



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kebede, 2021 ONCA 283

DATE: 20210430

DOCKET: C66194

Fairburn A.C.J.O., Doherty and
    Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Kebede

Appellant

David Landesman, for the appellant

Lisa Csele, for the respondent

Heard: April 12, 2021 by video conference

On appeal from the conviction entered by
    Justice H. OConnell of the Superior Court of Justice, dated October 11, 2018,
    and on appeal from the sentence imposed on November 29, 2018.

REASONS
    FOR DECISION


[1]

The appellant was arrested and searched as an incident of his
    arrest. The police found 15.4 grams of crack cocaine in his sweater pocket. The
    cocaine had been divided into a number of small pieces and placed in separate
    baggies.

[2]

The appellant was charged with possession of cocaine for the
    purpose of trafficking. At trial, he argued his arrest was unlawful, making the
    search incident to that arrest a violation of s. 8 of the
Charter
.
    The appellant argued the seized cocaine should be excluded under s. 24(2) of
    the
Charter
. Without the cocaine, the Crown
    had no case.

[3]

The trial judge rejected this argument, convicted the appellant
    and sentenced him to 9 months in jail.

[4]

The appellant appeals conviction and sentence. At the conclusion
    of oral argument, we dismissed the conviction appeal with reasons to follow. We
    reserved judgment on the sentence appeal, pending further information being
    filed with the court. That information has now been received.

[5]

These are the courts reasons for dismissing the conviction
    appeal, granting leave to appeal sentence and allowing the sentence appeal.

The Conviction Appeal

[6]

Counsel for the appellant advanced three grounds of appeal on the
    conviction appeal:

·

The trial judge erred in finding the arrest was
    lawful under s. 495 of the
Criminal Code
.

·

The trial judges extensive questioning of the
    Crowns main witness during the cross-examination of that witness resulted in
    an unfair trial; and

·

The trial judge erred in allowing a police
    officer to give certain expert evidence.

[7]

The appellant abandoned the third ground of appeal.

[8]

We did not call on the Crown on the second ground of appeal. We
    are satisfied the trial judges intervention caused no unfairness. The police
    officer who ordered the arrest of the appellant testified in-chief about
    various observations that had been made during the investigation. Specifically,
    he was asked about brief encounters between individuals and persons under
    surveillance, some of which involved the appellant. The officer testified he
    believed those brief encounters could be drug transactions, although he did not
    see any drugs exchanged, except on one occasion, which involved a sale to a
    police agent.

[9]

The officers evidence about his belief based on these brief
    encounters did not materially change during his cross-examination, the judges
    questioning, and the cross-examination after the judges questioning. In each
    instance, the officer testified he believed the encounters could be drug deals.
    The officer was asked much the same question several times and, while he did
    not frame his answer in exactly the same language each time, his evidence,
    taken as a whole, did not change. He believed the transactions could be drug
    related.

[10]

The trial judges questions had no impact on the substance of the
    witnesss testimony, or on the ability of the defendant to properly challenge
    the Crowns case. It may have been preferable for the trial judge to have
    allowed counsel to more fully develop his cross-examination before he engaged
    in a somewhat lengthy exchange with the witness. However, the interruption did
    not result in any unfairness.

The Lawfulness of the Arrest

[11]

This prosecution turned on the lawfulness of the arrest. If the
    arrest was unlawful, the search was unlawful and, depending on the outcome of
    the s. 24(2)
Charter

application,
    the seized cocaine may have been excluded from evidence.

[12]

The trial judge was satisfied the arrest was lawful. His reasons
    are not as fulsome as one would hope.
[1]
In our view, however, they do satisfactorily lay out the trial judges
    reasoning process.

[13]

The trial judge was alive to the terms of s. 495 of the
Criminal
    Code
and the controlling case law. He appreciated that a lawful arrest
    required both an honest belief by the arresting officer that there were
    reasonable grounds to arrest, and the existence, on an objective assessment, of
    reasonable grounds to support that belief. The appellant argued that neither
    existed in this case.

[14]

In his review of the evidence, the trial judge clearly
    appreciated the appellant had not been implicated in any of the surveillance on
    the days prior to his arrest. He also instructed himself that he could not,
    when assessing whether there were reasonable grounds to arrest, take into
    account anything that occurred after the arrest.

[15]

Ultimately, after a brief but accurate summary of the grounds
    upon which the officer said he relied in forming his belief, the trial judge
    decided that, on the totality of the evidence, the arrest was 
bona fides
and lawful. Given the trial judges earlier description of the requirements of
    a lawful arrest, we take his finding that this arrest was 
bona fides
and lawful as a finding the officer believed he had reasonable grounds to
    arrest, and on an objective assessment the evidence supported that belief.

[16]

In his submissions, counsel for the appellant focused on the
    officers evidence in cross-examination in which he adopted an answer he had
    given at the preliminary inquiry to the effect he believed he had reasonable
    grounds to suspect that the appellant and the other two individuals in the car
    each had cocaine in their possession at the time of the arrest. Counsel correctly
    submits that mere suspicion, no matter how reasonable, cannot provide the
    necessary subjective grounds for an arrest under s. 495 of the
Criminal
    Code
.

[17]

At trial, both counsel addressed the officers evidence given at
    the preliminary inquiry and adopted at trial. The trial judge referred to this
    evidence in his reasons, albeit somewhat obliquely. It would appear he did not
    take the officers answer at the preliminary inquiry as addressing the question
    of his grounds for arresting the appellant. The extract from the preliminary
    inquiry could be read as an indication the officer suspected each occupant of
    the car to be in actual possession of cocaine at the time of the arrest, a
    different question than whether there were reasonable grounds to arrest each of
    the three occupants for possession for the purpose of trafficking.

[18]

It would have been better had the trial judge addressed this
    potentially troubling piece of evidence more directly. Read as a whole,
    however, we are satisfied the reasons amply demonstrate how the trial judge
    reached the conclusion he did. The arguments advanced on appeal also
    demonstrate that the reasons in no way inhibited the appellants right to
    challenge the trial judges findings on appeal.

[19]

It is fair to say the trial judge did not spend a lot of time in
    his reasons on the subjective component of the requirements in respect of a
    lawful arrest. That component moved front and centre on the appeal. It is
    understandable, when, as in a case like this, the objective grounds for an
    arrest are so formidable, that a trial judge will not focus in his reasons on
    whether an experienced police officer, in the face of strong objective grounds
    for making an arrest, honestly believed he had those grounds.

The Sentence Appeal

[20]

The trial judge imposed a jail term of 9 months, although he was
    clearly impressed with the appellants background, his candor when answering
    questions posed by the trial judge, and the support he had in the community. The
    appellant had no criminal record. His role as a runner in the drug operation
    was at, or very near, the bottom of the hierarchy of such operations.

[21]

On the law, as it stood at the time of sentencing, a conditional
    sentence was not an available option. Given the amount of cocaine involved, and
    despite the mitigating factors, the sentence imposed by the trial judge was not
    unfit.

[22]

Subsequent to the sentencing, this court struck down the
    provision in the
Criminal Code
that had removed a conditional sentence
    as a sentencing option in a case like the appellants:
R. v. Sharma
,
    2020 ONCA 478.

[23]

Given the change in the sentencing landscape, the court allowed
    counsel to file additional material on sentencing. Having reviewed that
    material and bearing in mind the trial judges reasons for sentence, we are
    satisfied this is an appropriate case in which to impose a conditional
    sentence. We come to that conclusion for several reasons:

·

the trial judges reasons strongly suggest he
    would have imposed a conditional sentence had it been an available option.
    Among other things, the trial judge indicated he was convinced the appellant
    would never re-offend;

·

for various reasons, a great deal of time has
    passed since the appellant was sentenced. He has been on bail and has continued
    to do well. There have been no new offences, the community support remains
    strong, and there are very good reasons to believe the appellant can be a
    valuable member of the community; and

·

none of the principles of sentencing would be
    served by reincarcerating the appellant for some brief time at this stage.

[24]

We would allow the appeal and vary the sentence to a conditional
    sentence. The parties were asked to provide terms of a conditional sentence,
    should the court decide to impose one. They have done so and, with two minor
    exceptions, have agreed upon those terms. Counsel were unable to agree on the
    length of the house arrest portion of the conditional sentence (para. 9). In
    our view, house arrest should be in effect for the first six months of the conditional
    sentence. It flows from that determination that the curfew described in para.
    11 of the proposed conditional sentence should be for the remaining three
    months of the conditional sentence. A copy of the draft conditional sentencing
    order, agreed upon by the parties, is attached to these reasons. An order in
    the terms of the draft order should issue with the necessary additions to para.
    9 and para. 11.

[25]

Given the disposition of the appeal, there is no need for the
    appellant to surrender into custody before the release of these reasons.

Conclusion

[26]

For the reasons set out above, the conviction appeal is
    dismissed. Leave to appeal sentence is granted, the sentence appeal is allowed,
    and the sentence is varied to a conditional sentence on the terms set out in
    the attached draft order.

Fairburn
    A.C.J.O.
Doherty J.A.

L.
    Sossin J.A.





[1]
On at least two occasions during his reasons, the trial judge
    indicated he would provide more detailed written reasons, however, no
    additional reasons were provided.


