Court of Appeal for Ontario

Date: 2019-04-16

Docket: C63307, C64405

Judges: Benotto, Brown and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Sharon Stockton Appellant

Counsel

Sharon Stockton, in person

Lisa Csele, for the respondent

Hearing

Heard: April 9, 2019

Appeal Information

On appeal from the conviction entered by Justice Russell M. Raikes of the Superior Court of Justice on January 11, 2017, and from the sentence imposed on January 11, 2017, and from the conviction entered by Justice John A. Desotti of the Superior Court of Justice on June 27, 2017, and from the sentence imposed on September 12, 2017.

Reasons for Decision

[1] On June 27, 2017, the appellant was convicted of possession of methamphetamine and two counts of breach of recognizance. The appellant appeals from both her conviction and sentence.

[2] The conviction appeal rests on the suggestion that the warrant obtained to search the appellant's home was invalid. The execution of that warrant resulted in the seizure of a pipe in which methamphetamine was found. The appellant alleges that the police fraudulently changed the time on the face of the search warrant. She also claims that the information to obtain the warrant incorrectly referred to one of the confidential informants, as that person either did not exist or was not properly held out to be a confidential informant. The appellant says that she was improperly prevented from cross-examining the police officer who swore the information to obtain on these issues at trial.

[3] We see no error in respect of this ground of appeal. There was no s. 8 Charter application before the trial judge and, as such, he was not asked to rule upon the constitutional adequacy of the search warrant. Even accepting that the appellant attempted to ask questions about the content of the information to obtain at trial, in the absence of a s. 8 Charter application or an application to cross-examine the affiant, there would have been no basis for proceeding with that questioning. Nor have we been provided with any information that would suggest impropriety on the part of the police or that would cause any other concern regarding the search warrant.

[4] The appellant also appeals from her sentence of time served and a 12-month probation order. Her probation is complete. We would not intervene in that aspect of her sentence. On consent, we would vacate the $600 victim fine surcharge imposed in light of the fact that the relevant statutory provision has been found unconstitutional: R. v. Boudreault, 2018 SCC 58.

[5] The appellant was also convicted of possession of methamphetamine for the purposes of trafficking on January 11, 2017. She appeals from conviction.

[6] First, the appellant argues that the police lied in their viva voce evidence about the existence of a confidential informant. She argues that, had she been permitted to cross-examine the officers in relation to the information to obtain the search warrant in the other matter, she may have been able to undermine their credibility in relation to the possession for the purposes of trafficking count. For the reasons set out above, we do not agree.

[7] Second, the appellant argues that the trial judge erred in finding that her arrest and search incident to arrest were lawful. The trial judge produced an extensive ruling, carefully setting out the grounds for her arrest. We see no error in his approach. The search incident to arrest lawfully flowed from the lawful arrest.

[8] Finally, the appellant challenges the trial judge's s. 11(b) ruling, claiming that her right to be tried within a reasonable time was infringed. We do not agree. Again, the trial judge produced carefully considered reasons. Much of the delay arose from the appellant's repeated changes of counsel. Having regard to that period of delay, we see no error in the conclusion that the total delay (excluding defence delay) was only four days above the 30-month ceiling set in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. This was also a transitional case and we agree with the trial judge that the application of the previous s. 11(b) analysis would not have resulted in a finding of unreasonable delay.

[9] Although the Notice of Appeal also suggests that the appellant appeals from the DNA order that was imposed as part of her sentence, this matter was not advanced in oral submissions. In any event, we see no basis upon which to intervene.

[10] We would dismiss both conviction appeals. We would grant leave to appeal sentence in both matters, but dismiss the sentence appeals except to set aside the $600 victim fine surcharge relating to the appeal in C64405.

"M.L. Benotto J.A." "David Brown J.A." "Fairburn J.A."