COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Lawes, 2007 ONCA 10
DATE: 20070111
DOCKET: C44665
RE: HER MAJESTY THE QUEEN (Respondent) – and – BARRINGTON LAWES (Appellant)
BEFORE: WEILER, MacFARLAND and LaFORME JJ.A.
COUNSEL: Paul Calarco for the appellant Ian Bulmer for the respondent
HEARD: January 8, 2007
On appeal from the judgment of Justice R. Thomas of the Superior Court of Justice dated March 14, 2005.
E N D O R S E M E N T
[1] The appellant and another person – a known drug dealer – were being observed by police officers. During these observations, the police officers formed the belief that the appellant was in possession of a firearm. As a result, the appellant was arrested and when searched was found to be in possession of a fully-loaded, ready to fire semi-automatic .45 calibre handgun and crack cocaine.
[2] At the commencement of the trial, the trial judge ruled that the arrest and search were lawful, and the appellant was subsequently convicted of various weapons offences and possession of cocaine. He was sentenced to a total period of imprisonment of three years.
[3] The appellant appeals both the convictions and sentence, and primarily submits that the trial judge erred in his decisions respecting alleged breaches of the Charter of Rights and Freedoms. We disagree and we would dismiss the appeal. We believe this entire appeal can be disposed of with our decision on the lawfulness of the arrest.
[4] There is a lawful arrest when a police officer subjectively believes that there are grounds to do so, and those grounds are objectively reasonable. The totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It would constitute an error in law to assess each fact or observation in isolation. An objective assessment will include the dynamics within which the police officer acted, and his or her experience: see R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.).
[5] In this case, the trial judge examined the evidence fully and made findings supported by that evidence. We do not agree that the trial judge ignored or failed to appreciate any of the relevant evidence. Moreover, we agree that the evidence regarding police training was a relevant factor to consider in his analysis.
[6] In the end, the trial judge applied the proper test and considered all the facts and observations of the police officers in totality and in the context of the circumstances they were confronted with. There was no contradictory evidence placed before the court, and the appellant did not testify on the voir dire.
[7] The trial judge’s decision as to the reasonableness of the police officers’ belief that the appellant was in possession of a firearm should not be disturbed. Consequently, the arrest was lawful and so was the search that was incidental to it.
[8] Given our conclusion on the lawfulness of the arrest and search, there is no need to address any of the appellant’s other grounds of appeal on his convictions. The appeal against convictions is therefore dismissed.
[9] As to appellant’s leave to appeal sentence, we would grant leave but dismiss the appeal. The appellant received a total sentence of three years after credit for pre-trial custody of twenty-eight days.
[10] In our view, even if the experienced trial judge failed to consider the appellant’s bail conditions as a mitigating factor in fixing sentence pursuant to R. v. Downes, (2005) C.C.C. (3d) 488, at para. 42, his failure to do so is not fatal to the ultimate sentence imposed. He was entitled to emphasize community safety and the need to continue to send the message of deterrence to those who threaten that safety with firearms. This is particularly the case where – as here - the firearm was high calibre, fully loaded, ready to fire, and had the serial numbers obliterated.
[11] We can find no basis upon which to interfere with the total sentence of three years imprisonment imposed by the trial judge for these offences committed by this offender.
“K.M. Weiler J.A.”
“J. MacFarland J.A.”
“H.S. LaForme J.A.”