COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shipley, 2015 ONCA 914

DATE: 20151223

DOCKET: C59634

Juriansz, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Shipley

Appellant

Andrew Furgiuele, for the appellant

Marie Comiskey, for the respondent

Heard and released orally: December 16, 2015

On appeal from the conviction entered on August 19, 2014 by Justice Harrison S. Arrell of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of possession of cocaine for the purpose of trafficking and possession of property obtained by crime.

[2] On appeal, the appellant argues that the trial judge erred in finding that the arresting officer had reasonable and probable grounds to detain him and search inside his vehicle, thereby breaching ss. 9 and 8 of his Charter rights. The appellant asks that the dime bags and rock of cocaine the officer discovered around the driver’s seat be excluded from the evidence pursuant to s. 24(2) of the Charter.

[3] The trial judge reasoned that while the police officer had a dual purpose in mind in deciding to stop the accused, the traffic stop was not a ruse, and the officer, in the circumstances, was well justified in stopping the appellant under the Highway Traffic Act (“HTA”) to ensure he was properly licenced. The inquiries made by the officer, including the request that the appellant step out of his car, did not extend beyond the scope of s. 216(1) of the HTA.

[4] We agree with the trial judge that the officer, in order to determine the appellant’s identity, was justified in requesting that the appellant step out of his car and come to the police cruiser. The appellant did not have a licence with him as required by the HTA, and he was unable to produce any photo identification. The officer had a picture of the person whose name was the alias the appellant had given him showing on his computer screen in the police car. As a result, it was entirely reasonable for him to ask the appellant to come over to the police car to compare the appellant with the image on the computer screen to properly identify him for HTA purposes.

[5] When the appellant stepped out of his vehicle, the dime bags and rock of cocaine around the driver’s seat were in plain view.

[6] We are of the view that the result of this appeal is governed by the remarks of Doherty J.A. in Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 131 C.C.C. (3d) 1 (Ont. C.A.) that the trial judge relied upon:

The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement of the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the HTA, we see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stops and detention.

[7] The appellant argues that there was no legitimate other purpose in this case because the officer intended to embark on a general inquisition of what a citizen was doing in the bank parking lot at that late hour. We do not accept this characterization. The officer’s purpose is within the ambit of the purposes enumerated in para. 44 of Brown. As Doherty J.A. said in the passage quoted above, the gathering of police intelligence is well within the ongoing police duty to investigate criminal activity.

[8] The trial judge properly concluded that there was no breach of either s. 9 or s. 8 of the Charter. There is no need to address s. 24(2).

[9] The appeal is dismissed.

“R.G. Juriansz J.A.”

“David Watt J.A.”

“Lois Roberts J.A.”