COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Dixon, 2014 ONCA 835

DATE: 20141125

DOCKET: C56016

Feldman, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Scott Dixon

Appellant

Vincenzo Rondinelli, for the appellant

Tanit Gilliam, for the respondent

Heard: October 7, 2014

On appeal from the convictions entered on June 18, 2012
    by Justice Donald J. Taliano of the Superior Court of Justice,
    sitting without a jury.

ENDORSEMENT

[1]

The appellant was charged with nine counts of drug-related offences. He
    was acquitted of three counts and convicted of six. He appeals four of the six
    convictions: conspiracy to traffic, trafficking, and two counts of possession
    for the purpose of trafficking cocaine. For the reasons that follow, we dismiss
    the appeal.

Conspiracy (Count 6)

[2]

The appellant was convicted of conspiring with Antonio Gallo to traffic
    cocaine. The Crown relied on a series of intercepted communications to
    establish an agreement to sell cocaine. The trial judge found that the
    interceptions proved that Gallo and the appellant had a working relationship in
    the drug trade and that they had agreed to work together to sell cocaine.

[3]

The appellant submits that the trial judge erred in finding an agreement
    to sell cocaine. At its highest, the appellant argues, the interceptions show
    an attempt to agree to sell cocaine, not an agreement to sell. He points to
    the following exchange:

Appellant: okay well give me a call tomorrow and Im gonna go
    down and see my other friend so maybe between all of us we can

Gallo: you give me a call

Appellant: I wonder if we sell the nine

[4]

The appellant submits that words such as I wonder and call tomorrow
    indicate that no agreement had been reached.

[5]

This excerpt is a short portion of 46 pages of intercepted
    communications between the appellant and Gallo. Read in their entirety, it is
    clear that they were in the business of selling cocaine, and had agreed to acquire,
    share and sell cocaine. They discussed supply connections in Colombia, movement
    through the airport, a recent police bust, prices and their customers. It was
    open to the trial judge to conclude that there was an agreement to traffic.

Trafficking (Count 7)

[6]

The trial judge found the appellant guilty of trafficking based on ten
    separate transactions involving individuals who, in various ways, were involved
    in the drug trade with the appellant. The trial judge admitted the statements
    of these individuals based on the co-conspirators exception to the hearsay
    rule. He said that the statements were admissible on the basis of
R. v.
    Carter
1982 CanLII 35. The statements were used in evidence against the
    appellant.

[7]

The appellant submits that the trial judge erred in law in admitting the
    statements without providing an analysis as to how the declarants statements
    came within the exception to the hearsay rule.

[8]

The trial judge is presumed to know the law. He was alive to the
Carter
requirements for he had, earlier in the judgment, referred to the
    principle. There was evidence on which the trial judge could conclude that the
    declarants were members of a conspiracy, along with the appellant, and the
    statements could be used against him.

Possession for the Purpose (Count 8)

[9]

The trial judge found that the appellant took delivery of a kilogram of
    cocaine for the purpose of selling it. The appellant argues that, because the
    cocaine that was the subject of this count was never seized, he cannot be
    convicted of possession. The substance must, it is submitted, be tested and
    proved to be cocaine.

[10]

Here
    there was extensive circumstantial evidence upon which the trial judge could
    conclude the substance was, in fact, cocaine. The appellant makes statements in
    the intercepted communications including:

·

The stuff is gooda bit chalky

·

You know what you cook

·

I know its good

·

Sniffers love it

·

Smokers love it

[11]

The
    appellant was in the drug business. He said he had a substance with the above
    attributes. There was evidence upon which the trial judge could conclude it was
    in fact cocaine.

Possession for the Purpose (Count 9)

[12]

An
    apartment occupied by the appellant alone was searched pursuant to a warrant. The
    police seized drug paraphernalia including 14.4 grams of cocaine, a digital
    scale, debt lists and a money counter. The trial judge found as fact that the
    appellant was the sole occupant in control of the apartment and possessed the
    cocaine for the purpose of trafficking.

[13]

The
    appellant submits that in doing so the trial judge took judicial notice that
    the items seized were for use in the drug trade. This, it is submitted, could
    not be done in the absence of expert testimony.

[14]

In
    the context of the evidence as a whole, including the evidence of officers from
    the drug squad, the trial judge drew the common sense inference that the seized
    items were only consistent with drug trafficking. It was open to him to make
    that finding.

[15]

The
    appeal from all of these convictions is therefore dismissed.

K.
    Feldman J.A.

Gloria
    Epstein J.A.

M.L.
    Benotto J.A.


WARNING

The President of the panel
hearing this appeal directs that the following should be attached to the file:

An order restricting
publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1)
or (2) of the
Criminal Code
shall continue.  These sections of
the
Criminal Code
provide:

486.4(1)
Subject
to subsection (2), the presiding judge or justice may make an order directing
that any information that could identify the complainant or a witness shall not
be published in any document or broadcast or transmitted in any way, in
proceedings in respect of

(a)      any of the
following offences;

(i)       an offence
under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
347,

(ii)      an offence
under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on
female), 156 (indecent assault on male) or 245 (common assault) or subsection
246(1) (assault with intent) of the
Criminal Code
, chapter C-34 of the
Revised Statutes of Canada, 1970, as it read immediately before January 4,
1983, or

(iii)     an offence
under subsection 146(1) (sexual intercourse with a female under 14) or (2)
(sexual intercourse with a female between 14 and 16) or section 151 (seduction
of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
procuring defilement) or 167 (householder permitting defilement) of the
Criminal
Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
immediately before January 1, 1988; or

(b)      two
or more offences being dealt with in the same proceeding, at least one of which
is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In
proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
the presiding judge or justice shall

(a)      at the first
reasonable opportunity, inform any witness under the age of eighteen years and
the complainant of the right to make an application for the order; and

(b)      on
application made by the complainant, the prosecutor or any such witness, make
the order.

(3)
In
proceedings in respect of an offence under section 163.1, a judge or justice
shall make an order directing that any information that could identify a
witness who is under the age of eighteen years, or any person who is the
subject of a representation, written material or a recording that constitutes
child pornography within the meaning of that section, shall not be published in
any document or broadcast or transmitted in any way.

(4)
An order
made under this section does not apply in respect of the disclosure of
information in the course of the administration of justice when it is not the
purpose of the disclosure to make the information known in the community. 2005,
c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1)
Every
person who fails to comply with an order made under subsection 486.4(1), (2) or
(3) or 486.5(1) or (2) is guilty of an offence punishable on summary
conviction.

(2)
For
greater certainty, an order referred to in subsection (1) applies to prohibit,
in relation to proceedings taken against any person who fails to comply with
the order, the publication in any document or the broadcasting or transmission
in any way of information that could identify a victim, witness or justice
system participant whose identity is protected by the order. 2005, c. 32, s.
15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Farmer,
2014 ONCA 823

DATE: 20141120

DOCKET: C57682

Sharpe, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Alexander Nathan Earle Farmer

Respondent

Suhail A.Q. Akhtar, for the appellant

Mark Halfyard, for the respondent

Heard: October 22, 2014

On appeal from the acquittal entered on August 29, 2013
by Justice
Wolfram Tausendfreund
of the Superior Court
of Justice, sitting without a jury.

Sharpe J.A.:

[1]

This is a Crown appeal from an acquittal following a judge alone trial
on charges of accessing and possession of child pornography.  The appeal raises
issues as to the meaning of control and wilful blindness in relation to the
offence of possession of child pornography.

[2]

The respondent and his partner, M.R., shared a basement apartment.  M.R.
downloaded child pornography on a computer owned by the respondent and used by
both men.  The respondent had no interest in child pornography and did not
access the material M.R. had downloaded.  His partner accepted responsibility,
admitted that he had downloaded the prohibited material, pleaded guilty and was
sentenced for both possession of and accessing child pornography.

[3]

The trial judge found that the respondent was at least suspicious that
M.R. had downloaded the prohibited material on the computer.  The trial judge
also found that the respondent condoned the use [M.R.] made of the computer and
that included accessing child pornography, an activity to which the [respondent]
was wilfully blind.  The trial judge recognized that a finding that the
respondent had control and knowledge on the basis of wilful blindness would
ordinarily result in conviction.  However, he remained troubled and acquitted
the respondent on the basis of the doctrine of innocent possession.

[4]

The Crown appeals the acquittal and asks this court to substitute a
conviction on the basis of the facts as found by the trial judge.

[5]

For the following reasons, I conclude that the trial judge committed
legal errors in his reasoning with respect to both wilful blindness and the
doctrine of innocent possession.  However, despite those errors, he reached the
legally correct result.  He was rightly troubled by the prospect of convicting
the respondent and I would dismiss the Crowns appeal.

FACTS

[6]

The respondent and M.R. lived together in a room in the home of the
respondents parents.  The respondent owned a desktop computer that both men
used.  M.R. owned a laptop computer that he used exclusively.  Both men worked,
but on different schedules. M.R. was often alone in the couples room.  He made
extensive use of the respondents computer.

[7]

M.R. had a diaper fetish which involved role-playing.  The respondent
participated a few times, but then refused to continue to do so.

[8]

The respondent admitted that on two occasions he saw M.R. looking at
images of teenaged boys dressed in underwear on the desktop computer. It is
common ground that these images were not child pornography.  He also stated
that sometimes when he returned to the room from work, M.R. would immediately
change the programme or minimize what was on the computer screen.

[9]

Acting on a warrant, the police seized both computers and charged both
men with accessing and possession of child pornography.

[10]

They
found a large number of images and videos depicting child pornography on the
desktop computer.  The files were stored in subfolders that were not readily
apparent or easily accessible, and there was evidence that the respondent was
not particularly computer literate.  The Crown relied upon statements made by
the respondent at the time of the seizure and after his arrest.  He told the
police that he knew, or at least had a good idea, that there might be child
pornography on his computer, but that he had not downloaded or accessed it and
had no interest in it. In a video statement, the respondent stated that he knew
M.R. accessed child pornography in relation to his diaper fetish, that he had
seen M.R. looking at images of teen males dressed in underwear on the desktop
computer, and that he had, in the words of the trial judge, then put two and
two together.

REASONS OF THE TRIAL JUDGE

[11]

The
trial judge made the following findings of fact:

1.

Child pornography found on the desktop computer was accessed by M.R.

2.

The desktop computer was the property of the respondent.

3.

Both the respondent and M.R. had free and unfettered access to the
desktop computer.

4.

The respondent had no interest in child pornography. He neither
downloaded nor accessed any of the child pornography found on the computer.

5.

The respondent was at least suspicious that child pornography had been
downloaded on his computer by M.R. but condoned it because M.R. was his partner
for whom he cared.

6.

The respondent took no steps to confirm his suspicion or to delete all
child pornographic images to prevent further access.

[12]

The
trial judge cited
R. v. Morelli
,
2010 SCC 8,

[2010] 1 S.C.R. 253 for the proposition that both knowledge
and control are essential elements to a finding of possession under s. 4(3) of
the
Criminal Code
,

R.S.C. 1985, c. C-46.

[13]

He
found that the respondent had control of the desktop computer.  It was his
property and he could have attached any conditions to its use had he been so
inclined.

[14]

With
respect to the statements made by the respondent at his home and at the police station
on the day of his arrest, the trial judge noted the respondents explanation
that the fact of his arrest had focused his mind on the nature of the charges
and that it was only after his arrest that he concluded that his suspicions
were probably well-founded.  The trial judge found that this explanation raised
a doubt on the issue of the respondents actual knowledge at the relevant time,
a doubt that he resolved in favour of the respondent.

[15]

However,
the trial judge also found that the respondent was at least suspicious that M.R.
had accessed and perhaps downloaded child pornography.  The trial judge referred
to the Supreme Courts definition of wilful blindness in
Sansregret v. The
Queen
, [1985] 1 S.C.R. 570 at p. 584.  The trial judge concluded that the
respondent had been wilfully blind as to the presence of child pornography on
his computer:

On these facts, I find that but for his relationship with his
partner, the [respondent] would and should have taken steps to make inquiries
of [M.R.] whether he had downloaded, or at least accessed, child pornography
and if so, to forthwith delete all such images and to cease and desist in such
activity in the future in the use by him of the computer of the [respondent].

[16]

Despite
finding both control and wilful blindness, the trial judge remained troubled
and went on to acquit the respondent on the basis of the doctrine of innocent
possession:

Taking the Crowns case at its highest, the [respondent]
condoned the use [M.R.] made of the computer and that included accessing child
pornography, an activity to which the [respondent] was wilfully blind.

[17]

The
trial judge cited the decision of this court in
R. v. Chalk
, 2007 ONCA
815,
88 O.R. (3d) 448, where Doherty J.A. confirmed the
existence of the innocent possession doctrine but held that it was not
available on the facts of that case.
The trial judge held that
Chalk
was distinguishable on its facts and concluded that the innocent
possession doctrine could and should be enlarged to apply to the respondents
conduct.

ISSUES

[18]

The
Crown submits that the trial judge erred by enlarging and applying the doctrine
of innocent possession.

[19]

The
respondent argues that while the trial judge may have used an inapt legal
description to describe his finding, he correctly found that the element of
control required to support a finding of possession was absent.

[20]

The
respondent further argues that the trial judge erred with respect to the legal
definition of wilful blindness and that the facts as found by the trial judge were
not sufficient to establish wilful blindness.

ANALYSIS

1.

Wilful
blindness

[21]

I
agree with the respondent that the trial judge erred in his articulation of the
legal test for wilful blindness.

[22]

In
R. v. Briscoe
,
2010 SCC 13,

[2010]
1 S.C.R. 411, the Supreme Court explained, at para. 21, that
wilful
blindness imputes knowledge to an accused whose suspicion is aroused to the
point where he or she sees the need for further inquiries, but
deliberately
chooses
not to make those inquiries (emphasis in original).
Writing for the court, Charron J. adopted Sopinka J.s statement in
R.
v. Jorgensen
, [1995] 4 S.C.R. 55, at para. 103: A finding
of wilful blindness involves an affirmative answer to the question: Did the
accused shut his eyes because he knew or strongly suspected that looking would
fix him with knowledge?
Briscoe
emphasizes the
need to keep the concepts of wilful blindness and recklessness distinct.
As explained in
Sansregret
, at p. 584:

[W]hile recklessness involves knowledge of a
danger or risk and persistence in a course of conduct which creates a risk that
the prohibited result will occur, wilful blindness arises where a person who
has become aware of the need for some inquiry declines to make the inquiry

because he does not wish to know the truth.  He would
prefer to remain ignorant.

The culpability in recklessness
is justified by consciousness of the risk and by proceeding in the face of it,
while in wilful blindness it is justified by the accuseds fault in
deliberately
failing to inquire
when he knows there is reason for
inquiry.  [Emphasis added in
Briscoe
.]

[23]

Charron J. also cited with approval the
discussion of wilful blindness by two eminent criminal law scholars. Professor
Glanville Williams, in
Criminal Law: The General Part
, 2nd ed. (London: Stevens & Sons,1961), at p. 159, explained the
very limited scope of wilful blindness in the following way:

A court can properly find wilful blindness only
where it can almost be said that the defendant actually knew.  He
suspected the fact; he realised its probability; but
he refrained
from obtaining the final confirmation because he wanted in the event to be able
to deny knowledge.  This, and this alone, is wilful blindness.  It
requires in effect a finding that the defendant intended to cheat the
administration of justice.
Any wider definition would
make the doctrine of wilful blindness indistinguishable from the civil doctrine
of negligence in not obtaining knowledge.  [Emphasis added in
Briscoe
.]

[24]

Referring to Professor Don Stuarts
Canadian Criminal
Law: A Treatise
,
5th ed. (Toronto:
Carswell, 2007), at p. 241, Charron J. agreed, at para. 24, that deliberate
ignorance seems more descriptive than wilful blindness, as it connotes an
actual process of suppressing a suspicion.  Charron J. added that
[w]hile a failure to inquire may be evidence of recklessness or criminal
negligence wilful blindness is not simply a failure to inquire but, to repeat
Professor Stuarts words, deliberate ignorance.

[25]

In
R. v. Duncan
, 2013 ONCA 774, [2013]
O.J. No. 5838, this court considered language in a jury instruction to the
effect that wilful blindness could be established on the basis of evidence that
the accused knew child pornography could be accessed through Limewire or had a
suspicion that it could be. The court held that this language was too broad
and failed to deal with the level of suspicion required to engage the doctrine
of wilful blindness.

[26]

In my respectful view, the same error is revealed by the reasons of the
trial judge in the present case.  While he did cite
Sansregret
, he did not focus on the need to find that the respondent shut his
eyes because he knew or strongly suspected that looking would fix him with
knowledge or became aware of the need for some inquiry [yet] decline[d] to
make the inquiry

because he [did]
not wish to know the truth.  The trial judge was only prepared to find that
the respondent was
at least suspicious that M.R. had accessed or
downloaded child pornography and that but for his relationship with M.R. he
would and should have made further inquiries.  In my view, while this might
support a finding of negligence or recklessness, it falls short of a situation
where it
can almost be said that the defendant actually knew so
as to amount to wilful blindness.

[27]

A second and related point is that in finding
wilful blindness
in relation to the charge of
possession
of child pornography, the
trial judge based his finding in part on imputed knowledge that M.R.
accessed
child pornography
.  These two crimes are distinct.  As held by
the majority in
Morelli
,

at para. 31, evidence that a person
accessed child pornography on a computer does not establish the offence of possession
of child pornography.  There was no evidence that the non-pornographic images
of young males in underwear seen by the respondent were downloaded, and the
trial judge framed his finding on the respondents suspicion in terms of
whether [M.R.] had downloaded, or at least accessed, child pornography.  A
finding that the respondent was wilfully blind to the fact that M.R. had
accessed
child pornography does not amount to a finding that the respondent was wilfully
blind to the fact that M.R. had
downloaded
child pornography.  On the
authority of
Morelli
, downloading is required to support a finding of
possession.

[28]

I
conclude, accordingly, that the trial judge erred in law in finding that the
respondent had the requisite knowledge to support a conviction for possession
of child pornography.

2.

Innocent
possession

[29]

As explained in
Morelli
, at para. 15, both knowledge
and control are essential elements of possession.
I have already
considered the element of knowledge and turn now to the element of control and
to the Crowns submission that the trial judge erred in his application of the
doctrine of innocent possession.

[30]

Possession is defined in s. 4(3) of the
Criminal Code
in the following terms:

(a) a person has anything in possession when he has
it in his personal possession or knowingly

(i) has it in the actual possession or custody of
another person, or

(ii) has it in any place, whether or not that
place belongs to or is occupied by him, for the use or benefit of himself or of
another person; and

(b) where one of two or more persons,
with the knowledge and consent of the rest, has anything in his custody or possession,
it shall be deemed to be in the custody and possession of each and all of them.

[31]

The innocent possession doctrine relied on by the trial judge is
derived from cases where an accused does exercise control over contraband, but
with the absence of an intention to exercise control beyond that needed to
destroy the contraband or otherwise put it permanently beyond ones control:
Chalk
, at para.
24, citing
R. v. Christie
(1978), 41 C.C.C.
(2d) 282 (N.B.S.C. App. Div.).

[32]

I agree with the submission of the Crown that the respondent cannot
claim the benefit of the innocent possession doctrine.  Innocent possession
applies where an accused has a valid explanation for any control exercised over
contraband.  The respondent did not take control of the contraband to destroy
it or to remove it from his computer.

[33]

The question here is whether the respondent had control over the
contraband in the first place.  Although the innocent possession doctrine does
not apply, the innocent possession cases are relevant to this issue as they elucidate
what is meant by control.
Chalk
, at para. 23, includes
the following passage from
Christie
, at p. 287:

In my opinion, there can be circumstances which do not
constitute possession even where there is a right of control with knowledge of
the presence and character of the thing alleged to be possessed, where guilt
should not be inferred, as where it appears there is no intent to exercise
control over it.

[34]

Similarly, it was held in
R. v. York
, 2005
BCCA 74,
193 C.C.C. (3d) 331,
at
para. 20:

Personal possession is established where an accused person
exercises physical control over a prohibited object with full knowledge of its
character, however brief the physical contact may be, and where there
is
some evidence to show the accused person took custody of the object willingly
with intent to deal with it in some prohibited manner
. [Emphasis
added.]

[35]

I agree with the respondent that while the trial judge may have used an
inapt legal label or category, he did not err in finding that the Crown had
failed to establish the element of control required for possession.
As
the trial judge put it, taking the Crowns case at its highest, through his
failure to act, the respondent condoned the use [M.R.] made of the computer
and that included accessing child pornography.  In my view, that conduct falls
short of establishing a degree of control over the contraband sufficient to
ground criminal liability for possession.

[36]

As the owner of the computer, the respondent may have had the right to
exercise control over its use.  However, he did not consent, within the
meaning of s. 4(3)(b) of the
Criminal Code
, to
have child pornography downloaded on his computer.  He condoned M.R. having
free access to and use of his computer but he did not condone, agree or give
permission to M.R. to use the computer to download child pornography.  Nor did
he did do anything that could amount to taking custody of the contraband with
the intent to use or deal with it.

[37]

In
Chalk
, the accused was arrested on an unrelated charge and called his
girlfriend to instruct her to delete files containing child pornography stored
on a shared computer.  The Crown relies on the italicized words in the
following passage from
Chalk
, at para. 26, where this court rejected
the application of the innocent possession doctrine:

On the trial judge's findings, the appellant did not have
possession of the child pornography strictly for the purposes of destroying
that pornography. He knew that the pornography was on the computer's hard drive
for several months. During that time, he regularly used the computer
and
had control over the pornography in the sense that he could have deleted it
from the computer at any time had he chosen to do so
. On his own admission,
he ultimately decided to delete the pornography because he feared that the
police would discover it when they examined his computer. In those
circumstances, the appellant's instruction to delete the material was a
manifestation of his longstanding power or authority over the material. That
control had existed for several months and was not merely incidental to an
innocent purpose. [Emphasis added.]

[38]

I
am unable to accept the submission that the italicized words answer the issue
posed in this case.  As is clear from reading this passage as a whole, the
evidence that the accused in
Chalk
asked his girlfriend to delete the
contraband could not be viewed in isolation.  Rather than being evidence of an
innocent purpose, his instruction was a manifestation of his longstanding
power or authority over the material.

[39]

In
my view, to accept the Crowns argument that the respondent had control over the
child pornography by virtue of his ownership, especially when combined with a
finding of imputed intention, would unduly stretch the limits of criminal
liability.  To convict the respondent of a serious criminal offence that
entails a minimum period of incarceration simply because he suspected his
partner might have been using his computer to access and perhaps download child
pornography would not correspond to his limited level of moral culpability.

[40]

Although
there are flaws in the trial judges legal analysis, his assessment of the case
was essentially sound.  He was rightly troubled by the prospect of convicting
the respondent of this offence, and the respondent was properly acquitted of
this charge.

[41]

I
recognize, of course, that child pornography poses a serious problem for our
society and that criminal sanctions must be imposed against those who involve
themselves in this deeply destructive and harmful activity.  However, we must
not lose sight of the basic principles of criminal law, and we should preserve
the criminal sanction for conduct that is truly criminal.  In this case, M.R.
has been convicted and sentenced for the crime of possession of child
pornography. On the facts as found by the trial judge, the respondent was not
sufficiently aware of or involved in the commission of that crime to warrant
conviction.

DISPOSITION

[42]

For
these reasons, I would dismiss the Crowns appeal.

Released: (RJS) NOV 20, 2014
Robert J. Sharpe J.A.

I agree C.W. Hourigan J.A.

I agree G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Geddes, 2014 ONCA 838

DATE: 20141126

DOCKET: C59343

Weiler, Simmons and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Geddes

Appellant

John Geddes, acting in person

Russell Silverstein, appearing as duty counsel

Jennifer Mannen, for the respondent

Heard: November 3, 2014

On appeal from the sentence imposed on March 6, 2014 by
    Justice John B. McMahon of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

Mr. Geddes appeals his sentence on the basis that he should have
    received enhanced credit for pre-sentence custody on the basis of 1.5:1. On
    November 3, 2014, the panel heard Mr. Geddes appeal and directed the Crown to
    obtain the transcript of an in court discussion regarding the appellants
    credit for pre-sentence custody.

[2]

The additional transcript reveals that counsels joint submissions of 20
    months credit for 17.5 months of pre-sentence custody made at the time of
    sentencing took into consideration the appellants jail conditions but not his
    lost eligibility for early release.

[3]

In
R. v. Summers,
[2014] S.C.J. No. 26, the Court held that the
    loss of early release alone will generally be a sufficient basis on which to
    award enhanced credit of 1.5:1. As a result, the Crown now concedes that the
    appellants entire period of pre-sentence custody amounting to 537 days should
    be credited at the rate of 1.5:1 and that the appellant should receive 806 days
    credit for pre-sentence custody as requested.

[4]

Accordingly, leave to appeal sentence is granted, the appeal as to
    sentence is allowed and Mr. Geddes is granted credit for 806 days pre-sentence
    custody instead of 20 months credit. The balance of the sentence remains in
    full force and effect.

K.M. Weiler J.A.

Janet Simmons J.A.

E.E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hopkinson, 2014 ONCA 836

DATE: 20141125

DOCKET: C57283

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leighton Hopkinson

Appellant

Joseph Di Luca, for the appellant

Iona Jaffe, for the respondent

Heard: November 14, 2014

On appeal from the convictions entered on March 27, 2013
    and the sentence imposed on May 1, 2013 by Justice Donald J. Halikowski of the Ontario
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of trafficking in cocaine and possession of
    cocaine. He received concurrent sentences of 21 months. He appeals both
    convictions and the sentence.

[2]

The appellant appeals his convictions on two grounds: insufficient
    reasons and unreasonable verdict. The latter submission is based on the position
    that the case was circumstantial and guilt was not the only reasonable
    inference from the evidence.

[3]

In our view, the reasons for judgment, while brief, were sufficient to
    explain the route the trial judge took to conviction. A fair reading of
    paragraph 18 of the reasons makes it clear that in referring to the evidence
    listed in paragraph 14, he was including only the evidence listed under (c) in
    that paragraph which was admissible on the trial proper, and not the other
    evidence that he used to justify the arrest.

[4]

We are also satisfied that the trial judge did not err in concluding,
    based on all the evidence including the evidence of the apparent hand to hand
    transaction, the finding of money that was accepted to be consistent with a
    drug traffickers cash proceeds, and the movements of the appellant before the
    apparent drug transaction, that the appellant had trafficked in cocaine to Mr.
    Kistodial. The fact that the officer did not actually observe anything
    transferred in the apparent hand to hand transaction did not undermine the
    trial judges finding, as that was not the only piece of evidence that formed
    the basis of the conviction.

[5]

In addition, there was no evidence that was inconsistent with the
    conclusion of the trial judge. For example, there was no air of reality to the
    defense theory that Mr. Kistodial was the seller and not the buyer of the
    cocaine, given that when he was arrested 4 minutes after the transaction, no
    money was found on him.

[6]

We also see no error in the conviction for possession of the piece of
    cocaine found in the appellants car. The trial judge made no error in
    concluding beyond a reasonable doubt that the appellant had possession and
    control of that piece of cocaine.

[7]

We also would not interfere with the sentence imposed. We agree with the
    Crown that the trial judges reference to rehabilitation was not a driving
    factor to increase the sentence, but just a hoped-for by-product of the
    sentence. In our view, given the record of the appellant, the sentence imposed
    was fit.

[8]

The appeal is therefore dismissed.

K. Feldman J.A.

J. Simmons J.A.

S.E. Pepall J.A."


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge
    or justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

(ii) an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal Code
, chapter C-34 of the Revised
    Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of the offences referred
    to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)  at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the
    complainant of the right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)
An order made under this section does not apply in
    respect of the disclosure of information in the course of the administration of
    justice when it is not the purpose of the disclosure to make the information
    known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

486.6     (1)
Every person who fails to comply with an order
    made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an
    offence punishable on summary conviction.

(2)
For greater certainty, an order referred to in subsection
    (1) applies to prohibit, in relation to proceedings taken against any person
    who fails to comply with the order, the publication in any document or the
    broadcasting or transmission in any way of information that could identify a
    victim, witness or justice system participant whose identity is protected by
    the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kandic, 2014 ONCA 817

DATE: 20141118

DOCKET: C57074

Laskin, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrija Kandic

Appellant

Russell Silverstein, for the appellant

Gregory J. Tweney, for the respondent

Heard and released orally: October 31, 2014

On appeal from the convictions entered on January 13,
    2012 and the sentence imposed on February 23, 2012 by Justice Casimir N. Herold
    of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of three counts related to child
    prostitution and sentenced to four and a half years in prison.  He appeals both
    his convictions and his sentence.

[2]

On his conviction appeal, the appellant makes two submissions.  First,
    the trial judge committed a reviewable error in the exercise of his discretion
    by refusing the defence an adjournment to call a witness.  Second, the trial
    judges conduct of the trial created a reasonable apprehension of bias.  We did
    not call on the Crown to respond to either submission.

[3]

On the appellants first submission, to interfere with the trial judges
    refusal of an adjournment, we must be persuaded that the trial judges
    discretion was not exercised in a judicial way or caused a miscarriage of
    justice.  The appellant cannot meet this test.  We think that the trial judge
    was right that the witness could have and should have been called earlier if
    she was as important to the defence as the appellant himself claimed.  But more
    important, we agree with the trial judge that she had no material evidence to
    give.  The trial judge explored the potential materiality of her evidence in
    his discussion with counsel and for the reasons set out in his ruling, found
    that the witness could not offer any material evidence on the counts relating
    to P.P.  We agree with his finding.

[4]

On the appellants second submission, viewing the trial record as a
    whole, a reasonable observer would conclude that the trial judge conducted the
    trial impartially and that the appellant had a fair trial.  Accordingly, the
    conviction appeal is dismissed.

[5]

On the sentence appeal both parties acknowledge that if consecutive
    sentences were imposed for each complainant, then the sentence must be four
    years at a minimum.  The trial judge addressed the issues of whether concurrent
    sentences would have been appropriate and whether consecutive sentences would
    offend the principle of totality.  His reasons and conclusions on these issues
    are entitled to deference.  The trial judge also applied the factors in
Tang
and we see no error in his application of these factors.  The overall sentence of
    four and a half years is fit.

[6]

We have considered the fresh evidence.  Although the appellants wish to
    care for his father is commendable, the fresh evidence cannot affect the length
    of the sentence.  Accordingly, although leave to appeal sentence is granted,
    the sentence appeal is dismissed.

John Laskin J.A

K. van Rensburg J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Khan, 2014 ONCA 795

DATE: 20141112

DOCKET: C55510

Cronk, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nasrullah Khan

Appellant

Mark Halfyard, for the appellant

Avene Derwa, for the respondent

Heard: September 8, 2014

On appeal from the convictions entered on February 28,
    2012 by Justice Barbara A. Conway of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

The
    appellant, Nasrullah Khan, was charged with seven counts which arose out of two
    separate incidents.  Both incidents involved the same complainant, Mr. Shahid
    Sidhu.  The first incident involved an assault with a weapon (a knife) that
    occurred on October 10, 2008.  This incident resulted in charges of possession
    of a weapon, assault with a weapon and aggravated assault.

[2]

The
    second incident involved a threatening phone call to Mr. Sidhu on November 16,
    2008.  The second incident resulted in charges of failure to comply with a
    recognizance, intimidating a justice participant, attempting to obstruct
    justice and uttering a threat.

[3]

Following
    a four-day trial before a Superior Court judge, sitting without a jury, the
    appellant was convicted of all counts and received a global sentence of 17
    months in custody.  He now appeals his convictions on two main grounds.  First,
    the appellant submits that the trial judge erred in her treatment of alibi
    evidence adduced by the defence by discounting a time-stamped, dated receipt
    from a variety store which was disclosed by the appellant to the police upon
    his arrest, about 7 and a half hours after the first incident.  Second, the
    appellant contends that the trial judge misapprehended the evidence when she
    concluded that the appellants evidence contradicted his wifes evidence in a
    way that suited the defence.

Factual Overview

[4]

The
    appellant and the complainant, Mr. Sidhu, were friends who purchased a house
    together in 2008 with a view to sharing the profits.  The house was in the
    appellants name only.  The appellant and his family moved into the house right
    away and Mr. Sidhu subsequently moved into the basement.  On September 21,

2008, the appellant told Mr. Sidhu to move out.  Mr.
    Sidhu filed an application against the appellant at the Landlord and Tenant
    Board.  He later sued the appellant for the return of mortgage funds he claimed
    to have advanced in respect of the house.

[5]

On
    October 10, 2008, at around 4:30 p.m., Mr. Sidhu was attacked in the parking
    lot at his work.  His left arm was cut with a knife.  Mr. Sidhus friend
    witnessed at least part of the attack and identified the attacker as the
    appellant.  On November 16, 2008, around 8:30 p.m., Mr. Sidhu received a
    telephone call from a pay phone near the appellants home.  Mr. Sidhu
    recognized the callers voice as that of the appellant.  The caller told Mr.
    Sidhu to take his cases back and threatened to kill Mr. Sidhu.  A witness to
    the telephone call corroborated the content of the call, which was audible on
    speaker phone, but not the identity of the caller.

[6]

At
    trial, the appellant testified in his own defence and provided an alibi for
    both incidents.  He testified that he was at a convenience store buying milk at
    the time of the first incident.  On October 10, 2008, the appellant had told
    police that he was purchasing two bags of milk at the time of the incident, and
    subsequently produced a receipt time-stamped 4:29 p.m. that day.  He testified
    that he was at home with his wife and father during the evening of November 16,
    2008.  Both the wife and father testified that the appellant was always in their
    sight that evening.

[7]

The
    trial judge found that Mr. Khan was not a credible witness, and rejected his
    testimony with respect to the alibis.

Analysis

[8]

In
    our view, the appeal should be dismissed.

[9]

The
    trial judge properly considered the alibi evidence in its entirety, and
    correctly applied the burden of proof.  This was a case in which both the
    appellant and the complainant knew each other, as did the main Crown witness to
    the assault incident.  This case turned largely on credibility.  The trial
    judge had to consider the alibi evidence within the context of her credibility
    assessment of the various witnesses.  She gave detailed reasons for her
    credibility findings.  Determinations of credibility by a trial judge attract a
    high degree of deference:
R. v. Horton
, 2014 ONCA 616,

at para. 8;
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R.
    788, at para. 26.

[10]

The trial judge
    was in the unique position to see and hear the witnesses.  The alibi evidence
    was dependent on the believability of the appellants evidence.  She did not
    believe the appellants alibis, nor did she find that they raised a reasonable
    doubt.

[11]

It cannot be
    said that the trial judges reasons for rejecting the alibi evidence were
    inadequate.  Reasons for judgment must clearly tell the losing party why he or
    she lost and must provide for meaningful review:
R v. Newton
, 2006
    CanLII 7733 (Ont. C.A.), at para. 3.  The reasons met this standard.  For
    example, the trial judge gave a specific reason for rejecting the alibi
    evidence regarding the October 10, 2008 incident: the receipt relied on by the
    appellant did not link the accused to the store.  She was not required to provide
    a theory about who purchased the milk and gave the receipt to the accused.  She
    simply stated, It could have been anybody.

[12]

After
    considering the totality of the evidence, the trial judge found the Crown
    witnesses credible and accepted their evidence.  She was satisfied that the
    Crown evidence proved the appellants guilt beyond a reasonable doubt.  We see
    no fault in the trial judges reasoning or in her ultimate findings.

[13]

We also do not
    agree that the trial judge misapprehended the evidence.  Misapprehension of
    evidence involves a stringent standard:
R. v. Lohrer
, 2004 SCC 80,
    [2004] 3 S.C.R. 732, at paras. 1-2.  This standard is met only [w]here a trial
    judge is mistaken as to the substance of
material
parts of the evidence and those errors play
an essential
    part in the reasoning process
resulting in a conviction (emphasis
    added):
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541,
    cited with approval in
Lohrer
. The trial judge was certainly entitled
    to find that the appellants evidence contradicted his wifes evidence in a way
    that was self-serving.  As pointed out by the respondent in submissions, the
    appellant portrayed his ex-wife as an independent woman who could come and go
    as she pleased, whereas, his wifes evidence was that she was completely
    dependent on her husband.  In any event, this finding was not central to the
    trial judges reasoning process, nor was the credibility of the defence
    witnesses dependent solely on this finding.  In our view, the contradiction was
    just one of many reasons the trial judge offered for disbelieving the appellant.

[14]

In all the
    circumstances, the appeal is hereby dismissed.

E.A. Cronk J.A.

E.E. Gillese J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Muller, 2014 ONCA 780

DATE: 20141107

DOCKET: C55377

Feldman, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bart Alec Muller

Appellant

Heather Pringle, for the appellant

Stephen Dawson and Jeanette Gevikoglu, for the
    respondent

Heard: June 19, 2014

On appeal from the conviction entered on October 17, 2011
    by Justice Renee M. Pomerance of the Superior Court of Justice, sitting without
    a jury, with reasons reported at 2011 ONSC 4892.

Watt J.A.:

[1]

Bart Alec Muller got arrested. And then he got searched. Twice. First, a
    frisk search. Three cellphones. Some money. No drugs. Second, a strip search. A
    plastic bag between his buttocks. Crack cocaine. Cocaine. Oxycodone tablets.

[2]

At trial, Muller challenged the lawfulness of his arrest, the
    reasonableness of the strip search and the admissibility of the drugs and other
    items the searches yielded.

[3]

The trial judge concluded Mullers arrest and strip search were lawful,
    unblemished by constitutional taint, and the evidence obtained as a result
    admissible. She convicted Muller of the offences charged.

[4]

Muller appeals. He reiterates the complaints he advanced at trial. The
    warrantless arrest was arbitrary and unlawful. The strip search was
    unreasonable, or at the very least, executed in an unreasonable manner. The
    evidence of the items seized should have been excluded.

[5]

This time, Muller succeeds. Although the warrantless arrest was lawful
    and the authority to conduct a strip search established, the manner in which the
    strip search was carried out fails constitutional muster. The evidence the
    strip search yielded should have been subjected to a s. 24(2) analysis to
    determine its admissibility.

THE BACKGROUND FACTS

[6]

The circumstances in which Muller was arrested and searched are not
    controversial. A brief statement of them will suffice.

Biggie and his Business

[7]

Two confidential informants told police about a man they knew as Biggie
    who sold crack cocaine out of a second floor apartment in a Windsor apartment
    building. The apartment belonged to another man they knew as Peter, who let Biggie
    sell drugs out of the apartment in exchange for some of Biggies drugs. The
    informants explained a prospective purchaser was to knock on the sliding door
    of a ground floor apartment to get access to Biggies place of business. The
    information provided included the municipal address of the apartment building and
    the number of each of the apartments. The information was also current  one of
    the informants had bought drugs from Biggie earlier in the day the information was
    provided to police.

[8]

Both informants had criminal records. No details of those records were
    provided, except that neither had been convicted of perjury or misleading
    police. One was unproven. The other was proven reliable and accurate, but no
    basis for this assertion was provided. Each was an admitted drug user and
    well-versed in the drug subculture.

[9]

The informants described Biggie as a big black man, six feet tall, with
    a large build. Biggie had short brown hair in braids. He weighed about 240
    pounds. One informant, the one whose information had proven reliable and
    accurate in the past, told police Biggie had bought a handgun for protection.
    The informant had not seen the gun.

[10]

Police
    identified Poitr Kochanski as the person who leased unit 204 at 373 Detroit
    Avenue in Windsor, the apartment where the informants had purchased drugs from Biggie.
    Kochanski, who matched the informants description of Peter, had prior criminal
    convictions and was the subject of an outstanding warrant obtained by an
    out-of-province police agency. None of Kochanskis prior convictions were drug-related.

The Search Warrant

[11]

On
    the basis of the information provided by the two informants, police obtained a
    search warrant under s. 11 of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19 (
CDSA
), for apartment 204 at 373 Detroit Avenue. They
    sought drugs and related items in the apartment in which Biggie had trafficked
    crack cocaine that day and on earlier occasions. The warrant was to be executed
    the same day with the assistance of the Emergency Services Unit of the Windsor
    Police.

The Execution of the Warrant

[12]

Shortly
    after 5 p.m., police broke down the door and entered apartment 204. They found
    four people in the apartment, but no drugs. The occupants included Kochanski
    and three other building residents, including two from apartment 107, the unit
    the informants identified as the one to knock at for access to Biggies place
    of business. Each occupant was arrested. Everybody was transported to police
    headquarters to be strip searched.

[13]

Biggie
    was not in the apartment.

Is This Biggie?

[14]

As
    the search warrant was being executed, police officers conducting surveillance
    outside the building noticed a man walk out of the building through a
    pedestrian exit. The man fit Biggies general description: a six foot tall
    black man with a large build. The door by which he left was not far from
    apartment 204. The officers, whose clothing clearly identified them as police,
    got out of their vehicle and approached the man on foot. As they did, the man
    discarded a digital scale and continued to walk away. One of the officers
    picked the scale up. He noticed a residue on the scale resembling crack
    cocaine.

The Arrest and Frisk Search

[15]

When
    the officers caught up with the man they asked him for identification. The man
    identified himself orally. He had no documentary proof of his identity with
    him. He was arrested on a charge of possession of crack cocaine for the purpose
    of trafficking and advised of his right to counsel.

[16]

Incident
    to his arrest, the officers conducted a frisk search of the man. They found
    three cellphones and some money, but no drugs, debt lists or any other common
    indicia of drug trafficking.

[17]

The
    officers concluded this man was Biggie. They thought he was trying to hide
    something from them. One of the officers decided Biggie should be taken to
    police headquarters to be strip searched.

The Strip Searches

[18]

At
    police headquarters, two male police officers strip searched Muller. They asked
    him to remove the items of clothing he was wearing, one by one, and turn them
    over to the police. He did so. As Muller stood naked before the officers he was
    asked to turn around, bend over and spread his butt cheeks. He complied.

[19]

When
    Muller bent over, one of the officers noticed a plastic bag concealed between
    Mullers buttocks. Another bag was visible inside the outer bag. The officer
    removed the bag from between Mullers buttocks. Inside the bag the officers
    found crack cocaine, cocaine and a dozen oxycodone tablets. The search was
    videotaped and the recording preserved.

[20]

The
    strip search of the four persons found in apartment 204 yielded nothing. These
    searches, which had been directed by an officer before the search of the
    apartment had been completed, were carried out at police headquarters. Police notebooks
    contained no reference to any strip search direction or the execution of any
    strip search for these persons. These strip searches took place
after
Muller had been strip searched and the drugs found. The video of these strip
    searches was not preserved.

THE GROUNDS OF APPEAL

[21]

The
    appellant advances three grounds of appeal. Ms. Pringle says the trial judge
    erred:

i.

in finding the warrantless arrest of the appellant was based on
    reasonable grounds, and thus lawful;

ii.

in finding the strip search of the appellant was based on reasonable
    grounds, and thus lawful; and

iii.

in finding the strip search of the appellant was conducted in a
    reasonable manner.

Ground # 1: The Lawfulness of the Warrantless Arrest

[22]

The
    first ground of appeal impeaches the trial judges conclusion that the
    warrantless arrest of the appellant was lawful. The trial judge based her
    conclusion on the cumulative effect of:

i.

the information supplied by the two confidential informants and
    contained in the Information to Obtain (ITO) relied upon to obtain the
CDSA
search warrant for apartment 204; and

ii.

the observations of surveillance officers of the appellants exit from
    the apartment building and his conduct prior to arrest.

The Information

[23]

The
    information contained in the ITO was provided by two confidential informants.
    For all practical purposes, the significant features of this information,
    including the antecedents of the informants and their reliability, were
    unconfirmed.

[24]

From
    these informants, the police knew a man known as Biggie was trafficking crack
    cocaine in apartment 204 at 373 Detroit Avenue. The tenant, known as Peter to
    the informants, knew about Biggies business and received drugs for making his
    premises available for this purpose. The police did not know Biggies real name
    and had only a general description of him: a tall and heavy black man with
    braided hair.

[25]

The
    informants also told police that to buy drugs from Biggie in apartment 204 a
    person would knock on the sliding door of a ground floor apartment, unit 107,
    to gain entry to the building. Together, the information provided by the
    informants disclosed several discrete transactions including one that occurred
    only a few hours before the
CDSA
search warrant was issued.

[26]

Prior
    to the appellants arrest, police obtained further information. Surveillance
    officers  posted outside 373 Detroit Avenue to ensure persons did not escape
    by, or throw drugs off of, the balcony of unit 204  noticed a man leave the
    building by a side door. This was at the very time other officers, executing the
    search warrant, had forced their way into apartment 204. The man fit the
    description of Biggie. As the officers approached him on foot, the man
    discarded a digital scale. Convinced the man was their target, Biggie, the
    officers arrested him.

The Ruling of the Trial Judge

[27]

The
    trial judge concluded the information provided by the confidential informants
    and included in the ITO, on its own, was not sufficient to satisfy the standard
    required for:

i.

issuance of a search warrant for apartment 204; or

ii.

a warrantless arrest of the appellant.

[28]

In
    her ruling on the constitutionality of the strip search, the trial judge
    expressed her conclusion about the legality of the appellants arrest in these
    terms:

[51] In the end result, the tips had some level of detail.
    However, the credibility of the sources was not established and there was no
    meaningful confirmation of the information provided. The warrant was based on
    unsubstantiated tips from one person of unknown reliability and another of
    undisclosed reliability. The grounds did not justify issuance of a warrant to
    search a residence. Nor did those grounds suffice to make out the requisite
    reasonable grounds for arrest.

[29]

The
    trial judge then considered whether the appellants arrest and incidental frisk
    search could be lawful on other grounds, in particular, on the basis of the
    observations made by the surveillance officers. They observed the appellant leave
    the building as the search began and discard a digital scale covered with what
    appeared to be cocaine residue. She described the relevant question this way:

[56] The question then is whether there were grounds to believe
    that the accused was in fact the man described as Biggie. It is true that there
    are some discrepancies between the description of Biggie offered by the sources
    and the physical appearance of the accused at the time of his arrest. The
    description of Biggie was set out in the briefing note as follows:

TARGET: Biggie  male black, 20s, 6tall, 220 pounds, large
    build, short brown hair, braids.

[30]

Ultimately,
    the trial judge concluded the appellants arrest was lawful and reasonable.
    The essence of her reasons is found in the following passages:

[59] The defence relied on
Chartier v. Quebec (A.G.),
[1979] 2 S.C.R. 474 in arguing that there were insufficient grounds for arrest.
    This case is distinguishable from
Chartier
. Here, the arrest is based,
    not just on physical description, but on the accuseds presence at the scene of
    the crime. The accused was not just a random male who happened to be leaving an
    eight story building where drugs were sold. The accused matched several
    descriptors given of Biggie. He left the building from an exit in close
    proximity to apartment 204 at the very time or shortly after ESU officers
    entered the unit. He was in possession of a digital scale which he discarded
    a strong indication that he was involved in the drug trade. When these
    circumstantial observations are combined with the physical description, it
    becomes very reasonable to believe that the accused was Biggie. The standard is
    one of reasonable grounds to believe, not proof beyond a reasonable doubt and
    not a
prima facie
case. It was reasonably probable that the accused
    was Biggie. It was not necessary that it be established to any greater
    certainty.

[60] Therefore I have concluded that the arrest of the accused
    was lawful and reasonable on the basis of:

a)   The grounds set out in the ITO;

b) The physical similarity between the accused and the
    description of Biggie;

c)  The timing and location of the accuseds departure from
    the building; and

d) The accuseds attempt to discard a digital scale as he
    moved away from the police.

[61] The cumulative effect of these factors are such that the
    arrest of the accused for possession of crack cocaine for the purpose of
    trafficking was lawful.

The Positions of the Parties

[31]

For
    the appellant, Ms. Pringle says the appellants arrest was unlawful. She
    submits the trial judge reached the wrong conclusion because she asked the
    wrong question. The question was not whether the police had reasonable and
    probable grounds to believe the appellant was Biggie, but rather, whether there
    were reasonable and probable grounds to believe the person they saw was in
    possession of crack for the purpose of trafficking.

[32]

Ms.
    Pringle contends the onus was on the Crown to establish the reasonable and
    probable grounds required to make this warrantless arrest lawful. The evidence,
    she says, comes up short. The timing of the appellants departure from 373
    Detroit Avenue was neutral because there was no link to apartment 204. The
    discard of the digital scale was not enough, on its own, to get beyond
    reasonable suspicion. The similarities between the appellant and the man
    described as Biggie were generic at best and there were significant
    discrepancies between the informants description and the appellants appearance.

[33]

The
    respondent insists the trial judge made no mistake in her analysis or
    conclusions that both the arrest and incidental search were lawful. The
    arresting officer was required to believe on reasonable grounds that the
    appellant had committed or was about to commit an indictable offence. The
    standard of reasonable grounds is not equivalent to proof beyond a
    reasonable doubt or even a
prima facie
case. The standard is one of
    reasonable or credibly-based probability.

[34]

The
    respondent says the cumulative effect of all the information known to the
    police prior to the appellants arrest supported an objectively reasonable
    belief that the appellant was in possession of crack cocaine for the purpose of
    trafficking. The appellant  fitting the description of Biggie, who had
    trafficked crack in unit 204 earlier that day  was seen leaving the building just
    as the search of that apartment began. As uniformed police approached, he discarded
    a digital scale covered in a cocaine-like residue. Accordingly, the arrest and
    search incident to the arrest were lawful.

The Governing Principles

[35]

Section
    495(1)(a) of the
Criminal Code
, R.S.C., 1985, c. C-46, permits a peace
    officer to arrest, without a warrant, a person:

(i)

who has committed an indictable offence; or

(ii)

who the peace officer believes, on reasonable grounds, has committed or
    is about to commit an indictable offence.

[36]

Where
    the basis for the arrest falls within category (ii) above, the arresting
    officer must
subjectively
have reasonable grounds on which to base the
    arrest. However, that on its own is not enough to make the arrest lawful. In
    addition, those grounds must be justifiable from an objective point of view. A
    reasonable person placed in the position of the officer must be able to
    conclude there were indeed reasonable grounds for the arrest:
R. v. Storrey
,
    [1990] 1 S.C.R. 241, at p. 251;
R. v. Golub
(1997), 117 C.C.C. (3d)
    193 (Ont. C.A.), at para. 20, leave to appeal to S.C.C. refused, [1997]
    S.C.C.A. No. 571.

[37]

Whether
    information provided by an informant can constitute reasonable grounds for an
    arrest requires consideration of the totality of the circumstances:
R. v.
    Debot
(1986), 30 C.C.C. (3d) 207 (Ont. C.A.), at pp. 218-219, affd [1989]
    2 S.C.R. 1140, at p. 1168;
R. v. Lewis
(1998), 122 C.C.C. (3d) 481 (Ont.
    C.A.), at para. 15. Where the information originates in a source outside the
    police, the totality of the circumstances encompasses factors relevant to either
    the accuracy of the specific information provided or the reliability of the
    informant as a source of information to the police:
Lewis
, at para.
    16. In this case, the allegation relates to possession of drugs. It follows that
    the totality of the circumstances must raise a belief, on reasonable grounds,
    that the target had committed or was about to commit the offence of possession
    of drugs for the purpose of trafficking, not as Ms. Pringle asserts, that the
    target was at the time of the arrest in possession of drugs.

[38]

A
    search incident to arrest derives its authority from the lawful arrest and
    requires no independent justification, either at common law or under the
Canadian
    Charter of Rights and Freedoms
:
Golub
, at para. 31;
Cloutier
    v. Langlois
, [1990] 1 S.C.R. 158, at pp. 185-186. Breaking this down, for
    a search to be justified as an incident to arrest, the arrest itself must have
    been lawful and the search must have been
incident
to the arrest,
    meaning the search must have related to the reasons for the arrest itself:
R.
    v. Golden
, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 91-92, 98;
R.
    v. Caslake,
[1998] 1 S.C.R. 51, at para. 17.

The Principles Applied

[39]

I
    would not give effect to this ground of appeal.

[40]

I
    agree with the trial judge that the information provided by the confidential
    informants, on its own, was not sufficient to satisfy the reasonable grounds
    standard in s. 495(1)(a) to lawfully arrest the appellant without a warrant.
    Admittedly, the information was somewhat specific  Biggie was trafficking
    crack cocaine in apartment 204 at 373 Detroit Avenue in Windsor, in an
    apartment belonging to Peter  and was only hours old, according to one
    informant. The information also included a general description of Biggie. However,
    the information came from one untested source and another that was
    unverifiable. Neither had been confirmed in any meaningful way.

[41]

That
    said, the information from the confidential informants did not stand alone. A
    man who fit the general description of Biggie, the crack trafficker who hours
    earlier had made a sale in apartment 204, walked out of the building just as a
CDSA
warrant was being executed in that very apartment. When uniformed officers
    approached, this same man discarded a digital scale covered with a residue
    resembling crack cocaine.

[42]

In
    combination, the information provided by the informants, coupled with the
    observations made of the appellants behaviour, met the standard imposed by s.
    495(1)(a) of the
Criminal Code
. I reach this conclusion even though
    the trial judge appears to have asked the wrong question as she began her
    analysis. The proper issue was not whether the police had reasonable grounds to
    believe the pedestrian was Biggie, but rather, whether they had reasonable
    grounds to believe the pedestrian had been or was in possession of drugs for
    the purpose of trafficking.

[43]

The
    lawful arrest of the appellant permitted the police to conduct a frisk search
    of him incidental to the arrest. In this case, the frisk search was incidental
    because it related to the reasons for the arrest. The arrest was for the
    possession of drugs for the purpose of trafficking. The purpose of the frisk
    search was to discover evidence of the offence: drugs or drug paraphernalia on
    the appellants person:
Golden
, at para. 92;
Golub
, at para.
    28;
Caslake
, at para. 17;
Cloutier
, at p. 186.

Ground #2: The Lawfulness of the Strip Search

[44]

The
    second ground of appeal challenges the authority of investigators to strip
    search the appellant at the police station after his arrest and incidental frisk
    search. Some additional background is essential to assessing the validity of
    this claim of error.

The Decision to Strip Search

[45]

When
    the frisk search yielded no drugs or other paraphernalia unique to drug
    traffickers, the investigating officer decided the appellant would be strip
    searched and directed he be taken to police headquarters for that purpose.

[46]

The
    arrest and frisk search of the appellant added a few details to the
    then-existing knowledge of the police. The appellant had three cellphones. He
    also had some cash, but not a significant amount. He had a key, but not to
    apartment 204. He had discarded a digital scale covered with a white residue resembling
    crack cocaine. The appellant told police his name and date of birth. He refused
    to say where he lived. He had no documents with him confirming his
    identification or disclosing where he lived. There were no drugs and no debt
    list.

[47]

The
    appellant was not the only person whom the investigating officer directed be
    strip searched that day.

[48]

When
    police executed the search warrant in apartment 204, they found four people.
    None resembled Biggie. All four were arrested on charges of possession of
    cocaine for the purpose of trafficking. The decision that they be strip
    searched was made
before
the apartment was searched. Police found
    nothing associated with drug trafficking in the apartment. All four lived in
    the building, including the tenant of apartment 204 and two others who lived in
    apartment 107, the unit an informant connected to the trafficking in apartment
    204. After they were strip searched, all four were released. The police found no
    drugs or drug paraphernalia. No charges were laid.

The Ruling of the Trial Judge

[49]

The
    trial judge recognized a higher degree of justification was necessary to
    ground a strip search than was necessary to justify an arrest and incidental
    frisk search. She identified four circumstances on which the decision to strip
    search was based:

i.

the accused discarded a digital scale, signalling he was trying to
    conceal material from the police;

ii.

the frisk search did not reveal evidence of drugs;

iii.

the frisk search did reveal money and three cell phones, further enhancing
    the officers grounds to believe the accused was involved in the sale of drugs;
    and

iv.

the accused was evasive during his arrest, refusing to produce
    identification or provide an address.

[50]

The
    trial judge concluded the evidence established the grounds necessary to permit
    a lawful strip search. She expressed her conclusion in these terms:

[64] In these circumstances, the officer believed that the
    accused was trying to hide something from him. The evasive manner of the
    accused, together with his earlier attempt to dispose of evidence, offered some
    basis for believing that he might have taken steps to conceal evidence of the
    offence. I am satisfied that this is the type of situation in which the
    intrusiveness of a strip search was justified as a search incident to arrest.
    It will be rare for the police to know with certainty that evidence is actually
    concealed in a persons clothing. Where there is cogent evidence that the
    person is selling drugs, that he is carrying the tools of the trade on his
    person, that he has tried to dispose of or conceal other material evidence, and
    no drugs are found during a pat-down search, there is a sufficient basis to
    search the inside of the persons clothing.

The Positions of the Parties

[51]

For
    the appellant, Ms. Pringle contends the trial judge erred in finding the
    requisite grounds to justify a lawful strip search of the appellant had been
    established on the evidence adduced at trial.

[52]

Ms.
    Pringle says the trial judges first misstep occurred at the outset of her
    analysis when she failed to begin from the premise that the warrantless strip
    search was unreasonable. Thereafter, the trial judge combined neutral factors
    (possession of cellphones), misapprehensions of evidence (the appellants
    refusal to identify himself), and a negative factor (failure to find drugs on
    the frisk search) as positive evidence sufficient to justify a strip search to
    look for drugs. This combination, Ms. Pringle submits, simply cannot ascend to
    the level required to permit a strip search.

[53]

For
    the respondent, Ms. Gevikoglu submits the decision by investigators to strip
    search the appellant was reasonable in the circumstances and the trial judge
    was correct about its lawfulness. The appellant was lawfully arrested. The
    frisk search was lawful, having as its purpose the discovery of evidence of
    contraband or other drug paraphernalia. That was equally the purpose of the
    strip search, the grounds for which were influenced by the failure to find
    contraband on a frisk search of a person who had recently sold crack and
    attempted to dispose of the tools of his trade. The items found  money and
    several cellphones  as well as the appellants refusal to produce
    identification or provide an address, solidified the grounds required to
    justify the strip search.

The Governing Principles

[54]

Different
    types of searches raise different constitutional considerations: the more
    intrusive the search, the greater the degree of justification and
    constitutional protection appropriate:
Golden
, at para. 88;
R. v.
    Simmons
, [1988] 2 S.C.R. 495, at p. 517.

[55]

Section
    8 of the
Charter
has as its purpose the protection of individuals from
    unjustified state intrusions on their privacy. It follows that we must have
    some means of preventing unjustified searches before they occur, rather than
    simply determining after the fact whether the search should have occurred in
    the first place:
Golden
, at para. 89;
Hunter v. Southam Inc.
,
    [1984] 2 S.C.R. 145, at p. 160. The importance of preventing unjustified
    searches before they occur is especially acute for strip searches. They involve
    a significant and direct interference with personal privacy and can be
    humiliating, embarrassing and degrading for those subjected to them:
Golden
,
    at para. 89.

[56]

Where
    a strip search is justified as an incident to arrest, the arrest itself must be
    lawful:
Golden
, at para. 91. The search must also be incident to the
    arrest. In other words, the search must be related to the purpose of the
    arrest:
Caslake
, at para. 17;
Golden
, at para. 92. In this
    case, the arrest was for drug trafficking, more accurately, possession of drugs
    for the purpose of trafficking. It is to that purpose the strip search had to relate.

[57]

The
    reasonableness of the search for evidence, including the reasonableness of the
    strip search, is governed by the need to preserve evidence and prevent its
    disposal by the arrested person. Where arresting officers suspect the arrested
    person may have secreted evidence on areas of his or her body that can only be
    exposed by a strip search, the risk of disposal must be reasonably assessed in
    all the circumstances:
Golden
, at para. 93.

[58]

The
    mere possibility that an individual may be concealing drugs on his or her
    person is not sufficient to justify a strip search of that person:
Golden
,
    at para. 94. Further, strip searches conducted as a matter of routine policy,
    even if executed in a reasonable manner, are not reasonable within s. 8 of the
Charter
.
    Compelling reasons, rooted in the circumstances of the arrest, are required to
    render a strip search reasonable, even where the execution is flawless:
Golden
,
    at para. 95. Rote application of police policy is anathema to the
    case-specific, fact-sensitive consideration mandated by
Hunter v. Southam
    Inc
.

[59]

The
    fact that police have reasonable grounds to arrest a person without warrant
    under s. 495(1)(a) does not, on its own, clothe them with automatic authority
    to carry out a strip search. This is so even where the strip search qualifies
    as incidental to a lawful arrest:
Golden
, at para. 98. Something
    further relating to the purpose of the strip search is required. That something
    further is that the police must have reasonable and probable grounds for
    concluding a strip search is necessary in the specific circumstances of the
    arrest:
Golden
, at para. 98.

[60]

The
    serious infringements of privacy and personal dignity that are inevitable
    consequences of strip searches require that, to be constitutionally valid, the
    strip search must be:

i.

conducted as an incident to a lawful arrest;

ii.

conducted for the purpose of discovering weapons or evidence on the body
    of the arrested person related to the reason for the arrest;

iii.

based on reasonable and probable grounds for concluding a strip search
    is necessary in the circumstances of the arrest; and

iv.

conducted in a reasonable manner.

Golden
, at para. 99.

The Principles Applied

[61]

I
    would not give effect to this ground of appeal.

[62]

The
    strip search of the appellant occurred shortly after his lawful arrest and a
    lawful frisk search incidental to that arrest. The frisk search yielded no
    drugs or drug paraphernalia, such as packaging materials or debt lists. The
    appellant had three cellphones, which reinforced suspicion that he was a drug
    dealer. Police also recovered a digital scale discarded by the appellant just prior
    to his arrest. A residue of a white powder resembling cocaine was visible on
    the scales surface.

[63]

The
    decision to conduct a strip search of the appellant was made at the scene of
    the appellants arrest. The search of apartment 204, the reported site of the
    appellants trafficking activities, had not been completed. Thus, the results
    (no drugs) had not been communicated to those who arrested the appellant.

[64]

The
    critical issue for the trial judge was whether the investigators had the
    grounds necessary to conduct a strip search of the appellant for the purpose of
    discovering evidence relating to drug trafficking. This depended on whether
    police had reasonable and probable grounds to believe a strip search was
    necessary in the circumstances of the arrest:
Golden
, at para. 99.

[65]

The
    trial judge relied on the cumulative effect of several items of evidence to conclude
    the grounds necessary for a lawful strip search had been established:

i.

discarding the digital scale, which signalled an attempt to conceal evidence
    of drug trafficking from the police;

ii.

failure to find any drugs on the frisk search;

iii.

finding money and cellphones on the frisk search; and

iv.

the appellants evasive conduct in refusing to produce identification or
    provide an address when asked on arrest.

[66]

The
    appellant contends that, at least three of the factors relied on by the trial
    judge are problematic.

[67]

First,
    there was the fact that no drugs were found on the frisk search, which the
    appellant contends raised no more than a mere possibility that the appellant
    might have been concealing evidence on his body:
Golden
, at para. 94.
    The evidence of the arresting officer was that he had experience with drug
    dealers concealing crack cocaine in their underwear or in their butt cheeks.
    Whether this alone amounted to a possibility or something more is not the
    issue. It was a factor that could be taken into consideration, together with
    all of the circumstances known to the officer, in determining whether there was
    a reasonable prospect that the strip search would reveal evidence:
Caslake
,
    at para. 22;
Golden
at para. 93.

[68]

Second,
    the appellant asserts that the fact that three cellphones and a small quantity
    of cash were found adds little to the analysis. Again, I disagree. The trial
    judge accepted the evidence of the arresting officer, that, in his experience,
    the presence of multiple cellphones was consistent with drug trafficking.

[69]

Third,
    the appellant contends that the trial judge either misapprehended the evidence
    about the circumstances in which the appellant identified himself to arresting
    officers or mischaracterized its nature. The appellant told police his name and
    date of birth. After caution and
Charter
advice, he declined to
    provide his address and said he had no identification with him, an assertion
    established as true through the frisk search.  I would agree that such conduct
    was not relevant to the legality of the strip search.

[70]

The
    appellant also submits that the trial judge accorded no weight to the evidence of
    the investigators who testified about the extremely low probability of a strip
    search yielding evidence of contraband on the body of the person searched. The
    evidence was that it was commonplace for crack cocaine traffickers to conceal crack
    cocaine in their buttocks or underwear. And it was acknowledged in
    cross-examination that the frequency of finding drugs after a strip search of
    someone arrested for crack cocaine trafficking was only 7.5%.

[71]

In
Golden
, the court referred to an officers testimony that he had found
    evidence hidden in an individuals private parts in only 5% of the more than
    200 arrests he had made for dealing in crack cocaine. Nevertheless, the court
    noted that, although the prospect of finding drugs was quite slim, there was
    some evidence suggesting the possibility of concealment of narcotics:
Golden
,
    at para. 111. The court concluded that, taken together, [the] circumstances
    would have been sufficient to create reasonable and probable grounds to conduct
    a strip search of the appellant at the police station. It follows that the
    evidence of the officers about the percentage of cases in which drugs might be
    found after a strip search of someone arrested for trafficking crack cocaine
    was a relevant, but not determinative factor for the trial judge to consider.

[72]

The
    factor that is and was problematic, as the treatment of those found in the
    apartment attests, is that it appears to have been a routine policy of the
    investigators in this case to strip search anyone and everyone charged with
    possession of drugs for the purpose of trafficking. As
Golden
teaches,
    strip searches conducted as a matter of routine policy, even if carried out in
    a reasonable manner, offend s. 8 of the
Charter
.

[73]

That
    said, the trial judge was required to consider all of the circumstances that
    existed at the time of the arrest of the appellant in determining whether the
    arresting officers decision to strip search the appellant at the police
    station was justified on reasonable and probable grounds. In my view, there was
    no error in the trial judges conclusion that the investigators had the
    requisite authority to conduct a strip search of the appellant incident to his
    arrest for evidence of his possession of crack cocaine for the purpose of
    trafficking.

Ground #3: The Reasonableness of the Manner of the Strip
    Search

[74]

The
    final ground of appeal focuses on the manner in which the appellants strip
    search was carried out. Some further details about the manner in which the
    search was executed are essential to evaluating the merits of this claim.

The Circumstances of the Search

[75]

The
    strip search of the appellant was carried out by two officers of the same
    gender as the appellant in a room used for strip searches at Windsor Police
    Service Headquarters. The search was videotaped. Contrary to the usual
    practice, the door to the room was left open while the search was conducted.
    This left the appellant, who faced the door, visible to anyone who passed by.
    The strip search could also be viewed electronically by others working on a
    nearby bridge. There were no rules in place governing access to the videotape
    of the search. The appellant was directed to remove one item of clothing at a
    time and hand it to one of the officers. In the result, as the last article of
    clothing was removed, the appellant was left naked facing the doorway.

[76]

The
    officers directed the appellant to spread his butt cheeks. When he complied,
    a plastic bag was clearly visible. Without asking the appellant whether he
    wished to remove the bag, or directing him to do so, one of the officers
    removed the bag without making any direct contact with the appellants
    genitalia.

[77]

Investigators
    did not seek approval from anyone in a supervisory capacity to conduct the
    strip search of the appellant or those found in apartment 204.

The Reasons of the Trial Judge

[78]

The
    trial judge was satisfied the strip search of the appellant was not conducted
    in an unreasonable manner. She expressed her conclusion in these terms:

[72] At the same time, having considered the whole of the
    evidence, including the videotape of the search of the accused I cannot find
    that the procedure was so flawed as to result in a constitutional violation.
    Section 8 of the
Charter
imposes a standard of reasonableness, not
    perfection. There was no evidence to indicate that the potential for breach of
    privacy  caused by the open door and access on the bridge  resulted in any
    actual invasion of privacy. This is not like the case of
R. v. Smith
,
    2010 ONCJ 137, in which the accused could see the feet of people walking by the
    open door where he was being strip searched. The concern over failure to seek
    approval for the search is minimized given the courts finding that there were
    grounds to justify the procedure. The removal of the bag of contraband by the
    officer was not so invasive as to trigger a breach. I accept the officers
    evidence that the bag was concealed between the buttocks and was not in the
    accuseds anus. In short, I conclude that the search, while far from a model
    procedure, was not so flawed as to violate s. 8 of the
Charter
.

The Positions of the Parties

[79]

For
    the appellant, Ms. Pringle contends the strip search of the appellant was not
    conducted in a reasonable manner. The appellant was required to face an open
    door at the police station. His genitalia were exposed directly to anybody who
    passed by and indirectly by video to anyone with access to it. He was not asked
    whether he consented to the video recording of the search. Strip searches of
    persons charged with possession of controlled substances for the purpose of
    trafficking were the routine policy of the Windsor police service. The strip
    search ignored most of the guidelines delineated in
Golden
and was
    unreasonable.

[80]

For
    the respondent, Ms. Gevikoglu submits the search was conducted in a reasonable
    manner. The trial judge drew this conclusion from the whole of the evidence and
    her assessment is entitled to deference on appellate review. For the most part,
    the search was compliant with the guidelines in
Golden
which are,
    after all, guidelines, not mandatory requirements. The trial judges factual
    findings reveal no palpable and overriding error and reflect no incorrect
    statement of legal principle.

The Governing Principles

[81]

In
Golden
, at para. 101, the Supreme Court of Canada concluded the
    guidelines for strip searches contained in the
Police and Criminal Evidence
    Act

1984
(U.K.), 1984, c. 60 (
PACE
), accorded with the
    constitutional requirements of s. 8 of the
Charter
.
PACE
lists several questions that provide a framework for police deciding how to best
    conduct a
Charter
compliant strip search incident to arrest. The
PACE
questions are these:

1.

Can the strip search be conducted at the police station and, if not, why
    not?

2.

Will the strip search be conducted in a manner that ensures the health
    and safety of all involved?

3.

Will the strip search be authorized by a police officer acting in a
    supervisory capacity?

4.

Has it been ensured that the police officer(s) carrying out the strip
    search are of the same gender as the individual being searched?

5.

Will the number of police officers involved in the search be no more
    than is reasonably necessary in the circumstances?

6.

What is the minimum of force necessary to conduct the strip search?

7.

Will the strip search be carried out in a private area such that no one
    other than the individuals engaged in the search can observe the search?

8.

Will the strip search be conducted as quickly as possible and in a way
    that ensures that the person is not completely undressed at any one time?

9.

Will the strip search involve only a visual inspection of the arrestees
    genital and anal areas without any physical contact?

10.

If the
    visual inspection reveals the presence of a weapon or evidence in a body cavity
    (not including the mouth), will the detainee be given the option of removing
    the object himself or of having the object removed by a trained medical
    professional?

11.

Will a
    proper record be kept of the reasons for and the manner in which the strip
    search was conducted?

The Principles Applied

[82]

I
    would give effect to this ground of appeal. In my respectful view, the
    appellants strip search was not carried out in a reasonable manner.

[83]

The
    strip search was carried out in an appropriate room at police headquarters by
    two officers of the same gender as the appellant. However, no supervisory
    authorization was sought, much less obtained. Rather than close the door to the
    search room, as was the usual practice, the officers left the door open. The
    appellant was required to stand naked, facing a hallway accessible by other
    persons of either gender. The search was videotaped and available for viewing
    by others at various places in the station. The evidence was unclear about
    whether the appellant had been informed that he was being videotaped. Nor was
    he given the choice to remove the plastic bag from between his buttocks
    himself. A police officer removed it, albeit without touching the appellants
    genitalia. Apart from the videotape, the police created no adequate record of
    the strip search.

CONCLUSION

[84]

I
    agree with the appellants third ground of appeal, but not the second or first.
    The warrantless arrest was based on reasonable grounds and was lawful. The
    authority to strip search was established. But the manner in which the strip
    search was conducted was unreasonable, thus failed constitutional muster.

[85]

The
    trial judge found no constitutional infringement, and thus did not apply s.
    24(2) to the evidence gathered during the strip search. The respondent invited
    us to do so in the event we found a constitutional infringement. Although the
    strip search did violate s. 8 of the
Charter
, I am not satisfied the
    record is sufficiently complete to enable a s. 24(2) analysis.

[86]

For
    these reasons, I would allow the appeal, set aside the convictions and order a
    new trial.

Released: November 7, 2014 (K.F.)

David
    Watt J.A.

I
    agree K. Feldman J.A.

I
    agree K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Mohamed, 2014 ONCA 814

DATE: 20141117

DOCKET: C56967

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Liban Mohamed

Appellant

Richard Litkowski

Megan Stephens

Heard: November 14, 2014

On appeal from the sentence imposed on September 25, 2012
    by Justice Faye E. McWatt of the Superior Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant seeks leave to appeal his global sentence of 13 years for
    attempt murder and breaches of firearms prohibition orders, and recognizance
    orders.

[2]

Counsel raises 2 grounds of appeal: 1. The trial judge did not take into
    account that the appellant is a youthful offender, this would be his first time
    custodial sentence and his rehabilitative prospects.  2. The sentence imposed
    was outside the range for this offender and the circumstances of this offence.

[3]

We would not give effect to either of these submissions.  The trial
    judge was alive to all of the circumstances of the offender and gave them as
    much effect as she could.

[4]

The appellant attempted to kill a security guard in an apartment
    building who had just apprehended the appellants friend and was waiting for
    police to arrive.  The appellant shot at him several times with a hand gun.  He
    was under prohibition orders at the time.

[5]

This is a case of gun violence in public places.  The principles of
    denunciation and deterrence have to be paramount in this type of case.  We see
    no basis interfere with the sentence imposed.

[6]

Leave to appeal sentence is granted, but the appeal is dismissed.