Court of Appeal for Ontario

CITATION: R. v. Brown, 2015 ONCA 220

DATE: 20150401

DOCKET: C56735

LaForme, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Albert Brown

Appellant

Martin Kerbel Q.C., for the appellant

James Clark, for the respondent

Heard: March 25, 2015

On appeal from the conviction entered on October 25, 2012 by Justice C. M. Harpur of the Ontario Court of Justice.

ENDORSEMENT

[1] The police obtained a search warrant for the appellant’s residence. There they seized 17 one gram packets of cocaine in a pair of pants hanging on the bathroom door. The searchers also found $1,275 cash in his pants pocket, a digital scale with cocaine residue on it, empty baggies and bulk marijuana.

[2] The trial judge found that the appellant’s s. 8 Charter rights had been breached and quashed the search warrant. He found that the information to obtain the search warrant (the “ITO”) – in its redacted form – did not disclose reasonable grounds to believe that controlled substances were present in the appellant’s residence. The trial judge was satisfied that the manner in which the warrant was executed, including the dynamic entry, was not itself unreasonable, thus did not offend s. 8. He went on to hold that the evidence should be admitted under s. 24(2). This resulted in the appellant’s being convicted of possession of cocaine for the purpose of trafficking.

[3] On appeal, the appellant submits that the trial judge committed two errors.

[4] First, he submits that contrary to the finding of the trial judge, the breach of s. 8 of the Charter was serious and therefore the results of the search should have been excluded as evidence under s. 24(2). The appellant places particular importance on his view that the police were negligent in preparing the ITO, which he says, makes the s. 8 breach serious under the first branch of the Grant analysis: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[5] The trial judge correctly conducted his s. 24(2) analysis based on the three lines of enquiry mandated by Grant. In doing so, he found the following: (i) the seriousness of the breach was “moderate” and favoured inclusion; (ii) the impact on the appellant’s Charter rights was high, which favoured exclusion; (iii) the evidence was reliable and was essential to the Crown’s case; and (iv) that exclusion of the evidence was not necessary to maintain the repute of the administration of justice. He admitted the evidence at trial.

[6] For the appellant to succeed in challenging the trial judge’s s. 24(2) analysis he must demonstrate that the trial judge erred in principle, considered irrelevant facts, or made unreasonable findings. Failing this, the trial judge’s s. 24(2) analysis is owed considerable deference on appellate review: see R. v. Peterkin, 2015 ONCA 8, at para 75.

[7] The appellant’s submission that the ITO was prepared negligently is not sufficient to demonstrate to this court that the trial judge’s findings are unreasonable. The trial judge concluded that the most significant omission in the ITO was narrow and did not warrant exclusion of the evidence underlying the Crown’s entire case. We see no reason to disturb that conclusion. This ground of appeal fails.

[8] Second, the appellant argues that the circumstantial evidence was incapable of proving beyond a reasonable doubt that the appellant was in possession of the cocaine. To succeed here, this court, after a review of the entirety of the evidence, must be satisfied that a reasonable trier of fact, properly instructed and acting judicially, could not have convicted the appellant of the offences: see R. v. Mars, 2006 CanLII 3460 (ON CA), [2006] O.J. No. 472 (C.A.), at para. 3.

[9] The appellant places specific emphasis on the police officer’s opinion that the pants found in the bathroom containing the cocaine “could fit the appellant”. He argues that this is not sufficient to prove ownership of the pants, thus knowledge of and control over the cocaine in a pocket, beyond a reasonable doubt. However, the whole of the circumstantial evidence – including the fact that an investigating police officer said the pants belonged to a man and that the appellant was the only man living in the apartment – was sufficient to find the appellant in constructive possession of the cocaine.

[10] We note that there was no explanation whatsoever for the presence of the cocaine in the appellant’s bathroom. He chose not to testify. This court, when considering the reasonableness of a verdict, is entitled to treat an appellant's silence as indicating that the appellant could not provide an innocent explanation of his or her conduct: see R. v. Dell, 2005 CanLII 5667 (ON CA), [2005] O.J. No. 863 (C.A.), at para. 35

[11] Thus, it follows that the conclusion of the trial judge is amply supported by the evidence adduced at trial. This ground of appeal fails.

[12] For these reasons, the appeal is dismissed.

“H.S. LaForme J.A.”

"David Watt J.A."

"Gloria Epstein J.A."