DATE: 20020605

DOCKET: C34662

COURT OF APPEAL FOR ONTARIO

LASKIN, GOUDGE, AND SIMMONS JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Alan D. Gold

for the appellant

Respondent

• and -

Bradley Reitz

for the respondent

MICHAEL BOUGHNER

Appellant

Heard: August 23, 2001

On appeal from convictions entered and from the sentences imposed by Justice Stanley R. Kurisko on December 1, 1999.

BY THE COURT:

[1] [1] The main issue on this appeal is whether the curative proviso contained in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 should be applied to uphold convictions entered against Mr. Boughner.

[2] [2] Mr. Boughner was convicted of possession of cocaine for the purpose of trafficking, possession of money knowing that it was obtained by crime, and possession of a restricted handgun. He was sentenced to six years imprisonment. Mr. Boughner appeals against conviction, claiming that the trial judge erred by failing to exclude a variety of evidence based on breaches of his rights under s. 8 of the Canadian Charter of Rights and Freedoms. He also appeals against sentence, claiming that the sentence imposed is demonstrably unfit.

[3] [3] We would dismiss the appeal against both conviction and sentence. In his reasons for convicting the appellant of the drug-related offences, the trial judge clearly accepted Mrs. Boughner’s evidence and found that it was sufficient, standing alone, to support a conviction. The same conclusion applies to her evidence concerning the restricted weapon. Accordingly, even if the trial judge erred by failing to exclude portions of the police evidence, the balance of the evidence, particularly in light of the trial judge’s finding, makes it appropriate to apply the proviso. There was no substantial wrong or miscarriage of justice. In light of Mr. Boughner’s record, we would not interfere with the sentence imposed.

Background

[4] [4] Prior to September 21, 1998, members of an O.P.P.-Thunder Bay Police joint drug enforcement unit (the “drug unit”) received reliable informant information indicating that Mr. Boughner was a mid-level cocaine supplier in Thunder Bay and that a Mr. Morden was a street level dealer and one of his customers.

[5] [5] On September 21-22, 1998, five members of the drug unit conducted surveillance on individuals who turned out to be Mr. Boughner, his wife, and some of their associates. Constable Graham commenced surveillance of Bob’s Motel when he saw a pick-up truck owned by Mr. Boughner turn into the motel parking lot. He made the following observations between 8:10 p.m. and 10:43 p.m.:

▪ ▪ 8:10 p.m. Mr. Boughner’s pick-up truck turned into the motel parking lot;

▪ ▪ 8:22 p.m. Two men came out of Room 29, got into Mr. Boughner’s truck and drove away;

▪ ▪ 8:58 p.m. A station wagon arrived. The driver went into room 29, came out seven minutes later, and drove away;

▪ ▪ 9:05 p.m. A passenger from a red pick-up truck entered room 29. The pick-up truck was registered to a known drug suspect. After an eight-minute stay, the passenger came out of room 29 and walked to a nearby restaurant with the driver. The two individuals left in the red pick-up truck at 9:25 p.m.;

▪ ▪ 9:47 p.m. A man came out of room 29 and drove away in a van;

▪ ▪ 10:37 p.m. A man left room 29 and drove away in a red Pontiac Sunfire. Constable Graham did not have a description of Mr. Boughner at the time. He believed that Mr. Morden was the driver. He subsequently identified Mr. Boughner as the driver;

▪ ▪ 10:41 p.m. A white Corsica parked near room 29. A passenger got out and waited at the door of room 29. The man Constable Graham later identified as Mr. Boughner returned in the red Sunfire and entered room 29 with the passenger from the Corsica; and

▪ ▪ 10:43 p.m. The Corsica passenger came out of room 29 and got into the Corsica. The Corsica drove away.

[6] [6] Officers Horne, Fletcher, and Duncan stopped the white Corsica within minutes of its departure from Bob’s Motel. Officer Duncan approached the car and saw the passenger swallow a piece of paper he believed was a “coke fold” i.e. packaging used by traffickers to hold half a gram of cocaine. A white powdery substance found in a paper packet on the dashboard of the Corsica tested negative for cocaine.

[7] [7] Constable Graham continued surveillance of Bob’s Motel. He made the following observations between 10:43 p.m. and 11:06 p.m.:

▪ ▪ 10:44 p.m. The man Constable Graham later identified as Mr. Boughner came out of room 29, entered the red Sunfire briefly, and then returned to room 29;

▪ ▪ 10:54 p.m. A station wagon pulled into the motel parking lot. The driver entered room 29, came out after two minutes, and then drove away; and

▪ ▪ 11:06 p.m. The man Constable Graham later identified as Mr. Boughner came out of room 29, retrieved some items from the red Sunfire, and then returned to room 29.

[8] [8] The drug unit officers met near room 29 shortly after midnight on September 22, 1998. Because they had not recovered cocaine from the white Corsica, Officer Fletcher did not believe they had sufficient grounds to obtain a search warrant. Officer Fletcher decided to knock on the door of room 29 in order to identify the occupant(s) and to ask permission to search the room. The officers thought that Mr. Morden was in room 29, but they were not sure. If Mr. Morden answered the door, the officers intended to “freeze the room”, meaning that they would use as much force as was necessary to enter the room and arrest him for a drug offence and then apply for a search warrant.

[9] [9] Officer Fletcher knocked on the door of room 29 at 12:45 a.m. A man came to the window and asked who was there. Officer Fletcher said, “Mike”. The man opened the door a few inches. Officer Fletcher held up his police badge and identified himself as a police officer. The man appeared shocked. Constable Fletcher said that his eyes nearly doubled in size and that he slammed the door closed. Officer Popowich recognized the man as Mr. Boughner, kicked the door in, and yelled, “Police”. Mr. Boughner ran to the back of the motel room, yelling something about a gun, as the officers ran in. The officers left the room immediately and took cover in the parking lot.

[10] [10] A minute or two after the police exited room 29, Mrs. Boughner came out and surrendered to Officer Horne. Mr. Boughner emerged a few minutes later. Officer Popowich arrested him for possession of cocaine for the purpose of trafficking.

[11] [11] Police officers entered room 29 to make sure there were no other occupants and to search for the gun. They noted that the toilet was running. They observed several items associated with drug trafficking and the preparation and use of crack cocaine. However, they did not find a gun. Police officers subsequently conducted a second search of room 29. At 1:26 a.m. Officer Graham found a plastic bag containing 66 grams of cocaine and $1000 in cash hidden between the tap and the back of the sink in the bathroom. Mrs. Boughner turned over a loaded handgun to Officer Horne at approximately 1:30 a.m.

[12] [12] Mrs. Boughner was the Crown’s first witness at Mr. Boughner’s trial on the drug- related charges.[^1] She was originally co-accused with the appellant but pleaded guilty to possession of cocaine for the purpose of trafficking and other offences and was sentenced to eighteen-months imprisonment.

[13] [13] Mrs. Boughner testified that Mr. Boughner was in hospital on September 21-22, 1998 after accidentally consuming cleaning fluid. She described picking him up on September 21, 1998 in a red rental car she was driving, retrieving a canister of cocaine from a friend who kept it for her while Mr. Boughner was hospitalized, and renting a room at Bob’s Motel. She did not want to take Mr. Boughner home because she had concerns about some debt collectors who had been at their home recently. She said that she brought the cocaine to the motel, that Mr. Boughner was aware of its presence, and that at one point she noted that it had been moved from its original location in the refrigerator. She said that she also brought Mr. Boughner’s .38 calibre revolver to the motel but left it in the car. She was away from the motel for part of the day, but returned around 3 p.m. and went to bed. The friend who stored the cocaine for her was present in the room when she woke up around 10 p.m. She described the appellant as being upset because some of the cocaine was missing. After the friend left, she got up and took a shower. She heard loud bangs and the appellant yelling, “Get the gun” or “They’ve got guns” while she was in the shower. She dressed quickly, got the gun, put it in the front of her pants, and left the motel room.

[14] [14] Mrs. Boughner identified several items that police seized from room 29, including, a baggy containing uncut cocaine; a bundle of cash totaling $1000; five bottles of Inositol, a powder used as a cutting agent to increase the volume of cocaine; a digital scale belonging to Mr. Boughner used for weighing drugs; baby bottle liners and a box of sandwich bags used for packaging drugs; a pop can with holes in it, which they made in the hotel room and used for smoking drugs; an asthma inhaler used for inhaling cocaine smoke; a butane lighter, and baking soda used to make “rock” cocaine.

[15] [15] Mrs. Boughner testified that she was aware there was cut and uncut cocaine in the motel room on September 22, 1998 but said that Mr. Boughner told her that he flushed one and a half ounces of cut cocaine down the toilet when police arrived. She did not know how much the “rock” of uncut cocaine weighed. She said that the $1000 cash found in the motel room was derived from the sale of drugs as the couple had no other source of income that could provide such a sum. She confirmed that Mr. Boughner had purchased the handgun a few months prior to their arrest and that he did not obtain a registration permit.

[16] [16] According to Mrs. Boughner, Mr. Boughner sold up to a quarter pound of cocaine per week in the eighteen-month period leading up to their arrest. She testified that the couple’s main source of income was the profits earned from trafficking sales. She acknowledged that, as of September 22, 1998, she was using cocaine daily, normally two grams per day but as much as seven grams on occasion and that Mr. Boughner was also using heavily.

[17] [17] In addition to Mrs. Boughner, the Crown called the five police officers involved in the surveillance and arrests on September 22, 1998 as witnesses. The officers confirmed that the various items described by Mrs. Boughner were seized at Bob’s Motel.

[18] [18] At the conclusion of the Crown’s case on the trial of the drug-related offences, counsel for Mr. Boughner brought a motion to exclude the cocaine, the money, the handgun, and a variety of drug paraphernalia seized from the motel room where Mr. Boughner was arrested. The trial judge found that the police breached Mr. Boughner’s privacy right under s. 8 of the of the Canadian Charter of Rights and Freedoms by knocking on the door of the motel room, however, he also found that exigent circumstances, namely a reasonable belief that evidence was about to be destroyed based on Mr. Boughner’s reaction at the door, justified the police entry into the motel room. Mr. Boughner’s subsequent utterance about a gun provided additional grounds for arrest in relation to a weapons offence. The searches of the motel room were a lawful incident of arrest. Although the trial judge found that the original Charter breach was serious, and assumed, for the purpose of the s. 24(2) Charter analysis that the second search of the room constituted a further breach, he concluded, on balance, that exclusion of the drug-related evidence was not warranted.

[19] [19] As for the gun, the trial judge held that it was not obtained in a manner that violated Mr. Boughner’s Charter rights. He noted that Mrs. Boughner had the gun on her person throughout the duration of the room searches and that she handed it over to Officer Horne after those searches were completed. He found that, even assuming the searches of the room were a breach of Mr. Boughner’s s. 8 Charter rights, the manner in which the police obtained the gun was too remote from the breach to warrant its exclusion.

[20] [20] After dismissing the application for exclusion of evidence, the trial judge convicted Mr. Boughner of the drug-related offences. In doing so he said the following:

I make the observation that standing alone, the testimony of Mrs. Boughner would be a valid basis for registering a conviction. But on the whole of the evidence, including hers, there is not the slightest doubt as to whether the Crown has made out its case.

[21] [21] Mr. Boughner pleaded not guilty to the restricted weapon offence but agreed that the evidence from the trial of the drug-related offences would apply to the trial of that offence. The trial judge convicted him of possession of a restricted weapon.

[22] [22] On December 1, 1999 the trial judge sentenced Mr. Boughner to five and a half years imprisonment on each of the drug-related offences, concurrent, after giving credit for the equivalent of fourteen months time served; and to six months imprisonment, consecutive, for possession of a restricted weapon.

Grounds of Appeal

[23] [23] Mr. Boughner raises several grounds of appeal. First, he submits that the trial judge erred in relying on evidence of his reaction when he opened the door to find exigent circumstances given that that evidence was obtained as a direct result of the Charter breach. Second, he claims that the trial judge erred in determining that he was arrested lawfully. Third, he submits that, even if his arrest for possession of narcotics was lawful, given that the purpose of the search was to look for the gun, the trial judge erred in holding that the search was a lawful incident to his arrest. Fourth, he submits that the trial judge erred in failing to exclude, as conscriptive, evidence of an utterance he made when police entered the motel room. Fifth, he submits that the trial judge erred in failing to exclude all of the impugned evidence under s. 24(2) of the Charter. Sixth, he says that the sentence imposed was demonstrably unfit.

Analysis

i) Conviction Appeal

[24] [24] We agree that the trial judge erred in concluding that the police entered room 29 lawfully, and that he significantly undervalued the seriousness of the breach of Mr. Boughner’s s. 8 Charter rights as a result. The trial judge found that the purpose of knocking on the motel room door was to secure evidence against the occupants. Given that finding, he was correct in holding that the knock on the door was unlawful. The trial judge should not have permitted the police to “bootstrap” their justification for entering the motel room based on illegally obtained evidence: R. v. Evans (1996), 1996 248 (SCC), 104 C.C.C. (3d) 23 (S.C.C.). However, the issue of whether the police were lawfully entitled to arrest Mr. Boughner after he shouted something about a gun may not be so clear. At that point, police were faced with significantly changed circumstances involving an immediate public safety concern.

[25] [25] In our view, it is unnecessary that we conclusively determine whether there is merit in the appellant’s remaining grounds of appeal against conviction. Assuming that the trial judge erred in failing to exclude the real evidence seized by police, and even the police evidence of Mr. Boughner’s utterance about the gun,[^2] we are satisfied that the findings of guilt made by the trial judge would inevitably have been the same and that no substantial wrong or miscarriage of justice occurred as a result of any error.

[26] [26] Although it is generally necessary, where a potentially serious error is identified, to assess the weight of the evidence in determining whether the curative proviso should be applied, in this case the trial judge’s reasons make that assessment easy. The trial judge obviously accepted Mrs. Boughner’s evidence and stated that he found it sufficient, standing alone, to justify a conviction for the drug-related offences.

[27] [27] Mr. Boughner contends that this court should not rely on the trial judge’s statement. He points out that the trial judge referred to the whole of the evidence in making findings of guilt. He submits that the trial judge’s reasons cannot be compartmentalized.

[28] [28] We reject Mr. Boughner’s submission on the facts of this case. Mrs. Boughner pleaded guilty to possession of cocaine for the purpose of trafficking and gave evidence against her husband. In light of Mrs. Boughner’s evidence, the key issue for determination was whether Mr. Boughner was also in possession of the drugs. The physical evidence was of little significance to that issue. The trial judge’s assessment of Mrs. Boughner’s credibility was central to his ultimate findings. We are satisfied that in making the statement that he did, the trial judge intended to convey his view of the quality of Mrs. Boughner’s evidence.

[29] [29] We are mindful of Mrs. Boughner’s status as an accomplice and of the need for special care in assessing her evidence. In our view, the police surveillance evidence concerning visitors to the motel room and concerning Mr. Boughner’s movements corroborated Mrs. Boughner’s testimony that Mr. Boughner was in the business of selling drugs.

[30] [30] We see little prospect that the handgun would have been excluded from evidence, even if additional Charter breaches were found. We agree with the trial judge’s observation that the discovery of the gun was remote from the Charter breach that he found. Given the circumstances of discovering the handgun, we think it unlikely that that conclusion would have changed. We note as well that even if the police evidence concerning Mr. Boughner’s utterance about the gun were excluded, Mrs. Boughner’s evidence about the utterance would have remained.

[31] [31] However, even if the trial judge erred by failing to exclude the handgun, in our view, the curative proviso should be applied to uphold the conviction for possession of a restricted weapon. Although the trial judge did not make as strong a statement about Mrs. Boughner’s evidence forming a sufficient basis, standing alone, for the restricted weapon conviction, he clearly accepted her evidence that Mr. Boughner purchased the gun. He also found that the surveillance evidence supported the inference arising from her evidence that Mr. Boughner brought the gun into the motel room. We see no realistic prospect that the trial judge’s decision concerning the restricted weapon offence would have been different had he excluded the gun from evidence.

Sentence Appeal

[32] [32] The sentences imposed by the trial judge are high. Nevertheless, having regard to the evidence of extensive trafficking accepted by the trial judge; and Mr. Boughner’s criminal record, including four prior convictions for trafficking for which he received a four-year penitentiary sentence, one prior conviction for possession of a narcotic for the purpose of trafficking, and a 1998 weapons conviction for which Mr. Boughner was subject to a weapons prohibition, we are not persuaded that the sentence imposed was out of the range.

Disposition

[33] [33] The appeal from conviction is dismissed. Leave to appeal sentence is granted but the appeal from sentence is dismissed.

Released: June 5, 2002 “JL”

“John Laskin J.A.”

“S.T. Goudge J.A.”

“Janet Simmons J.A.”

[^1]: No issue was raised on appeal concerning her competence or compellability as a witness. At trial, crown counsel advised the court that Mr. Boughner and his wife were separated with no prospect of reconciliation. Mrs. Boughner confirmed her willingness to testify.

[^2]: There was no objection concerning the admissibility of this evidence at trial.