



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kwok, 2019 ONCA 406

DATE: 20190515

DOCKET: C63920

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Evan Kwok

Appellant

Taufiq Hashmani and Daniel Michael, for the appellant

Vanita Goela, for the respondent

Heard: May 13, 2019

On appeal from the conviction entered by Justice Joseph
    F. Kenkel of the Ontario Court of Justice, dated January 12, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellants factual guilt was never
    an issue. He raised various
Charter
issues at trial. The trial judge rejected the arguments. The appellant renews
    the arguments on appeal.

[2]

The initial stop was a highway traffic
    stop. The officer, based on his observations, quickly formed reasonable grounds
    to believe the appellant was in possession of marihuana. That subjective belief
    was objectively justified on the evidence.

[3]

The search at the scene of the arrest
    was a lawful incident of the arrest. The officer had safety concerns and
    grounds to believe that the appellant was concealing evidence in his pants. The
    search was not a strip search and was not significantly more intrusive than a
    pat down search. It may be that the interaction at the roadside went on longer
    than it should have. The trial judge acknowledged this, but did not find the
    delay rendered the manner of search unreasonable. We agree.

[4]

The appellant was advised of his right
    to counsel in an appropriate manner. He invoked his right to counsel. The
    officer continued to question the appellant about the object in his pants. The
    questions were motivated primarily by the officers belief that the appellant
    had drugs in his pants. He also had safety concerns.

[5]

Assuming without deciding that the nature
    of the questioning went beyond what was appropriate to address officer safety
    concerns and constituted a breach of the s. 10(b) requirement that the officer
    refrain from questioning the appellant until he had a chance to speak to
    counsel, we are satisfied that the breach would not have led to the exclusion
    of the cocaine under s. 24(2) of the
Charter
.

[6]

The appeal is dismissed.


