



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davis, 2020 ONCA 748

DATE: 20201126

DOCKET: C67507

Fairburn A.C.J.O., Huscroft and
    Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Neil Davis

Appellant

Delmar Doucette and Zahra Shariff,
    for the appellant

Lisa Mathews, for the
    respondent

Heard: November 4, 2020

On appeal from the conviction entered on
    April 23, 2019, and the sentence imposed on May 9, 2019, by Justice David S. Rose
    of the Ontario Court of Justice.

REASONS FOR DECISION


[1]

The appellant was convicted of trafficking cocaine, possession of
    cocaine for the purpose of trafficking, and possession of the proceeds of crime,
    and sentenced to a term of 20 months imprisonment. He appeals from conviction
    and sentence.

[2]

The appellant says that
    the trial judge:

1)

erred in his
    assessment of the appellants credibility;

2)

erred in denying his
    request for a change in venue; and

3)

erred in finding that
    the police had reasonable and probable grounds to arrest him and in finding
    that he was not searched unreasonably.

[3]

The appeal is dismissed for the reasons that follow.

The appellants credibility

[4]

During the course of an unrelated investigation into shoplifting, the
    appellant was observed making what appeared to be a drug transaction with an
    individual, Ms. Bennett. He was arrested after Detective Borovskis observed a
    second suspected drug transaction at a different location. He was found with $5,000
    in cash and approximately one ounce of crack cocaine stored in a pouch on his
    waistband.

[5]

The trial judge rejected the appellants testimony, finding that
    he was not credible. The appellant raises eight bases for challenging the trial
    judges credibility assessment. Some he describes as misapprehensions of the
    evidence, others as unreasonable findings.

[6]

The appellants argument invites this court to parse the trial judges
    credibility findings on a word-for-word basis. This is contrary to
R. v.
    Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19, where the court said:

This Court has consistently admonished trial
    judges to explain their reasons on credibility and reasonable doubt in a way
    that permits adequate review by an appellate court. Having encouraged these
    expanded reasons, it would be counterproductive to dissect them minutely in a
    way that undermines the trial judges responsibility for weighing all of the
    evidence. A trial judges language must be reviewed not only with care, but
    also in context. Most language is amenable to multiple interpretations and characterizations.
    But appellate review does not call for a word-by-word analysis; rather, it
    calls for an examination to determine whether the reasons, taken as a whole,
    reflect reversible error. The task is to assess the overall, common sense
    meaning, not to parse the individual linguistic components.

[7]

Although the court went on to say that a court of appeal could not
    abdicate its responsibility to review the record to see if the findings of fact
    were reasonably available, it does not follow that the trial judges reasons
    are to be parsed in the manner reflected in the appellants submissions. The
    trial judge listed multiple reasons for not accepting the appellants
    testimony. Read as a whole, those reasons amply support his credibility
    findings.

[8]

The trial judge accepted the appellants admission that he had drugs
    secreted down his pants as an admission against interest but did not accept the
    rest of his evidence concerning what happened on the day of the arrest. He
    found that the appellants evidence was unworthy of belief and that it did
    not raise a reasonable doubt.

[9]

None of the matters raised by the appellant rises to the level of a
    palpable and overriding error that would allow this court to intervene. Errors
    in describing the way in which the appellants criminal record were disclosed
    and the appellants reasons for renting a car were minor in nature. It was not
    unreasonable for the trial judge to conclude that shortcomings in the
    appellants memory of the events including the details of his car rental, his
    interaction with Ms. Bennett in the parking lot, and how well he knew one Mr.
    DAcosta undermined his credibility. Nor was it unreasonable for the trial
    judge to find that both the appellants story of a planned meeting with an
    unnamed landlord about renting an apartment and his explanation for the $5000
    in cash he had with him were implausible. These were calls for the trial judge
    to make and we are not persuaded that there is any basis to interfere with
    them.

[10]

This
    ground of appeal must be rejected.

Denial of the change of venue request

[11]

The trial judges decision denying the appellants request for a
    change of venue from the Central East Region to the Central West Region reveals
    no error and is entitled to deference. As the trial judge noted, the appellant
    did not raise any concern about venue when he scheduled a trial date within the
    Central East Region and raised no concerns about venue until several months
    later, on the day the trial was set to begin.
[1]
The trial judge found that there was no prejudice to the appellant and accepted
    the Crowns submission that, regardless of whether the appellant waived his s.
    11(b)
Charter
rights, the public interest was in hearing the case
    given the age of the case and the delay a change in venue would have occasioned.
    These findings were reasonable and were open to the trial judge on the record
    before him.

[12]

This
    ground of appeal must be rejected.

The arrest and search

[13]

At
    trial, the appellant argued that his arrest was the result of racial profiling.
    The trial judge carefully considered this argument and rejected it, concluding
    that he had no difficulty finding that Detective Borovskis had reasonable and
    probable grounds to arrest the appellant. The police were investigating a
    series of thefts and their investigation led to Ms. Bennett, who then led them
    to the appellant. Grounds to arrest the appellant developed over the course of
    hours. Racial profiling played no part in the appellants arrest.

[14]

On
    appeal, the appellant does not allege error in the trial judges analysis in
    this regard. The matter was not raised in the notice of appeal. The appellant described
    his submissions on this point on appeal as contextual in nature and reasonably
    accepts that if the grounds for the arrest were sufficient, no question of
    racial profiling arose.

[15]

We are satisfied that the trial judge did not err in finding that
    Detective Borovskis had subjective grounds for arresting the appellant and that
    those grounds were objectively reasonable. The police observed two people they
    had under surveillance stand outside the door on the drivers side of the
    appellants car at a shopping plaza, after which they walked back to their car
    with something in hand. The police arrested them and found a crack pipe and 3.3
    grams of crack cocaine, but no money. We agree with the Crown that the grounds
    for arresting the appellant were enhanced when the police observed a similar
    event when the appellant was parked at another plaza  a person walked up to
    his car door and reached into it before walking away quickly. Although a hand-to-hand
    transfer was not observed, Detective Borovskis, who has considerable experience
    in drug-related investigations, thought that these were exchanges of drugs for
    money and his view was objectively reasonable. There was ample basis for
    arresting the appellant after not one but two transactions consistent with drug
    trafficking were observed.

[16]

As
    to the search, the appellant acknowledges that if the original arrest and
    search incident to arrest were lawful, then there was a reasonable basis to
    conduct a strip search.

[17]

We
    have already concluded that the appellants arrest was lawful. The search
    incident to arrest occurred at the scene of the arrest and involved an officer
    reaching into the appellants waistband and pulling out a bag of contraband.
    The grounds for doing so arose from the uncontroverted fact that the appellant
    was seen placing that bag into his underwear just prior to his arrest. The
    trial judge found that this search involved nothing more than an officer
    reaching into the waistband portion of the underwear and pulling out the
    drugs. No clothes were removed at the scene of the arrest. As the trial judge
    put it: By all accounts it was a very brief single action.

[18]

The
    trial judge concluded that the search incident to arrest and the recovery of
    the contraband at the scene of the arrest were s. 8
Charter
compliant.
    We see no error in his analysis.

[19]

The
    appellants argument respecting the strip search  conducted at the police
    station  must be considered against this backdrop.

[20]

Considered
    against the fact that the appellant had been seen placing contraband in his
    underwear, and against confirmation of that fact arising from the search
    incident to arrest, we see no error in the trial judges conclusion that the
    strip search was reasonable in the circumstances.

[21]

The
    appellant argues that the strip search was more invasive than necessary. We
    disagree. The trial judge found that the search was conducted in under
    three minutes, by officers of the same gender, in a private room, and that
    there was no evidence of anything more than a visual inspection of the
    appellants genitals and anal areas. The trial judge noted that the appellant
    said the same in his evidence, although he was otherwise an incredible witness.

[22]

The
    appellant offers no basis for disturbing these findings on appeal. The trial
    judge found that the search was conducted in accordance with the guidelines set
    out by the Supreme Court in
R. v. Golden
, 2001 SCC 83, [2001] 3
    S.C.R. 679, at para. 101, save in one respect: the absence of a record of the
    manner in which the search was conducted. Although the police should have kept
    a proper record respecting the reasons for and the manner in which the strip
    search was conducted (
Golden
, at para. 101), the trial judge
    found that this was a minor deviation from the
Golden
guidelines,
    insufficient to found a
Charter
breach. We agree.

[23]

These
    grounds of appeal must be rejected.

Sentence

[24]

The
    appellant argues that the trial judge erred in failing to credit him with 39
    days pre-trial custody and an additional three months credit for time spent on
    strict bail conditions.

[25]

The trial judge found 11 days of pre-trial custody: 3 days
    between his original arrest on these charges and receiving bail and another 8
    days credited for the time spent in custody after his bail on this matter was
    cancelled. The appellant was credited a total of 16 days for this combined
    period of pre-trial custody.

[26]

The appellant argues that the trial judge erred by failing to
    grant him another 39 days credit for the time he spent in custody between when
    his sureties in this matter filed their revocation form and when the bail was actually
    cancelled by the trial judge on the day of sentencing submissions. We do not
    agree.

[27]

During that entire period of time, the appellant was detained on
    other, unrelated charges. Indeed, the surety revocation was filed within days
    of those charges being laid and the appellant being taken into custody on them.
    Although the appellants bail in this matter was not cancelled for many weeks
    later, he remained in custody on the other charges.

[28]

While credit for pre-trial custody can be assigned where there is
    a sufficient link or relation between the offence for which the offender is
    being sentenced and the pre-sentence custody and the link may exist with
    respect to more than one offence (see
R. v. Barnett
, 2017 ONCA 897, 138
    O.R. (3d) 401, at paras. 30-31), determining whether any such link exists is a
    matter of discretion for the trial judge. We see no error in the trial judges
    approach here.

[29]

There
    is no evidence that the failure to cancel the bail had any impact on the
    failure to not seek new bail on the charges that triggered the detention order.
    Notably, once the trial judge became aware that there were new charges that the
    appellant was detained on, and that the sureties had filed a revocation form,
    the trial judge revoked the bail and assigned credit from that day forward.

[30]

This
    was a discretionary call and we would not interfere.

[31]

Finally,
    the appellant argues that the trial judge erred in calculating credit for time
    the appellant spent under curfew, a condition that was part of his bail. The
    appellant submits that the impact of curfew is self-evident and that he should
    have been given credit for three months.

[32]

The
    trial judge had no evidence to support trial counsels claim that the curfew
    amounted to infantilization of the appellant. He acknowledged that the curfew
    limited the liberty of the accused but found that the limit was mitigated by
    the appellants entitlement to be out of his residence in the company of a
    surety. He properly treated the curfew as a mitigating factor on sentence and
    reduced the appellants sentence by two weeks.

[33]

We
    see no error that warrants interference with the trial judges discretionary
    decision as to how much credit should be given. The trial judge considered that
    the limitations on the appellant were a far cry from house arrest and limited
    the reduction to two weeks. This was his call to make and his decision is
    entitled to deference.

Conclusion

[34]

The
    appeal is dismissed. Leave to appeal sentence is granted, but the appeal is
    dismissed.

Fairburn
    A.C.J.O.

Grant Huscroft
    J.A.

B.W. Miller
    J.A.





[1]
The appellant initially brought an application challenging the
    courts jurisdiction over this matter. Following dismissal of this application,
    the appellant applied to the Superior Court of Justice for writs of prohibition
    and
procedendo
, with
certiorari
in aid. This application was
    dismissed and the dismissal was upheld on appeal: see
R. v. Davis
, 2018 ONSC 4630, affd 2018
    ONCA 946. On resumption of the trial, the appellant brought the change of venue
    application that is the subject of this appeal. For completeness, we note that
    the appellant also brought an application seeking a declaration that the trial
    judge lost jurisdiction over the matter and seeking an order of prohibition
    against the trial judge on the basis of an alleged reasonable apprehension of
    bias. This application was also dismissed: see
R. v. Davis
, 2019 ONSC 1847.


