



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Caravaggio, 2012 ONCA 248

DATE: 20120419

DOCKET: C53525

Doherty, MacPherson and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Francis Adrian Caravaggio

Appellant

Heather Pringle and Kate Oja, for the appellant

Catrina Braid, for the respondent

Heard and released orally: April 13, 2012

On appeal from the convictions and sentence entered on March
    8, 2011 by Justice Wolfram U. Tausendfreund of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of trafficking in a Schedule 1 drug contrary
    to the
Controlled Drugs and Substances Act
and was sentenced to 15
    months.  He appeals both conviction and sentence.

Conviction Appeal

[2]

The sole issue raised on the conviction appeal is whether the trial
    judge erred in dismissing the appellants
Charter
motion to exclude
    evidence of the drugs found in his possession when he was arrested.

[3]

We see no error in the trial judges ruling that the police officer who
    found the drugs on the search incident to the appellants arrest had reasonable
    and probable grounds for the arrest.

[4]

The officer had information from an unnamed informant that the appellant
    was selling drugs from his vehicle.  The informant had been used by the officer
    on prior occasions and had provided reliable information.  The informant was
    known to be involved in the drug subculture.  He provided details as to the
    description of the appellant, the colour and specific make of the appellants
    car and the appellants residence.  The police officer corroborated that
    information by running a CPIC check to determine the appellants identification
    and address and by going to a location near the appellants residence where he
    observed a man whose appearance corresponded to the information he had been
    given in the car described by the informant.  The car was parked in an alley
    near a café known for drug-dealing.  The motor of the car was running and a
    male person was leaning through the window of the car speaking to the
    appellant.

[5]

While the officer could not say that he observed a drug transaction
    between the appellant and the other man, their interaction certainly was
    suspicious and at least consistent with a drug transaction.  When combined with
    the information obtained from the informant, the officers observations of the
    appellant, his vehicle and its location, there was sufficient basis for the
    trial judge to find that the officer had reasonable and probable grounds to
    arrest the appellant.

[6]

We do not agree with the submission that the trial judges reasons were
    inadequate.  The trial judge did confront the inconsistencies in the evidence
    of the police officers and he explained why he found reasonable and probable
    grounds despite those inconsistencies.

[7]

Accordingly, the conviction appeal is dismissed.

Sentence Appeal

[8]

We do not agree that the trial judge erred by failing to give adequate
    consideration to the possibility of a conditional sentence in the circumstances
    of this case.  The trial judge specifically considered that option but found
    that it would be inconsistent with the fundamental purposes and principles of
    sentencing as he found the appellant to have engaged in drug trafficking
    entirely for personal commercial gain and in light of the appellants prior
    criminal record which includes six convictions and two drug convictions. 
    Moreover, the appellant breached his bail pending this appeal, was re-arrested
    and is currently serving another sentence for another drug offence.  In these
    circumstances, a conditional sentence would be, to say the least, problematic.

[9]

Accordingly, leave to appeal sentence is granted but the sentence appeal
    is dismissed.

D. Doherty J.A.

J.C. MacPherson J.A.

Robert J. Sharpe J.A.


