



COURT OF APPEAL
FOR ONTARIO

CITATION: R. v. Morris, 2013 ONCA 223

DATE: 20130409

DOCKET: C55438

Sharpe, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kwesi Morris

Appellant

Paul Aubin, for the
appellant

Robert Gattrell, for the
respondent

Heard: March 22, 2013

On appeal from the conviction
entered by Justice Alison Harvison Young of the Superior Court of Justice on
June 10, 2011, and from the sentence imposed on September 6, 2011, with reasons
for sentence reported at 2011 ONSC 5206, 97 W.C.B. (2d) 643.

BY
THE COURT:



[1]

The appellant was convicted of several firearms-related offences and
breach of a s. 109 order not to possess firearms and sentenced to 50 months imprisonment.
He appeals his convictions and seeks leave to appeal his sentence.

Conviction Appeal

[2]

The sole issue at trial and the sole issue on the conviction appeal
relates to the search of the appellants vehicle and the seizure of weapons and
drugs. The trial judge found, following a
Charter voir dire
, that
there was no breach of the appellants ss. 8 or 9
Charter
rights, that
there was a relatively minor violation of his s. 10(b) right, and that the
seized items should not be excluded from evidence pursuant to s. 24(2): see
R.
v. Morris
, 2011 ONSC 5142, 87 C.R. (6th) 362.

[3]

The appellant submits that the trial judge erred in fact and in law in
finding that police officers involved in the search had a valid s. 216(1)
Highway
Traffic Act
, R.S.O. 1990, c. H.8 (
HTA
) reason to stop the
appellants car. He also challenges the finding that the search of the vehicle
was conducted after the police had reasonable and probable grounds to believe
that the appellant was in possession of marijuana. The appellants central
submission is that the
HTA
was merely a pretext for an unauthorized
stop and search for evidence of criminal activity.

[4]

We are unable to accept that submission.

[5]

In her careful reasons, the trial judge found as a fact that the police
officers had a dual purpose in stopping the appellants vehicle. They candidly
admitted that the reason they stopped the appellant was that a CPIC check of
the licence plate number produced a caution in relation to the registered
owner, followed by armed and dangerous, violent, and domestic violence.
The lead officer testified that he wanted to verify the drivers documentation
pursuant to the
HTA
. Both officers testified that they understood that
they were under constraints in conducting such a stop and that if the
HTA
documents were in order, they would have to allow the appellant to go on his
way.

[6]

The trial judge accepted that evidence. She concluded that the officers
had a valid
HTA
-related reason for stopping the car, that their
intention was to check the drivers licence, ownership and insurance
documentation, and that at the time they stopped the car they did not intend to
search it or do anything beyond what was permitted by the
HTA
. The
trial judge further found that this remained their intention until the point at
which they detected the odour of fresh marijuana emanating from the car. That,
she found, was sufficient to give rise to reasonable and probable grounds to
arrest the appellant and search him and the vehicle as an incident of the
arrest.

[7]

In our view, those factual findings were open to the trial judge on this
record. As the trial judge concluded, those findings bring this case within the
principle established in
Brown v. Durham Regional Police Force
(1998),
43 O.R. (3d) 223 (C.A.), at p. 236, where Doherty J.A. stated with respect to a
stop pursuant to s. 216(1) of the
HTA
:

It may be, as in this case, that the police are interested in
knowing the identity of all those who are connected with what they believe to be
organized criminal activity. The gathering the police intelligence is well
within the ongoing police duty to investigate criminal activity. As long as the
additional police purpose is not improper and does not entail an infringement on
the liberty or security of the detained person beyond that contemplated by the
purpose animating s. 216(1) of the H.T.A., I see no reason for declaring that a
legitimate police interest beyond highway safety concerns should taint the
lawfulness of the stops and detention.

[8]

We do not accept the submission that it was not open to the trial judge
to find reasonable and probable grounds for arrest on the basis of the officers
evidence that they detected the smell of marijuana. While previous cases have
cautioned against placing undue reliance upon smell evidence, there is no
legal barrier to the use of such evidence and we are not persuaded that on this
record the trial judges finding is susceptible to appellate review.

[9]

Finally, we agree with the trial judges treatment of s. 24(2). This
followed her finding of a s. 10(b) breach that arose when the police failed to
advise the appellant of his right to counsel and asked the appellant questions
before his arrest, but after the point at which they had reasonable and
probable grounds for arrest. We agree with her assessment that the breach of s.
10(b) was relatively minor and that there was no nexus between the breach and
the discovery of the evidence. The Crown did not rely on anything said by the
appellant to justify the search. The trial judge properly considered the
Grant
factors in concluding that the evidence should be admitted notwithstanding the
s. 10(b) breach: see
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353.

[10]

Accordingly,
we dismiss the conviction appeal.

Sentence Appeal

[11]

At
the time of sentencing, the appellant had been in custody for 17 months.

[12]

The
appellant was sentenced before this court released its decision in
R. v.
Summers
, 2013 ONCA 147. Without the benefit of
Summers
, the trial
judge considered the interplay of ss. 719(3) and (3.1) of the
Criminal Code
and concluded that lack of earned remission for pre-sentence custody was not a
circumstance justifying credit of more than 1:1 for time spent in pre-sentence
custody.

[13]

In
Summers
, at para. 117, this court concluded that where there is some
basis in the evidence or the information before the sentencing judge to support
the conclusion that, in the particular case, lack of remission warrants
enhanced credit, a sentencing judge may credit pre-sentence custody up to a
maximum of 1.5:1 for each day spent in pre-sentence custody. It is conceded
that the trial judge erred in her interpretation of s. 719(3.1) of the
Criminal
Code,
and that the deference customarily afforded on appeal to a sentence
imposed by a trial judge is accordingly displaced.

[14]

The
appellant does not take issue with the total sentence of 50 months imposed by
the trial judge; but for the lack of enhanced credit for pre-trial custody, it
was essentially that proposed by appellants trial counsel. The only question is
whether, in this case, the appellant should be entitled to enhanced custody to
compensate for lack of remission and parole eligibility for the 17 months that
he spent in custody prior to sentencing.

[15]

While
the trial judge concluded that lack of remission on pre-sentencing custody is
not of itself a factor warranting enhanced credit, she also reasoned, at para.
54, that while the appellant was not detained in custody under ss. 524(4) or
(8), the conduct of the accused while on bail prior to revocation, if
applicable, may be a relevant factor in determining whether to grant enhanced
credit. She concluded that, in this case, the circumstances were analogous to
ss. 524(4) and (8), and therefore did not justify enhanced credit.

[16]

We
agree.

[17]

Pursuant
to s. 719(3.1), if the circumstances justify it, a court may credit a person
convicted of an offence with more than one day for each day spent in custody to
a maximum of one and one-half days for each day, unless the reason for
detaining the accused in custody on arrest was stated in the record under s. 515(9.1),
or the accused was detained in custody under ss. 524(4) or (8).

[18]

Subsections
524(4) and (8) provide, in part, that where an accused has contravened or was
about to contravene an undertaking or recognizance, or there are reasonable
grounds to believe that the accused has committed an indictable offence after
an undertaking or recognizance was entered into by him, the undertaking or
recognizance shall be cancelled and the accused shall be detained in custody,
unless the accused, having been given a reasonable opportunity to do so, shows
cause why his detention in custody is not justified within the meaning of
subsection 515(10).

[19]

The
absence of an order cancelling the prior forms of release did not operate as an
absolute bar to the appellants request for enhanced credit under
s. 719(3.1). In determining whether to award enhanced credit, however, the
trial judge was required to take into account all the circumstances. Among those
circumstances was the fact that the appellant was on bail and  bound by a
weapons prohibition when he was arrested on the offences for which he was
convicted. The trial judge was entitled to take these circumstances into
account in deciding whether enhanced credit was justified. We agree with her
conclusion that it was not.

[20]

In
the result, we would grant leave to appeal sentence but dismiss the sentence
appeal.



Disposition

[21]

The
conviction appeal is accordingly dismissed, leave to appeal sentence is granted
and the sentence appeal is dismissed.

Robert J. Sharpe J.A.

David Watt J.A.

Alexandra Hoy J.A.

Released:
April 9, 2013


