Court File and Parties

Court of Appeal for Ontario Date: 20211008 Docket: C67860

Fairburn A.C.J.O., Doherty and Watt JJ.A.

Between

Her Majesty the Queen Respondent

and

Mark Sealy-Ward Appellant

Counsel: Eric Granger, for the appellant Genevieve McInnes, for the respondent

Heard and released orally: October 4, 2021 by video conference

On appeal from the convictions entered by Justice Michelle O’Bonsawin of the Superior Court of Justice on April 29, 2019, with reasons reported at 2019 ONSC 2647.

Reasons for Decision

[1] This is an appeal from conviction for multiple drug and firearm related offences.

[2] Police officers stopped a vehicle after it made an unlawful U-turn. After detecting the odour of cannabis, the vehicle occupants were ordered out of the vehicle and arrested. A search incident to their arrest uncovered a number of things in the vehicle, including a few pounds of cannabis, MDA, drug paraphernalia, and a disassembled rifle with ammunition.

[3] The appellant was tried before a judge alone. In a blended Charter voir dire, he claimed breaches of his ss. 7, 8, 9, 10(a), and 10(b) rights. The trial judge provided extensive written reasons dismissing the Charter application. She also provided extensive written reasons for conviction.

[4] This conviction appeal is predicated upon two alleged errors.

[5] First, the appellant says that the trial judge failed to provide adequate reasons dismissing the Charter motion. Specifically, he claims that the trial judge failed to adequately address inconsistencies in the police evidence.

[6] While we accept that there were inconsistencies in that evidence, the trial judge was under no obligation to describe and reconcile every such inconsistency. Rather, it was the trial judge’s duty to respond to what was relevant to the Charter application. She did that.

[7] The trial judge turned her mind to the central issues involving: (1) why the vehicle was stopped and (2) why the appellant was originally removed from the car and arrested. The trial judge concluded that the officers’ evidence was consistent on key points involving the U-turn, all of which justified the vehicle stop. The trial judge also turned her mind to the differences between the officers in terms of how they described the smell emerging from the vehicle. One described it as the smell of fresh vegetative cannabis, while the other described it as the smell of both burnt and fresh vegetative cannabis. The trial judge explained why this inconsistency (one officer adding that he also smelled burnt cannabis) did not impact her assessment of the grounds for arrest. In our view, the trial judge’s reasons on these points are more than adequate.

[8] The appellant also claims that the trial judge’s reasons for judgment fall short in the sense that she misapprehended evidence that had a material impact on the verdicts. Specifically, the trial judge is said to have misapprehended evidence as it relates to the location from which the appellant’s wallet was seized and the location where a padlock was found.

[9] The respondent concedes the appellant’s first point, acknowledging that the trial judge appears to have incorrectly formed the view that the appellant’s wallet was found in the same knapsack that drugs and drug paraphernalia were located. The respondent acknowledges that is not so. The appellant’s wallet was actually seized during a search of his person.

[10] Despite this misapprehension of evidence, we are satisfied that it had no impact on the verdicts.

[11] The fact is that there was overwhelming evidence pointing to the appellant’s possession of the contraband found in the vehicle. That evidence includes the fact that the appellant’s former partner testified that, while the vehicle was registered under her name, it was owned by the appellant. There was also police evidence that they saw the appellant attempting to get into the driver seat of the vehicle upon the vehicle being stopped. That is, when the appellant saw the police, he changed his position with another vehicle occupant. There is also evidence of a combination lock having been found in a duffle bag in the trunk of the car. That bag contained a good deal of contraband. Importantly, the code to the combination lock that was found in that bag was located in the appellant’s wallet. This connected him directly to the duffle bag.

[12] While the appellant claims that the trial judge misapprehended the evidence about the padlock, suggesting that there was no evidence to adequately support that it had been located in the duffle bag, that submission is belied by the record in this case. Therefore, in our view, there is no basis for the suggestion that the trial judge misapprehended the evidence about the padlock in this way.

[13] Combined with the other evidence of possession and control, there was a substantial evidentiary basis upon which to convict.

[14] The appeal is dismissed.

“Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”