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 appellant’s vehicle and the seizure of weapons and drugs. The trial judge found, following a Charter voir dire, that there was no breach of the appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 driver’s 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 driver’s 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 judge’s finding is susceptible to appellate review.

[9]          Finally, we agree with the trial judge’s 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 appellant’s 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 appellant’s 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