CITATION: R. v. Caruso, 2011 ONCA 69

DATE: 20110125

DOCKET: C49692

COURT OF APPEAL FOR ONTARIO

Goudge, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruno Caruso

Appellant

Stacey Nichols, for the appellant

Sandy Thomas, for the respondent

Heard: January 20, 2011

On appeal from the conviction entered and sentence imposed on February 15, 2008, by Justice Douglas B. Maund of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant challenges his conviction for possession of drugs for the purpose of trafficking. The sentence appeal is abandoned.

[2] He raises two issues: first that the evidentiary record provides no basis for why Officer Hlebec searched his vehicle, and therefore it cannot be shown to be a search incidental to his arrest.

[3] We disagree. The officer testified that, on the basis of the information he received that the appellant had been arrested and that drugs had been found on his person, the officer conducted the search of the vehicle that yielded the evidence underpinning this conviction. This evidence, fairly read, does not yield the conclusion that he had already commenced the search. His evidence constitutes a sufficient basis to conclude that the search of the car was incidental to the appellant’s arrest, and to sustain the conclusion that the search did not violate s. 8 of the Charter.

[4] We do not think, however, that the process used here, where the Charter issue arises only after much of the evidence is in, is one that should be used if it can be avoided. If the Charter issue is raised at the outset, the record can be properly fleshed out.

[5] The appellant’s second issue is that the trial judge’s reasons dealing with the s. 8 issue are inadequate.

[6] We agree. Indeed they are silent on that issue save for the decision reached. However, in our view, this deficiency does not prevent meaningful review by this court of the decision that there was no s.8 violation. For the reasons we have given, on this record and on the unchallenged evidence, it is clear that the search of the appellant’s car is properly seen as an incident of his arrest, and therefore no violation of his s. 8 rights.

[7] The appeal from conviction is dismissed.

“S. T. Goudge J.A.”