DATE: 20060605
DOCKET: C41856
COURT OF APPEAL FOR ONTARIO
MOLDAVER, FELDMAN and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
John Norris
for the appellant
Respondent
- and -
Bradley Reitz
for the respondent
ROBERTO CAPRARA
Applicant (Appellant)
Heard: May 23, 2006
On appeal from conviction by Justice Sandra Chapnik of the Superior Court of Justice dated April 16, 2004 and sentence imposed May 12, 2004.
BY THE COURT:
[1] The appellant appeals from his convictions on four counts of possession of a controlled substance for the purpose of trafficking. He also appeals from sentence, but only as regards the forfeiture order made by the trial judge.
[2] The appeal from conviction is largely fact driven. We can find no error in the trial judge’s s. 9 Charter analysis (arbitrary detention and arrest). It was open to the trial judge to find, as she did, that Sergeant Nichol stopped the appellant due to legitimate road safety concerns and not, as the appellant maintained, as “a pretext to retrospectively justify the stop”.
[3] Likewise, it was open to the trial judge to find that after the appellant had been stopped, he engaged in various forms of conduct that provided Sergeant Nolan with reasonable grounds to arrest him for failing to identify himself under s. 33 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) and attempting to obstruct justice by providing a false name.
[4] The appellant’s chief complaint relates to the trial judge’s s. 8 Charter analysis (unreasonable search and seizure). The s. 8 issue arises from the police search of the vehicle being driven by the appellant as an incident of his lawful arrest. The police claimed that their sole purpose for searching the vehicle was to find evidence of the appellant’s true identity. The appellant, on the other hand, maintained that the alleged search for evidence of identity was a mere pretext; what the police were really searching for was drugs and they had no right to do so as an incident of his arrest because he had not been arrested for a drug or drug related offence. Accordingly, the search violated his s. 8 privacy rights.
[5] In support of his position that the police were not being truthful when they claimed that they were searching for evidence of identity, the appellant contended that the police already knew who he was before they commenced their search of the car. Alternatively, he maintained that if they had a lingering doubt about his identity, they had no reasonable basis for thinking that a search of the car might yield evidence of his true identity because they knew that the car was not registered in his name.
[6] The trial judge found that at the time of the search, the police “would have been quite certain that the [appellant] was not who he said he was, but was, in fact, the brother of the owner of the vehicle”. With that in mind, she found it “unlikely”, despite the police evidence to the contrary, that “their sole reason to search was to find identifying documents” (emphasis added). In her view however, even if the police were searching solely for drugs, the search would have been lawful because the police had reason to believe that drugs might be found in the car. Accordingly, they were entitled to search for drugs as an incident of the appellant’s arrest. With respect, we cannot accept that aspect of the trial judge’s analysis.
[7] On the facts of this case, the police had no right to search for drugs as an incident of the appellant’s arrest because the appellant had not been arrested for a drug or drug related offence; he had been arrested for failing to identify himself and for attempting to obstruct justice by providing the police with a false name. Accordingly, any search for evidence incident to his arrest had to be restricted to evidence of identification; it could not spill over into a search for drugs. To the extent that the trial judge held otherwise, we respectfully disagree with her analysis.
[8] That said, we consider the error to be harmless. Taking the case for the appellant at its highest, it is apparent to us that the trial judge was prepared to find that the police probably had two purposes for searching the car, one relating to the identity of the appellant, the other to the possible discovery of drugs. That finding, of course, is fatal to the appellant. So long as one of the purposes for searching the vehicle was proper as an incident of his arrest, the search itself was lawful. (See R. v. Annett (1984), 1985 SCC 3654, 17 C.C.C. (3d) 332 (Ont. C.A.); leave to appeal to S.C.C. refused March 4, 1985).
[9] We reject the appellant’s argument that the search for identification evidence was unnecessary because the police already knew his identity. The trial judge made no such finding. On the contrary, she found that although the police “would have been quite certain [who the appellant was]”, they were not sure of his identity and in the words of Sergeant Nichol, this was “not a guessing game”. Likewise, we reject the appellant’s alternate submission that the police had no reasonable basis for thinking that they might find identification evidence in the vehicle. In our view, it was perfectly reasonable for them to think that there might be a wallet, a briefcase or perhaps a cardholder in the car containing evidence of the appellant’s identity. Furthermore, the area in which the drugs were found (around the floor mat underneath the armrest that separated the two front seats) was one where a wallet or cardholder could reasonably be expected to have been located.
[10] It follows that the search for identification evidence was a valid search incident to the appellant’s arrest. Accordingly, the trial judge correctly concluded that the search did not violate the appellant’s s. 8 Charter rights. We would therefore reject this ground of appeal.
[11] The appellant further submits that the verdict was unreasonable. In essence, he maintains that the circumstantial evidence was insufficient to prove that he had knowledge of the drugs.
[12] We disagree. The appellant testified and claimed that he had no knowledge of the drugs found in the vehicle. The trial judge disbelieved his evidence. She gave cogent reasons for doing so and we see no basis for interfering with her credibility findings.
[13] The remainder of the evidence, in our view, was sufficient to warrant a finding of knowledge in accordance with the criminal standard of proof. The appellant was found with two bundles of cash in his pockets and a pager. He was obviously familiar with his brother’s car and he exhibited signs of anxiety and provided Sergeant Nichol with a false name when he was stopped. The trial judge was entitled to take all of those factors into consideration in arriving at her conclusion.
[14] Admittedly, the case for the Crown on the issue of knowledge was not overwhelming; in our view however, it was sufficient to sustain a conviction. Accordingly, we would not give effect to this ground of appeal.
[15] With respect to the sentence appeal, we note that the appellant’s explanation for being in possession of the two bundles of cash was rejected. Absent an innocent explanation and taking into account the expert testimony on the issue, we think it was open to the trial judge, in the circumstances, to conclude that most of the money came from the sale of illicit drugs. Accordingly, we would not intervene.
[16] In the result, we would dismiss the appeal from both conviction and sentence.
Signed: “M. Moldaver J.A.”
“K. Feldman J.A.”
“E.E. Gillese J.A.”
RELEASED:”MJM” June 5, 2006