



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sealy-Ward, 2021 ONCA 714

DATE: 20211008

DOCKET: C67860

Fairburn A.C.J.O., Doherty and
    Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Sealy-Ward

Appellant

Eric Granger, for the appellant

Genevieve McInnes, for the respondent

Heard and released orally: October
    4, 2021 by video conference

On appeal from the convictions entered
    by Justice Michelle OBonsawin of the Superior Court of Justice on April 29,
    2019, with reasons reported at 2019 ONSC 2647.

REASONS FOR DECISION

[1]

This is an appeal from conviction for multiple drug and firearm
    related offences.

[2]

Police officers stopped a vehicle after it made an unlawful U-turn. After
    detecting the odour of cannabis, the vehicle occupants were ordered out of the
    vehicle and arrested. A search incident to their arrest uncovered a number of
    things in the vehicle, including a few pounds of cannabis, MDA, drug
    paraphernalia, and a disassembled rifle with ammunition.

[3]

The appellant was tried before a judge alone. In a blended
Charter
    voir dire
, he claimed breaches of his ss. 7, 8, 9, 10(a), and 10(b)
    rights.

The trial judge provided extensive written reasons dismissing
    the
Charter
application. She also provided extensive written reasons
    for conviction.

[4]

This conviction appeal is predicated upon two alleged errors.

[5]

First, the appellant says that the trial judge failed to provide
    adequate reasons dismissing the
Charter
motion. Specifically, he
    claims that the trial judge failed to adequately address inconsistencies in the
    police evidence.

[6]

While we accept that there were inconsistencies in that evidence, the
    trial judge was under no obligation to describe and reconcile every such
    inconsistency. Rather, it was the trial judges duty to respond to what was
    relevant to the
Charter
application. She did that.

[7]

The trial judge turned her mind to the central issues involving: (1) why
    the vehicle was stopped and (2) why the appellant was originally removed from
    the car and arrested. The trial judge concluded that the officers evidence was
    consistent on key points involving the U-turn, all of which justified the
    vehicle stop. The trial judge also turned her mind to the differences between
    the officers in terms of how they described the smell emerging from the
    vehicle. One described it as the smell of fresh vegetative cannabis, while the
    other described it as the smell of both burnt and fresh vegetative cannabis.
    The trial judge explained why this inconsistency (one officer adding that he
    also smelled burnt cannabis) did not impact her assessment of the grounds for
    arrest. In our view, the trial judges reasons on these points are more than
    adequate.

[8]

The appellant also claims that the trial judges reasons for judgment
    fall short in the sense that she misapprehended evidence that had a material
    impact on the verdicts. Specifically, the trial judge is said to have
    misapprehended evidence as it relates to the location from which the
    appellants wallet was seized and the location where a padlock was found.

[9]

The respondent concedes the appellants first point, acknowledging that
    the trial judge appears to have incorrectly formed the view that the
    appellants wallet was found in the same knapsack that drugs and drug
    paraphernalia were located. The respondent acknowledges that is not so. The
    appellants wallet was actually seized during a search of his person.

[10]

Despite
    this misapprehension of evidence, we are satisfied that it had no impact on the
    verdicts.

[11]

The fact is that there was overwhelming evidence pointing to the
    appellants possession of the contraband found in the vehicle. That evidence
    includes the fact that the appellants former partner testified that, while the
    vehicle was registered under her name, it was owned by the appellant. There was
    also police evidence that they saw the appellant attempting to get into the
    driver seat of the vehicle upon the vehicle being stopped. That is, when the
    appellant saw the police, he changed his position with another vehicle
    occupant. There is also evidence of a combination lock having been found in a
    duffle bag in the trunk of the car. That bag contained a good deal of contraband.
    Importantly, the code to the combination lock that was found in that bag was
    located in the appellants wallet. This connected him directly to the duffle
    bag.

[12]

While
    the appellant claims that the trial judge misapprehended the evidence about the
    padlock, suggesting that there was no evidence to adequately support that it
    had been located in the duffle bag, that submission is belied by the record in
    this case. Therefore, in our view, there is no basis for the suggestion that
    the trial judge misapprehended the evidence about the padlock in this way.

[13]

Combined
    with the other evidence of possession and control, there was a substantial
    evidentiary basis upon which to convict.

[14]

The appeal is dismissed.

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


