DATE: 20050228
DOCKET: C40282
COURT OF APPEAL FOR ONTARIO
MOLDAVER, MACPHERSON and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Rene Pomerance
for the respondent
(Respondent)
- and -
QUOC THAI PHAM
Steven Tress
for the appellant
(Appellant)
Heard &
Released Orally: February 24, 2005
On appeal from the conviction entered by Justice Alan C. R. Whitten of the Superior Court of Justice on March 7, 2003.
BY THE COURT:
[1] The appellant, Quoc Thai Pham, appeals from his convictions by Whitten J. on one count of possession of stolen property with a value over $5000 and 11 counts of possession of stolen property with a value under $5000.
[2] In October 2000, Antique Jukebox and Novelty Co. was broken into and 11 slot machines were stolen. In March 2001, Brian Alvey, the owner of the company, saw an advertisement in the Hamilton Spectator for a slot machine for sale. He arranged for a friend to pose as a potential buyer. The friend went to the address indicated in the advertisement, 908 Barton Street East in Hamilton. The door configuration inside the building was unusual. The appellant went through one door and then emerged and opened a second door which led to an unoccupied storefront. Alvey’s friend was shown the advertised slot machine in the store and formed the opinion that it was the one described by Alvey. He reported this to Alvey. Alvey then made a similar appointment. He too met the appellant and was shown into the storefront where he thought he recognized two of his stolen slot machines.
[3] Alvey went to the police. Detective Robert Hersics of the Criminal Investigations Division prepared a search warrant application. Because it was a weekend and no Justices of the Peace were available, he prepared a telewarrant application. The initial application was denied because of facsimile transmission problems and other continuity concerns. A second application was prepared and granted at 11:20 p.m. on March 25, 2001. It authorized execution of the warrant between 11:30 p.m. on March 25 and 4:00 a.m. on March 26.
[4] The search warrant indicated that the premises to be searched was a storefront, not a residence. The warrant authorized the seizure of two slot machines and two serial number plates.
[5] The police executed the warrant at approximately 12:56 a.m. on March 26. They knocked on the door that read 908. When the appellant opened the door, the police realized, for the first time, that the building contained both a residence and a store. Detective Hersics decided to secure the entire building for purposes of officer safety and preservation of evidence. He also believed that the items described in the search warrant could be anywhere in the building.
[6] The police found and seized the two slot machines. They also noticed many other items in the store and the residence. Detective Hersics formed the belief that the appellant was in possession of other stolen property. Many items were seized during the search, and during a second search on March 30. These items formed the basis of the charges against the appellant.
[7] At his trial, the appellant challenged the legality of the searches. A voir dire was held and the trial judge ruled that the searches did not violate s. 8 of the Charter. The appellant contends that both the issuing and the execution of the first search warrant violated s. 8 on a number of bases. There is no dispute that if the first search did not violate s. 8, the second search was proper.
[8] The appellant contends that there was no basis for the authorization of a night search. We disagree. The appellant had told Alvey that he was receiving a lot of calls about the slot machine. One of the slot machines was advertised in the weekend edition of the Hamilton Spectator. The trial judge said:
One must be mindful that it is not the role of this court to second guess the police as to the nuances of what was relayed to them. Although it seems unlikely that somebody would lug off an item the size of a slot machine after midnight, no doubt one could say that about the timing of their being stolen in the first instance. In other words, the police belief as to the fluidness of the stolen goods business is not patently unreasonable. Credit has to be given for their knowledge in this area.
We agree.
[9] The appellant contends that Detective Hersics either deliberately misled the Justice of the Peace, or recklessly omitted important information, concerning the premises to be searched. We reject this submission. The search warrant described the premises as a storefront, which was an entirely accurate description based on the information the police received from Alvey. The trial judge found that prior to attending the building, the police were unaware that the premises included a residence. Nor were they aware of the layout of the building prior to entry. These findings were open to the trial judge and we see no basis for interfering with them.
[10] The appellant also contends that the first search conducted by the police was unreasonable. We disagree. The procedural steps taken by the police, including notification and entry, were appropriate. The items seized beyond those enumerated in the search warrant were validly seized on the basis of reasonable grounds to believe that they were stolen goods, the plain view doctrine, and as part of the continuing search for the serial plates which were enumerated in the search warrant.
[11] The appellant contends that he was arbitrarily detained contrary to s. 9 of the Charter. We disagree. Once the police located the first stolen slot machine, the arrest of the appellant was entirely appropriate.
[12] The appeal is dismissed.
RELEASED: February 28, 2005 (“MJM”)
“M. J. Moldaver J.A.”
“J. C. MacPherson J.A.”
“E. A. Cronk J.A.”