R. v. Johnson, 2009 ONCA 668

CITATION: R. v. Johnson, 2009 ONCA 668

DATE: 20090922

DOCKET: C47725

COURT OF APPEAL FOR ONTARIO

Goudge, Armstrong and Blair JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Brian Johnson

Appellant

Mark Halfyard, for the appellant

Roger Shallow, for the respondent

August 20, 2009

On appeal from convictions imposed by Justice J.M. Fragomeni of the Superior Court of Justice on October 13, 2006.

The Court:

Introduction

[1] Mr. Johnson appeals from his convictions for possession of a loaded Smith and Wesson .44 calibre handgun without a valid licence, for careless storage of the firearm, and careless storage of ammunition. He was acquitted of possession of a loaded restricted firearm and possession of a weapon for a purpose dangerous to the public peace.

[2] The appeal turns on the trial judge’s ruling that the gun was admissible into evidence. The police discovered the weapon in the appellant’s pants pocket after the vehicle in which he was a passenger was stopped in what the officers maintained was a safety stop conducted under the provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8.

Facts

[3] The officers testified that they had initially become suspicious of the vehicle when they observed it parked in a way that “seemed out of place” on a residential court in a neighbourhood known for drugs and crime. They were acting in an undercover capacity, assigned to the Street Gang Unit in Brampton at the time.[^1] The car appeared to be occupied only by a female driver. After observing the vehicle for about 30 minutes, at a distance of 30-50 metres, the officers saw the appellant get into the passenger side of the car.

[4] The car left the area. The police followed, falling in directly behind it. A short while later, the officers noticed a small child “bouncing up and down” in the backseat, apparently not in a child car seat. Shortly thereafter, the police stopped the vehicle.

[5] One police officer – Cst. Coniglione – approached the driver, Ms. Sylvester. The other – Cst. Clement – walked to the passenger side and identified himself to the appellant. This standard approach to a stopped vehicle is done for purposes of officer safety.

[6] Constable Clement testified that the appellant did not acknowledge or respond at all, but kept staring straight ahead, breathing very heavily. Constable Clement did not know why the appellant was reacting in such a nervous and anxious fashion. He looked inside the vehicle and down the interior side of the passenger door between the door and the appellant’s right thigh, but could not see the appellant’s right hand. The appellant made no response to a question about his hand and Cst. Clement then opened the passenger door “so [he] could visually see his right hand.” He saw “an obvious bulge in the right side of his pants” and noticed the appellant’s right hand touching his pocket area and cupped over something. Concerned about the safety of the child, the driver and his partner, he asked the appellant to get out of the car.

[7] After emerging from the vehicle, the appellant attempted to move his hip area away from Cst. Clement and kept touching his pocket area, in spite of the officer’s request that he not do so. Constable Clement then took the appellant to the police car and conducted a pat down search of his person, retrieving the gun.

[8] The appellant denied all of this. He said that he was completely calm, had no idea why they were being stopped and that he and Ms. Sylvester, his then girlfriend, were shocked when it happened. The appellant said that he was simply told to get out of the car and that the police officer grabbed his arm, pulled him over to the police cruiser, and conducted the search.

The Positions of the Parties

[9] The police asserted that the stop was conducted under the authority of the Highway Traffic Act based on the suspected car seat infraction and to ensure the safety of the child. The appellant contends that reliance on the Highway Traffic Act was simply a ruse and that the stop was made for the purposes of a criminal investigation (unrelated to the subsequently discovered weapon). Suffice to say that the trial judge rejected the appellant’s story, accepted the police version, and found that the stop was a legitimate use of police powers under the Act and not a “ruse or gimmick to facilitate a separate criminal investigation.”

[10] On behalf of the appellant, Mr. Halfyard acknowledges that the police have the authority under s. 216(1) of the Highway Traffic Act to stop a vehicle to conduct an investigation for a highway traffic infraction, such as a seatbelt violation. The issue, he says, is whether the police used that authority for legitimate purposes in this case or whether they used it as a false justification or ruse to engage in an unconstitutional stop to allay their suspicions of criminal activity in what was acknowledged to be a high crime area. He further acknowledges that the trial judge made findings directly against the appellant in this regard. But he says that these findings were the product of palpable and overriding error because they were founded on a misapprehension of the evidence, they resulted from a failure to deal with material inconsistencies between the testimony of Constables Coniglione and Clement, and they were based on an uneven and unbalanced scrutiny of the evidence.

Analysis

[11] We do not accept the appellant’s submissions.

[12] The trial judge gave thorough reasons in his 36-page decision on the Charter motion. He canvassed the evidence on the basis of the case as it was presented to him and concluded that “[o]n the evidence before [him he was] not satisfied that the initial stop by the officers was a ruse or a gimmick to facilitate a separate criminal investigation.” The onus was on the appellant in this regard, and, on the evidence, this was the trial judge’s decision to make.

[13] We see no basis for the argument that the trial judge misapprehended any of the evidence in any material way, or for the submission that his findings were based on an unbalanced and uneven scrutiny of the evidence.

[14] In oral argument, Mr. Halfyard’s submissions concentrated principally on the contention that the trial judge had failed to deal with various inconsistencies between the testimony of Cst. Coniglione and that of Cst. Clement. In particular, he focused on the fact that the trial judge did not specifically reconcile an alleged discrepancy regarding the evidence that the car’s windows were tinted, thus affecting the officers’ ability to observe what was happening inside it (specifically, whether the child was bouncing up and down out of the car seat).

[15] Although the trial judge was alive to the fact that the car windows were tinted – he cites the appellant’s evidence to that effect – he did not address this issue directly in his reasons. He did acknowledge the differences between the testimony of the police officers and reconciled them generally, saying:

The officers’ evidence is not identical. The versions have differences but neither officer exaggerated or embellished the situation. Witnesses do see things different(ly). Some of the details as to what happened are different. The officers made different observations. They saw things different[ly]. This does not result, in my view, in a finding that the basis for the stop is made up or a gimmick to stop the vehicle.

[16] While general statements in the reasons may not be a substitute for not addressing material inconsistencies – see R. v. Gabris, 2007 ONCA 437, for example – the reality is that, on this record, the testimony of the police officers on the tinted window issue was not materially inconsistent. Constable Clement said that the car windows were tinted and that he could not see inside the car when it was parked on the street and first observed from about 30-50 metres. He did not say he could not see inside the vehicle because of the tinted windows (or at all) when they were following “directly behind” the vehicle at the time he observed the child bouncing up and down. Constable Coniglione could not remember whether the car windows were tinted, but admitted they possibly could have been. When they first observed the vehicle parked at the side of the road, he was able to see the female driver because the window was down.

[17] We do not see any significant discrepancies in this evidence. Neither police officer testified that – nor were they asked to clarify whether – the tinted windows were an impediment to their ability to see inside the car when they were following directly behind it and observed the child in the back seat just before the stop. Again, the onus was on the appellant on this motion.

[18] Indeed, the fact that the discrepancies, if any, in this area of the testimony were minor, may explain why defence counsel at trial gave the matter very little play. He identified five material inconsistencies, concerning

(i) whether and how the child was bouncing in the back seat (Cst. Coniglione said he could just see the head and nothing below the head; Cst. Clement said he could see not only the head but the shoulders and chest area as well);

(ii) where the pat search of the appellant actually occurred (Cst. Coniglione said at Ms. Sylvester’s car; Cst. Clement said at the police car);

(iii) whether the officers made their notes independently of each other (the complaint really was that they had not made their notes independently and had consulted – the notes diverged somewhat);

(iv) whether the appellant was staring straight ahead while seated in the passenger seat (Cst. Clement said he was and that he was unresponsive; Cst. Coniglione said he saw them looking at each other); and

(v) Constable Coniglione’s unwillingness to corroborate Cst. Clement’s evidence regarding the appellant`s supposed panic attack (a weakness, not really an inconsistency).

[19] Of the foregoing, trial counsel identified the first – whether and how the child was bouncing in the back seat – as “the very and primary – the most important and significant contradiction between the officers”. To make this “primary” argument, he needed to emphasize the police officers’ ability to observe, as he did, saying:

And how … could there be any difference in their evidence on this point? They were sitting right next to each other. They were apparently right behind the car at the time they were making this pivotal, critical observation. How could there be any – any confusion or ambiguity between the two? Either it was a clear violation or it wasn’t. So, I would submit that when we have two people who are – who have the exact same opportunity to observe the very same thing and yet we’re getting different versions of that same thing, it – it should seriously call into question whether or not that observation was in fact made in my submission. [Emphasis added.]

[20] Defence counsel’s primary argument, then, was not that the officers could not see what was happening inside the vehicle when they were following directly behind it, but rather that they could. Their evidence should not have been different and was therefore unreliable.

[21] The trial judge specifically addressed and reconciled this different testimony, however. He said:

At first the officers do not see the child in the vehicle. As they follow the vehicle, the first time their police car is directly behind Ms. Sylvester’s vehicle is at Queen Street and Dixie. It is at this time that they notice a child in the vehicle. Cst. Coniglione testified that he only saw the child’s head bouncing up and down. This differs from Cst. Clement’s evidence when he stated he saw the child from the mid-chest level to the shoulders and the head of the child moving about in the car. I accept Cst. Clement’s observations as being more accurate as he was not driving the police cruiser and was able to focus on those observations more than Cst. Coniglione could, as he was driving. Cst. Clement was in a better position than Cst. Coniglione to make those observations. Cst. Coniglione was driving through an area of Queen Street that was undergoing construction and it was a busy time of the day.

[22] In addition, the trial judge dealt directly with the defence argument that if the appellant’s “panic” reaction had been so extreme, Cst. Coniglione would have noticed it. He said:

I am satisfied that it was possible that Cst. Coniglione did not and could not make the same observations that Cst. Clement made of Johnson. The evidence Darlene Sylvester is consistent with that. Even though she was sitting beside Johnson, she testified that she could not hear what Cst. Clement or Johnson were saying. Johnson also indicated that he never heard what Darlene and the officer were talking about or that they were even talking.

[23] The other “material” inconsistencies relied on by the appellant are, in our view, either minor in nature or not inconsistencies at all.

[24] At the conclusion of his submissions on this point, defence counsel at trial referred to the tinted window issue as one of a number of “extraneous factors” that he said would “tend to support the defence position that this particular observation was not observed”. He acknowledged that the issue was “not a determinative factor”.

[25] In short, the argument emphasized in oral argument on this appeal – that the police officers were not able to observe what was going on inside the vehicle because of the tinted windows – was only raised peripherally at trial and was not really an issue in play. In the circumstances of this case, the trial judge’s general treatment of the differences between the officers’ testimony – cited in para. 15 above – is adequate indication that he directed his mind to the resolution of such matters, in our view.

[26] Unlike Gabris, this was not a case where there were numerous inconsistencies in the evidence and several key inconsistencies that were not resolved by the trial judge. The trial judge here expressly addressed the two central inconsistencies raised by the defence – the discrepancies in the police officers’ testimony respecting the bouncing child in the back seat, and the defence argument that if the appellant was in the “panic” state described by Cst. Clement, Cst. Coniglione would have noticed. He therefore complied with the observations of this court in Gabris, at para. 10:

Of course, trial judges are not required to deal expressly with every inconsistency in the evidence. Trial judges should, however, address contradictory evidence on key or material points. See R. v. Stark (2004), 2004 CanLII 39012 (ON CA), 190 C.C.C. (3d) 496 at paras. 12-13 (Ont. C.A.).

[27] Accordingly, we would not give effect to this ground of appeal. There was ample basis in the record to support the trial judge’s finding that the incident relating to the child seat belt infraction was not fabricated, that the stop was justified under the Highway Traffic Act, and that the stop for that purpose was not simply a pretext or ruse to cover for some other general criminal investigation. In the absence of palpable and overriding error, there is no basis for us to interfere.

The Fresh Evidence Application

[28] The appellant sought leave to introduce fresh evidence in the form of photographs and a satellite Google map of the street on which the police officers first observed Ms. Sylvester’s vehicle parked. The object of this proposed evidence is to demonstrate that the police officers’ evidence with respect to the vehicle’s location was inaccurate, thereby undermining their credibility and enhancing the appellant’s position that their story was fabricated.

[29] We would not admit the fresh evidence. With the smallest degree of due diligence, it could easily have been adduced at trial, but, in any event, it is not clear from an examination of the photographs that they materially contradict the evidence of the police officers as to the location of the parked car. In addition, the police officers’ evidence was consistent with that of Ms. Sylvester in this regard. The evidence therefore fails to meet at least the first and fourth of the criteria established in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, namely that

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief. [And]

(4) [The evidence] must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [Citations omitted.]

[30] Here, because of its equivocal nature, the proposed evidence could not reasonably be expected to have affected the result, in our view. Moreover, although due diligence is less of a factor for consideration in criminal cases, the type of fresh evidence proposed could very easily have been – and should have been – tendered at trial had it been felt to be germane at the time.

Disposition

[31] The application to admit fresh evidence is dismissed. The appeal from conviction is also dismissed.

“S.T. Goudge J.A.”

“R.P. Armstrong J.A.”

“R.A. Blair J.A.”

RELEASED: September 22, 2009

[^1]: They were assigned to execute an arrest warrant on an individual sought in an unrelated matter at the time, and were looking for that individual.