R. v. Sterling, 2009 ONCA 65

CITATION: R. v. Sterling, 2009 ONCA 65

DATE: 20090123

DOCKET: C47225

COURT OF APPEAL FOR ONTARIO

Laskin, Gillese and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sean Sterling

Appellant

Joseph Wilkinson and Philip Norton, for the appellant

Christine Tier, for the respondent

Heard and released orally: January 16, 2009

On appeal from the conviction entered and sentence imposed by Justice Denise Bellamy of the Superior Court of Justice, sitting without a jury, on February 9, 2007.

ENDORSEMENT

[1] The appellant does not challenge the trial judge’s finding that the police had Ms. Theochardies’ consent to enter the apartment or the trial judge’s finding that the appellant did not have a reasonable expectation of privacy in Ms. Theochardies’ apartment. Instead, on appeal the appellant seeks to re-characterize his Charter claims. He contends that the police conducted an unauthorized search of him and breached his s. 10(b) rights following their investigative detention of him

[2] Whether the appellant was detained in the apartment was not raised before the trial judge. Appellate courts are understandably reluctant to entertain Charter arguments for the first time on appeal because of the absence of any findings from the trial judge to give factual context to these arguments. Here, we are not persuaded that we should entertain this argument on detention when it was not raised before the trial judge and, therefore, not addressed by the Crown. We cannot safely conclude that the trial record is adequate to consider this argument or that the Crown would not be prejudiced.

[3] However, even if we were to entertain this argument, and even if we were to accept that the police’s conduct amounted to an investigative detention, we do not agree that the police’s actions amounted to a search. Although perhaps in a slightly different context, the trial judge ruled that there was no search. We are not persuaded that her finding is unreasonable. It is supported by the following evidence:

• The appellant’s clothing and appearance were in plain view;

• The appellant was asked for identification and provided it;

• The police did not do a pat-down search of the appellant until after his arrest; and

• Although the appellant answered some police questions, he eventually refused to answer them or to cooperate with the police.

[4] Accordingly, we are not persuaded that the appellant’s s. 8 Charter right was breached. Moreover, even if it was, the evidence seized is nonetheless admissible under s. 24(2) of the Charter for the reasons set out in paras. 52 and 53 of the Crown’s factum.

[5] Finally, we decline to entertain the appellant’s s. 10(b) argument because it was not raised before the trial judge. As Justice Iacobucci noted in Mann, the question when an investigative detention gives rise to a detainee’s s. 10(b) rights raises “more difficult issues.” The Supreme Court of Canada refused to address these issues in Mann “without the benefit of a full consideration in the lower courts, which we do not have in this case.” Similarly, in the present case, we do not have any consideration of this issue by the trial judge.

[6] Accordingly, the conviction appeal is dismissed.

[7] On the sentence appeal, the appellant acknowledges that his sentence of 4½ years is within an acceptable range. However, he is now subject to a deportation order and asks for a reformatory sentence to give him a chance to contest this order. We decline to interfere with the sentence. Reducing the sentence for this crime to a reformatory term would amount to a major adjustment of the sentence, which is not warranted.

[8] Accordingly, although leave to appeal sentence is granted, the sentence appeal is dismissed.

“John Laskin J.A.”

“E.E. Gillese J.A.”

“Paul Rouleau J.A.”