Court of Appeal for Ontario

Date: July 31, 2017

Docket: C61361

Judges: Feldman, Watt and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Walter Jose Aviles Appellant

Counsel

Mark Halfyard and Breana Vandebeek, for the appellant

Jeremy Streeter, for the respondent

Heard

December 2, 2016

Appeal

On appeal from the convictions entered on July 27, 2015 by Justice Ian F. Leach of the Superior Court of Justice.

Feldman J.A.

[1] Introduction

When the appellant was arrested for assault, the police searched his shoulder bag and found drugs. He was then arrested for possession for the purpose of trafficking, following which, the police searched his bag again and found a knife. When he was later searched at the police station, they found more drugs in his pocket. The appellant was convicted of possession for the purpose of trafficking and carrying a concealed weapon. He says the police had no grounds to arrest him for assault and no legal basis to search his bag and therefore breached his s. 9 and s. 8 Charter rights. He also says the trial judge misunderstood his counsel's concession at the opening of trial with respect to continuity and erred in finding proof beyond a reasonable doubt of the continuity of the contents of the bag.

[2] Disposition

For the reasons that follow, I would dismiss the appeal.

Facts

[3] Initial Assault Report and Identification

At around 3:17 a.m. on January 15, 2013, the London police received a report of an assault on a man in the vicinity of the Mac's Milk at the corner of Dundas Street and Wellington Street. The complainant said he had lost his shoe in the assault. The police searched a nearby alleyway and found the shoe. The complainant said he knew one of the assailants, Mr. Earhart, by name. The other two were a man and a woman. The man had dark skin and was dressed in baggy hip-hop style clothing.

[4] Identification at the Convenience Store

While speaking with the police, the complainant pointed through the convenience store window to three people approaching, a woman and two men, and identified them as his attackers. One of the men was recognized by one of the officers, based on a mobile data terminal check the officer had just conducted, as the individual the complainant had identified by name. The other male was the appellant. He was wearing a black pea coat, black jogging pants, brown boots and a black baseball cap.

[5] Initial Arrest and Search

The appellant was arrested by Constable Bronson for assault and handcuffed. During the arrest, a grey single-strap shoulder bag dropped from the appellant's shoulder. Constable Bronson escorted the appellant to the police car, gave him his right to counsel and caution, and searched him incident to arrest, finding two cell phones and a wallet with $160 in cash inside.

[6] First Search of Shoulder Bag

As the appellant was taken to the police car, another officer, Sergeant Austin, picked up the appellant's shoulder bag and searched it quickly for a weapon for officer safety reasons. He found a leather box inside which contained a digital scale and several types of narcotics. He then brought the bag over to the police cruiser where Constable Bronson had taken the appellant. He turned the bag over to Constable Bronson and advised him of what he had found inside.

[7] Re-arrest for Drug Possession

Constable Bronson looked inside the shoulder bag, pulled out the leather case and saw the scale and narcotics, then put the case back inside the shoulder bag. He then re-arrested the appellant for possession of narcotics for the purpose of trafficking, and again gave him his right to counsel and caution, following which the appellant asked to speak to a lawyer.

[8] Second Search and Station Search

Constable Bronson then turned the appellant and the bag over to a third officer, Constable Thorner, who conducted his own search of the bag and found a large knife inside the top flap of the bag as well as three cellphones. At the station, Constable Thorner searched the appellant and his clothes and found a bag of cocaine in the pocket of the appellant's pea coat. The appellant was formally charged with possession of controlled substances for the purpose of trafficking and carrying a concealed weapon. He was not formally charged with the assault as the complainant had indicated he did not wish to pursue an assault charge and had left the scene.

Decision of the Trial Judge

[9] Arrest for Assault

The trial judge found that the appellant was originally arrested for assault by Constable Bronson, rejecting the defence argument that it was just an investigative detention. The officer had reasonable and probable grounds for the arrest, based on the identification by the complainant of the three assailants shortly after the assault occurred, as well as the corroborative fact of finding the complainant's shoe in the alley where he said the assault occurred.

[10] Charter Compliance

The trial judge ruled that the appellant was therefore not arbitrarily detained contrary to s. 9 of the Charter. He also ruled that the searches conducted by the police were proper searches incident to arrest based initially on officer safety. Therefore, there was no breach of the appellant's s. 8 Charter right.

[11] Continuity Finding

He also rejected the argument that the Crown had not proved the continuity of the contents of the bag. As part of his analysis, he criticized defence counsel for resiling from his concession at the opening of trial regarding the continuity of the drugs. However, that concession was with respect to continuity once the drugs had been seized by the police, not before.

Issues on Appeal

[12] Five Grounds of Appeal

The appellant raises five grounds of appeal:

1. Did the trial judge err by placing the burden of proof on the appellant to prove a breach of his s. 8 Charter right in respect of the warrantless search of the shoulder bag?

2. Did the trial judge err in finding that the police had objective reasonable and probable grounds to arrest the appellant for assault?

3. Did the trial judge err in finding that the police had grounds to search the shoulder bag incident to the appellant's arrest for assault?

4. Should the trial judge have excluded the drugs located in the shoulder bag under s. 24(2) of the Charter?

5. Should the trial judge's finding with respect to the continuity of the contents of the shoulder bag be set aside and a new trial ordered because the trial judge misapprehended the concession made by defence counsel with respect to continuity?

Analysis

(1) Burden of Proof for s. 8 Breach

[13] Trial Judge's Statement of Onus

The trial judge gave lengthy and detailed reasons for decision. At the beginning of those reasons, the trial judge stated, as a general principle, that the appellant had the onus to prove any Charter breaches. He repeated that statement of the onus twice later when he began his analysis of the alleged ss. 8 and 9 Charter breaches and in his conclusion that the appellant had not satisfied him on a balance of probabilities that there was any Charter breach.

[14] Correct Legal Principle

The appellant submits that the trial judge erred in his statement of the burden of proof in this case, where the search was without a warrant and therefore presumed to be unreasonable. When the police conduct a warrantless search, the onus is on the Crown to prove on a balance of probabilities that the search was a reasonable one.

[15] Trial Judge's Understanding of Warrantless Searches

Reading the reasons as a whole, it is clear that the trial judge was well aware of this principle. As part of the discussion of general principles regarding s. 8 of the Charter, the trial judge began by stating that warrantless searches are prima facie unreasonable and that the party seeking to justify a warrantless search "bears the onus of rebutting the presumption of unreasonableness."

[16] Articulation of Crown's Burden

The trial judge also set out in detail the principles to be applied in the consideration of whether a warrantless search incident to arrest is a reasonable one. As part of that discussion, he stated that the police must be able to explain the purpose for the search, which must be one of the purposes set out in Cloutier v. Langlois, [1990] 1 S.C.R. 158. He explained that the reason must be related to the arrest and that reason must be objectively reasonable, referring to R. v. Caslake, [1998] 1 S.C.R. 51. By correctly articulating what must be proved by the Crown to justify a search incident to arrest, it is clear that the trial judge understood that the onus of proof was on the Crown.

[17] Conclusion on Burden of Proof

I am satisfied that the trial judge was well aware that the onus was on the Crown in this case and that in reaching his findings, which I will discuss under the succeeding issues, he applied that onus.

(2) Objective Grounds for the Arrest for Assault

[18] Appellant's Submission

The appellant's submission is that the police had objective grounds to arrest Mr. Earhart because he was specifically identified by the victim and known to him. However, they had no more than a suspicion that the appellant was the second man involved in the robbery. First, the appellant was not wearing baggy hip hop clothing as described by the complainant. Second, Mr. Earhart could have been walking with a new person by the time he showed up after the assault at the convenience store.

[19] Trial Judge's Test

The trial judge gave detailed reasons for his finding that the police had reasonable and probable grounds for arresting the appellant for assault that satisfied both the subjective and the objective component of that test. He articulated the objective component requirement as follows: "a reasonable person placed in the position of Constable Bronson would conclude that there were indeed reasonable and probable grounds for the arrest."

[20] Trial Judge's Reasoning

In summary, those reasons were that the officer had received a report of an assault directly from the alleged victim; he had obtained some corroboration that the assault had occurred from finding the victim's shoe in the alley where he said he had lost it during the assault; the victim expressly identified the three people approaching the convenience store as the three perpetrators; the three people matched in significant detail the description that the victim had initially given: two men and a woman; one man named and known to the victim; the second man (the appellant) with dark skin.

[21] Clothing Discrepancy

The appellant submits that because the clothing the appellant was wearing was not the "baggy hip hop style clothing" described by the complainant, the factors highlighted by the trial judge do not amount to objective reasonable and probable grounds sufficient to justify an arrest. As mentioned, the appellant was wearing black jogging pants, brown boots, a pea coat and a baseball cap. Constable Bronson agreed in cross-examination that a pea coat would not be considered baggy hip hop style clothing. He was not asked about the characterization of the rest of the clothing the appellant was wearing.

[22] Court's Conclusion on Arrest

I would reject this submission. I agree with the trial judge that the officers were entitled to rely on the victim's identification of the appellant as one of his assailants from only a short time before. Further, as the trial judge noted, the group of people identified by the complainant as his assailants matched in significant respects the description the complainant had already given. These factors were sufficient to justify the appellant's arrest.

[23] No Error

I see no error in the trial judge's analysis on this issue.

(3) Search Incident to Arrest for Assault

[24] Multiple Searches

The appellant's bag was searched a number of times following his two arrests. The trial judge found that all of the searches were incident to the lawful arrest and re-arrest of the appellant. On this appeal, the appellant submits that the trial judge erred in holding that Sergeant Austin's initial search of the shoulder bag was a lawful search incident to arrest.

[25] General Principles

The trial judge set out the general principles applicable to warrantless searches and in particular, searches incident to arrest. Referring to R. v. Feeney, [1997] 2 S.C.R. 13, he stated that to comply with s. 8 of the Charter, a warrantless search must be authorized by law, and both the law and the manner in which the search is conducted must be reasonable. He then referred to the long-standing common law power of search incident to arrest and discussed the legitimate scope of this power.

[26] Limits on Search Incident to Arrest

He stated the limits on the power to search incident to arrest: it must be for a valid criminal justice objective, such as police or public safety or discovery of evidence; the purpose of the search must not be contrary to the proper administration of justice such as to intimidate, ridicule or pressure the accused into making admissions; the search must not be conducted in an abusive manner; and, most importantly for this case, the search must be truly incidental to the arrest. Referring to the authority of Cloutier and Caslake, the trial judge explained that the police must be able to provide a reasonable basis (i.e. protecting the police, protecting the evidence, discovering evidence) for the search that is related to the arrest. I add here that the evidence sought to be discovered must be evidence of the crime for which the person has been arrested: Caslake, at para. 22.

[27] Caslake Test

Lamer C.J. articulated the test as follows in Caslake, at para. 25:

In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable.

[28] Officer Safety Rationale

In this case, the reason for the initial search of the bag was officer safety. Once the police arrested the appellant and were transporting him to the police station, they would not be leaving his bag on the ground but taking it with them to the station. Sergeant Austin was concerned whether there could be a firearm in the bag that could be dangerous if not discovered and secured. The trial judge found that the search for the purpose of officer safety and the detection of a possible weapon, in the context of an assault arrest, was objectively reasonable in the circumstances.

[29] Appellant's Objection

The appellant submits that there was no objectively reasonable basis to search the bag on the grounds of officer safety. There was no suggestion that a weapon had been used in the assault and no basis to believe there would be one in the bag. Also, there was no danger to police because all three accused were handcuffed.

[30] Distinction from R. v. Kelsy

In support of his position, the appellant refers to this court's decision in R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456. In that case, the accused was leaving a violent situation carrying a knapsack. As she was not under arrest, the police could not search the knapsack as an incident to arrest. Nevertheless, they searched the knapsack without a warrant and discovered a firearm and drugs. At trial, the Crown sought to justify the search based either on exigent circumstances or the Waterfield doctrine of reasonable necessity. Both justifications were rejected by this court. The court found that there was no basis to believe that the knapsack contained contraband or a weapon and that the search was not reasonably necessary. Rosenberg J.A. explained, at para. 21:

In my view, the police only had the power to seize the appellant's bag until the situation was no longer in the chaotic state Constable Ahmad found it. At that point, if there were no grounds to obtain a warrant to search the bag, it had to be returned to the appellant, unless she gave a valid consent to search it.

[31] Distinguishing Kelsy

This case is wholly distinguishable from Kelsy. The circumstances in this case differ in four respects. First, the appellant was under arrest. As a result, there was no option for him to leave or take the bag away. Second, because of the arrest, the police had the power to search incident to arrest, if there was a basis to do so in accordance with Cloutier and Caslake: officer or public safety, preserving evidence, discovering evidence relevant to the offence for which the individual is being arrested. Third, because they would be taking the bag to the station, Sgt. Austin was concerned for officer safety and believed the bag should be checked for a loaded firearm. Fourth, the fact that the accused was being arrested for a violent offence informed the officer's concern.

[32] Violent Offence Context

Although there was no report of a weapon as part of the assault, because the police had reasonable and probable grounds to believe that the appellant committed a violent offence, this was not a case like Kelsy where there was no basis for the officers to believe there could be a weapon in the bag. As a result, I do not agree that because the accused persons were all handcuffed there was no objectively reasonable concern of danger to the police from a loaded firearm in the shoulder bag.

[33] Conclusion on Search

In my view, the trial judge made no error in his conclusion that the officer had both a subjective and objectively reasonable basis to conduct a search of the bag incident to the appellant's arrest in all the circumstances of this case, and that there was therefore no breach of the appellant's s. 8 right against unreasonable search and seizure.

(4) Section 24(2)

[34] No Charter Breach

As I agree that there was no s. 8 breach, there is therefore no need to conduct a s. 24(2) analysis.

(5) Error in Continuity Analysis

[35] Continuity Concerns

The continuity issue, raised both at trial and on appeal, is that the police handled the appellant's shoulder bag in a sloppy manner and left it unattended for several minutes at the scene. They also conducted a number of searches and discovered certain items, like the knife, only after a couple of searches. As a result, the defence submits that the trial judge could not be satisfied of the continuity of the contraband found in the bag from the time it was in the appellant's possession or that it was even the same bag.

[36] Misapprehension of Concession

On appeal, the appellant says that the trial judge erred in his analysis of this issue because he criticized the appellant's trial counsel for resiling from a concession he gave at the opening of the trial regarding the continuity of the drugs. He referred to it as a matter of trial fairness for the Crown, suggesting that the Crown was not alerted to the need to ask certain questions of its witnesses akin to the rule in Browne v. Dunn. However, the trial judge misunderstood the concession, which was only with respect to the continuity of the drugs once they were located by the police and transferred for analysis. It was not a blanket waiver of the general continuity issue.

[37] Alleged Miscarriage of Justice

The appellant says that by taking the misunderstood waiver into account as part of his analysis, the trial judge erred and that error resulted in a miscarriage of justice, and a new trial must therefore be ordered.

[38] Trial Judge's Findings Based on Evidence

Reading the reasons as a whole, although the trial judge misunderstood the limited concession by defence counsel regarding the continuity and nature of the substances, which led to his misapprehension regarding trial fairness concerns, he nevertheless went on to make findings regarding the continuity of the shoulder bag and of the substances and the weapon found in the bag, based on the evidence. Based on those findings, he was satisfied that none of the continuity concerns identified by the appellant gave rise to a reasonable doubt. He stated:

In this case, I think the Crown provided evidence, not challenged in cross-examination, and not contradicted by other evidence, indicating an unbroken chain of custody in relation to all of the seized items relied upon by the Crown in support of the charges in the indictment.

[39] Specific Continuity Findings

He then made the following specific findings regarding continuity based on the evidence that he reviewed earlier in his reasons:

1. The shoulder bag went from the appellant, to Sgt. Austin, to Cst. Bronson, to Cst. Thorner;

2. The narcotics in the shoulder bag went, in that bag, from the appellant, to Sgt. Austin, to Cst. Bronson, who then removed the narcotics from the shoulder bag and maintained custody over them until they were handed over to Cst. Thorner at the police station;

3. The knife in the shoulder bag went, in that bag, from the appellant, to Sgt. Austin, to Cst. Bronson, to Cst. Thorner (although it was only the last officer who detected its presence in the bag that was being successively transferred); and

4. The wallet and cellular phones went from the appellant, to Cst. Bronson, to Cst. Thorner (regardless of the precise manner in which they were transferred to Cst. Thorner).

[40] Conclusion on Continuity

He concluded on this point:

In my opinion, there was no evidence whatsoever to support any suggestion that the seized items and evidence relied upon by the Crown was in any way the subject of contamination, tampering or improper identification. Suggested concerns in that regard accordingly are mere speculation. For all these reasons, I reject defence suggestions that continuity concerns undermine the admissibility or reliability of the Crown's evidence, or otherwise give rise to reasonable doubt.

[41] Court's Assessment

In my view, while it is unfortunate that the trial judge misunderstood defence counsel's proper and very common concession at the opening of trial regarding the continuity of the substances found and admissibility of the certificates of analysis without the need to call the witnesses who prepared them, in this case, that error by the trial judge did not undermine the conclusions he reached, based on the evidence, regarding continuity. I would therefore not give effect to this ground of appeal.

Conclusion

[42] Disposition

I would therefore dismiss the appeal.

Released: July 31, 2017

"K. Feldman J.A."

"I agree. David Watt J.A."

"I agree. Grant Huscroft J.A."