



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lee, 2018 ONCA 1067

DATE: 20181221

DOCKET: C62473

Juriansz, Benotto and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Junior Lee

Appellant

Jeffery Couse, for the appellant

Marie Comiskey, for the respondent

Heard: December 17, 2018

On appeal from the conviction entered on April 7, 2015 by
    Justice John R. McCarthy of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking under s. 5(2) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. His girlfriend Bailey McKanick was also found guilty.

[2]

The police obtained information from three confidential informants that
    the appellant and McKanick were trafficking cocaine from the appellants car in
    the Barrie area. The police conducted surveillance to corroborate these tips.
    In particular, the police orchestrated an undercover purchase of cocaine from
    the appellant using specific bank notes, the serial numbers of which they
    recorded.

[3]

On October 23, 2012, at about 11:15 p.m., the police stopped the car
    that the appellant was driving, with McKanick as a passenger. The police boxed
    the appellants car in. He was forcefully extracted from the car. Some blows
    were used to subdue the appellant and to facilitate his arrest.

[4]

A search of the appellant at roadside found 4.3 grams of marijuana in
    his sock. The police also looked down the back of the appellants pants to
    determine whether he had a weapon. He did not. At the police station, strip
    searches were authorized for both the appellant and McKanick. During the strip
    search of the appellant, he was naked for approximately one minute. Nothing was
    found. McKanick remained completely naked for about five minutes. The search
    yielded an ounce of cocaine, which had been secreted in her vagina.

[5]

The police obtained a warrant to search the appellants apartment in
    Toronto at 88 Park Lawn Road, Apartment #1611 (Park Lawn). The police
    discovered 700 grams of powder cocaine, 700 grams of crack cocaine, and $1,200
    in Canadian currency, including the three bills used during the undercover
    purchase.

[6]

At trial, the appellant brought applications under ss. 7, 8, 9, 10(a)
    and 12 of the
Charter
as a result of the police conduct during the
    take down and his strip search at the police station. The trial judge found
    that none of the appellants rights had been violated. The trial judge found
    that the strip search of McKanick violated her s. 8 rights of the
Charter
but declined to exclude the evidence under s. 24(2): see
R. v. McKanick
,
    2015 ONSC 2128.

[7]

Although the appellant challenges all of the trial judges findings on
    the
Charter

application, he focused his submissions on the
    validity of the search of his apartment. He argues that the Information to
    Obtain (ITO) contained insufficient grounds to authorize the search of his
    apartment. He submits that the issuing justice essentially acted on the
    assumption that, because the appellant was a drug dealer, the police were
    entitled to search his apartment. The appellant also argues that the trial
    judge should have excised from the ITO any reference to the cocaine found secreted
    on Ms. McKanicks person following her illegal strip search.

[8]

On appeal, the respondent argued that, even when reference to the fruits
    of the McKanick search is excised from the ITO, there was still a sufficient
    basis to authorize the warrant.

[9]

Despite Mr. Couses helpful submissions, we are satisfied that, even
    with the McKanick search excised, there was a sufficient basis to obtain the
    warrant to search Park Lawn.

[10]

On
    the night of the takedown, the appellant and Ms. McKanick were observed in the
    appellants car in the Barrie area. The police observed three drug transactions.
    After the final transaction, the car was driven back to Park Lawn. Using a key
    fob, the appellant drove into the underground parking lot. He emerged hours
    later, having changed his clothes. After searching Ministry of Transportation
    databases, the police learned that Park Lawn was the appellants mailing
    address. The police subsequently confirmed with building management that the
    appellant lived in Unit 1611.

[11]

Mr.
    Couse argues that there was no reasonable basis for the issuing justice to be
    satisfied that the cocaine discovered on Ms. McKanick originated from the
    apartment. However, the police were searching for more than just the cocaine.
    The ITO specified the following items: Cocaine, Packaging, Currency including
    and not limited to Canadian $20 bills bearing [3 serial numbers], Debt List,
    Scales and Telecommunication Devices. In short, the police wished to search
    for evidence of the appellants drug trafficking activities.

[12]

In
    our view, there was a sufficient basis to authorize this search, even though
    the ITO did not contain an opinion from the affiant about the typical behaviour
    of alleged drug dealers, in terms of where they keep their money, supplies, and
    tools of the trade. Significantly, the fact that the appellant returned to his
    home after conducting three drug transactions and then went out again,
    differently attired, tied his drug trafficking activities to Park Lawn.

[13]

We
    would dismiss this ground of appeal.

[14]

The
    appellant also argues that the combined breaches of the other rights asserted
    by the appellant warranted a stay of proceedings under s. 24(1) of the
Charter
.
    In making this argument, Mr. Couse acknowledges the high threshold that must be
    met to obtain this remedy.

[15]

We
    are not persuaded that the trial judge erred in his findings of fact, nor in
    his overall assessment of this evidence. The search of the appellant at
    roadside was fleeting and benign. His strip search at the police station was
    not perfect, in terms of its compliance with the guidelines set out in
R.
    v. Golden
, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 101. He should not
    have been left completely naked at all. However, in the circumstances of this
    case, it was a minor deviation. Moreover, we see no inconsistency between this
    finding and the trial judges finding that McKanicks search amounted to a
    violation of s. 8. There was compelling evidence that Ms. McKanick was very distressed
    by the circumstances of her strip search. She was left naked for much longer
    than the appellant. Focusing on the time that it took, the trial judge did not
    err in finding that it was not a minor deviation from the
Golden

guidelines.

[16]

Lastly,
    the appellant argues that the trial judge erred in failing to find that the
    conduct of the police in effecting the take down infringed his
Charter

rights. He claims that the approach of the police was heavy-handed in the
    extreme and that the police were unnecessarily rough with him upon arrest. The
    trial judge made specific findings of fact on each aspect of this claim. He did
    so without the benefit of any evidence from the appellant. The appellant has
    failed to demonstrate why these findings should be disturbed on appeal.

[17]

The
    appeal is dismissed.

R.G. Juriansz J.A.

M.L. Benotto J.A.

G.T. Trotter J.A.


