



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aviles, 2017 ONCA 629

DATE: 20170731

DOCKET: C61361

Feldman, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Walter Jose Aviles

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Jeremy Streeter, for the respondent

Heard: December 2, 2016

On appeal from the convictions entered on July 27, 2015
    by Justice Ian F. Leach of the Superior Court of Justice.

Feldman J.A.:

[1]

When the appellant was arrested for assault, the police searched his shoulder
    bag and found drugs. He was then arrested for possession for the purpose of trafficking,
    following which, the police searched his bag again and found a knife. When he
    was later searched at the police station, they found more drugs in his pocket.
    The appellant was convicted of possession for the purpose of trafficking and
    carrying a concealed weapon. He says the police had no grounds to arrest him
    for assault and no legal basis to search his bag and therefore breached his s. 9
    and s. 8
Charter
rights. He also says the trial judge misunderstood
    his counsels concession at the opening of trial with respect to continuity and
    erred in finding proof beyond a reasonable doubt of the continuity of the
    contents of the bag.

[2]

For the reasons that follow, I would dismiss the appeal.

Facts

[3]

At around 3:17 a.m. on January 15, 2013, the London police received a
    report of an assault on a man in the vicinity of the Macs Milk at the corner
    of Dundas Street and Wellington Street. The complainant said he had lost his
    shoe in the assault. The police searched a nearby alleyway and found the shoe. The
    complainant said he knew one of the assailants, Mr. Earhart, by name. The other
    two were a man and a woman. The man had dark skin and was dressed in baggy
    hip-hop style clothing.

[4]

While speaking with the police, the complainant pointed through the
    convenience store window to three people approaching, a woman and two men, and
    identified them as his attackers. One of the men was recognized by one of the
    officers, based on a mobile data terminal check the officer had just conducted,
    as the individual the complainant had identified by name. The other male was
    the appellant. He was wearing a black pea coat, black jogging pants, brown
    boots and a black baseball cap.

[5]

The appellant was arrested by Constable Bronson for assault and
    handcuffed. During the arrest, a grey single-strap shoulder bag dropped from the
    appellants shoulder. Constable Bronson escorted the appellant to the police
    car, gave him his right to counsel and caution, and searched him incident to
    arrest, finding two cell phones and a wallet with $160 in cash inside.

[6]

As the appellant was taken to the police car, another officer, Sergeant Austin,
    picked up the appellants shoulder bag and searched it quickly for a weapon for
    officer safety reasons.  He found a leather box inside which contained a
    digital scale and several types of narcotics. He then brought the bag over to
    the police cruiser where Constable Bronson had taken the appellant. He turned
    the bag over to Constable Bronson and advised him of what he had found inside.

[7]

Constable Bronson looked inside the shoulder bag, pulled out the leather
    case and saw the scale and narcotics, then put the case back inside the
    shoulder bag. He then re-arrested the appellant for possession of narcotics for
    the purpose of trafficking, and again gave him his right to counsel and
    caution, following which the appellant asked to speak to a lawyer.

[8]

Constable Bronson then turned the appellant and the bag over to a third
    officer, Constable Thorner, who conducted his own search of the bag and found a
    large knife inside the top flap of the bag as well as three cellphones. At the
    station, Constable Thorner searched the appellant and his clothes and found a
    bag of cocaine in the pocket of the appellants pea coat. The appellant was
    formally charged with possession of controlled substances for the purpose of
    trafficking and carrying a concealed weapon. He was not formally charged with
    the assault as the complainant had indicated he did not wish to pursue an
    assault charge and had left the scene.

Decision of the Trial Judge

[9]

The trial judge found that the appellant was originally arrested for assault
    by Constable Bronson, rejecting the defence argument that it was just an
    investigative detention. The officer had reasonable and probable grounds for
    the arrest, based on the identification by the complainant of the three
    assailants shortly after the assault occurred, as well as the corroborative
    fact of finding the complainants shoe in the alley where he said the assault
    occurred.

[10]

The
    trial judge ruled that the appellant was therefore not arbitrarily detained
    contrary to s. 9 of the
Charter
. He also ruled that the searches
    conducted by the police were proper searches incident to arrest based initially
    on officer safety. Therefore, there was no breach of the appellants s. 8
Charter
right.

[11]

He
    also rejected the argument that the Crown had not proved the continuity of the
    contents of the bag. As part of his analysis, he criticized defence counsel for
    resiling from his concession at the opening of trial regarding the continuity
    of the drugs. However, that concession was with respect to continuity once the
    drugs had been seized by the police, not before.

Issues on Appeal

[12]

The
    appellant raises five grounds of appeal:

1)

Did the trial judge
    err by placing the burden of proof on the appellant to prove a breach of his s.
    8
Charter
right in respect of the warrantless search of the shoulder
    bag?

2)

Did the trial judge
    err in finding that the police had objective reasonable and probable grounds to
    arrest the appellant for assault?

3)

Did the trial judge
    err in finding that the police had grounds to search the shoulder bag incident
    to the appellants arrest for assault?

4)

Should the trial judge
    have excluded the drugs located in the shoulder bag under s. 24(2) of the
Charter
?

5)

Should the trial
    judges finding with respect to the continuity of the contents of the shoulder
    bag be set aside and a new trial ordered because the trial judge misapprehended
    the concession made by defence counsel with respect to continuity?

Analysis

(1)

Burden of proof for s. 8 breach

[13]

The
    trial judge gave lengthy and detailed reasons for decision. At the beginning of
    those reasons, the trial judge stated, as a general principle, that the
    appellant had the onus to prove any
Charter

breaches. He
    repeated that statement of the onus twice later when he began his analysis of
    the alleged ss. 8 and 9
Charter
breaches and in his conclusion that the
    appellant had not satisfied him on a balance of probabilities that there was
    any
Charter

breach.

[14]

The
    appellant submits that the trial judge erred in his statement of the burden of
    proof in this case, where the search was without a warrant and therefore presumed
    to be unreasonable.  When the police conduct a warrantless search, the onus is
    on the Crown to prove on a balance of probabilities that the search was a
    reasonable one.

[15]

Reading
    the reasons as a whole, it is clear that the trial judge was well aware of this
    principle. As part of the discussion of general principles regarding s. 8 of
    the
Charter
, the trial judge began by stating that warrantless searches
    are
prima facie
unreasonable and that the party seeking to justify a
    warrantless search bears the onus of rebutting the presumption of
    unreasonableness.

[16]

The
    trial judge also set out in detail the principles to be applied in the
    consideration of whether a warrantless search incident to arrest is a
    reasonable one. As part of that discussion, he stated that the police must be
    able to explain the purpose for the search, which must be one of the purposes
    set out in
Cloutier v. Langlois
, [1990] 1 S.C.R. 158. He explained
    that the reason must be related to the arrest and that reason must be
    objectively reasonable, referring to
R. v. Caslake
, [1998] 1 S.C.R. 51.
    By correctly articulating what must be proved by the Crown to justify a search
    incident to arrest, it is clear that the trial judge understood that the onus
    of proof was on the Crown.

[17]

I
    am satisfied that the trial judge was well aware that the onus was on the Crown
    in this case and that in reaching his findings, which I will discuss under the
    succeeding issues, he applied that onus.

(2)

Objective grounds for the arrest for assault

[18]

The
    appellants submission is that the police had objective grounds to arrest Mr.
    Earhart because he was specifically identified by the victim and known to him.
    However, they had no more than a suspicion that the appellant was the second
    man involved in the robbery. First, the appellant was not wearing baggy hip hop
    clothing as described by the complainant. Second, Mr. Earhart could have been
    walking with a new person by the time he showed up after the assault at the
    convenience store.

[19]

The
    trial judge gave detailed reasons for his finding that the police had
    reasonable and probable grounds for arresting the appellant for assault that
    satisfied both the subjective and the objective component of that test. He
    articulated the objective component requirement as follows: a reasonable
    person placed in the position of Constable Bronson would conclude that there
    were indeed reasonable and probable grounds for the arrest.

[20]

In
    summary, those reasons were that the officer had received a report of an
    assault directly from the alleged victim; he had obtained some corroboration
    that the assault had occurred from finding the victims shoe in the alley where
    he said he had lost it during the assault; the victim expressly identified the three
    people approaching the convenience store as the three perpetrators; the three
    people matched in significant detail the description that the victim had
    initially given: two men and a woman; one man named and known to the victim;
    the second man (the appellant) with dark skin.

[21]

The
    appellant submits that because the clothing the appellant was wearing was not the
    baggy hip hop style clothing described by the complainant, the factors
    highlighted by the trial judge do not amount to objective reasonable and
    probable grounds sufficient to justify an arrest. As mentioned, the appellant
    was wearing black jogging pants, brown boots, a pea coat and a baseball cap. Constable
    Bronson agreed in cross-examination that a pea coat would not be considered
    baggy hip hop style clothing. He was not asked about the characterization of
    the rest of the clothing the appellant was wearing.

[22]

I
    would reject this submission. I agree with the trial judge that the officers
    were entitled to rely on the victims identification of the appellant as one of
    his assailants from only a short time before. Further, as the trial judge
    noted, the group of people identified by the complainant as his assailants
    matched in significant respects the description the complainant had already
    given. These factors were sufficient to justify the appellants arrest.

[23]

I
    see no error in the trial judges analysis on this issue.

(3)

Search incident to arrest for assault

[24]

The
    appellants bag was searched a number of times following his two arrests. The
    trial judge found that all of the searches were incident to the lawful arrest
    and re-arrest of the appellant. On this appeal, the appellant submits that the
    trial judge erred in holding that Sergeant Austins initial search of the
    shoulder bag was a lawful search incident to arrest.

[25]

The
    trial judge set out the general principles applicable to warrantless searches
    and in particular, searches incident to arrest. Referring to
R. v. Feeney
,
    [1997] 2 S.C.R. 13, he stated that to comply with s. 8 of the
Charter
,
    a warrantless search must be authorized by law, and both the law and the manner
    in which the search is conducted must be reasonable. He then referred to the
    long-standing common law power of search incident to arrest and discussed the
    legitimate scope of this power.

[26]

He
    stated the limits on the power to search incident to arrest: it must be for a
    valid criminal justice objective, such as police or public safety or discovery
    of evidence; the purpose of the search must not be contrary to the proper
    administration of justice such as to intimidate, ridicule or pressure the
    accused into making admissions; the search must not be conducted in an abusive
    manner; and, most importantly for this case, the search must be truly
    incidental to the arrest. Referring to the authority of
Cloutier

and
Caslake
, the trial judge explained that the police must be able to provide
    a reasonable basis (i.e. protecting the police, protecting the evidence,
    discovering evidence) for the search that is related to the arrest. I add here
    that the evidence sought to be discovered must be evidence of the crime for
    which the person has been arrested:
Caslake
, at para. 22.

[27]

Lamer
    C.J. articulated the test as follows in
Caslake
, at para. 25:

In summary, searches
    must be authorized by law. If the law on which the Crown is relying for
    authorization is the common law doctrine of search incident to arrest, then the
    limits of this doctrine must be respected. The most important of these limits
    is that the search must be truly incidental to the arrest. This means that the
    police must be able to explain, within the purposes articulated in Cloutier, supra
    (protecting the police, protecting the evidence, discovering evidence), or by
    reference to some other valid purpose, why they searched. They do not need
    reasonable and probable grounds. However, they must have had some reason
    related to the arrest for conducting the search at the time the search was
    carried out, and that reason must be objectively reasonable.


[28]

In
    this case, the reason for the initial search of the bag was officer safety.
    Once the police arrested the appellant and were transporting him to the police
    station, they would not be leaving his bag on the ground but taking it with
    them to the station. Sergeant Austin was concerned whether there could be a
    firearm in the bag that could be dangerous if not discovered and secured. The
    trial judge found that the search for the purpose of officer safety and the
    detection of a possible weapon, in the context of an assault arrest, was
    objectively reasonable in the circumstances.

[29]

The
    appellant submits that there was no objectively reasonable basis to search the
    bag on the grounds of officer safety. There was no suggestion that a weapon had
    been used in the assault and no basis to believe there would be one in the bag.
    Also, there was no danger to police because all three accused were handcuffed.

[30]

In
    support of his position, the appellant refers to this courts decision in
R.
    v. Kelsy
, 2011 ONCA 605, 289 C.C.C. (3d) 456. In that case, the accused
    was leaving a violent situation carrying a knapsack. As she was not under
    arrest, the police could not search the knapsack as an incident to arrest.
    Nevertheless, they searched the knapsack without a warrant and discovered a
    firearm and drugs. At trial, the Crown sought to justify the search based either
    on exigent circumstances or the
Waterfield
doctrine of reasonable necessity.
    Both justifications were rejected by this court. The court found that there was
    no basis to believe that the knapsack contained contraband or a weapon and that
    the search was not reasonably necessary. Rosenberg J.A. explained, at para. 21:

In my view, the police only had the power to seize the
    appellants bag until the situation was no longer in the chaotic state
    Constable Ahmad found it. At that point, if there were no grounds to obtain a
    warrant to search the bag, it had to be returned to the appellant, unless she
    gave a valid consent to search it.

[31]

This
    case is wholly distinguishable from
Kelsy
. The circumstances in this
    case differ in four respects. First, the appellant was under arrest. As a result,
    there was no option for him to leave or take the bag away. Second, because of
    the arrest, the police had the power to search incident to arrest, if there was
    a basis to do so in accordance with
Cloutier
and
Caslake
:
    officer or public safety, preserving evidence, discovering evidence relevant to
    the offence for which the individual is being arrested. Third, because they
    would be taking the bag to the station, Sgt. Austin was concerned for officer
    safety and believed the bag should be checked for a loaded firearm. Fourth, the
    fact that the accused was being arrested for a violent offence informed the officers
    concern.

[32]

Although
    there was no report of a weapon as part of the assault, because the police had
    reasonable and probable grounds to believe that the appellant committed a
    violent offence, this was not a case like
Kelsy

where there was
    no basis for the officers to believe there could be a weapon in the bag. As a
    result, I do not agree that because the accused persons were all handcuffed
    there was no objectively reasonable concern of danger to the police from a
    loaded firearm in the shoulder bag.

[33]

In
    my view, the trial judge made no error in his conclusion that the officer had
    both a subjective and objectively reasonable basis to conduct a search of the
    bag incident to the appellants arrest in all the circumstances of this case,
    and that there was therefore no breach of the appellants s. 8 right against
    unreasonable search and seizure.

(4)

Section 24(2)

[34]

As
    I agree that there was no s. 8 breach, there is therefore no need to conduct a
    s. 24(2) analysis.

(5)

Error in continuity analysis

[35]

The
    continuity issue, raised both at trial and on appeal, is that the police
    handled the appellants shoulder bag in a sloppy manner and left it unattended
    for several minutes at the scene. They also conducted a number of searches and
    discovered certain items, like the knife, only after a couple of searches. As a
    result, the defence submits that the trial judge could not be satisfied of the
    continuity of the contraband found in the bag from the time it was in the
    appellants possession or that it was even the same bag.

[36]

On
    appeal, the appellant says that the trial judge erred in his analysis of this issue
    because he criticized the appellants trial counsel for resiling from a
    concession he gave at the opening of the trial regarding the continuity of the
    drugs. He referred to it as a matter of trial fairness for the Crown,
    suggesting that the Crown was not alerted to the need to ask certain questions
    of its witnesses akin to the rule in
Browne v. Dunn
. However, the
    trial judge misunderstood the concession, which was only with respect to the
    continuity of the drugs once they were located by the police and transferred
    for analysis. It was not a blanket waiver of the general continuity issue.

[37]

The
    appellant says that by taking the misunderstood waiver into account as part of
    his analysis, the trial judge erred and that error resulted in a miscarriage of
    justice, and a new trial must therefore be ordered.

[38]

Reading
    the reasons as a whole, although the trial judge misunderstood the limited
    concession by defence counsel regarding the continuity and nature of the
    substances, which led to his misapprehension regarding trial fairness concerns,
    he nevertheless went on to make findings regarding the continuity of the
    shoulder bag and of the substances and the weapon found in the bag, based on
    the evidence. Based on those findings, he was satisfied that none of the
    continuity concerns identified by the appellant gave rise to a reasonable
    doubt. He stated:

In this case, I think the Crown provided evidence, not
    challenged in cross-examination, and not contradicted by other evidence,
    indicating an unbroken chain of custody in relation to all of the seized items
    relied upon by the Crown in support of the charges in the indictment.

[39]

He
    then made the following specific findings regarding continuity based on the
    evidence that he reviewed earlier in his reasons: 1) the shoulder bag went from
    the appellant, to Sgt. Austin, to Cst. Bronson, to Cst. Thorner; 2) the
    narcotics in the shoulder bag went, in that bag, from the appellant, to Sgt.
    Austin, to Cst. Bronson, who then removed the narcotics from the shoulder bag
    and maintained custody over them until they were handed over to Cst. Thorner at
    the police station; 3) the knife in the shoulder bag went, in that bag, from
    the appellant, to Sgt. Austin, to Cst. Bronson, to Cst. Thorner (although it
    was only the last officer who detected its presence in the bag that was being
    successively transferred); and 4) the wallet and cellular phones went from the
    appellant, to Cst. Bronson, to Cst. Thorner (regardless of the precise manner
    in which they were transferred to Cst. Throner).

[40]

He
    concluded on this point:

In my opinion, there was no evidence whatsoever to support any
    suggestion that the seized items and evidence relied upon by the Crown was in
    any way the subject of contamination, tampering or improper identification.
    Suggested concerns in that regard accordingly are mere speculation. For all
    these reasons, I reject defence suggestions that continuity concerns undermine
    the admissibility or reliability of the Crowns evidence, or otherwise give
    rise to reasonable doubt.

[41]

In
    my view, while it is unfortunate that the trial judge misunderstood defence
    counsels proper and very common concession at the opening of trial regarding
    the continuity of the substances found and admissibility of the certificates of
    analysis without the need to call the witnesses who prepared them, in this
    case, that error by the trial judge did not undermine the conclusions he
    reached, based on the evidence, regarding continuity. I would therefore not give
    effect to this ground of appeal.

Conclusion

[42]

I would therefore dismiss the appeal.

Released: D.W. July 31, 2017

K. Feldman J.A.

I agree. David Watt J.A.

I agree. Grant Huscroft J.A.


