Sentence in drug case did not consider restraint principle: Ontario Court of Appeal

Conviction appeal relating to illicit substances and weapons charges dismissed, sentencing appeal allowed

Sentence in drug case did not consider restraint principle: Ontario Court of Appeal

The Ontario Court of Appeal has upheld a ruling that the conditions supporting the constitutional validity of a strip search were present, including reasonable and probable grounds justifying the search.

Police officers arrested the appellant in R. v. Francis, 2022 ONCA 729 at a vehicle stop in accordance with a warrant, the charges for which were later withdrawn. They searched his car, found two bags of white powder and a satchel inside a drawstring bag behind the driver’s seat, opened the satchel, and saw what appeared to be a handgun’s butt.

The officers took the appellant to the police station and conducted a strip search. In total, they seized powdered cocaine, heroin, fentanyl, phenacetin, a loaded gun, and ammunition.

In the police station, the appellant spoke with duty counsel. He nodded when a detective asked him whether the gun was the same one used during a shooting incident related to the warrant. He later told the detective that he was staying at an apartment a few blocks from the shooting site.

The trial judge convicted the appellant of one count of possessing a loaded firearm under s. 95(1) of the Criminal Code and two counts of possessing drugs for the purposes of trafficking under s. 5(2) of the Controlled Drugs and Substances Act. He imposed a seven-year imprisonment term, less four years and one month for the agreed pre-sentence custody credit. This resulted in a 35-months sentence.

The judge dismissed the appellant’s s. 8 charter application. He did not tackle the appellant’s s. 10(b) charter application and did not conduct a s. 24(2) charter analysis. He admitted the drugs and the gun.

Charter rights not breached

The Court of Appeal dismissed the appellant’s conviction appeal upon finding that the vehicle search was a lawful search related to the appellant’s arrest and was not a breach of his s. 8 charter rights.

The trial judge found that Officer Jackson – an officer who searched the car – was acting as Officer Ma’s agent when conducting the search. The Court of Appeal considered this finding reasonable and entitled to significant deference. Because Officer Jackson was acting as an agent, what mattered was Officer Ma’s mindset, the court said.

The appellant conceded that Officer Ma had the proper subjective belief for a search incident to arrest and, therefore, it was unnecessary to decide whether there was a lawful inventory search, the court said.

Second, the Court of Appeal ruled that the strip search was justified as a lawful search incident to arrest. The appellate court found that the officers:

  • made a lawful arrest since it was pursuant to a warrant that was valid and outstanding at the time
  • had reasonable and probable grounds to conduct the strip search
  • had a lawful basis to search for weapons upon discovering a significant quantity of drugs and a gun in his car
  • conducted the search in a reasonable manner
  • asked him to remove his own clothes, a layer at a time
  • made no physical contact with him during the strip search.

Third, the Court of Appeal found it appropriate for the officers to conduct a custodial strip search since the appellant stated that he had “more stuff” during the search and he would be held in custody until his show-cause hearing. Further, it would be dangerous if he joined the prison population without a search of his person, given the gun’s discovery, the appellate court said.

Fourth, the appellate court decided that the trial judge made no errors by failing to address the appellant’s s. 10(b) charter application, considering that the drugs and gun were “obtained in a manner” relating to the s. 10(b) breach. There was a sufficient temporal and contextual connection to trigger s. 24(2). The appellate court – balancing the factors in R. v. Grant, 2009 SCC 32 – held that admitting the drugs and the gun would not bring the administration of justice into disrepute.

Next, the Court of Appeal granted leave to appeal the sentence, allowed the sentence appeal, vacated the imposed sentence, and found a five-year custodial sentence fit as a substitute in light of the restraint principle and other sentencing principles. This would lead to an 11-month sentence upon applying the agreed pre-sentence custody credit.

The appellate court determined that the trial judge did not overemphasize the principles of deterrence and denunciation. The judge considered these principles but might not have apportioned the weight to each that the appellant wanted, the appellate court said.

However, the Court of Appeal ruled that the trial judge’s reasons, when read as a whole, showed that he failed to consider the restraint principle. The appellate court found a need to deter and to denounce the appellant’s serious crimes but acknowledged the presence of mitigating factors. The trial judge found that the appellant:

  • was a young man with no criminal record
  • grew up in a violent neighbourhood with “rampant drug use and criminal behaviour”
  • had positive rehabilitative prospects
  • proactively took steps to improve himself and to prepare for his eventual release, despite experiencing depression and anxiety
  • had a strong and supportive network of family, friends, and community workers.

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