COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Byfield, 2020 ONCA 515

DATE: 20200818

DOCKET: C67964

Roberts, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Byfield

Appellant

Ronald Byfield, acting in person

David Parry, duty counsel

Ghazala Zaman, for the respondent

Heard: August 11, 2020 by videoconference

On appeal from the conviction entered on June 10, 2019 and the sentence imposed on July 17, 2019 by Justice Howard Liebovich of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was found guilty of a single count of possession of a narcotic (in this case, cocaine) for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He was sentenced to 24 months’ imprisonment, less pre-sentence custody, and other ancillary orders. Although he originally appealed both his conviction and sentence, at the hearing of the appeal, he abandoned his appeal against sentence.

[2] The police discovered 184 grams of cocaine on the appellant’s person when they searched him after stopping the car that he was in. Prior to the trial, the appellant applied to exclude this evidence, alleging violations of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. The motion judge (who was not the trial judge) dismissed the application. Following this decision, although not pleading guilty, the appellant did not contest his guilt, based on admissions made under s. 655 of the Criminal Code, R.S.C. 1985, c. C-46.

[3] The appellant challenges his conviction on the basis that the motion judge erred in failing to find that the appellant was arrested in the absence of reasonable and probable grounds, thereby violating his rights under s. 9 of the Charter. Further, the appellant contends that his rights under s. 8 of the Charter were infringed because he was subjected to an illegal strip search, contrary to R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679.

[4] The underlying facts can be stated succinctly. Acting on a confidential tip, officers of the Barrie Police conducted surveillance on a house, from which they suspected an individual known as “Tristen” was selling drugs. The police saw a vehicle registered to the appellant parked in the driveway of that residence. One of the officers knew of the appellant from a previous drug investigation. The information about “Tristen”, the house, and the appellant was somewhat dated, having been received about a year before.

[5] While the appellant’s car was parked in the driveway, a man left the house and got into the passenger seat of the appellant’s vehicle. The driver and the passenger soon switched seats before the car was driven to a nearby plaza. Within minutes of this vehicle being parked at the plaza, a male got out of a green car and got into the appellant’s vehicle through the rear driver’s side door. After about a minute, this person got out of the appellant’s car and returned to the green car.

[6] At this point, the officers believed that a drug transaction had just taken place. The police stopped the appellant’s car as it was being driven out of the parking lot. The appellant was in the front passenger seat. Both the appellant and the driver were arrested.

[7] The arresting officers conducted a pat down search of the appellant incident to his arrest. Nothing was found. They called dispatch to request that a uniformed officer be sent to transport the appellant to the police station, which was about four minutes away. After arriving, the dispatched officer performed another pat down search of the appellant. This was for safety reasons (for the officer, the public, and the appellant), as well as to prevent the destruction of evidence. During the search, the officer discovered a large hard object in the appellant’s groin region, which he believed was “non-anatomical”. When the officer asked the appellant what it was, the appellant said “my dick.” The officer investigated further. He and another officer rearranged the appellant’s clothing and reached into his underwear where they located a package containing 184 grams of cocaine.

[8] The motion judge found that the police had reasonable grounds to arrest the appellant, pursuant to their powers under s. 495(1)(a) of the Criminal Code. In reaching this conclusion, he considered the confidential tip, applying the test set out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140; namely, whether the tip was compelling, credible, and corroborated.

[9] After reviewing all of the evidence in considerable detail, the motion judge concluded that, in totality, the officers subjectively believed that they had grounds to arrest the occupants of the vehicle, and that their belief was reasonable in the circumstances. In short, the motion judge found that the officers had reasonable grounds to believe that the appellant had committed a drug trafficking offence and could be arrested without a warrant under s. 495(1)(a) of the Criminal Code.

[10] With the assistance of duty counsel, the appellant submits that the motion judge’s analysis of whether there were reasonable grounds was insufficient and failed to properly consider the Debot factors. In particular, the appellant points out that the information received from the confidential tip was stale and from an unproven source. He also asserts that the information relating to the appellant was dated.

[11] We see no error in the motion judge’s analysis. The motion judge was aware of the shortcomings in the background information in the possession of the police. However, this source of information did not bear the entire load of the reasonable grounds requirement in this case. Prior to making the vehicle stop, the police witnessed what they reasonably believed was a drug transaction. The motion judge properly applied R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 to this factual matrix and found that the evidence relied upon supplied the reasonable grounds required by s. 495(1)(a). The record supports his conclusion that the arrest was lawful and did not violate s. 9 of the Charter.

[12] The appellant submits that, even if the arrest was lawful, he was subjected to an illegal strip search, resulting in a violation of his rights under s. 8 of the Charter. We disagree.

[13] It is common ground that the appellant’s clothes were not removed and his genitals were not exposed. The searching officer believed that this mere “re-arrangement” of clothing did not constitute a strip search. He was mistaken. In Golden, at para. 47, the majority of the Supreme Court of Canada made it clear almost 30 years ago that the re-arrangement of clothing in circumstances similar to this case does constitute a strip search. See also R. v. Pilon, 2018 ONCA 959, 144 O.R. (3d) 54.

[14] Despite this misunderstanding of the searching officer, the motion judge concluded that the search was reasonable. He cited 15 reasons in support of this conclusion, including: the search was conducted in a manner that ensured the health and safety of the appellant; it involved a brief (15 seconds to a minute) visual inspection of the appellant’s underwear area; the searching officer was the same gender as the appellant; the appellant’s genitals were never exposed; no articles of clothing were removed; no member of the public witnessed any part of the details of the search because it was conducted between a police cruiser and a large snowbank; and there was no evidence to suggest that the search was gratuitously aggressive or humiliating.

[15] The evidence demonstrates that the searching officer’s safety concerns were real and that it was appropriate to conduct a second pat down search. Given his discovery of the unknown object in the appellant’s groin area, further investigation was reasonable and necessary. We disagree with the appellant’s submission that, because the police station was only four minutes away, the strip search could have waited until then. The strip search was necessary to ensure the safety of all concerned (as described above) during this journey to the police station, even if that journey was to be brief.

[16] We see no error in the motion judge’s analysis, nor in his ultimate conclusion that s. 8 of the Charter was not infringed.

[17] Although the motion judge found that the appellant’s rights under ss. 8 and 9 of the Charter were not infringed, he conducted a s. 24(2) analysis, applying the factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Given our conclusions on the ss. 8 and 9 issues, it is unnecessary to address this aspect of the appeal.

[18] The appeal against conviction is dismissed. The appeal against sentence is dismissed as abandoned.

“L.B. Roberts J.A.”

“B.W. Miller J.A.”

“Gary Trotter J.A.”