DATE: 20050513

DOCKET: C39996

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JOHN ANDERSON (Applicant (Appellant)

BEFORE:

ROSENBERG, BLAIR and JURIANSZ JJ.A.

COUNSEL:

Robert Sheppard

for the appellant

Susan Chapman

for the respondent

HEARD & ENDORSED:

May 11, 2005

On appeal from the order of Justice R. Jeffrey Flinn of the Superior Court of Justice (Summary Conviction Appeal Court) dated January 13, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] We agree with Flinn J. that it was not open to the defence to raise the Charter issue in the manner in which it was raised at the trial court. The defence expressly conceded at the opening of the trial that there were no Charter issues and raised no objection to the admissibility of the evidence. The appellant concedes that, in any event, the basis upon which the trial judge dismissed the charge (i.e. the description of the screening device) would not affect the lawfulness of the demand. However, in this court the appellant argues that the appeal judge should have considered whether the officer had reasonable grounds to believe the appellant committed an offence within the meaning of s. 254(3) of the Code. The appellant submits that this affects the application of the presumption in s. 258(1)(c) and was an additional ground for excluding the evidence under the Charter. In light of the position taken by the defence at trial, this Charter argument was not open to the defence. The non-Charter argument is answered by the decision of the S.C.C. in R. v. Rilling (1975), 1975 159 (SCC), 24 C.C.C. (2d) 81 (S.C.C.).

[2] Accordingly, while leave to appeal is granted, the appeal is dismissed.