Court of Appeal for Ontario

Date: 2019-05-15 Docket: C63920

Judges: Doherty, Benotto and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Evan Kwok Appellant

Counsel

For the Appellant: Taufiq Hashmani and Daniel Michael

For the Respondent: Vanita Goela

Hearing

Heard: May 13, 2019

On appeal from: The conviction entered by Justice Joseph F. Kenkel of the Ontario Court of Justice, dated January 12, 2017.

Appeal Book Endorsement

[1] The appellant's factual guilt was never an issue. He raised various Charter issues at trial. The trial judge rejected the arguments. The appellant renews the arguments on appeal.

[2] The initial stop was a highway traffic stop. The officer, based on his observations, quickly formed reasonable grounds to believe the appellant was in possession of marihuana. That subjective belief was objectively justified on the evidence.

[3] The search at the scene of the arrest was a lawful incident of the arrest. The officer had safety concerns and grounds to believe that the appellant was concealing evidence in his pants. The search was not a strip search and was not significantly more intrusive than a pat down search. It may be that the interaction at the roadside went on longer than it should have. The trial judge acknowledged this, but did not find the delay rendered the manner of search unreasonable. We agree.

[4] The appellant was advised of his right to counsel in an appropriate manner. He invoked his right to counsel. The officer continued to question the appellant about the object in his pants. The questions were motivated primarily by the officer's belief that the appellant had drugs in his pants. He also had safety concerns.

[5] Assuming without deciding that the nature of the questioning went beyond what was appropriate to address officer safety concerns and constituted a breach of the s. 10(b) requirement that the officer refrain from questioning the appellant until he had a chance to speak to counsel, we are satisfied that the breach would not have led to the exclusion of the cocaine under s. 24(2) of the Charter.

[6] The appeal is dismissed.