Court of Appeal for Ontario

CITATION: R. v. Kampe, 2014 ONCA 255

DATE: 20140402

DOCKET: C56366

BEFORE: Sharpe, Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Kampe

Appellant

COUNSEL:

Ernest J. Guiste, for the appellant

Kevin Wilson, for the respondent

Heard and released orally: March 27, 2014

On appeal from the conviction entered on October 12, 2011 and the sentence imposed on January 26, 2012 by Justice Katherine B. Corrick of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of possession of 5.06 grams of crack cocaine for the purpose of trafficking. He submits that the trial judge erred in law by failing to appreciate and consider the s. 15 Charter violation he raised at trial and further erred in her analysis of his allegation of racial profiling.

[2] We reject these arguments for the following reasons.

[3] First, the appellant did not bring any motions or applications at trial to either exclude evidence or stay the proceeding based on a violation of his s. 15 Charter rights. Rather, the allegation of racial profiling was untethered to any specific request for a remedy.

[4] Second, and in any event, the trial judge considered and rejected the racial profiling allegation in the context of her analysis of the appellant’s submission that the police officers fabricated allegations against him and produced the crack cocaine to substantiate their false allegations. She accepted the police officers’ evidence that they did not target the appellant because he is an African-Canadian and that they did not plant evidence. In contrast, the trial judge found that the appellant was not a credible witness. This was a credibility finding that was open to the trial judge to make on the evidence before her.

[5] Third, the trial judge also considered the appellant’s related submission that an adverse inference should be drawn by reason of the failure of the Crown to call an unidentified woman who was in the accused’s rental vehicle at the time of his arrest. The trial judge noted that it was unusual that the police did not record the name of the woman, but concluded that she was unable to infer that the unidentified woman would have supported either the appellant’s version of events or the police officers’ version.

[6] Again, this was a conclusion that was open to the trial judge to make on the evidence and there was certainly no obligation on the Crown to locate this witness, especially given that the appellant testified that at the time of his arrest, he knew the unidentified woman’s name, telephone number and the area where she resided.

[7] The sentence has been served in this case and the sentence appeal has been abandoned.

[8] The conviction appeal is dismissed.

“Robert J. Sharpe J.A.”

“E.A. Cronk J.A.”

“C.W. Hourigan J.A.”