



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Alexander, 2017 ONCA 181

DATE: 20170301

DOCKET: C60858

Cronk, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hayden Alexander

Appellant

Jeffrey Fisher, for the appellant

Marie Comiskey, for the respondent

Heard: February 24, 2017

On appeal from the conviction entered on October 29, 2014
    and the sentence imposed on January 30, 2015 by Justice A. Stong of the Superior
    Court of Justice.

ENDORSEMENT

[1]

At the end of the hearing of this appeal, the court dismissed the appeals
    from conviction and sentence, with reasons to follow. These are those reasons.

[2]

The appellant was convicted of possession of crack cocaine for the purposes
    of trafficking and was sentenced to 18 months in jail, less six months credit
    for time served in pre-sentence custody.

A.

conviction appeal

[3]

The main issue at trial was whether the police had reasonable and
    probable grounds on which to base their arrest of the appellant and the
    subsequent search of the appellant and his vehicle. In the search the police
    found 8.3 grams of crack cocaine as well as various amounts of currency.

[4]

The police observed the vehicle driven by the appellant make three stops
    at three different locations in a period of 15 minutes. At the first stop, a known
    drug user was observed briefly getting into the passenger side of the vehicle
    and exiting it shortly thereafter. At the second location, about a minute after
    the vehicle had arrived, the appellant was observed leaving the front of the
    residence of known drug users and re-entering the vehicle. At the third
    location, a man got into the passenger side of the vehicle for a short period
    of time and then exited. After the third stop, the appellant was stopped and
    arrested.

[5]

The appellant argues that his arrest was unlawful and, as a result, the
    items seized in the search ought to be excluded under s. 24(2) of the
Canadian
Charter of Rights and Freedoms
. The trial judge dismissed the
    application, finding that the arresting officer had reasonable and probable
    grounds to arrest the appellant. He also found that, objectively, the grounds
    were justified. In his view, the arresting officer was entitled, in the
    totality of the circumstances, to infer that the appellant was trafficking in
    drugs.

[6]

On appeal, the appellant argues that the trial judge erred in dismissing
    the
Charter
application. He maintains that the police did not have the
    requisite grounds to make the arrest as the grounds provided were not
    objectively reasonable. In particular, he submits that the trial judge
    misapprehended the evidence, provided insufficient reasons and relied on
    factors not mentioned by the arresting officer in determining whether there
    were reasonable grounds for the arrest.

[7]

In our view, the conviction appeal must be dismissed.

[8]

The first ground advanced by the appellant is that the trial judge
    misapprehended the evidence in three respects:

1.

Whether it was reasonable for the arresting officer to have proceeded on
    the basis that the appellant had been the driver of the vehicle at all three
    locations;

2.

Whether there was an interaction with the appellant and another person
    at the second location; and

3.

Whether at the time of the arrest, the arresting officer had knowledge that
    the resident at the second location was associated with drug activities.

[9]

We do not give effect to this ground. The test for appellate review with
    respect to the misapprehension of evidence is a stringent one and, in our view,
    it has not been met in this case.

[10]

The
    trial judge was well aware of the gaps in the police officers observations of
    the appellants activities. He did not err in his assessment of the evidence.
    When viewed as a whole, the evidence supports the inferences drawn by the
    officer with respect to these three alleged misapprehensions.

[11]

The
    second ground of appeal is that the trial judges reasons were insufficient. In
    support of this ground, the appellant argues that the trial judges reasons do
    not adequately explain how he came to accept that the appellant was the driver
    of the vehicle, that the second residence was known for drug activity and that
    there was an interaction at the second residence.

[12]

Although
    the reasons are sparse, when read in the context of the record as a whole, they
    demonstrate that the trial judge was alive to the issues in this case,
    including the gaps and limits in the observations made by the arresting officer.
    He gave adequate reasons in support of the findings he made. The trial judge
    was not required, in his reasons, to refer to each piece of evidence given or
    missing with respect to the police observations made at the three locations. In
    his 16-page judgment, the trial judge provided a comprehensive summary of the
    surveillance conducted and articulated clear and cogent reasons for the
    conclusion that, both objectively and subjectively, the arresting officer had
    reasonable and probable grounds to believe that the offence of trafficking was
    occurring.

[13]

The
    third ground of appeal is that, in concluding that objective and subjective
    reasonable and probable grounds for the arrest existed, the trial judge relied
    on two factors that were not in evidence.

[14]

We
    do not give effect to this ground of appeal.

[15]

The
    two factors noted by the trial judge are that the appellants actions in the
    vehicle were clandestine so as to prevent police observation and that the
    vehicle was driven in a manner to avoid detection. As for the first, in our
    view, the arresting officers evidence did support the trial judges finding
    that the drug transactions themselves were made in a manner to avoid detection.

[16]

With
    respect to the second factor, we agree that the trial record does not support a
    finding that the appellants manner of driving was to avoid detection. However,
    it is not clear to us that this finding played a role in the trial judges
    reasoning on the conviction. If it did, it was of little or no significance. We
    view the error as minor and harmless in its effect and, if necessary, would
    apply the curative proviso.

B.

Sentence appeal

[17]

At
    trial, the appellant brought a constitutional challenge to s. 5(3)(a)(i)(d) of
    the
Controlled Drugs and Substance Act
, S.C. 1996, c. 19
which, when in effect, provided for a
    mandatory minimum sentence of one year for any person convicted of a designated
    substance offence within the previous ten years. The appellant fell within this
    category as he had been convicted of a drug offence in 2004. The trial judge
    dismissed the constitutional challenge and sentenced the appellant to 18
    months.

[18]

Subsequent
    to the sentencing in this case, the Supreme Court of Canada held that s.
    5(3)(a)(i)(d) was unconstitutional in the decision of
R. v. Lloyd
,
    2016 SCC 13, [2016] 1 S.C.R. 130. The appellant argues that the trial judge
    erred in law in rejecting his
Charter
challenge to the mandatory
    minimum. He also argues that the sentence violated the jump principle.

[19]

We
    reject this submission. The sentence imposed was not an application of the
    mandatory minimum and did not violate the jump principle. It falls within the
    acceptable range for this type of offence and an offender with prior
    convictions. In our view, the sentence is entirely fit. In any event, we
    understand that the appellant has served his sentence and the sentence appeal
    is therefore moot.

C.

Conclusion

[20]

For
    these reasons, both the conviction and sentence appeals are dismissed.

E.A. Cronk J.A.

Paul Rouleau J.A.

B.W. Miller J.A.


