Court File and Parties

CITATION: R. v. LePage, 2007 ONCA 582

DATE: 20070827

DOCKET: C46357

COURT OF APPEAL FOR ONTARIO

SIMMONS AND BLAIR JJ.A. AND McKINNON J. (AD HOC)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

MICHAEL PAUL LEPAGE

Appellant

Richard Litkowski (duty counsel) for the appellant

L. Bolton for the respondent

Heard: August 21, 2007

On appeal from the conviction entered by Justice William F. Fitzgerald of the Ontario Court of Justice dated June 22, 2006 and from the sentence imposed by Justice Fitzgerald dated October 4, 2006.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of breaking and entering, possession of stolen property and possession of burglary tools. He was sentenced to 2 years imprisonment. He appealed against conviction and sentence but abandoned his sentence appeal during oral submissions.

[2] In relation to the conviction appeal, the appellant submits that the trial judge erred in dismissing his s. 8 and 9 Charter application. In particular, the appellant claims that the trial judge erred in holding that the police were entitled to detain him for investigation and in finding that the police had reasonable grounds for arrest. The appellant also claims that the trial judge's reasons for conviction in relation to the break and enter count were inadequate.

[3] We reject the appellant's claim that the trial judge erred in holding that the police were entitled to detain him for investigation. Two minutes prior to stopping the vehicle in which the appellant was a passenger the police heard a radio broadcast concerning an attempted break and enter at a variety store. The broadcast indicated that two male suspects were involved, one wearing a red hoodie and one wearing a dark hoodie and dark pants, and that the suspects were riding in a burgundy Thunderbird. The officers believed that the vehicle in which the appellant was a passenger matched the vehicle described in the broadcast. They observed the vehicle go through an amber light and stop at a Tim Horton's. Two males emerged from the vehicle and were wearing clothing matching the clothing described in the broadcast. In our view, on these facts, it was open to the trial judge to find that an investigative detention was justified.

[4] We see no basis for interfering with trial judge's finding that the police had reasonable and probable grounds for arrest. While speaking to the driver of the vehicle at an open door at the side of the car, one of the officers could see into the backseat. He observed two cartons of cigarettes in plain view in a box on the back seat. Based on the way the cartons were positioned, the officer believed there were more cartons in the box. The officer testified that in his experience attempted break and enter broadcasts often relate to actual break and enters and that he believed the cigarettes were stolen.

[5] In light of the broadcast, the matching descriptions of the vehicle and the individuals and the officer's evidence about his experience with attempted break and enter broadcasts, in our view, the trial judge was entitled to accept the officer's belief about the existence of additional cigarettes as subjectively and objectively reasonable and therefore to find that the officer had reasonable and probable grounds to believe the appellant was in possession of stolen property and that the officer was entitled to effect an arrest.

[6] While the trial judge could have given more extensive reasons for conviction on the break and enter count, read as a whole, his reasons responded to the arguments put to him by the appellant and provide an adequate basis for appellate review.

[7] The appeal is therefore is therefore dismissed.