Court of Appeal for Ontario
Date: 2017-06-06 Docket: C60925
Judges: Epstein, Pardu and Benotto JJ.A.
Between
Her Majesty the Queen Respondent
and
Danny Giamou Appellant
Counsel
Tina Yuen, for the appellant Jeremy Streeter, for the respondent
Heard: May 30, 2017
On appeal from the conviction entered on February 23, 2015 by Justice Kathleene J. Caldwell of the Ontario Court of Justice.
Reasons for Decision
[1] The appellant was convicted of possession for the purpose of trafficking and assault. The relevant events took place in a parking lot.
[2] The appellant was arrested (pursuant to a citizen's arrest) by two Toronto Parking Authority ("TPA") security guards who were patrolling TPA property. It was alleged that the appellant pushed one of the guards who had approached him about loitering. The security guards handcuffed the appellant and called 9-1-1. A police officer arrived, left the appellant in handcuffs, searched him and found pills and marijuana in his inside jacket pockets. More pills were found in his pants pocket when he was searched later at the police station.
[3] At trial the appellant expressly took the position that the Toronto police had not committed any Charter violations. He submitted that the security guards, on the other hand, had violated his Charter rights.
[4] The trial judge relied on R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, in holding that the Charter did not apply to the TPA security guards.
[5] With respect to the drugs, the trial judge rejected the appellant's testimony that the security guards had planted the drugs on him. Once the trial judge found the appellant was in possession of the drugs, the defence conceded the possession was for the purpose of trafficking. With respect to the assault, the trial judge rejected the appellant's evidence and instead preferred the security guards' evidence. The trial judge therefore convicted the appellant on both counts.
[6] For the first time on appeal, the appellant raises the constitutionality of the police conduct. He submits the police illegally "continued" a citizen's arrest which itself was unreasonable and therefore invalid, and, in doing so, violated the appellant's s. 9 Charter rights. Further, the appellant contends the warrantless search executed by the police violated his rights under s. 8 of the Charter because the arrest was invalid and, even if it were valid, the scope of the search exceeded the level of intrusion authorized under the doctrine of search incident to arrest. The drugs should therefore have been excluded.
[7] Due to the appellant's concession that the Toronto police had not violated his Charter rights, the arguments appellant's counsel now raises that the police violated his Charter rights, were not put forward at trial. Before this court, the appellant submits that it is in the interests of justice for this court to hear the issue. Simply put, it is submitted that trial counsel was wrong at law not to raise Charter issues with respect to the police.
[8] Despite the forceful submissions of counsel, we conclude that the appellant cannot raise the issue of the police conduct for the first time on appeal.
[9] In R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 39, this court confirmed the general rule that courts of appeal will not permit an issue to be raised for the first time on appeal. The rationale is based on: (i) prejudice to the other side which lacks the opportunity to respond and adduce evidence; (ii) the absence of a sufficient record; (iii) the societal interest in finality and the expectation that criminal cases will be disposed of at first instance; and (iv) the responsibility of defence counsel to advance all appropriate arguments at first instance: Reid, at para. 40.
[10] The burden is on the party who seeks to raise the new issue to satisfy three preconditions:
the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;
the failure to raise the issue at trial must not be due to tactical reasons; and
the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal: Reid, at paras. 42-43.
[11] The appellant has not met these preconditions.
[12] The record is not complete, largely due to the way that trial counsel framed the Charter issue. Since the conduct of the police was not an issue at trial, there was no evidence brought before the trial judge to enable her to assess the alleged Charter breaches. Nor are we satisfied that the failure to raise the conduct of the police was not a tactical decision. We have no evidence from trial counsel in this regard, as an allegation of ineffective assistance of counsel was not raised.
[13] We therefore deny leave to permit the new argument on appeal.
[14] The appellant has also raised issues relating to the trial judge's credibility analysis. In our view, there was evidence to support the trial judge's factual findings and there was no misapprehension of the evidence on her part. The trial judge's credibility findings are entitled to considerable deference.
[15] The appeal is therefore dismissed.
"Gloria Epstein J.A."
"G. Pardu J.A."
"M.L. Benotto J.A."