DATE: 20061108

DOCKET: C41549

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MARLON WILSON (Appellant)

BEFORE:

O’CONNOR A.C.J.O., ROSENBERG and CRONK JJ.A.

COUNSEL:

Geoff Chesney

for the appellant

Nicholas Devlin

for the respondent

HEARD & RELEASED ORALLY:

October 31, 2006

On appeal from conviction by Justice Sandra Chapnik of the Superior Court of Justice dated October 23, 2003.

E N D O R S E M E N T

[1] It may be that the initial stop could not be justified under the test in R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.). However, the officer stopped the vehicle in the exercise of his authority under s. 216 of the Highway Traffic Act and the trial judge did not find that this was a colourable use of that power.

[2] The events that transpired thereafter were lawful. The appellant appeared to be in breach of his bail giving the officer reasonable grounds to arrest. The search of the interior of the vehicle was justified as a search incident to arrest. The trial judge overstated the search power by stating that it could be justified to search for securing evidence of “illegal activity”. However there was evidence to sustain a proper search incident to arrest for the purpose of securing evidence of the two apparent breaches of the recognizance. Accordingly there was no violation of s. 8 of the Charter.

[3] In oral argument the appellant drew to our attention the decision in R. v. White, [2006] O.J. No. 1677 (Ct. J.). The issue raised in White was not raised in this case in relation to the lawfulness of the arrest. To the contrary, it was conceded by the defence that the arrest was lawful based on the CPIC information and that it was reasonable for the officers to rely on CPIC. Moreover, there was evidence from experienced police officers of the general reliability of CPIC. The reliability of CPIC information was raised in oral argument only in connection with an alleged violation of s. 7 of the Charter. However, there was no proper evidentiary foundation for that argument and no proper notice given by the defence of any such alleged violation.

[4] Accordingly, the appeal is dismissed.

Signed: “Dennis O’Connor A.C.J.O.”

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”