



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2015 ONCA 220

DATE: 20150401

DOCKET: C56735

LaForme, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Albert Brown

Appellant

Martin Kerbel Q.C., for the appellant

James Clark, for the respondent

Heard: March 25, 2015

On appeal from the conviction entered on October 25, 2012
    by Justice C. M. Harpur of the Ontario Court of Justice.

ENDORSEMENT

[1]

The police obtained a search
    warrant for the appellants residence. There they seized 17 one gram packets of
    cocaine in a pair of pants hanging on the bathroom door. The searchers also found
    $1,275 cash in his pants pocket, a digital scale with cocaine residue on it,
    empty baggies and bulk marijuana
.

[2]

The trial judge found that the appellants s. 8
Charter
rights
    had been breached and quashed the search warrant. He found that the information
    to obtain the search warrant (the ITO)  in its redacted form  did not
    disclose reasonable grounds to believe that controlled substances were present
    in the appellants residence. The trial judge was satisfied that the manner in
    which the warrant was executed, including the dynamic entry, was not itself
    unreasonable, thus did not offend s. 8. He went on to hold that the evidence
    should be admitted under s. 24(2). This resulted in the appellants being
    convicted of possession of cocaine for the purpose of trafficking.

[3]

On appeal, the appellant submits that the trial judge committed two errors.

[4]

First, he submits that contrary to the finding of the trial judge, the
    breach of s. 8 of the
Charter
was serious and therefore the results of
    the search should have been excluded as evidence under s. 24(2). The appellant
    places particular importance on his view that the police were negligent in
    preparing the ITO, which he says, makes the s. 8 breach serious under the first
    branch of the
Grant
analysis: see
R. v. Grant
, 2009 SCC
    32,  [2009] 2 S.C.R. 353.

[5]

The trial judge correctly conducted his s. 24(2) analysis based on the three
    lines of enquiry mandated by
Grant
. In doing so, he found the
    following: (i) the seriousness of the breach was moderate and favoured
    inclusion; (ii) the impact on the appellants
Charte
r rights was high,
    which favoured exclusion; (iii) the evidence was reliable and was essential to
    the Crowns case; and (iv) that exclusion of the evidence was not necessary to
    maintain the repute of the administration of justice. He admitted the evidence
    at trial.

[6]

For the appellant to succeed in challenging the trial judges s. 24(2)
    analysis he must demonstrate that the trial judge erred in principle,
    considered irrelevant facts, or made unreasonable findings. Failing this, the
    trial judges s. 24(2) analysis is owed considerable deference on appellate
    review: see
R. v. Peterkin
, 2015 ONCA 8, at para 75.

[7]

The appellants submission that the ITO was prepared negligently is not
    sufficient to demonstrate to this court that the trial judges findings are
    unreasonable. The trial judge concluded that the most significant omission in
    the ITO was narrow and did not warrant exclusion of the evidence underlying the
    Crowns entire case. We see no reason to disturb that conclusion. This ground
    of appeal fails.

[8]

Second, the appellant argues that the circumstantial evidence was
    incapable of proving beyond a reasonable doubt that the appellant was in
    possession of the cocaine. To succeed here, this court, after a review of the
    entirety of the evidence, must be satisfied that a reasonable trier of fact,
    properly instructed and acting judicially, could not have convicted the
    appellant of the offences: see
R. v. Mars
, [2006] O.J. No. 472 (C.A.),
    at para. 3.

[9]

The appellant places specific emphasis on the police officers opinion
    that the pants found in the bathroom containing the cocaine could fit the
    appellant. He argues that this is not sufficient to prove ownership of the
    pants, thus knowledge of and control over the cocaine in a pocket, beyond a
    reasonable doubt. However, the whole of the circumstantial evidence  including
    the fact that an investigating police officer said the pants belonged to a man
    and that the appellant was the only man living in the apartment  was
    sufficient to find the appellant in constructive possession of the cocaine.

[10]

We
    note that there was no explanation whatsoever for the presence of the cocaine
    in the appellants bathroom. He chose not to testify. This court, when
    considering the reasonableness of a verdict, is entitled to treat an
    appellant's silence as indicating that the appellant could not provide an
    innocent explanation of his or her conduct: see
R. v. Dell
, [2005]
    O.J. No. 863 (C.A.), at para. 35

[11]

Thus,
    it follows that the conclusion of the trial judge is amply supported by the
    evidence adduced at trial. This ground of appeal fails.

[12]

For
    these reasons, the appeal is dismissed.

H.S.
    LaForme J.A.

"David
    Watt J.A."

"Gloria
    Epstein J.A."


