R v. Rebelo, 2007 ONCA 289

CITATION: R v. Rebelo, 2007 ONCA 289

DATE: 20070419

DOCKET: C42675

COURT OF APPEAL FOR ONTARIO

MACPHERSON, CRONK and GILLESE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

RUI SIMON REBELO

Appellant

Kenneth S. Marley, for the appellant

Moiz Rahman, for the respondent

HEARD: April 11, 2007

On appeal from the conviction entered on September 23, 2004 and the sentence imposed on October 26, 2004 by Justice Saul Nosanchuk of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] In the early hours of January 28, 2003, the appellant was driving his car. Jack McLaughlin was a passenger in the car. The appellant’s erratic driving brought him to the attention of two police officers on routine patrol.

[2] When the appellant pulled the car into a residential driveway and parked, Officers Smith and Seng pulled in behind him. Mr. McLaughlin opened the passenger door of the car and ran into the house. The appellant left the car and walked towards the police officers.

[3] When speaking with the appellant, the officers smelled alcohol and freshly burned marihuana. They asked the appellant to produce his driver’s licence. He returned to the car in order to get the licence. The officers followed. When the appellant opened the car door, the officers again smelled freshly burned marihuana and, as a result of shining a light into the car, the officers could see smoke, and roaches and roach clips in the car’s ashtray.

[4] Constable Seng then arrested the appellant for possession of a controlled substance.

[5] The officers searched the car and found 197 grams of loose marihuana, money, a cell phone and other drug paraphernalia.

[6] At trial, the defence sought to have these items excluded. The trial judge dismissed the Charter claim, admitted the evidence and, ultimately, convicted the appellant of possession of a controlled substance for the purpose of trafficking.

[7] The appellant seeks to have the conviction set aside on the basis that the evidence in question was inadmissible.

[8] While the trial judge may have erred in concluding that there were exigent circumstances and that the search was authorized by s. 11(7) of the Controlled Drugs and Substances Act, based on the record, we are satisfied that the search of the car was justified as a valid search incident to arrest. The power to search a lawfully arrested person incident to arrest permits the police to search the person and his or her immediate surroundings, including a car, to guarantee safety, prevent escape or to obtain evidence. R. v. Caslake (1998), 121 C.C.C. (3d) 97 (S.C.C.).

[9] There is no suggestion that the arrest was not lawful. There is no question but that the basis for the search was reasonable. It is also clear that the purpose of the search related to the discovery of evidence in respect of the offence charged – the police saw drugs in the car’s ashtray and the appellant had only just left the car, smelling of freshly smoked marihuana.

[10] The appellant also argues that the reasons given by the trial judge for convicting of possession for the purpose of trafficking rather than simple possession were inadequate. We reject this argument. While the trial judge did not canvas the evidence relating to individual consumption, the record amply supports the inferences drawn by the trial judge in this regard.

[11] Accordingly, the appeal is dismissed.