Court of Appeal for Ontario

Citation: R. v. Brown, 2014 ONCA 525

Date: 2014-07-07

Docket: C55743

Before: Strathy C.J.O., Feldman and Watt JJ.A.

Between

Her Majesty the Queen

Respondent

and

Al-Najair Oliver Brown

Appellant

Counsel:

Mark Halfyard, for the appellant

Cindy Afonso, for the respondent

Heard and released orally: June 24, 2014

On appeal from the conviction entered on February 16, 2012 by Justice Roland J. Haines of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant appeals his conviction for possession of cocaine for the purpose of trafficking on the ground the trial judge erred in finding there were reasonable and probable grounds for his arrest. He asserts the evidence obtained as a result of the search of the appellant and his vehicle should have been excluded under s. 24(2) of the Charter.

[2] His principal submissions are:

i. the trial judge erred in finding that the grounds relied upon by the arresting officer were objectively reasonable; and

ii. the trial judge misapprehended the evidence in finding that the officer's evidence did not conflict with that of two defence witnesses (an expert and an articling student) who testified that on re-enactment of the conditions prevailing at the time, it was impossible to identify anything more than the presence of a light-skinned black male in the driver's seat of the car.

[3] We do not agree with these submissions for two reasons.

[4] First, in determining whether the grounds for arrest were objectively reasonable, the trial judge was entitled to consider, as he did, all the surrounding circumstances: see R. v. Lawes, 2007 ONCA 10, at para. 4, relied upon by the trial judge. Those circumstances included:

i. the information received from a reliable informant that a drug dealer would be receiving drugs from his supplier (the appellant, who was known to the arresting officer) in the early morning hours of the day in question;

ii. the observation of a vehicle parked on a street near the dealer's home at 1:18 a.m. on the day in question;

iii. the officer's observations of the appellant in the company of the drug dealer on two previous occasions, the last of which was two and one-half months earlier, and his review prior to the arrest of a video taken of the appellant on that occasion; and

iv. the appellant's distinctive hairstyle, which consisted of a ponytail flipped up at the back and worn at the top of his head.

These circumstances provided important context to the officer's identification of the appellant as he drove past the parked car with the highbeams of his truck on.

[5] Second, we do not accept the submission that the trial judge misapprehended the evidence when he found the officer's evidence could be reconciled with that of the defence witnesses, who said it was impossible to make out the facial features of the occupants of the vehicle as they drove past in their simulations.

[6] A careful reading of the officer's evidence indicates that the most important factor in his identification of the appellant was his distinctively placed ponytail, a feature with which the officer was familiar, based on his earlier observations. The appellant's hair had been cut and the ponytail removed when the defence witnesses performed their simulations. As well, the officer did not say he observed any specific features, but said he recognized the face "in general".

[7] In our view, the trial judge's acceptance of the officer's evidence was not inconsistent with his acceptance of the evidence of the defence witnesses who said they were unable to observe facial features.

[8] It follows that both the objective and subjective requirements were satisfied. The appeal is therefore dismissed.

"G.R. Strathy C.J.O."

"K. Feldman J.A."

"David Watt J.A."