DATE: 2005-06-17
DOCKET: C41468
COURT OF APPEAL FOR ONTARIO
RE: Her Majesty the Queen (Respondent) – and – Mahari O’Sullivan (Appellant)
BEFORE: Weiler, Simmons and Gillese JJ.A.
COUNSEL:
Peter Thorning, for the appellant
Kevin Wilson, for the respondent
HEARD & RELEASED ORALLY: June 14, 2005
On appeal from the conviction entered February 20, 2004 and the sentence imposed on March 4, 2004 by Justice Ronald G. Thomas of the Superior Court of Justice, sitting alone.
ENDORSEMENT
[1] The appellant raises four grounds of appeal respecting his conviction. They are whether: (1) the police entry into the apartment was lawful; (2) the police had reasonable and probable grounds to arrest the appellant; (3) the trial judge failed to instruct himself properly on the burden of proof in accordance with W.(D.); and (4) the trial judge erred in failing to declare a mistrial based on counsel’s misunderstanding of the procedure followed.
[2] The factual circumstances are that on July 13, 2002, police were dispatched to a condominium complex in Mississauga to investigate an allegation that an “out of control” black man was going to break a window in the lobby. They arrived on the scene to find broken glass. The building superintendent’s wife advised them that the culprit who broke the window had run off, but that he resided in unit 110 in the same building. As part of their investigation into the incident the officers went to the unit and knocked on the door which was slightly ajar. The trial judge found “the officers, who were in uniform, announced that they were police officers and informed the defendant that they wanted to talk to him about a broken window. He beckoned with his hand for them to come in and they entered the unit”.
[3] At a later portion of his reasons, the trial judge reiterated his findings as follows:
The defendant invited the police to enter the unit after they knocked on the door.
The police told the defendant that they were police officers and wanted to talk to him about the broken window.
The defendant knew they were police officers.
When the defendant bolted from the apartment, the officers subjectively believed he was the person responsible for breaking the window.
… The officers were entitled to pursue him and detain him for investigation.
The officers used no more force than was necessary to detain him….
The defendant removed the crack cocaine from his person. He flicked it and it landed a short distance away.
[4] In relation to the first issue, the appellant relied on his factum in which he argued the appellant had a reasonable expectation of privacy in the apartment because he stayed overnight at the Patterson‑Dixon apartment one or two nights a week and that the entry of the police officers into the apartment was unlawful.
[5] The respondent’s factum disputed the appellant’s account of the evidence relating to the overnight stays at the Patterson‑Dixon apartment. Regardless, the trial judge found that the appellant invited the police into the apartment. The appellant has not persuaded us that the trial judge committed any palpable and overriding error in finding that the police had the right to enter the apartment and to pursue the appellant when he ran. We would dismiss the first ground of appeal.
[6] The appellant’s second submission was that his arrest and detention was unlawful. He contends the trial judge applied the standard for detention when he should have applied the standard for arrest and that there was an insufficient basis for the trial judge to conclude that there were reasonable and probable grounds for arrest.
[7] The trial judge began his reasons by saying that the primary issue in the case was whether the arrest of the defendant was lawful. He noted that the arrest was without warrant and that the Crown bore the burden of showing that the search was reasonable on the balance of probabilities. After commenting that the officers could have done a better job, he held, towards the end of his reasons, “However, in the circumstances the officers had reasonable cause supported by objectively discernable facts to suspect that the defendant was the person who broke the window.”
[8] Although there is some ambiguity in the trial judge’s reasons because, from time to time he used the language of detention as opposed to arrest, read in context it is clear that the trial judge addressed the issue of the reasonableness of the appellant’s arrest. The trial judge made an explicit finding that the officers subjectively believed the appellant was the person responsible for breaking the window when he bolted from the apartment. We are satisfied that the subjective belief was supported by objective grounds. The trial judge’s findings were sufficient to satisfy the requirement of reasonable and probable grounds. We would dismiss the second ground of appeal.
[9] The third ground of appeal is that the trial judge did not properly instruct himself respecting the burden of proof in accordance with W.(D.). The trial judge adequately addressed the issue of credibility. Although the trial judge did not use the language from W.(D.) his reasons show that he not only disbelieved the appellant he was convinced beyond a reasonable doubt of his guilt.
[10] Finally, the appellant submits that following the trial judge’s ruling on this voir dire he should have been permitted to make further submissions on the guilt or innocence of the appellant. In addition, the appellant submits that the trial judge erred by assuming that he was to apply the appellant’s evidence on the trial as well as on the voir dire. We disagree.
[11] Trial counsel agreed at the commencement of the proceeding that the Charter and trial issues were to be dealt with in a blended fashion and that the evidence would only be heard once. On appeal, the appellant concedes that no further evidence would have been called but takes the position that he should have had the right to make further submissions following the trial judge’s ruling. However, as the trial judge noted, given his findings on credibility and his ruling, further submissions at that point would have served no realistic purpose.
[12] We would therefore dismiss the appeal.
“K. M. Weiler J.A.”
“Janet Simmons J.A.”
“E. E. Gillese J.A.”