Court of Appeal for Ontario

Date: 2017-03-01 Docket: C60858

Judges: Cronk, Rouleau and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Hayden Alexander Appellant

Counsel

Jeffrey Fisher, for the appellant

Marie Comiskey, for the respondent

Heard: February 24, 2017

On appeal from: The conviction entered on October 29, 2014 and the sentence imposed on January 30, 2015 by Justice A. Stong of the Superior Court of Justice.

Endorsement

[1] At the end of the hearing of this appeal, the court dismissed the appeals from conviction and sentence, with reasons to follow. These are those reasons.

[2] The appellant was convicted of possession of crack cocaine for the purposes of trafficking and was sentenced to 18 months in jail, less six months' credit for time served in pre-sentence custody.

A. Conviction Appeal

[3] The main issue at trial was whether the police had reasonable and probable grounds on which to base their arrest of the appellant and the subsequent search of the appellant and his vehicle. In the search the police found 8.3 grams of crack cocaine as well as various amounts of currency.

[4] The police observed the vehicle driven by the appellant make three stops at three different locations in a period of 15 minutes. At the first stop, a known drug user was observed briefly getting into the passenger side of the vehicle and exiting it shortly thereafter. At the second location, about a minute after the vehicle had arrived, the appellant was observed leaving the front of the residence of known drug users and re-entering the vehicle. At the third location, a man got into the passenger side of the vehicle for a short period of time and then exited. After the third stop, the appellant was stopped and arrested.

[5] The appellant argues that his arrest was unlawful and, as a result, the items seized in the search ought to be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms. The trial judge dismissed the application, finding that the arresting officer had reasonable and probable grounds to arrest the appellant. He also found that, objectively, the grounds were justified. In his view, the arresting officer was entitled, in the totality of the circumstances, to infer that the appellant was trafficking in drugs.

[6] On appeal, the appellant argues that the trial judge erred in dismissing the Charter application. He maintains that the police did not have the requisite grounds to make the arrest as the grounds provided were not objectively reasonable. In particular, he submits that the trial judge misapprehended the evidence, provided insufficient reasons and relied on factors not mentioned by the arresting officer in determining whether there were reasonable grounds for the arrest.

[7] In our view, the conviction appeal must be dismissed.

[8] The first ground advanced by the appellant is that the trial judge misapprehended the evidence in three respects:

1. Whether it was reasonable for the arresting officer to have proceeded on the basis that the appellant had been the driver of the vehicle at all three locations;

2. Whether there was an interaction with the appellant and another person at the second location; and

3. Whether at the time of the arrest, the arresting officer had knowledge that the resident at the second location was associated with drug activities.

[9] We do not give effect to this ground. The test for appellate review with respect to the misapprehension of evidence is a stringent one and, in our view, it has not been met in this case.

[10] The trial judge was well aware of the gaps in the police officer's observations of the appellant's activities. He did not err in his assessment of the evidence. When viewed as a whole, the evidence supports the inferences drawn by the officer with respect to these three alleged misapprehensions.

[11] The second ground of appeal is that the trial judge's reasons were insufficient. In support of this ground, the appellant argues that the trial judge's reasons do not adequately explain how he came to accept that the appellant was the driver of the vehicle, that the second residence was known for drug activity and that there was an interaction at the second residence.

[12] Although the reasons are sparse, when read in the context of the record as a whole, they demonstrate that the trial judge was alive to the issues in this case, including the gaps and limits in the observations made by the arresting officer. He gave adequate reasons in support of the findings he made. The trial judge was not required, in his reasons, to refer to each piece of evidence given or missing with respect to the police observations made at the three locations. In his 16-page judgment, the trial judge provided a comprehensive summary of the surveillance conducted and articulated clear and cogent reasons for the conclusion that, both objectively and subjectively, the arresting officer had reasonable and probable grounds to believe that the offence of trafficking was occurring.

[13] The third ground of appeal is that, in concluding that objective and subjective reasonable and probable grounds for the arrest existed, the trial judge relied on two factors that were not in evidence.

[14] We do not give effect to this ground of appeal.

[15] The two factors noted by the trial judge are that the appellant's actions in the vehicle were "clandestine" so as to prevent police observation and that the vehicle was driven in a manner to avoid detection. As for the first, in our view, the arresting officer's evidence did support the trial judge's finding that the drug transactions themselves were made in a manner to avoid detection.

[16] With respect to the second factor, we agree that the trial record does not support a finding that the appellant's manner of driving was to avoid detection. However, it is not clear to us that this finding played a role in the trial judge's reasoning on the conviction. If it did, it was of little or no significance. We view the error as minor and harmless in its effect and, if necessary, would apply the curative proviso.

B. Sentence Appeal

[17] At trial, the appellant brought a constitutional challenge to s. 5(3)(a)(i)(d) of the Controlled Drugs and Substance Act, S.C. 1996, c. 19 which, when in effect, provided for a mandatory minimum sentence of one year for any person convicted of a designated substance offence within the previous ten years. The appellant fell within this category as he had been convicted of a drug offence in 2004. The trial judge dismissed the constitutional challenge and sentenced the appellant to 18 months.

[18] Subsequent to the sentencing in this case, the Supreme Court of Canada held that s. 5(3)(a)(i)(d) was unconstitutional in the decision of R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130. The appellant argues that the trial judge erred in law in rejecting his Charter challenge to the mandatory minimum. He also argues that the sentence violated the jump principle.

[19] We reject this submission. The sentence imposed was not an application of the mandatory minimum and did not violate the jump principle. It falls within the acceptable range for this type of offence and an offender with prior convictions. In our view, the sentence is entirely fit. In any event, we understand that the appellant has served his sentence and the sentence appeal is therefore moot.

C. Conclusion

[20] For these reasons, both the conviction and sentence appeals are dismissed.

"E.A. Cronk J.A."

"Paul Rouleau J.A."

"B.W. Miller J.A."