



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2014 ONCA 525

DATE: 20140707

DOCKET: C55743

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Al-Najair Oliver Brown

Appellant

Mark Halfyard, for the appellant

Cindy Afonso, for the respondent

Heard and released orally: June 24, 2014

On appeal from the conviction entered on February 16,
    2012 by Justice Roland J. Haines of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for possession of cocaine for the
    purpose of trafficking on the ground the trial judge erred in finding there
    were reasonable and probable grounds for his arrest. He asserts the evidence
    obtained as a result of the search of the appellant and his vehicle should have
    been excluded under s. 24(2) of the
Charter
.

[2]

His principal submissions are:

i.

the trial judge erred in finding that the grounds relied upon by the
    arresting officer were objectively reasonable; and

ii.

the trial judge misapprehended the evidence in finding that the
    officers evidence did not conflict with that of two defence witnesses (an
    expert and an articling student) who testified that on re-enactment of the
    conditions prevailing at the time, it was impossible to identify anything more
    than the presence of a light-skinned black male in the drivers seat of the
    car.

[3]

We do not agree with these submissions for two reasons.

[4]

First, in determining whether the grounds for arrest were objectively
    reasonable, the trial judge was entitled to consider, as he did, all the
    surrounding circumstances: see
R. v. Lawes,
2007 ONCA 10, at para. 4,
    relied upon by the trial judge. Those circumstances included:

i.

the information received from a reliable informant that a drug dealer
    would be receiving drugs from his supplier (the appellant, who was known to the
    arresting officer) in the early morning hours of the day in question;

ii.

the observation of a vehicle parked on a street near the dealers home
    at 1:18 a.m. on the day in question;

iii.

the officers observations of the appellant in the company of the drug
    dealer on two previous occasions, the last of which was two and one-half months
    earlier, and his review prior to the arrest of a video taken of the appellant
    on that occasion; and

iv.

the appellants distinctive hairstyle, which consisted of a ponytail flipped
    up at the back and worn at the top of his head.

These circumstances provided important context to the
    officers identification of the appellant as he drove past the parked car with
    the highbeams of his truck on.

[5]

Second, we do not accept the submission that the trial judge misapprehended
    the evidence when he found the officers evidence could be reconciled with that
    of the defence witnesses, who said it was impossible to make out the facial
    features of the occupants of the vehicle as they drove past in their
    simulations.

[6]

A careful reading of the officers evidence indicates that the most
    important factor in his identification of the appellant was his distinctively
    placed ponytail, a feature with which the officer was familiar, based on his
    earlier observations. The appellants hair had been cut and the ponytail
    removed when the defence witnesses performed their simulations. As well, the
    officer did not say he observed any specific features, but said he recognized the
    face in general.

[7]

In our view, the trial judges acceptance of the officers evidence was
    not inconsistent with his acceptance of the evidence of the defence witnesses
    who said they were unable to observe facial features.

[8]

It follows that both the objective and subjective requirements were
    satisfied. The appeal is therefore dismissed.

G.R.
    Strathy C.J.O.

K.
    Feldman J.A.

David
    Watt J.A.


