



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stockton, 2019 ONCA 300

DATE: 20190416

DOCKET: C63307, C64405

Benotto, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sharon Stockton

Appellant

Sharon Stockton, in person

Lisa Csele, for the respondent

Heard: April 9, 2019

On appeal from the conviction entered by Justice Russell
    M. Raikes of the Superior Court of Justice on January 11, 2017, and from the
    sentence imposed on January 11, 2017, and from the conviction entered by Justice
    John A. Desotti of the Superior Court of Justice on June 27, 2017, and from the
    sentence imposed on September 12, 2017.

REASONS FOR DECISION

[1]

On June 27, 2017, the appellant was convicted of
    possession of methamphetamine and two counts of breach of recognizance. The
    appellant appeals from both her conviction and sentence.

[2]

The conviction appeal rests on the suggestion
    that the warrant obtained to search the appellants home was invalid. The
    execution of that warrant resulted in the seizure of a pipe in which
    methamphetamine was found. The appellant alleges that the police fraudulently
    changed the time on the face of the search warrant. She also claims that the
    information to obtain the warrant incorrectly referred to one of the
    confidential informants, as that person either did not exist or was not
    properly held out to be a confidential informant. The appellant says that she
    was improperly prevented from cross-examining the police officer who swore the
    information to obtain on these issues at trial.

[3]

We see no error in respect of this ground of
    appeal. There was no s. 8
Charter
application
    before the trial judge and, as such, he was not asked to rule upon the
    constitutional adequacy of the search warrant. Even accepting that the
    appellant attempted to ask questions about the content of the information to
    obtain at trial, in the absence of a s. 8
Charter
application or an application to cross-examine the affiant, there
    would have been no basis for proceeding with that questioning. Nor have we been
    provided with any information that would suggest impropriety on the part of the
    police or that would cause any other concern regarding the search warrant.

[4]

The appellant also appeals from her sentence of time
    served and a 12-month probation order. Her probation is complete. We would not
    intervene in that aspect of her sentence. On consent, we would vacate the $600
    victim fine surcharge imposed in light of the fact that the relevant statutory
    provision has been found unconstitutional:
R. v. Boudreault
, 2018 SCC 58.

[5]

The appellant was also convicted of possession
    of methamphetamine for the purposes of trafficking on January 11, 2017. She
    appeals from conviction.

[6]

First, the appellant argues that the police lied
    in their
viva voce
evidence about the existence
    of a confidential informant. She argues that, had she been permitted to
    cross-examine the officers in relation to the information to obtain the search
    warrant in the other matter, she may have been able to undermine their
    credibility in relation to the possession for the purposes of trafficking
    count. For the reasons set out above, we do not agree.

[7]

Second, the appellant argues that the trial judge
    erred in finding that her arrest and search incident to arrest were lawful. The
    trial judge produced an extensive ruling, carefully setting out the grounds for
    her arrest. We see no error in his approach. The search incident to arrest lawfully
    flowed from the lawful arrest.

[8]

Finally, the appellant challenges the trial
    judges s. 11(b) ruling, claiming that her right to be tried within a
    reasonable time was infringed. We do not agree. Again, the trial judge produced
    carefully considered reasons. Much of the delay arose from the appellants
    repeated changes of counsel. Having regard to that period of delay, we see no
    error in the conclusion that the total delay (excluding defence delay) was only
    four days above the 30-month ceiling set in
R. v. Jordan,
2016 SCC 27, [2016] 1 S.C.R. 631. This was also a transitional case
    and we agree with the trial judge that the application of the previous s. 11(b)
    analysis would not have resulted in a finding of unreasonable delay.

[9]

Although the Notice of Appeal also suggests that
    the appellant appeals from the DNA order that was imposed as part of her
    sentence, this matter was not advanced in oral submissions. In any event, we
    see no basis upon which to intervene.

[10]

We would dismiss both conviction appeals. We
    would grant leave to appeal sentence in both matters, but dismiss the sentence
    appeals except to set aside the $600 victim fine surcharge relating to the
    appeal in C64405.

M.L. Benotto J.A.
David Brown J.A.
Fairburn J.A.


