CITATION: R. v. Smith, 2008 ONCA 502
DATE: 20080623
DOCKET: C46615
COURT OF APPEAL FOR ONTARIO
WEILER, BORINS and MACFARLAND JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
DUVAL SMITH
Appellant
Joseph Wilkinson and Philip Norton for the appellant
Christine Tier for the respondent
Heard: May 16, 2008
On appeal from the conviction entered on April 10, 2006 and the sentence imposed on October 4, 2006 by Justice Michael R. Dambrot of the Superior Court of Justice, sitting without a jury.
BY THE COURT:
[1] Following a trial by judge alone, the appellant appeals his convictions for operating a motor vehicle while disqualified, possession of a loaded restricted firearm without authorization, possession of a firearm while prohibited and careless storage of a firearm. He received a global sentence of five years (minus the equivalent of 2 years pre-sentence custody calculated on a 2:1 basis). He appeals both his conviction and sentence.
[2] In relation to the conviction appeal, the appellant argues that the trial judge erred in failing to find a violation of his right to be free from unreasonable search and seizure pursuant to section 8 of the Charter and in failing to exclude the evidence under 24(2). The appellant also alleges that the trial judge erred in his reasons for convicting the appellant by improperly rejecting the appellant’s evidence. Finally, the appellant appeals against his sentence alleging that it was harsh and excessive.
The conviction appeal
Whether the police were entitled to search the appellant’s car
[3] The appellant and the car he was driving became the target of surveillance being conducted by members of the Urban Organized Unit (“Unit”). Initially, the police followed the appellant with the intention of stopping him for “information purposes”. He was understood to be associated with the “Flagstaff Young Assassins”, a gang linked to the Flagstaff Road and Jane Street area in Toronto. During the course of surveillance, the appellant committed at least one Highway Traffic Act (“H.T.A.”) infraction and was stopped.
[4] When confronted by two uniformed officers, the appellant refused to identify himself. Section 33(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8, provides that a person who is unable or refuses to surrender his or her licence in accordance with a demand by a police officer shall, when requested by a police officer, give reasonable identification of himself or herself. A person who fails to comply may be arrested without a warrant.
[5] The two uniformed officers arrested the appellant. They then searched the appellant’s car purportedly to find identification. Eventually, the officers found a loaded, .45 calibre firearm behind the rear passenger seat of the vehicle. No identification was found. The police officers then re-arrested the appellant for possession of a firearm.
[6] At his trial, the appellant brought a motion pursuant to sections 8, 9, 10 and 24(2) of the Charter to exclude the gun. The main thrust of the appellant’s argument was that the police knew the identity of the appellant, that his detention and arrest were arbitrary and that the police used the H.T.A. as a pretext to investigate the appellant and his car because of an alleged gang association. The trial and the Charter motion proceeded in blended fashion.
[7] The trial judge rejected the appellant’s argument that the search of his car after he was arrested for failing to identify himself was unnecessary because the police already knew his identity. In so-doing he relied on R v. Caprara, 2006 18518 (ON CA), [2006] O.J. No. 2210. In that case the court held:
We reject the appellant’s argument that the search for identification evidence was unnecessary because police already 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 identity and … this was not a ‘guessing game’.
Similarly, in this case, the trial judge found that the officers who conducted the search did not know who the appellant was.
[8] On appeal, the appellant argues that the trial judge erred because although the arresting officers did not know the appellant’s identity, his identity was part of the collective knowledge of the Unit. The evidence with respect to the Unit’s collective knowledge is as follows. D.C. Hayles, a plain clothes member of the Urban Organized Crime Unit, was assigned to make observations from the parking lot of a high rise apartment building. He noticed a four door Jeep Cherokee in the parking lot of the Community Centre nearby and recalled seeing it before. He notified D.C. Payne over an encrypted radio channel and asked him to run a computer check on the vehicle’s licence. P.C. Jackson informed D.C. Hayles that the vehicle was registered to Marcia Jack, the appellant’s mother.
[9] P.C. Jackson also told D.C. Hayles that the vehicle had been investigated seven weeks earlier. At the time the appellant and Mr. Yeboah were the two occupants of the vehicle. P.C. Jackson provided a description of the appellant and Yeboah over the radio.
[10] Shortly after this D.C. Hayles observed a man approach the vehicle. P.C. Hayles “recognized” the appellant from a poster containing a photograph of 25 individuals believed by police to belong to the Falstaff Young Assassins Gang.
[11] The man approaching the vehicle was favouring the right side of his body, indicative of concealing something such as a firearm. The man opened the vehicle with a remote and leaned into the rear passenger side door of the vehicle. He then walked around the vehicle, sat in the driver’s seat and began driving away. D.C. Hayles communicated his observations over the air and believed it was heard by members of the Unit and assisting officers.
[12] D.C. Payne admitted D.C. Hayles identified the man over the air as Duval Smith. The other officers testified that they did not recall hearing D.C. Hayles transmit the appellant’s name over the air. The police were using two different radio channels and the respondent submits that the appellant’s identity may have been conveyed over an encrypted radio channel not the divisional channel ordinarily used on the car radio.
[13] D.C. Skinner came on the air. She stated that she wanted uniformed officers to “stop and speak with this individual that was in the car to obtain identification, find out who the registered owner of the car was, for intelligence information.”
[14] D.C. Payne then instructed D.C. Hayles and assisting uniform officers, Moxam and Moore, to follow the appellant’s car. Both Hayles and Payne also followed the appellant in their respective unmarked cars. While they were following the Jeep, it entered an intersection on an amber light which turned red while the driver was in the intersection. The appellant also rolled through a stop sign at Jane and Church and failed to signal while changing lanes. D.C. Payne testified that he ordered the marked cruiser to stop the vehicle when he saw the Jeep fail to stop at a stop sign. P.C. Moxam turned his emergency lights on to stop the appellant. The appellant did not stop and the police officers continued to follow him with their lights and siren on for approximately 150 metres. The appellant turned into a driveway, got out of his car and began walking up the walkway to the porch of a house.
[15] None of the uniformed officers who were present when the appellant was arrested for failing to identify himself had ever met or seen the appellant before the day in question. D.C. Skinner’s evidence suggested that she had seen the appellant before. She did not watch the arrest. Neither did D.C. Hayles. However, D.C. Payne watched the arrest and did not intervene. He had no communication with the arresting officers until after the arrest. The appellant submits that as D.C. Payne knew who the appellant was, the police officers had no right to search his car for identification and that the trial judge erred by failing to consider the collective knowledge of the team, particularly, D.C. Payne.
[16] D.C. Payne was not asked if he had ever actually seen or met the appellant before the day in question. In any event, the trial judge found that D.C. Payne erred in thinking that he learned of the identity of the man who approached the car over the radio. The trial judge’s finding is not unreasonable. Had the police been certain of the appellant’s identity, they could have arrested the appellant for driving while disqualified. This case falls squarely within the ratio of Caprara, supra. We would dismiss this ground of appeal.
Whether the search itself was unreasonable
[17] At trial, the appellant argued that the scope of the search of his car exceeded what was reasonable in the circumstances. The trial judge rejected this argument.
[18] When a pat down search of the appellant did not reveal any identification, and the appellant continued to refuse to provide his name, P.C. Moxam asked the appellant if he had any identification in his vehicle. The appellant replied, “You can’t search the car.” P.C. Moxam and P.C. Jackson began to search the vehicle. They began by searching the glove box, front console, the door flaps, and the floor. The appellant’s baseball cap was on the back seat of the vehicle. The trial judge found that the police only lifted a rear seat when the search in “more likely places for locating identification proved fruitless, and even then only after noticing that one of the rear seats was not properly engaged”.
[19] The appellant submits that the trial judge failed to appreciate that the searching officers had exhausted all locations where identification could reasonably expect to be found and the search was therefore unreasonable. We would disagree. It was open to the trial judge to find that the search was a progressive, reasonable search and one where identity may be found. We would reject the appellant’s submission that the trial judge erred in holding that his rights under s. 8 of the Charter were violated.
The trial judge’s treatment of the appellant’s evidence
[20] We did not call upon the respondent to argue this ground of appeal as we were of the opinion that the trial judge committed no error in rejecting the appellant’s evidence. The appeal as to conviction is dismissed.
The sentence appeal
[21] The appellant submits that the sentence was outside the range of sentences for this offender and this offence. We would disagree. The appellant had a lengthy, serious and related criminal record. He was subject to weapons and driving prohibitions and was in breach of both of them.
[22] While leave to appeal sentence is granted, the appeal as to sentence is dismissed.
RELEASED: June 23, 2008
“S.B.” “K.M. Weiler J.A.”
“S. Borins J.A.”
“J. MacFarland J.A.”