



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lenhardt, 2019 ONCA 416

DATE: 20190521


DOCKET: C63533

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua Lenhardt

Appellant

Breana Vandebeek, for the appellant

Jeanette Gevikoglu, for the respondent

Heard and released orally: May 13, 2019

On appeal from the convictions entered by Justice Beth A.
    Allen of the Superior Court of Justice, dated April 20, 2016, reported at 2016
    ONSC 2329.

REASONS FOR DECISION

[1]

The appellant was convicted of various
    drug-related offences. His factual guilt was not an issue at trial. He argued
    that the police obtained the drugs as a result of an unconstitutional arrest and
    search of a knapsack in his possession at the time of his arrest. The appellant
    also argued that the police had violated his right to counsel under s. 10(b)
    when he was not given access to a lawyer for several hours after his arrest.

[2]

The trial judge rejected these
    arguments, convicted the appellant and imposed a conditional sentence. The
    appellant renews the arguments advanced at trial. He does not appeal sentence.

Issue #1: Was the arrest
    unconstitutional?

[3]

The applicable legal principles are not in issue and were set out by the
    trial judge. The constitutionality and legality of the arrest turned largely on
    whether the trial judge erred in accepting the arresting officers evidence
    that, immediately before the arrest, he saw marihuana in the open knapsack that
    was in the appellants possession in the car.

[4]

The trial judge accepted the officers evidence. She did so after a
    review of the entirety of the relevant evidence, including that offered by the
    appellant. The trial judge drew factual inferences from the totality of the
    evidence based on what her experience and common sense told her about the
    circumstances presented in the evidence. We are not convinced she misapprehended
    the evidence, nor, in our view, were any of the inferences unreasonable. They
    were available on the evidence.

[5]

The trial judge ultimately determined that the arrest was lawful based
    on:

·

the appellants possession of the marihuana in the knapsack;

·

the appellants possession of a baggie, an article commonly
    associated with trafficking in narcotics; and

·

the time and place of the occurrence.

[6]

The facts as found by the trial judge provided ample grounds for the
    arrest.

Issue #2: Was the search constitutional?

[7]

The trial judge reviewed the evidence concerning the search, at paras.
    110-112 of the reasons. The search was incidental to a lawful arrest and was
    conducted reasonably. There was no violation of s. 8.

Issue #3: Was there a s. 10(b) violation?

[8]

There was very little evidence on this point at trial. The appellant, in
    his evidence, testified that although the police had finished processing him at
    around 2:30 a.m., he did not receive access to counsel until about 8:00 a.m. The
    appellant was not asked any questions about this time period in-chief or in
    cross-examination. The police officer who was involved in the arrest had
    testified before the appellant. He was not questioned by the Crown or the
    defence about the circumstances surrounding the appellants access to counsel
    after he was arrested.

[9]

In the course of argument, counsel for the appellant took the position that,
    while any s. 10(b) breach, standing alone, would not justify exclusion of the
    evidence, the s. 10(b) breach, considered in combination with the other alleged
    breaches, did justify exclusion.

[10]

In
    her reasons, the trial judge noted the paucity of evidence relating to the s.
    10(b) breach. She indicated that the evidence suggested a delay in providing
    access to counsel. She went on to hold that, assuming there was a delay, there
    was very little prejudice flowing from that delay. She indicated she would
    not exclude the evidence under s. 24(2). We agree with the conclusion
    ultimately arrived at by the trial judge.

[11]

The
    appellant had the onus to show that the evidence should be excluded under s.
    24(2). Assuming there was a breach of s. 10(b), it is clear that there was no
    causal relationship between that breach and the obtaining of the narcotics by
    the police. There need not be a causal relationship to establish a case for
    exclusion under s. 24(2), but the absence of any such connection is a factor
    weighing against exclusion.

[12]

Given
    the absence of virtually any evidence about the circumstances of the alleged
    breach, apart from the appellants very brief testimony, it is impossible to
    make an informed assessment about the nature of the police conduct, or the
    impact of the police conduct on the appellants exercise of his s. 10(b)
    rights. Those are two of the three factors that must be considered in the s.
    24(2) analysis. In the absence of any evidence relating to those factors, it
    cannot be said that the appellant met his onus to demonstrate that the evidence
    should be excluded under s. 24(2). We also note that the appellant did not
    argue that the s. 10(b) breach, standing alone, would justify exclusion of the
    evidence.

[13]

The
    appeal is dismissed.

Doherty J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


