



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Byfield, 2020 ONCA 515

DATE: 20200818

DOCKET: C67964

Roberts, Miller and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Byfield

Appellant

Ronald Byfield, acting in person

David Parry, duty counsel

Ghazala Zaman, for the respondent

Heard: August 11, 2020 by videoconference

On appeal from the conviction
    entered on June 10, 2019 and the sentence imposed on July 17, 2019 by Justice
    Howard Liebovich of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was found guilty of a single count of possession of a
    narcotic (in this case, cocaine) for the purpose of trafficking, contrary to s.
    5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19.  He
    was sentenced to 24 months imprisonment, less pre-sentence custody, and other
    ancillary orders. Although he originally appealed both his conviction and
    sentence, at the hearing of the appeal, he abandoned his appeal against
    sentence.

[2]

The police discovered 184 grams of cocaine on the appellants person
    when they searched him after stopping the car that he was in. Prior to the
    trial, the appellant applied to exclude this evidence, alleging violations of
    ss. 8 and  9 of the
Canadian Charter of Rights and Freedoms
. The
    motion judge (who was not the trial judge) dismissed the application. Following
    this decision, although not pleading guilty, the appellant did not contest his
    guilt, based on admissions made under s. 655 of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[3]

The appellant challenges his conviction on the basis that the motion
    judge erred in failing to find that the appellant was arrested in the absence
    of reasonable and probable grounds, thereby violating his rights under s. 9 of
    the
Charter
. Further, the appellant contends that his rights under s.
    8 of the
Charter
were infringed because he was subjected to an illegal
    strip search, contrary to
R. v. Golden
, 2001 SCC 83, [2001] 3 S.C.R.
    679.

[4]

The underlying facts can be stated succinctly. Acting on a confidential
    tip, officers of the Barrie Police conducted surveillance on a house, from which
    they suspected an individual known as Tristen was selling drugs. The police
    saw a vehicle registered to the appellant parked in the driveway of that
    residence. One of the officers knew of the appellant from a previous drug
    investigation. The information about Tristen, the house, and the appellant
    was somewhat dated, having been received about a year before.

[5]

While the appellants car was parked in the driveway, a man left the
    house and got into the passenger seat of the appellants vehicle. The driver
    and the passenger soon switched seats before the car was driven to a nearby
    plaza. Within minutes of this vehicle being parked at the plaza, a male got out
    of a green car and got into the appellants vehicle through the rear drivers
    side door. After about a minute, this person got out of the appellants car and
    returned to the green car.

[6]

At this point, the officers believed that a drug transaction had just
    taken place. The police stopped the appellants car as it was being driven out
    of the parking lot. The appellant was in the front passenger seat. Both the
    appellant and the driver were arrested.

[7]

The arresting officers conducted a pat down search of the appellant 
    incident to his arrest. Nothing was found. They called dispatch to request that
    a uniformed officer be sent to transport the appellant to the police station,
    which was about four minutes away. After arriving, the dispatched officer
    performed another pat down search of the appellant. This was for safety reasons
    (for the officer, the public, and the appellant), as well as to prevent the
    destruction of evidence. During the search, the officer discovered a large hard
    object in the appellants groin region, which he believed was non-anatomical.
    When the officer asked the appellant what it was, the appellant said my dick.
    The officer investigated further. He and another officer rearranged the
    appellants clothing and reached into his underwear where they located a
    package containing 184 grams of cocaine.

[8]

The motion judge found that the police had reasonable grounds to arrest
    the appellant, pursuant to their powers under s. 495(1)(a) of the
Criminal
    Code
. In reaching this conclusion, he considered the confidential tip,
    applying the test set out in
R. v. Debot
, [1989] 2 S.C.R. 1140; namely,
    whether the tip was compelling, credible, and corroborated.

[9]

After reviewing all of the evidence in considerable detail, the motion
    judge concluded that, in totality, the officers subjectively believed that they
    had grounds to arrest the occupants of the vehicle, and that their belief was
    reasonable in the circumstances. In short, the motion judge found that the
    officers had reasonable grounds to believe that the appellant had committed a
    drug trafficking offence and could be arrested without a warrant under s.
    495(1)(a) of the
Criminal Code
.

[10]

With
    the assistance of duty counsel, the appellant submits that the motion judges
    analysis of whether there were reasonable grounds was insufficient and failed
    to properly consider the
Debot
factors. In particular, the appellant
    points out that the information received from the confidential tip was stale
    and from an unproven source. He also asserts that the information relating to
    the appellant was dated.

[11]

We
    see no error in the motion judges analysis. The motion judge was aware of the
    shortcomings in the background information in the possession of the police. 
    However, this source of information did not bear the entire load of the
    reasonable grounds requirement in this case. Prior to making the vehicle stop,
    the police witnessed what they reasonably believed was a drug transaction. The motion
    judge properly applied
R. v. Storrey
, [1990] 1 S.C.R. 241 to this
    factual matrix  and found that the evidence relied upon supplied the reasonable
    grounds required  by  s. 495(1)(a). The record supports his conclusion that the
    arrest was lawful and did not violate s. 9 of the
Charter
.

[12]

The
    appellant submits that, even if the arrest was lawful, he was subjected to an
    illegal strip search, resulting in a violation of his rights under s. 8 of the
Charter
.
    We disagree.

[13]

It
    is common ground that the appellants clothes were not removed and his genitals
    were not exposed. The searching officer believed that this mere
    re-arrangement of clothing did not constitute a strip search. He was mistaken.
    In
Golden
, at para. 47, the majority of the Supreme Court of Canada made
    it clear almost 30 years ago that the re-arrangement of clothing in
    circumstances similar to this case does constitute a strip search. See also
R.
    v. Pilon
, 2018 ONCA 959, 144 O.R. (3d) 54.

[14]

Despite
    this misunderstanding of the searching officer, the motion judge concluded that
    the search was reasonable. He cited 15 reasons in support of this conclusion,
    including: the search was conducted in a manner that ensured the health and
    safety of the appellant; it involved a brief (15 seconds to a minute) visual
    inspection of the appellants underwear area; the searching officer was the
    same gender as the appellant; the appellants genitals were never exposed; no
    articles of clothing were removed; no member of the public witnessed any part
    of the details of the search because it was conducted between a police cruiser
    and a large snowbank; and there was no evidence to suggest that the search was gratuitously
    aggressive or humiliating.

[15]

The
    evidence demonstrates that the searching officers safety concerns were real
    and that it was appropriate to conduct a second pat down search. Given his
    discovery of the unknown object in the appellants groin area, further
    investigation was reasonable and necessary. We disagree with the appellants
    submission that, because the police station was only four minutes away, the
    strip search could have waited until then. The strip search was necessary to
    ensure the safety of all concerned (as described above) during this journey to
    the police station, even if that journey was to be brief.

[16]

We
    see no error in the motion judges analysis, nor in his ultimate conclusion
    that s. 8 of the
Charter
was not infringed.

[17]

Although
    the motion judge found that the appellants rights under ss. 8 and 9 of the
Charter
were not infringed, he conducted a s. 24(2) analysis, applying the factors in
R.
    v. Grant
, [2009] 2 S.C.R. 353. Given our conclusions on the ss. 8 and 9
    issues, it is unnecessary to address this aspect of the appeal.

[18]

The
    appeal against conviction is dismissed. The appeal against sentence is
    dismissed as abandoned.

L.B. Roberts J.A.

B.W. Miller J.A.

Gary Trotter J.A.


