Her Majesty the Queen v. Curry [Indexed as: R. v. Curry]

77 O.R. (3d) 587

[2005] O.J. No. 3763

Docket: C41205

Court of Appeal for Ontario,

Rosenberg, MacFarland and Rouleau JJ.A.

September 7, 2005

Charter of Rights and Freedoms -- Arbitrary detention or imprisonment -- Accused alleging racial profiling reason for being stopped -- Trial judge accepting police officers' evidence that they detained accused when they saw his vehicle accelerate suddenly and fishtail and that they arrested him when they observed marijuana cigarette in ashtray in vehicle -- Accused failing to establish that his detention was motivated by racial profiling -- Trial judge reasonably finding that officers had articulable cause to stop vehicle and that marijuana cigarette was in plain view -- Accused not arbitrarily detained -- Canadian Charter of Rights and Freedoms, s. 9.

Criminal law -- Sentence -- Accused sentenced to two years' imprisonment for possession of marijuana for purpose of trafficking and firearms offences -- Accused losing right of appeal to Immigration Appeal Division from finding of inadmissibility on grounds of serious criminality because sentence of at least two years was imposed -- Immigration consequences of sentence not having been brought to trial judge's attention -- Sentence reduced on appeal to two years less 20 days.

Criminal law -- Trial -- Reasons for judgment -- Trial judge rejecting accused's Charter argument without referring to evidence of defence witness who was called in support of that argument -- It was plain from record why Charter motion was rejected and why trial judge found witness' evidence of no assistance -- Inadequacy of reasons providing no significant impediment to exercise of accused's right of appeal -- Appeal dismissed. [page588]

The accused was charged with possession of marijuana for the purpose of trafficking, possession of a loaded prohibited weapon, possession of a prohibited device and possession of proceeds of crime. According to the arresting officers, they were on patrol in a high crime area when they saw a parked truck with a group of men standing around it. The officers claimed that they heard tires squealing and that the truck immediately accelerated and fishtailed. They pulled over the driver (the accused) and one of the officers noticed a marijuana cigarette in an ashtray in the truck. He seized it and placed the accused under arrest. The officers searched the accused and found a large amount of cash and a bag of marijuana. The corner of the butt end of a handgun was visible between the armrest and cushion on the front seat of the truck. It turned out to be a loaded semi-automatic 9 millimetre pistol. The officers later found another bag of marijuana in the vehicle.

The accused gave a different account of the events leading up to his arrest, claiming that he was driving normally after speaking to a group of men when the police cruiser came around the corner with its lights on and stopped him, that he had no marijuana in the car, and that the officers stole some of his money. He claimed that the police engaged in racial profiling when they stopped him and that his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms were violated. In support of his racial profiling argument, he called M, one of the men to whom he had been speaking prior to his detention. He also called a police officer, P, who arrived on the scene later and assisted in the investigation. The trial judge rejected the accused's Charter arguments without referring to M's evidence. The accused was convicted and was sentenced to two years' incarceration. He appealed the conviction and the sentence.

Held, the conviction appeal should be dismissed; the sentence appeal should be allowed.

While it would have been better had the trial judge expressly dealt with M's evidence, it was plain from the record why the Charter motion was rejected. The trial judge found that the stopping of the truck was neither random nor arbitrary and that the stop, the reasons for the stop, the search and the reasons for the search occurred as described by the arresting officers. It was apparent that the trial judge found the defence version of events inherently improbable. It was also apparent from the record why the trial judge found M's evidence of no assistance in resolving the issues. M's description of the events was not only improbable, but inconsistent in many details with the accused's account. On the record, the absence or inadequacy of the reasons provided no significant impediment to the exercise by the accused of his right of appeal.

The trial judge did not improperly limit cross-examination on the issue of racial profiling. In cross-examining one of the arresting officers, defence counsel established that after the accused was arrested, other officers investigated the group of black males with whom the accused had been speaking. The officer stated that he did not direct the officers to speak to the men, and speculated that it was done because they had been associating with a person found to be in possession of a firearm and that the officers wanted to determine whether there were any other firearms. The trial judge properly ruled that counsel should confine his questions to what the officer did with the accused. It was apparent that the officer had exhausted his own knowledge of the reason for dealing with the other men and had begun to speculate. Continuing this line of cross-examination would not have assisted the defence theory of racial profiling as the reason for the original stop. [page589]

The trial judge did not err in rejecting the allegation of racial profiling. There was nothing in the evidence to suggest that the arresting officers stopped the accused because of his colour. On the accused's version of events, the officers came around the corner with their emergency lights already on, apparently intent on stopping him before they could see any driving. Even if this was true, there was nothing to show that the officers knew the accused's colour when they made the decision to stop.

The defence called Officer P at trial and sought to examine him on a portion of his testimony at the preliminary inquiry. P had testified that he asked the arresting officers why they investigated the accused's vehicle and that they said "that he was doing donuts or something like that" and that the phrase he specifically remembered was "he was driving like an idiot". At trial, P testified that the only comment of which he had an independent recollection was "he was driving like an idiot". The trial judge did not err in refusing to grant defence counsel leave to cross-examine P on that point. Section 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 gives a trial judge discretion to permit, without proof that the witness is adverse, cross-examination on a prior inconsistent written statement or statement reduced to writing. There was no inconsistency between P's trial and preliminary inquiry testimony.

The accused was a permanent resident, not a Canadian citizen. He had lived in Canada for almost 20 years and had five children. He had operated an apparently legitimate business for many years. He had a very minor criminal record. Under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the accused had no right of appeal to the Immigration Appeal Division from a finding of inadmissibility on the grounds of serious criminality with respect to a crime that was punished in Canada by a term of imprisonment of at least two years. Those provisions were not brought to the attention of the trial judge. While the two-year sentence was appropriate, the difference of a day in the sentence carried potentially enormous consequences for the accused. In the circumstances, it was appropriate to reduce the sentence to two years less 20 days' imprisonment.

APPEAL by the accused from the conviction by O'Driscoll J. of the Superior Court of Justice, dated December 12, 2003, and sentenced imposed January 15, 2004.

R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 211 Nfld. & P.E.I.R. 50, 210 D.L.R. (4th) 608, 284 N.R. 342, 633 A.P.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, 2002 SCC 26 (sub nom. R. v. Sheppard (C.)), apld Other cases referred to R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161, [2003] O.J. No. 1251, 105 C.R.R. (2d) 132, 173 C.C.C. (3d) 23, 36 M.V.R. (4th) 1, 9 C.R. (6th) 240 (C.A.); R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2, 37 O.A.C. 322, 65 D.L.R. (4th) 240, 103 N.R. 86, 45 C.R.R. 278, 53 C.C.C. (3d) 1, 74 C.R. (3d) 281 (sub nom. R. v. Sanelli); R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1, [2004] O.J. No. 3262, 241 D.L.R. (4th) 490, 186 C.C.C. (3d) 129, 22 C.R. (6th) 1 (C.A.); R. v. Kanthasamy, [2005] B.C.J. No. 517, 195 C.C.C. (3d) 182, 2005 BCCA 135, 28 C.R. (6th) 194 (C.A.); R. v. McInroy, 1978 175 (SCC), [1979] 1 S.C.R. 588, 89 D.L.R. (3d) 609, 23 N.R. 589, [1978] 6 W.W.R. 585, 42 C.C.C. (2d) 481, 5 C.R. (3d) 125; R. v. P. (J.) (2003), 2003 17492 (ON CA), 67 O.R. (3d) 321, [2003] O.J. No. 3876, 231 D.L.R. (4th) 179, 111 C.R.R. (2d) 173, 177 C.C.C. (3d) 522, 14 C.R. (6th) 69 (C.A.); R. v. Parker (2000), 2000 5762 (ON CA), 49 O.R. (3d) 481, [2000] O.J. No. 2787, 188 D.L.R. (4th) 385, 75 C.R.R. (2d) 233, 146 C @@.C.C. (3d) 193, 37 C.R. (5th) 97 (C.A.); R. v. Pressley, 1948 353 (BC CA), [1949] 1 W.W.R. 692, 94 C.C.C. 29, 7 C.R. 342 (B.C.C.A.) Statutes referred to Canada Evidence Act, R.S.C. 1985, c. C-5, s. 9 [as am.] Canadian Charter of Rights and Freedoms, ss. 8, 9, 24 [page590] Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36, 64 Criminal Code, R.S.C. 1985, c. C-46, s. 109 Rules and regulations referred to Marihuana Medical Access Regulations, SOR/2001-227

David E. Harris, for appellant. Shawn Porter, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.:-- The appellant appeals from his conviction and sentence by O'Driscoll J. on numerous charges arising out of the stop and search of a vehicle that he was driving. At trial, the appellant argued that his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms were violated. In part, these arguments were founded on allegations of racial profiling. The appellant also denied that the various items of contraband were his. The trial judge accepted the evidence of the police officers who testified at trial and therefore found that both the stop and the search were lawful. He rejected the appellant's testimony and the allegations of racial profiling. On appeal from conviction, the appellant submits that the trial judge failed to give adequate reasons for rejecting the defence's case and also erred in rulings concerning admission of prior inconsistent statements.

[2] The trial judge sentenced the appellant to two years imprisonment. The appellant asks that the sentence be reduced to a reformatory term because of the immigration consequences of the two-year sentence.

[3] For the following reasons, I would dismiss the conviction appeal but allow the sentence appeal.

The Facts

[4] The events leading up to the charges laid against the appellant occurred on the evening of August 13, 2001. Two police officers, Constables D'Antonio and Tavares, were on general patrol in the North York area of the City of Toronto. They were attached to a special task force that was part of a crime management initiative. Groups of officers working in uniform in marked police cars were assigned to do general patrol of high crime areas. At the time of these events, the officers had been with the force for about [page591] two years. On August 13, 2001, at around 8:25 p.m., they were at the North York Sheridan Mall. At the north end of the Mall's plaza is a parking lot and then a bridge that gives pedestrians and cyclists access to an apartment complex on Chalkfarm Drive.

[5] As the officers drove slowly around the north side of the plaza they saw a black truck parked near the bridge with a group of six to eight men standing around it. According to the officers, almost as soon as they saw the truck they heard tires squealing and saw smoke coming out from the tires. The truck accelerated quickly and fishtailed slightly and then continued to drive normally. The officers decided to investigate the vehicle because the actions of the driver were, as one officer put it"a little bit dangerous". At the time, their intention was to simply caution the driver and find out why the truck accelerated quickly and "did what it did".

[6] The officers put on the police car's emergency light and approached the truck. The truck came to a stop without incident. Constable Tavares walked around to the passenger side while Constable D'Antonio went to the driver side. The driver was the appellant. According to the officers, the passenger window was down and Constable Tavares noticed a marijuana cigarette in the ashtray. He reached in and seized the cigarette and informed his partner. Constable D'Antonio placed the appellant under arrest and the officers searched the appellant. The officers found a quantity of cash (almost $3,000) in the appellant's pockets and a bag of marijuana. The officers informed the appellant of his rights and the appellant replied that it was not his truck. Constable Tavares continued the search of the truck and noticed a black bandana in between the armrest and cushion on the front seat. The corner of the butt end of a handgun was visible. It turned out to be a loaded semi-automatic 9 millimetre pistol. The officers lat er took the appellant to the police station. Subsequently, they checked the backseat of the cruiser and found another bag of marijuana.

[7] In the end, the appellant was charged with 11 different offences including possession of a loaded prohibited firearm, possession of a prohibited device (a bullet cartridge magazine), possession of marijuana for the purpose of trafficking, and possession of the proceeds of crime [See Note 1 at the end of the document] [page592]

[8] After the appellant's arrest, other police officers were summoned to the scene. They questioned the group of six to eight men who had been seen around the black truck. These men, as well as the appellant, were black. One of the men investigated by the officers was Noel Mogent. He became a defence witness.

[9] The appellant gave a dramatically different account of the events leading up to his arrest. He was 35 years of age and owned a car detailing business. He testified that around 4:30 or 5:00 p.m. he borrowed a truck from one of his employees to drop off some car parts and then visit two of his children who live with their mother at the Chalkfarm apartments. After visiting the children, he returned to his truck and struck up a conversation with a group of older men. The appellant testified that he did not know the names of any of the men, although a couple of them had been to his shop to have their cars cleaned and he knew one of them by his nickname"Mr. Cool".

[10] As the appellant was leaving, he asked one of the men, whom he knew, for a cigarette. The man gave him the cigarette and the appellant then entered the truck and began to drive away. He testified that he was driving normally and denied squealing his tires or driving erratically. All of a sudden, a police cruiser came around the corner with its lights on. The appellant stopped his truck and the officers approached him. While Constable D'Antonio was questioning him about his ownership and insurance he also pushed the power lock to open the passenger side door. Constable Tavares began to search the vehicle and seemed to find something under the seat and then pushed it back. Constable Tavares then came around the truck and said there was a firearm in the vehicle. The appellant was searched and placed in the police car. The officers searched the truck further and found some marijuana. The appellant also said that he saw Constable Tavares take $30 that the appellant had left in the cup holder. The appellant also said that he had about $4,000 with him to pay some bills but the officers only accounted for less than $3,000. He denied having any marijuana on his person and appeared to deny that there was a marijuana cigarette in the ashtray. He denied knowing about any gun in the truck.

[11] The defence also called Noel Mogent. Mr. Mogent was 45 years of age and had no criminal record. He lived in the Chalkfarm area with his family. He testified that he and two friends went out to buy cigarettes and stopped to talk with some friends at the plaza. A man, the appellant, came up and talked with the group for two or three minutes. He asked for a cigarette and Mogent gave him one and a lighter. The appellant lit the cigarette and then drove off in the truck. The appellant was driving [page593] slowly and normally. As the appellant reached a stop sign, a police car came around the corner with lights flashing and pulled him over. Soon after, police officers stopped Mogent and the other men. The police asked them for identification and searched them. Mogent asked an officer why he was being stopped and the officer said it was because he was linked to the appellant. According to Mogent, this incident took place around 6:00 p.m., not after 8:00 p.m.

[12] The defence also called Constable Purches. This officer arrived on the scene later and assisted in the investigation. The appellant relied upon statements allegedly made by the arresting officers to Purches, which the defence claimed were inconsistent with the testimony of the officers as to the appellant's manner of driving.

The Conviction Appeal

[13] The appellant's appeal principally centres on the trial judge's reasons for rejecting the various allegations of violations of his Charter rights. He submits that the reasons were inadequate because the trial judge did not consider Mr. Mogent's evidence and failed to properly consider the racial profiling allegation. He also submits that the trial judge erred in his treatment of the testimony of Constable Purches. Finally, the appellant relies upon the fact that at the time of the search, as a result of a decision of this court, the offence of possession of marijuana was of no force and effect and therefore the seizure of the marijuana cigarette was unlawful and unreasonable.

Analysis

(a) Failure to consider Noel Mogent's evidence

[14] The trial judge structured his reasons on the Charter voir dire as follows. He set out the allegations of violations of the Charter, noting in particular the contents of the notice of motion and the appellant's affidavit. He then reviewed all of the evidence called by the parties, including the appellant's evidence and the testimony of Mr. Mogent. He then gave his findings and conclusions. He accepted the evidence of the police officers as to the appellant's manner of driving and the manner in which the search took place. He rejected the allegations and "innuendoes" that the stopping of the vehicle was motivated by the appellant's skin colour and that the officers stole some of the appellant's money. He rejected the appellant's evidence. He found that the officers had articuable cause to stop the vehicle and that the marijuana cigarette was in plain view. The officers were therefore justified [page594] in searching the appellant and the vehicle. He also found that the gun was in plain view. In his findings and conclusions, the trial judge did not refer to Mogent's evidence.

[15] The appellant submits that the trial judge's reasons do not meet the test in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 162 C.C.C. (3d) 298. He submits that Mr. Mogent's testimony was important defence evidence since, if accepted, it showed that the officers did not have grounds to stop the appellant's vehicle.

[16] No doubt it would have been better had the trial judge expressly dealt with Mr. Mogent's evidence. However, this deficiency alone does not amount to an error of law or constitute grounds for allowing the appeal. In my view, this case falls to be determined in accordance with the following passage from Binnie J.'s reasons in Sheppard at para. 46:

These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the resu lt, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function.

(Emphasis added)

[17] In this case, it is "plain from the record" why the Charter motion was rejected. The trial judge found that the stopping of the truck was neither random nor arbitrary and that the stop, the reasons for the stop, the search and the reasons for the search occurred as described by the arresting officers. It must be remembered that the appellant had to establish the violation of his rights under s. 9 of the Charter on a balance of probabilities. It was not enough for the appellant to raise a reasonable doubt.

[18] In his reasons, the trial judge referred to the reasons of O'Halloran J.A. in R. v. Pressley (1948), 1948 353 (BC CA), 94 C.C.C. 29, [1949] 1 W.W.R. 692 (B.C.C.A.), at p. 34 C.C.C. [page595] who wrote that "The most satisfactory judicial test of truth lies in its harmony or lack of harmony with the preponderance of probabilities disclosed by the facts and circumstances in the conditions of the particular case." It is apparent that the trial judge found the defence's version of events inherently improbable. It would have been helpful had the trial judge provided more of an explanation as to why he found the defence case improbable, but it is not at all difficult to see why the trial judge rejected the defence position. On the evidence of the appellant, police officers, who had never had any contact with him, stopped the truck for absolutely no reason and fabricated evidence about finding a marijuana cigarette and bags of marijuana. They also fabricated evidence about a loaded firearm and stole his money. The trial judge did not believe this version of events.

[19] It is also apparent from the record why the trial judge found Mr. Mogent's evidence of no assistance in resolving the issues. Mogent's description of the events is not only improbable but inconsistent in many details with the appellant's account. He gives an entirely different time of the event. Further, according to him, the appellant, someone he did not know, was with the group of men for only two or three minutes. The appellant testified that he knew Mogent, although he did not know his name at the time and was speaking with him and the other men for ten or 15 minutes. On Mogent's evidence, the police car came around the corner with its lights flashing before the police could possibly have seen anything taking place at the truck or seen the appellant's driving.

[20] In my view, on this record, the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal. It is apparent why the trial judge did not accept Mr. Mogent's evidence.

(b) Racial profiling

[21] The appellant submits that the trial judge erred in his approach to the allegation of racial profiling. The appellant submits that the trial judge improperly limited cross- examination on this issue and that his reasons disclose that he did not give the issue the scrutiny it deserved. The submission concerning cross-examination relates to a part of the cross-examination of Constable D'Antonio. Defence counsel established that after the appellant was arrested, other officers investigated the group of six to eight black males. Constable D'Antonio stated that he did not direct the officers to speak to those men but he speculated that it was done because they had been associated with a person found [page596] to be in possession of a firearm and the officers wanted to determine whether there were any other firearms. In the course of this cross-examination, the trial judge reminded defence counsel that the notice of motion to exclude the evidence related to the stop and search and that the events involvin g the other men occurred afterwards. In his view, the subsequent investigation had nothing to do with the Charter violations. In the course of submissions, defence counsel stated that the Court of Appeal had acknowledged "racial profiling is a definite mindset". After a further brief discussion, the trial judge ruled that counsel should confine his questions to "what this officer did with your client because that's the basis on which my decision will be made".

[22] In my view, the trial judge did not err in this ruling. By the time the trial judge intervened in the cross- examination, it was apparent that the officer had exhausted his own knowledge of the reason for dealing with the other men and had begun to speculate. The officer, who was very junior at the time, had stated that he did not direct the other officers to investigate the men. Continuing this line of cross- examination would not have assisted the defence theory of racial profiling as the reason for the original stop. I might possibly have reached a different conclusion had there been any evidence to tie the subsequent investigation to the arresting officers, but there was no such evidence.

[23] The appellant also complains about the trial judge's treatment of the racial profiling issue in his reasons. The trial judge said the following:

I find that the stopping of the pickup truck took place for the reasons related by the officers and that the sequence of events unfolded as the officers have testified. Although there were veiled allegations during the cross-examination of P.C. D'Antonio and P.C. Tavares that the stopping of the vehicle had something to do with the colour of Mr. Curry's skin, I find there is no such evidence in this case. It must be noted that the allegations regarding the missing money and racial innuendoes are made in the safety of the courtroom where unqualified privilege gives blanket protection from the laws of defamation.

(Emphasis added)

[24] The appellant takes particular exception to the last sentence of this passage. He submits that the trial judge was dismissive of the racial profiling issue and failed to scrutinize the evidence with the care required where the defence makes an allegation of racial profiling. In my view, the problem with this submission is that there was no substance to the racial profiling allegation. In R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161, [2003] O.J. No. 1251, 173 C.C.C. (3d) 23 (C.A.), at para. 45, this court set out [page597] the circumstances where a court might find that a stop was based on racial profiling:

The respondent submits that where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling. I accept that this is a way in which racial profiling could be proven. I do not think that it sets the hurdle either too low (which could be unfair to honest police officers performing their duties in a professional and unbiased manner) or too high (which would make it virtually impossible for victims of racial profiling to receive the protection of their rights under s. 9 of the Charter).

(Emphasis added)

[25] Here the evidence does not show that the circumstances relating to the detention correspond to the phenomenon of racial profiling. There was nothing in the evidence to suggest that the arresting officers stopped the appellant because of his colour. On the evidence of the officers, they stopped the appellant because of his driving. On the appellant's version (and that of Mr. Mogent) the officers came around the corner of the mall with their emergency lights already on, apparently intent on stopping the appellant before they could see any driving. Even if this was true and it seems highly improbable, there was nothing to show that the officers knew the appellant's colour when, on the appellant's version of events, they had already made the decision to stop. The only suggestions of racial profiling come from the subsequent investigation of the men with whom the appellant had been speaking that in their notes the arresting officers described their skin colour. As I have said, there was no evidence to link that investigation to the original investigating officers and notes describing the skin colour of those men do not themselves provide a foundation for racial profiling.

(c) Examination of Constable Purches

[26] The two arresting officers were asked in cross- examination whether they had told Constable Purches back at the police station that the appellant "had been racing and doing donuts" in the mall parking lot. Both officers denied making the statements. The appellant called Constable Purches and sought to examine him on a portion of his testimony at the preliminary inquiry. Constable Purches had testified that he asked D'Antonio and Tavares why they investigated the car. He testified that "they said or whoever it was said that it was, that he was doing donuts or something like that". When he was pressed as to what was [page598] actually said, Purches said that the phrase he specifically remembered was"he was driving like an idiot". He then explained that "when I think of somebody driving like an idiot, yes, I picture them doing donuts, but I also do remember the word donut, like describing his driving. I don't remember verbatim this conversation. I don't remember exactly the words either D'Antonio or

Tavares used. The term or the phrase that's coming, that's popping in my mind right now is he was driving like an idiot. . . . [O]ne of them said 'well, he was doing donuts and racing in around the back lot'."

[27] At the trial, Constable Purches testified that he remembered the officers told him that the appellant "was driving like an idiot at the back of the mall". After reviewing his preliminary inquiry evidence, the officer maintained that the only statement "that stands out to me" was the "driving like an idiot" comment. This was the only comment of which he still had an independent recollection. At this point, defence counsel sought leave to cross-examine the officer. The trial judge refused because he was not satisfied that there was any inconsistency.

[28] Section 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, gives the trial judge a discretion to permit, without proof that the witness is adverse, cross-examination on inter alia a prior inconsistent written statement or statement reduced to writing. See R. v. McInroy, 1978 175 (SCC), [1979] 1 S.C.R. 588, 42 C.C.C. (2d) 481, at p. 604 S.C.R., p. 494 C.C.C. To succeed on this ground, the appellant must show that the trial judge exercised his discretion unreasonably and, in my view, the appellant has not met this burden. There is no inconsistency between the officer's trial and preliminary inquiry testimony in the sense that on both occasions he remembered one or other of the arresting officers saying that the appellant was driving like an idiot. The inconsistency, if any, was based on the officer's failure to remember the "donut" comment. If the officer's testimony at trial that he no longer had an independent recollection of the donut comment was true, there was no inconsistency: see

McInroy at pp. 604-05 S.C.R., pp. 494-95 C.C.C. This was for the trial judge to determine and I cannot say that his decision was unreasonable. The officer had not made any notes of what he described as casual conversation. Even at the preliminary inquiry, his clearly accurate recollection was of the "driving like an idiot" comment and he maintained that position at the trial.

[29] The appellant submits that the trial judge also erred in the use he made of the "driving like an idiot" comment. In his reasons, after stating that he accepted the evidence of Constable Tavares and D'Antonio as to the appellant's manner of driving, the trial judge said this: [page599]

It will be recalled that P.C. Purches, when recalled as a witness in reply by counsel for the accused, said that at 31 Division later in the evening of August 13, 2001, one of the officers, either P.C. D'Antonio or P.C. Tavares, told him that they stopped the truck because the driver was "driving like an idiot".

[30] The appellant submits that the trial judge erred in using this statement to bolster the credibility of the arresting officers. He says that there was no allegation of recent fabrication and the prior consistent statement was not available for use in respect of the officers' evidence. In an interesting submission, counsel for the respondent submits that, where the defence makes an allegation of racial profiling, prior statements such as this should be admissible to rebut the allegation. Crown counsel submits that the statement was circumstantial evidence of the officers' innocent state of mind. I need not resolve this issue in this case, since I have already held that there was no basis for the racial profiling allegation.

[31] Moreover, I am satisfied that even if the trial judge did err in his use of the "driving like an idiot" comment, no substantial wrong or miscarriage of justice resulted. It is clear from reading the trial judge's reasons as a whole that his decision would have been the same even if he had not relied upon this comment. He found that the appellant was not "an accurate historian" and the appellant's version of events was not consistent with the "preponderance of probabilities disclosed by the facts and circumstances in the conditions of the particular case" (quoting from Pressley). The trial judge's acceptance of the evidence of the police officers did not hinge on this one prior consistent statement.

(d) The unlawful search and seizure

[32] At the time the police officer seized the marijuana cigarette from the truck the legal prohibition on the possession of marijuana was of no force and effect because of the decision of this court in R. v. Parker (2000), 2000 5762 (ON CA), 49 O.R. (3d) 481, [2000] O.J. No. 2787, 146 C.C.C. (3d) 193 (C.A.). I will assume for the purpose of this appeal that the search and seizure of the marijuana cigarette was therefore unlawful and unreasonable. The search in this case took place in August 2001. At the time, these officers could not reasonably have believed that the law was of no force and effect. The federal government had taken some steps to comply with the Parker decision by enacting the Marihuana Medical Access Regulations, SOR/2001-227 in July 2001. This court's decision in R. v. P. (J.) (2003), 2003 17492 (ON CA), 67 O.R. (3d) 321, [2003] O.J. No. 3876, 177 C.C.C. (3d) 522 (C.A.) holding that these regulations were not sufficient was not released until October 2003. In [page600] those circumsta nces, the admission of the evidence obtained as a result of that search and seizure would not bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter: see R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2.

[33] Accordingly, I would dismiss the appeal from conviction.

The Sentence Appeal

[34] The sentence appeal rests solely on the immigration consequences of the sentence imposed by the trial judge. Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides that a permanent resident is inadmissible on grounds of serious criminality for having been convicted of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years. There is a limited right of appeal to the Immigration Appeal Division from a finding of inadmissibility. However, under s. 64(1) there is no right of appeal if the permanent resident has been found to be inadmissible on the grounds of serious criminality with respect to a crime that was punished in Canada by a term of imprisonment of at least two years. These provisions were not drawn to the trial judge's attention. I also note that at trial, Crown counsel sought a penitentiary sentence or "at the very least" the maximum reformatory term of two years less one day.

[35] The appellant is 38 years of age. He has a very minor prior record consisting of one conviction for possession of marijuana in 1993, for which he received a $300 fine. He has lived in Canada for almost 20 years and has five children. He has operated an apparently legitimate business for many years. While I agree that a sentence approaching two years was appropriate because of the presence of the firearm, as was said by Donald J.A. in R. v. Kanthasamy, 2005 BCCA 135, [2005] B.C.J. No. 517, 195 C.C.C. (3d) 182 (C.A.), at para. 15, the difference of a day in the sentence "carries potentially enormous consequences": also see R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1, [2004] O.J. No. 3262, 186 C.C.C. (3d) 129 (C.A.), at paras. 155-58. In the words of Donald J.A. in Kanthasamy at para. 23, substitution of a reformatory term in these circumstances "does no violence to the sentence imposed by the trial judge and avoids an unintended consequence of great significance". The appellant has substantial f amily and legitimate business roots in Canada. He has only the minor prior conviction. That he should not only be sentenced to two years' imprisonment but then be permanently uprooted from this country and his family without any recourse to any appeal tribunal is a significant consequence, far beyond what most other [page601] similarly situated persons would face. I would not presume to decide what the Appeal Division would do, but the appellant should at least have the opportunity to state his case. Accordingly, I would reduce the sentence imposed by the trial judge to two years less 20 days' imprisonment. The 20-day reduction takes into account that, for the purposes of s. 64, pre-trial custody is included and the appellant spent eight days in pre-trial custody: see Kanthasamy at para. 17.

Disposition

[36] Accordingly, I would dismiss the appeal from conviction. I would grant leave to appeal sentence, allow the appeal and reduce the sentence on all counts to two years less 20 days' imprisonment concurrent. The sentence in all other respects including the s. 109 [Criminal Code, R.S.C. 1985, c. C-46] prohibition and the forfeiture order will stand.

Conviction appeal dismissed; sentence appeal allowed.

Notes

Note 1: While the trial judge found the appellant guilty of all counts, he stayed the other counts (for example, careless storage of a firearm) by reason of the rule against multiple convictions.