Criminal Law – Appeal – Controlled Drugs and Substances – Trafficking – Acquittal
Criminal Law – Appeal – Controlled Drugs and Substances – Trafficking – Conviction
Criminal Law – Appeal – Controlled Drugs and Substances – Trafficking – Sentencing
Criminal Law – Appeal – Proceeds of Crime – Acquittal
Criminal Law – Appeal – Proceeds of Crime – Conviction
Criminal Law – Appeal – Proceeds of Crime – Sentencing
Criminal Law – Arrest – Reasonable and Probable Grounds
Criminal Law – Defences – Charter of Rights, Section 8, Section 9, Section 10(a)
Criminal Law – Evidence – Circumstantial Evidence
Criminal Law – Joint Enterprise – Criminal Code, Section 21
Criminal Law – Sentencing – Remand Time
Four individuals were charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, and with possession of proceeds of crime exceeding $5,000, contrary to ss. 354(1) and 355(a) of the Criminal Code. One appellant, Mr. A., was convicted of all counts and he appealed his conviction and sentence. Two of the accused, Mr. T. and Mr. O., were acquitted and the Crown appealed. All accused were in a motel room that was the subject of police surveillance. Mr. T. was searched as an incident to arrest and 0.5 grams of crack cocaine was located in his wallet and $186.99 and two cell phones were in the vehicle he was driving. A search of the vehicle driven by Mr. O. revealed rental agreements for another vehicle and motel room as well as $80 cash. The police located two cell phones, a folding knife, a gold key, $570 cash and two plastic hotel key cards on Mr. O.’s person. A key card for the motel room was located in Mr. A.’s jacket. The police seized 226.1 grams of cocaine and drug paraphernalia from the motel room. The police also searched a suite rented to Mr. A. and located over $15,000 in cash, drug trafficking paraphernalia, a rental receipt for a car, Crown disclosure in relation to another matter of Mr. A.’s, etc. Mr. A. had seven grounds of appeal, he argued that: 1) his arrest was not lawful; 2) the search of his jacket was unlawful even if the arrest was lawful because he maintained a privacy interest in it even though he threw it on the ground while evading police. He also argued that because the jacket was not abandoned the police search of its contents was not an appropriate search incident to arrest; 3) his s. 10(a) Charter rights were breached because one of the constable’s unexpressed grounds for his arrest; 4) the trial judge improperly admitted evidence of other parties’ actions as evidence against him; 5) the trial judge failed to consider all of the evidence before him; 6) the trial judge improperly concluded that no other rational explanation could be inferred from the circumstantial evidence; and 7) the trial judge rendered an unreasonable verdict. Mr. A. appealed his sentence on the following grounds: 1) the trial judge treated Mr. A.’s personal circumstances and mitigating factors as aggravating factors. Mr. A. submitted that the trial judge was implying that he was trying to create the mayhem that his family had left behind in Somalia; 2) the sentence was demonstrably unfit in all of the circumstances; and 3) the trial judge erred by not granting Mr. A. enhanced remand credit pursuant to s. 719(3.1) of the Criminal Code. The Crown argued that the trial judge erred in acquitting Mr. T. and Mr. O. for three reasons: 1) applying the second arm of the Carter test for a joint enterprise incorrectly; 2) assessing circumstantial evidence incorrectly; and 3) failing to consider whether Mr. T. and Mr. O. were parties to the offence rather than principals.
HELD: All of the appeals were dismissed. Mr. A.’s grounds of appeal were dismissed as follows: 1) the appeal court concluded that because of the questions asked of the officer her subjective belief could not be questioned; 2) the Court of Appeal could find no reason to interfere with the trial judge’s conclusion that Mr. A. abandoned his jacket thereby also abandoning his privacy interest in the jacket. Also, the search of the jacket was a reasonable incident to a lawful arrest; 3) Mr. A.’s argument that his s. 10(a) Charter rights were infringed could not be considered by the appeal court because they were not argued or addressed during the trial; 4) the trial judge convicted Mr. A. on the basis of evidence directly implicating him, not evidence of his involvement in the joint enterprise; 5) the only evidence the trial judge did not seem to consider were papers relating to Mr. A.’s previous impaired driving charge which were of limited value; 6) the Court of Appeal held that it was unable to perceive a rational alternative explanation for the evidence other than that Mr. A. had the requisite access, knowledge and control of the drugs in the motel room and the proceeds of crime in the suite; and 7) a review of the evidence and expert opinions led the appeal court to conclude that there was ample evidence linking Mr. A. to the motel room and the suite. Mr. A.’s grounds for his sentence appeal were dismissed as follows: 1) Mr. A.’s sentence was more than others convicted but he also had a somewhat lengthy criminal record where the others did not. The appeal court held that Mr. A. did not receive an increase to his sentence based on his personal circumstances; 2) the trial judge found that Mr. A. was one of the controlling figures and therefore his sentence was not clearly unreasonable; and 3) the time period in question related to 513 days during which Mr. A. was in custody on new charges. The appeal court found that the show cause hearing that took place was one required by s. 524(8) and therefore the exception created by s. 719(3.1), permitting the possibility of enhanced remand credit, did not apply. The Crown’s grounds of appeal in relation to Mr. T. and Mr. O. were dismissed as follows: 1) the appeal court found that the trial judge correctly stated the elements of the Carter test and then correctly applied them to each accused; 2) the appeal court found that it would be an error of law to conclude that the trial judge did not consider the whole of the evidence; and 3) the Crown mentioned that Mr. T. and Mr. O. were part of a joint enterprise pursuant to s. 21 of the Criminal Code at trial but then argued that all of the accused were principals.