CITATION: R. v. Murtezovski, 2009 ONCA 423

DATE: 20090521

DOCKET: C49540

COURT OF APPEAL FOR ONTARIO

Lang, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Lirim Murtezovski

Appellant

Frank Addario and Andrew Furgiuele, for the appellant,

David Rowcliffe and Lucas Price, for the respondent

Heard: May 14, 2009

On appeal from the judgment of Justice T.D. Little of the Superior Court of Justice dated May 12, 2008.

ENDORSEMENT

[1] The principal question on this appeal is whether the police had reasonable and probable grounds to arrest the appellant.

[2] The parties do not dispute the facts.

[3] The police intercepted a package addressed to "K. Woodhouse" that contained three bricks of cocaine. The police removed the cocaine and replaced the bricks with three similar-looking bricks that contained flour. They also left twenty grams of cocaine in the wrapping of one of the bricks. They then arranged for a "controlled delivery" to K. Woodhouse's address by an officer disguised as a UPS worker, during which time the residence was under police surveillance.

[4] The police observed K. Woodhouse and another person leave separately in two of the three vehicles at the residence shortly before the delivery. The appellant's father's car was the only car that remained outside. The police then delivered the package. The appellant took receipt and signed his own name. Ten minutes later the police observed the appellant leaving the residence in his car with a gym bag. At that time the police at the scene had been advised a warrant to search the residence had been issued but they had not yet received it.

[5] When the appellant drove away in his vehicle, the police stopped him in a "high risk take down" and arrested him for possession of cocaine for the purposes of trafficking. When the police entered the vehicle, they found the gym bag with three plastic bags that contained the "cocaine" bricks still sealed and unopened. The appellant also had a marijuana joint and twenty grams of hashish.

[6] The appellant and K. Woodhouse were jointly charged with conspiracy to possess cocaine for the purpose of trafficking and possession of cocaine for the purpose of trafficking. The appellant was also charged with simple possession of marijuana and possession of cannabis resin for the purpose of trafficking.

[7] The appellant brought a pre-trial motion alleging violations of his s. 8 and s. 9 Charter rights. The trial judge dismissed the motion finding no Charter breaches. After trial, he dismissed the conspiracy charge but entered convictions on the possession of cocaine for the purpose of trafficking, simple possession of marijuana and simple possession of cannabis resin as an included offence in the count of possession for the purpose of trafficking.

[8] The principal ground on the appellant's appeal of his convictions is that the police lacked reasonable grounds to arrest him. We disagree.

[9] It was not contested that the officer who decided the appellant should be arrested subjectively believed he had reasonable grounds to arrest him. The circumstances viewed in combination also met the objective standard required. The appellant, who was the only person apparently in the house at the time of the delivery, after physically receiving the package, left shortly thereafter with a bag capable of carrying what had been delivered.

[10] We agree with the trial judge there was no infringement of the appellant's s. 8 or s. 9 Charter rights. Even if we were persuaded there had been a breach, we would not exclude the evidence.

[11] The Crown did not contest that the appellant's summary conviction of simple possession of marijuana should be quashed on the basis that, in the circumstances of this case, this summary conviction offence should not have been tried together with the other offences charged, which were exclusively indictable.

[12] Accordingly, the appellant's summary conviction is quashed and the remainder of the appeal is dismissed.

"S.E. Lang J.A."

"R.G. Juriansz J.A."

"David Watt J.A."