Bigelow dated January 28, 2000.
ENDORSEMENT
[1] The appellant submits that Mr. Broome, an employer of Purolator, acted as agent for the police when he opened the package containing cocaine and that the search contravened s. 8 of the Charter. Counsel does not argue that if the opening of the package did not contravene s. 8, the officer’s subsequent seizure of the contents from Mr. Broome did violate that section.
[2] The trial judge found:
It was clear from his evidence [Mr. Broome] that he had no intention of allowing the package to either be shipped further or to be returned to the sender without further inspection. I have no doubt that he would have opened the package whatever the police officer indicated to him.
[3] Mr. Broome’s evidence supports this finding. Mr. Broome had concluded that the package fit the profile of a package containing contraband. In his opinion, and the correctness of this opinion is irrelevant for the purposes of this argument, Mr. Broome had “an obligation not to let this sort of stuff go through our system”. The police officer declined to open the package and advised Mr. Broome that the police did not have reasonable and probable grounds to obtain a search warrant. Mr. Broome in the presence of the police officer, but acting on what he perceived to be his company’s obligation, proceeded to open the package, discover the cocaine and turn that cocaine over to the police.
[4] The trial judge specifically rejected the argument that the officer encouraged Mr. Broome to open the package. The officer’s conduct, as found by the trial judge, far from creating any agency relationship between the officer and Mr. Broome, left Mr. Broome to make his own decision as to what to do with the package. Mr. Broome acted in what he perceived to be his company’s best interest.
[5] On this record, there is no basis upon which it could be said that the officer’s failure to stop Mr. Broome from opening the package somehow made Mr. Broome his agent, or that Mr. Broome’s conduct amounted to the crime of mischief.
[6] The appeal is dismissed.
“Doherty J.A.”
“M. Rosenberg J.A.”
“M.J. Moldaver J.A.”