



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kampe, 2014 ONCA 255

DATE: 20140402

DOCKET: C56366

Sharpe, Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Kampe

Appellant

Ernest J. Guiste, for the appellant

Kevin Wilson, for the respondent

Heard and released orally: March 27, 2014

On appeal from the conviction entered on October 12, 2011
    and the sentence imposed on January 26, 2012 by Justice Katherine B. Corrick of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of possession of 5.06 grams of crack cocaine
    for the purpose of trafficking.  He submits that the trial judge erred in law by
    failing to appreciate and consider the s. 15
Charter
violation he
    raised at trial and further erred in her analysis of his allegation of racial
    profiling.

[2]

We reject these arguments for the following reasons.

[3]

First, the appellant did not bring any motions or applications at trial
    to either exclude evidence or stay the proceeding based on a violation of his
    s. 15
Charter
rights. Rather, the allegation of racial profiling was
    untethered to any specific request for a remedy.

[4]

Second, and in any event, the trial judge considered and rejected the
    racial profiling allegation in the context of her analysis of the appellants
    submission that the police officers fabricated allegations against him and
    produced the crack cocaine to substantiate their false allegations.  She accepted
    the police officers evidence that they did not target the appellant because he
    is an African-Canadian and that they did not plant evidence. In contrast, the
    trial judge found that the appellant was not a credible witness. This was a
    credibility finding that was open to the trial judge to make on the evidence
    before her.

[5]

Third, the trial judge also considered the appellants related
    submission that an adverse inference should be drawn by reason of the failure
    of the Crown to call an unidentified woman who was in the accuseds rental
    vehicle at the time of his arrest.  The trial judge noted that it was unusual
    that the police did not record the name of the woman, but concluded that she
    was unable to infer that the unidentified woman would have supported either the
    appellants version of events or the police officers version.

[6]

Again, this was a conclusion that was open to the trial judge to make on
    the evidence and there was certainly no obligation on the Crown to locate this
    witness, especially given that the appellant testified that at the time of his
    arrest, he knew the unidentified womans name, telephone number and the area
    where she resided.

[7]

The sentence has been served in this case and the sentence appeal has
    been abandoned.

[8]

The conviction appeal is dismissed.

Robert J. Sharpe J.A.

E.A. Cronk J.A.

C.W. Hourigan J.A.


