





CITATION: R. v. Caruso, 2011 ONCA 69





DATE: 20110125



DOCKET: C49692



COURT OF APPEAL FOR ONTARIO



Goudge, Feldman and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Bruno Caruso



Appellant



Stacey Nichols, for the appellant



Sandy Thomas, for the respondent



Heard: January 20, 2011



On appeal from the conviction entered and sentence imposed on
          February 15, 2008, by Justice Douglas B. Maund of the Ontario Court of
          Justice.



AMENDED APPEAL BOOK ENDORSEMENT



[1]

The appellant challenges his conviction for possession of drugs for the
    purpose of trafficking. The sentence appeal is abandoned.

[2]

He raises two issues: first that the evidentiary record provides no
    basis for why Officer Hlebec searched his vehicle, and therefore it cannot be
    shown to be a search incidental to his arrest.

[3]

We disagree. The officer testified that, on the basis of the information
    he received that the appellant had been arrested and that drugs had been found
    on his person, the officer conducted the search of the vehicle that yielded the
    evidence underpinning this conviction. This evidence, fairly read, does not
    yield the conclusion that he had already commenced the search. His evidence
    constitutes  a sufficient basis to conclude that the search of the car was
    incidental to the appellants arrest, and to sustain the conclusion that the
    search did not violate s. 8 of the
Charter
.

[4]

We do not think, however, that the process used here, where the
Charter
issue arises only after much of the evidence is in, is one that should be used
    if it can be avoided. If the
Charter
issue is raised at the outset, the
    record can be properly fleshed out.

[5]

The appellants second issue is that the trial judges reasons dealing
    with the s. 8  issue are inadequate.

[6]

We agree. While the reasons deal with the unlawful detention issue they
    do not deal with the s. 8 issue before us. However this deficiency does not
    prevent meaningful review by this court of the decision that there was no s.8
    violation. For the reasons we have given, on this record and on the
    unchallenged evidence, it is clear that the search of the appellants car is
    properly seen as an incident of his arrest, and therefore no violation of his
    s. 8 rights.

[7]

The appeal from conviction is dismissed.

S.
    T. Goudge J.A.


