



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Giamou, 2017 ONCA 466

DATE: 20170606

DOCKET: C60925

Epstein, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Danny Giamou

Appellant

Tina Yuen, for the appellant

Jeremy Streeter, for the respondent

Heard: May 30, 2017

On appeal from the conviction entered on February 23,
    2015 by Justice Kathleene J. Caldwell of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of possession for
    the purpose of trafficking and assault. The relevant events took place in a
    parking lot.

[2]

The appellant was arrested (pursuant to a
    citizens arrest) by two Toronto Parking Authority (TPA) security guards who
    were patrolling TPA property. It was alleged that the appellant pushed one of
    the guards who had approached him about loitering. The security guards
    handcuffed the appellant and called 9-1-1. A police officer arrived, left the
    appellant in handcuffs, searched him and found pills and marijuana in his
    inside jacket pockets. More pills were found in his pants pocket when he was
    searched later at the police station.

[3]

At trial the appellant expressly took the
    position that the Toronto police had not committed any
Charter
[1]
violations. He submitted that the security guards, on the other
    hand, had violated his
Charter
rights.

[4]

The trial judge relied on
R. v. Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, in holding that the
Charter
did not apply to the TPA security guards.

[5]

With respect to the drugs, the trial judge
    rejected the appellants testimony that the security guards had planted the
    drugs on him. Once the trial judge found the appellant was in possession of the
    drugs, the defence conceded the possession was for the purpose of trafficking.
    With respect to the assault, the trial judge rejected the appellants evidence
    and instead preferred the security guards evidence. The trial judge therefore
    convicted the appellant on both counts.

[6]

For the first time on appeal, the appellant
    raises the constitutionality of the police conduct. He submits the police
    illegally continued a citizens arrest which itself was unreasonable and
    therefore invalid, and, in doing so, violated the appellants s. 9
Charter
rights. Further, the appellant contends the warrantless search executed
    by the police violated his rights under s. 8 of the
Charter because
the arrest was invalid and, even if it were valid, the scope of the
    search exceeded the level of intrusion authorized under the doctrine of search
    incident to arrest. The drugs should therefore have been excluded.

[7]

Due to the appellants concession that the
    Toronto police had not violated his
Charter
rights, the arguments appellants counsel now raises that the police violated his
Charter
rights, were not put forward at trial.
    Before this court, the appellant submits that it is in the interests of justice
    for this court to hear the issue. Simply put, it is submitted that trial
    counsel was wrong at law not to raise
Charter
issues with respect to the police.

[8]

Despite the forceful submissions of counsel, we
    conclude that the appellant cannot raise the issue of the police conduct for
    the first time on appeal.

[9]

In
R. v. Reid
,
    2016 ONCA 524, 132 O.R. (3d) 26, at para. 39, this court confirmed the general
    rule that courts of appeal will not permit an issue to be raised for the first
    time on appeal. The rationale is based on: (i) prejudice to the other side
    which lacks the opportunity to respond and adduce evidence; (ii) the absence of
    a sufficient record; (iii) the societal interest in finality and the
    expectation that criminal cases will be disposed of at first instance; and (iv)
    the responsibility of defence counsel to advance all appropriate arguments at first
    instance:
Reid
, at para. 40.

[10]

The burden is on the party who seeks to raise
    the new issue to satisfy three preconditions:

1.
the evidentiary record must be sufficient to permit
    the appellate court to fully, effectively and fairly determine the issue raised
    on appeal;

2.
the failure to raise the issue at trial must not be
    due to tactical reasons; and

3.
t
he court must be satisfied that no miscarriage of
    justice will result from the refusal to raise the new issue on appeal:
Reid
,
    at paras. 42-43.

[11]

The appellant has not met these preconditions.

[12]

The record is not complete, largely due to the
    way that trial counsel framed the
Charter
issue. Since the conduct of the police was not an issue at trial, there was no
    evidence brought before the trial judge to enable her to assess the alleged
Charter
breaches. Nor are we satisfied that the failure to raise the
    conduct of the police was not a tactical decision. We have no evidence from
    trial counsel in this regard, as an allegation of ineffective assistance of
    counsel was not raised.

[13]

We therefore deny leave to permit the new
    argument on appeal.

[14]

The appellant has also raised issues relating to
    the trial judges credibility analysis. In our view, there was evidence to
    support the trial judges factual findings and there was no misapprehension of
    the evidence on her part. The trial judges credibility findings are entitled
    to considerable deference.

[15]

The appeal is therefore dismissed.

Gloria Epstein J.A.

G. Pardu J.A.

M.L. Benotto J.A.





[1]

Canadian Charter of Rights and Freedoms
, Part I of the
Constitution Act, 1982
, being Schedule B to
    the
Canada Act 1982
(U.K), 1982, c. 11.


