CITATION: R. v. Filli, 2008 ONCA 649
DATE: 20080925
DOCKET: C47823
COURT OF APPEAL FOR ONTARIO
Doherty, Laskin and MacPherson JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kamal Filli
Appellant
Michael Dineen, for the appellant
Rick Visca, for the respondent
Heard and released orally: September 23, 2008
On appeal from the conviction entered on June 25, 2007 by Justice Nancy J. Spies of the Superior Court of Justice.
BY THE COURT:
[1] The appellant was convicted by Spies J. of possession of cocaine for the purpose of trafficking and possession of ecstasy pills, both contrary to the Controlled Drugs and Substances Act.
[2] The appellant was the only passenger in a car pulled over by two police officers. He was asked to step out of the car and had his identification taken by one officer. According to the findings of the trial judge, the other officer discovered a bag of cocaine in plain view under the passenger seat.
[3] The appellant was arrested. A pat-down search revealed cocaine and ecstasy pills in his pocket, as well as a hard, rocky substance in his underwear. The officers then conducted a strip search and seized four more bags of cocaine from inside the underwear.
[4] During the trial, a voir dire was held to determine whether any of the appellant’s Charter rights had been violated and, if so, whether the evidence obtained inside the vehicle and on the appellant’s person should be excluded.
[5] The trial judge held that by the time one of the officers saw the cocaine under the passenger seat, the appellant had been arbitrarily detained (Charter s. 9 breach) and had not been advised of the reasons for the detention (Charter s. 10(a) breach). She also held that the strip search of the appellant, but not the search of the car or the pat-down search of the appellant, constituted an unreasonable search (Charter s. 8 breach).
[6] The trial judge then conducted a Collins[^1] analysis to determine whether any of the evidence relating to the cocaine and the ecstasy should be excluded under s. 24(2) of the Charter. She concluded that the cocaine seized from the car and the cocaine and ecstasy seized from the appellant during the pat-down search should be admitted. These drugs formed the basis for the convictions.
[7] However, the trial judge excluded the cocaine seized during the strip search on the basis that “[s]trip searches are inherently humiliating and degrading”, “they cannot be carried out simply as a matter of routine policy”, and “given the nature of the proposed strip-search, the officers did not pause to consider whether or not the search was really necessary. Had they done so, I am sure they would have simply brought Mr. Filli to the station, keeping an eye on him during the transport.” The cocaine which the trial judge excluded did not form the basis for a conviction.
[8] The appellant appeals his convictions relating to the cocaine seized from the car and the cocaine and ecstasy seized from him during the pat-down search.
[9] The appellant’s principal ground of appeal is that the trial judge found that one of the officers lied during his testimony, but did not take this into account in her s. 24(2) analysis. For several reasons, we disagree with this submission.
[10] First, in many cases, including Collins, Stillman[^2] and Buhay[^3], the Supreme Court of Canada has cautioned that a trial judge’s balancing of the Collins factors is entitled to considerable deference. In this case, the trial judge’s s. 24(2) analysis was clear, careful and comprehensive and, therefore, worthy of considerable deference.
[11] Second, the trial judge made several findings in relation to the officer’s testimony. Some of it was positive and some of it was not. All of the trial judge’s criticism of the officer’s testimony related to the strip search.
[12] Third, accepting that a deliberate attempt to mislead the court by an officer in his testimony might be a factor relevant to the third branch of the Collins test (see this court’s recent decision in Harrison[^4], currently on appeal to the Supreme Court of Canada), it seems to us that the trial judge’s decision to exclude the evidence relating to testimony she criticized was a rational and reasonable response. So was her parallel decision to admit the evidence that was not connected to the officer’s questionable testimony.
[13] Finally, we do not agree with the appellant’s assertion that the trial judge improperly compartmentalized her analysis and did not pay proper regard to the officers’ conduct as a whole. In our view, her findings of fact do not support the contention that the police acted with a deliberate disregard of the appellant’s constitutional rights from the outset. Rather, those findings indicate that the police acted in good faith until the decision was made to strip search the appellant at the scene of his arrest.
[14] The appellant’s second ground of appeal is that the trial judge erred in her application of the so-called ‘rule’ in Brown v. Dunn by attaching significance in her judgment to the fact that defence counsel did not put to the police officers the defence theory that the police had fabricated evidence.
[15] In our view, the single paragraph the appellant attacks on this issue is inconsequential. Put bluntly, the reason the appellant was convicted of possession of the cocaine found in the car was the testimony of the officer who found it, which the trial judge explicitly endorsed as entirely credible. The trial judge’s finding of credibility, which grounded the finding of fact concerning the discovery of the cocaine in the car, is entitled to considerable deference.
[16] The appeal is dismissed.
RELEASED:
“SEP 25 2008”
“DD” “Doherty J.A.”
“John Laskin J.A.”
“J.C. MacPherson J.A.”
[^1]: R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.) [^2]: R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.) [^3]: R. v. Buhay (2003), 2003 SCC 30, 174 C.C.C. (3d) 97 (S.C.C.) [^4]: R. v. Harrison (2008), 2008 ONCA 85, 231 C.C.C. (3d) 118 (Ont. C.A.)