COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Davis, 2020 ONCA 748
DATE: 2020-11-26
DOCKET: C67507
Fairburn A.C.J.O., Huscroft and Miller JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Neil Davis
Appellant
Counsel:
Delmar Doucette and Zahra Shariff, for the appellant
Lisa Mathews, for the respondent
Heard: November 4, 2020
On appeal from the conviction entered on April 23, 2019, and the sentence imposed on May 9, 2019, by Justice David S. Rose of the Ontario Court of Justice.
REASONS FOR DECISION
[1] The appellant was convicted of trafficking cocaine, possession of cocaine for the purpose of trafficking, and possession of the proceeds of crime, and sentenced to a term of 20 months’ imprisonment. He appeals from conviction and sentence.
[2] The appellant says that the trial judge:
erred in his assessment of the appellant’s credibility;
erred in denying his request for a change in venue; and
erred in finding that the police had reasonable and probable grounds to arrest him and in finding that he was not searched unreasonably.
[3] The appeal is dismissed for the reasons that follow.
The appellant’s credibility
[4] During the course of an unrelated investigation into shoplifting, the appellant was observed making what appeared to be a drug transaction with an individual, Ms. Bennett. He was arrested after Detective Borovskis observed a second suspected drug transaction at a different location. He was found with $5,000 in cash and approximately one ounce of crack cocaine stored in a pouch on his waistband.
[5] The trial judge rejected the appellant’s testimony, finding that he was not credible. The appellant raises eight bases for challenging the trial judge’s credibility assessment. Some he describes as misapprehensions of the evidence, others as unreasonable findings.
[6] The appellant’s argument invites this court to parse the trial judge’s credibility findings on a word-for-word basis. This is contrary to R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19, where the court said:
This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court. Having encouraged these expanded reasons, it would be counterproductive to dissect them minutely in a way that undermines the trial judge’s responsibility for weighing all of the evidence. A trial judge’s language must be reviewed not only with care, but also in context. Most language is amenable to multiple interpretations and characterizations. But appellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken as a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components.
[7] Although the court went on to say that a court of appeal could not abdicate its responsibility to review the record to see if the findings of fact were reasonably available, it does not follow that the trial judge’s reasons are to be parsed in the manner reflected in the appellant’s submissions. The trial judge listed multiple reasons for not accepting the appellant’s testimony. Read as a whole, those reasons amply support his credibility findings.
[8] The trial judge accepted the appellant’s admission that he had drugs secreted down his pants as an admission against interest but did not accept the rest of his evidence concerning what happened on the day of the arrest. He found that the appellant’s evidence was “unworthy of belief” and that it did not raise a reasonable doubt.
[9] None of the matters raised by the appellant rises to the level of a palpable and overriding error that would allow this court to intervene. Errors in describing the way in which the appellant’s criminal record were disclosed and the appellant’s reasons for renting a car were minor in nature. It was not unreasonable for the trial judge to conclude that shortcomings in the appellant’s memory of the events including the details of his car rental, his interaction with Ms. Bennett in the parking lot, and how well he knew one Mr. D’Acosta undermined his credibility. Nor was it unreasonable for the trial judge to find that both the appellant’s story of a planned meeting with an unnamed landlord about renting an apartment and his explanation for the $5000 in cash he had with him were implausible. These were calls for the trial judge to make and we are not persuaded that there is any basis to interfere with them.
[10] This ground of appeal must be rejected.
Denial of the change of venue request
[11] The trial judge’s decision denying the appellant’s request for a change of venue from the Central East Region to the Central West Region reveals no error and is entitled to deference. As the trial judge noted, the appellant did not raise any concern about venue when he scheduled a trial date within the Central East Region and raised no concerns about venue until several months later, on the day the trial was set to begin.[^1] The trial judge found that there was no prejudice to the appellant and accepted the Crown’s submission that, regardless of whether the appellant waived his s. 11(b) Charter rights, the public interest was in hearing the case given the age of the case and the delay a change in venue would have occasioned. These findings were reasonable and were open to the trial judge on the record before him.
[12] This ground of appeal must be rejected.
The arrest and search
[13] At trial, the appellant argued that his arrest was the result of racial profiling. The trial judge carefully considered this argument and rejected it, concluding that he had “no difficulty finding that Detective Borovskis had reasonable and probable grounds” to arrest the appellant. The police were investigating a series of thefts and their investigation led to Ms. Bennett, who then led them to the appellant. Grounds to arrest the appellant developed over the course of hours. Racial profiling played no part in the appellant’s arrest.
[14] On appeal, the appellant does not allege error in the trial judge’s analysis in this regard. The matter was not raised in the notice of appeal. The appellant described his submissions on this point on appeal as contextual in nature and reasonably accepts that if the grounds for the arrest were sufficient, no question of racial profiling arose.
[15] We are satisfied that the trial judge did not err in finding that Detective Borovskis had subjective grounds for arresting the appellant and that those grounds were objectively reasonable. The police observed two people they had under surveillance stand outside the door on the driver’s side of the appellant’s car at a shopping plaza, after which they walked back to their car with something in hand. The police arrested them and found a crack pipe and 3.3 grams of crack cocaine, but no money. We agree with the Crown that the grounds for arresting the appellant were enhanced when the police observed a similar event when the appellant was parked at another plaza – a person walked up to his car door and reached into it before walking away quickly. Although a hand-to-hand transfer was not observed, Detective Borovskis, who has considerable experience in drug-related investigations, thought that these were exchanges of drugs for money and his view was objectively reasonable. There was ample basis for arresting the appellant after not one but two transactions consistent with drug trafficking were observed.
[16] As to the search, the appellant acknowledges that if the original arrest and search incident to arrest were lawful, then there was a reasonable basis to conduct a strip search.
[17] We have already concluded that the appellant’s arrest was lawful. The search incident to arrest occurred at the scene of the arrest and involved an officer reaching into the appellant’s waistband and pulling out a bag of contraband. The grounds for doing so arose from the uncontroverted fact that the appellant was seen placing that bag into his underwear just prior to his arrest. The trial judge found that this search involved nothing more than an officer “reaching into the waistband portion of the underwear and pulling out the drugs.” No clothes were removed at the scene of the arrest. As the trial judge put it: “By all accounts it was a very brief single action.”
[18] The trial judge concluded that the search incident to arrest and the recovery of the contraband at the scene of the arrest were s. 8 Charter compliant. We see no error in his analysis.
[19] The appellant’s argument respecting the strip search – conducted at the police station – must be considered against this backdrop.
[20] Considered against the fact that the appellant had been seen placing contraband in his underwear, and against confirmation of that fact arising from the search incident to arrest, we see no error in the trial judge’s conclusion that the strip search was reasonable in the circumstances.
[21] The appellant argues that the strip search was more invasive than necessary. We disagree. The trial judge found that the search was conducted in under three minutes, by officers of the same gender, in a private room, and that there was no evidence of anything more than a visual inspection of the appellant’s genitals and anal areas. The trial judge noted that the appellant said the same in his evidence, although he was otherwise an incredible witness.
[22] The appellant offers no basis for disturbing these findings on appeal. The trial judge found that the search was conducted in accordance with the guidelines set out by the Supreme Court in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 101, save in one respect: the absence of a record of the manner in which the search was conducted. Although the police should have kept a proper record respecting “the reasons for and the manner in which the strip search was conducted” (Golden, at para. 101), the trial judge found that this was a “minor deviation from the Golden guidelines, insufficient to found a Charter breach.” We agree.
[23] These grounds of appeal must be rejected.
Sentence
[24] The appellant argues that the trial judge erred in failing to credit him with 39 days pre-trial custody and an additional three months’ credit for time spent on strict bail conditions.
[25] The trial judge found 11 days of pre-trial custody: 3 days between his original arrest on these charges and receiving bail and another 8 days credited for the time spent in custody after his bail on this matter was cancelled. The appellant was credited a total of 16 days for this combined period of pre-trial custody.
[26] The appellant argues that the trial judge erred by failing to grant him another 39 days credit for the time he spent in custody between when his sureties in this matter filed their revocation form and when the bail was actually cancelled by the trial judge on the day of sentencing submissions. We do not agree.
[27] During that entire period of time, the appellant was detained on other, unrelated charges. Indeed, the surety revocation was filed within days of those charges being laid and the appellant being taken into custody on them. Although the appellant’s bail in this matter was not cancelled for many weeks later, he remained in custody on the other charges.
[28] While credit for pre-trial custody can be assigned where there is “a sufficient link or relation between the offence for which the offender is being sentenced and the pre-sentence custody” and the link may exist with respect to more than one offence (see R. v. Barnett, 2017 ONCA 897, 138 O.R. (3d) 401, at paras. 30-31), determining whether any such link exists is a matter of discretion for the trial judge. We see no error in the trial judge’s approach here.
[29] There is no evidence that the failure to cancel the bail had any impact on the failure to not seek new bail on the charges that triggered the detention order. Notably, once the trial judge became aware that there were new charges that the appellant was detained on, and that the sureties had filed a revocation form, the trial judge revoked the bail and assigned credit from that day forward.
[30] This was a discretionary call and we would not interfere.
[31] Finally, the appellant argues that the trial judge erred in calculating credit for time the appellant spent under curfew, a condition that was part of his bail. The appellant submits that the impact of curfew is self-evident and that he should have been given credit for three months.
[32] The trial judge had no evidence to support trial counsel’s claim that the curfew amounted to “infantilization” of the appellant. He acknowledged that the curfew limited the liberty of the accused but found that the limit was mitigated by the appellant’s entitlement to be out of his residence in the company of a surety. He properly treated the curfew as a mitigating factor on sentence and reduced the appellant’s sentence by two weeks.
[33] We see no error that warrants interference with the trial judge’s discretionary decision as to how much credit should be given. The trial judge considered that the limitations on the appellant were “a far cry from house arrest” and limited the reduction to two weeks. This was his call to make and his decision is entitled to deference.
Conclusion
[34] The appeal is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.
“Fairburn A.C.J.O.”
“Grant Huscroft J.A.”
“B.W. Miller J.A.”
[^1]: The appellant initially brought an application challenging the court’s jurisdiction over this matter. Following dismissal of this application, the appellant applied to the Superior Court of Justice for writs of prohibition and procedendo, with certiorari in aid. This application was dismissed and the dismissal was upheld on appeal: see R. v. Davis, 2018 ONSC 4630, aff’d 2018 ONCA 946. On resumption of the trial, the appellant brought the change of venue application that is the subject of this appeal. For completeness, we note that the appellant also brought an application seeking a declaration that the trial judge lost jurisdiction over the matter and seeking an order of prohibition against the trial judge on the basis of an alleged reasonable apprehension of bias. This application was also dismissed: see R. v. Davis, 2019 ONSC 1847.