R. v. Yakubovsky-Rositsan, 2010 ONCA 748

CITATION: R. v. Yakubovsky-Rositsan, 2010 ONCA 748

DATE: 2010-11-05

DOCKET: C51575

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Simmons and Blair JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Max Yakubovsky-Rositsan

Appellant

Alan D. Gold, for the appellant

Howard Piafsky, for the respondent

Heard and released orally: October 29, 2010

On appeal from conviction entered by Justice Tamarin Dunnet of the Superior Court of Justice dated December 2, 2009.

ENDORSEMENT

[1] The appellant appeals from his conviction for possession of ecstasy for the purpose of trafficking. He raises three issues on appeal.

[2] First, the appellant submits that after finding that the police breached his s. 8 Charter rights when they seized the ecstasy from his home, the trial judge erred by failing to exclude the evidence of the seizure under s. 24(2) of the Charter.

[3] We do not accept the appellant's submissions on this issue. The police attended the appellant's home in relation to a domestic dispute. After the appellant had been arrested and taken from the home, the appellant's common law spouse volunteered to the police that the appellant was hiding drugs in a bag. She said she had a small baby and that she did not want the bag in the apartment. She went to the appellant's home office and retrieved a laptop bag. She opened the bag and the police saw a clear plastic baggie containing a creamy coloured powdery substance as well as a small silver weight and a cardboard box with the name of a digital scale manufacturer on it. The officer who seized the bag testified that it did not occur to him to get a search warrant in the circumstances.

[4] In our view, the trial judge made no error in characterizing the s. 8 breach as inadvertent or minor. Particularly because the appellant's common law spouse was asking the police to remove what she said were drugs from her home, it was open to the trial judge to conclude that the police were acting in good faith and overlooked the requirement for a warrant through inadvertence. Further, given what the common law spouse described to the police, we see no error in the trial judge’s conclusion that, had they applied, the police could likely have obtained a warrant.

[5] Further, we do not think the trial judge erred in failing to consider the subsequent Charter breaches in assessing the seriousness of the s. 8 breach. In our opinion, the s. 8 breach was distinct and unrelated to the subsequent more serious breaches of the appellant's rights that occurred at the police station during the police investigation of the domestic assault. On the facts there were two separate investigations, no factual connection between the breaches and no pattern of abuse.

[6] Finally, contrary to the appellant's submissions, the trial judge specifically adverted to the lack of exigent circumstances.

[7] In the end, we are not persuaded the trial judge erred in the manner in which she balanced the Grant[^1] factors. We would not give effect to this ground of appeal.

[8] The appellant's second and third submissions were that the trial judge shifted the burden of proof and that her reasons for conviction were inadequate because she failed to explain the basis for her conclusion that the drugs belonged to the appellant.

[9] We reject these submissions. As we read the impugned portion of the trial judge’s reasons, she was merely rejecting a defence submission and did not shift the burden of proof.

[10] Further, in her reasons on the Charter motion and in her reasons for convicting, the trial judge made several references to the evidence concerning the appellant's possession and ownership of the laptop bag and to the value of the drugs. We are satisfied that it was open to the trial judge to draw inferences of knowledge and control on the basis of this evidence. Read as a whole, the trial judge’s reasons demonstrate why she reached the conclusions that she did.

[11] The appeal is therefore dismissed.

Signed: “D. O’Connor A.C.J.O.”

“Janet Simmons J.A.”

“R. A. Blair J.A.”

[^1]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.