Court of Appeal for Ontario

Date: 2022-06-06 Docket: C68484

Judges: Simmons, Benotto and Miller JJ.A.

Between: Her Majesty the Queen, Respondent and Thomas Smith, Appellant

Counsel: Delmar Doucette and Ioana Dragalin-Reeves, for the appellant James Clark, for the respondent

Heard: May 31, 2022

On appeal from: the conviction entered on May 30, 2019 by Justice John R. Sproat of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals from convictions for various drug-related offences.

[2] We see no basis on which to interfere with the trial judge's conclusion that the police had reasonable and probable grounds to arrest the appellant. They had reliable confidential informant information that his girlfriend’s roommate was planning to buy drugs that day and that the appellant was going to give her a ride. The confidential informant had also provided information that the appellant was a drug dealer, however, that information had not been corroborated.

[3] When the police arrested the roommate on an unrelated warrant as she got out of a car the police had confirmed was registered to the appellant, she attempted to dispose of a small make-up case by throwing it back into the appellant’s car. Upon opening it, the police found drugs. This constellation of facts supported the reasonable subjective belief of the officer who arrested the appellant that the appellant was a party to possession of illicit drugs. Although the arresting officer conceded that he did not know the appellant was the driver of the car until after arresting him, that was a reasonable inference in all the circumstances.

[4] Further, we are not persuaded that the trial judge erred in finding that the police did not breach the appellant's s. 8 Charter rights by prying open the locked metal container, referred to as a safe at trial, which they found in the appellant’s car. The police were entitled to conduct a search of the vehicle incident to the arrests of the appellant and his girlfriend’s roommate, who had been his passenger immediately prior to her arrest. It was open to the trial judge to find that prying open the metal container found in the appellant’s car did not exceed the bounds of that authority in the circumstances. Although the appellant had asserted a reasonable expectation of privacy in the metal container by refusing to provide the police with the combination to the lock, that did not alter the authority of the police to conduct a search incident to the arrests. The police had arrested the appellant and the passenger in his vehicle for possession of drugs. They were entitled to search the vehicle the appellant and the passenger were in immediately prior to their arrests, and the compartments and containers within the vehicle, for more drugs.

[5] Given our conclusions, it is unnecessary that we address the appellant’s s. 24(2) Charter argument.

[6] Based on the foregoing reasons, the appeal is dismissed.

“Janet Simmons J.A.”

“M.L. Benotto J.A.”

“B.W. Miller J.A.”