R. v. Wade, 2010 ONCA 208

CITATION: R. v. Wade, 2010 ONCA 208

DATE: 20100318

DOCKET: C49654

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Lang JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

And

Jewel Wade

Appellant

Counsel:

Jordan Glick, for the appellant

Cindy Afonso, for the respondent

Heard and endorsed: March 17, 2010

On appeal from conviction by Justice Richard Gates of the Superior Court of Justice dated October 24, 2008.

APPEAL BOOK ENDORSEMENT

[1] The trial judge failed to provide clear reasons for his implicit acceptance of Officer Gawadzyn’s evidence as to the conduct of the appellant that led to his arrest, after the ambulance left, over the evidence of Officer Tremblay. However, his failure to do so must be assessed in the context of the appellant’s fundamental position at trial – namely, that his arrest was unlawful and simply a ruse for the police to search his backpack.

[2] The trial judge was clearly alive to the appellant’s fundamental position and explicitly rejected it. When the reasons and submissions are read as a whole, it is apparent that the trial judge accepted Officer Gawadzyn’s evidence and was satisfied that there was a legitimate basis for the appellant’s arrest.

[3] Accordingly, we would not give effect to this ground of appeal.

[4] As for the other grounds, we are not at all certain that the police breached the appellant’s s. 8 rights when they searched his backpack. Indeed, we are inclined to the view that there was no such breach.

[5] Be that as it may, if there was a breach, we are not satisfied that the trial judge erred in admitting the evidence, having regard to his s. 24(2) reasons and the new test enunciated in Grant.

[6] Accordingly, the appeal from conviction is dismissed.