R. v. Thompson (R.D.) et al., 2015 SKCA 59
Judge | Jackson, Herauf and Ryan-Froslie, JJ.A. |
Court | Court of Appeal (Saskatchewan) |
Case Date | March 20, 2015 |
Jurisdiction | Saskatchewan |
Citations | 2015 SKCA 59;(2015), 460 Sask.R. 98 (CA) |
R. v. Thompson (R.D.) (2015), 460 Sask.R. 98 (CA);
639 W.A.C. 98
MLB headnote and full text
Temp. Cite: [2015] Sask.R. TBEd. JN.021
Mohamed Abdi Aden (appellant) v. Her Majesty the Queen (respondent)
(CACR2422)
Her Majesty the Queen (appellant) v. Raldo Dwayne Thompson and Mustafa Yousof Omar (respondent)
(CACR2398; 2015 SKCA 59)
Indexed As: R. v. Thompson (R.D.) et al.
Saskatchewan Court of Appeal
Jackson, Herauf and Ryan-Froslie, JJ.A.
June 5, 2015.
Summary:
Aden, Thompson, Omar and Durrant were jointly charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. Thompson was also charged with trafficking in cocaine and a second count of possession of the proceeds of crime. Omar and Aden claimed that their arrests and subsequent searches incident to arrest were unlawful, in violation of their ss. 8 and 9 Charter rights. Omar further submitted that his s. 10(b) Charter right to counsel was violated. Omar and Aden applied for a remedy pursuant to s. 24(2) of the Charter.
The Saskatchewan Provincial Court, in a decision reported at (2013), 432 Sask.R. 303, dismissed the application. There were no Charter violations.
The Saskatchewan Provincial Court, in a decision reported at [2014] Sask.R. Uned. 12, found Thompson and Omar not guilty of both charges. Durrant was found guilty of possession of cocaine for the purpose of trafficking and not guilty of possession of the proceeds of crime. Aden was found guilty of both charges. Subsequently, Aden was sentenced to 585 days' imprisonment after credit for pre-sentence custody. The Crown appealed from the acquittals of Thompson and Omar. Aden appealed from his conviction and sentence.
The Saskatchewan Court of Appeal dismissed the appeals.
Civil Rights - Topic 1262
Security of the person - Lawful arrest - What constitutes - [See Criminal Law - Topic 3212 ].
Civil Rights - Topic 1508
Property - General principles - Expectation of privacy - Aden was found guilty of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - On appeal, he asserted that the trial judge had erred in finding that the search of Aden's jacket by police was reasonable and a lawful incident to arrest - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge found that Aden had abandoned his jacket in an attempt to escape and that the search was not invasive, but had merely involved checking the pockets - There was no basis on which to interfere with the trial judge's conclusion that the jacket had been abandoned - Any subjective expectation of privacy in the jacket's pockets was not objectively reasonable - Even if the jacket had not been abandoned, there was no basis on which to argue that the search was not incidental to an arrest - While in the process of being arrested, Aden had slipped free and had run into a busy thoroughfare - Officer safety was engaged by his actions - It was reasonably probable that evidence would be found in the jacket - The search was reasonable - See paragraphs 67 to 76.
Civil Rights - Topic 1524
Property - Personal property - Search and seizure by police (incl. computers or cellphones) - [See Civil Rights - Topic 1508 ].
Civil Rights - Topic 1646
Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1508 ].
Civil Rights - Topic 8584
Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Criminal Law - Topic 4853 ].
Criminal Law - Topic 3147
Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1508 ].
Criminal Law - Topic 3212
Compelling appearance, detention and release - Arrest - Arrest without warrant - Aden was found guilty of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - On appeal, he asserted that the trial judge had erred in finding that the police had reasonable and probable grounds to arrest him - The Saskatchewan Court of Appeal dismissed the appeal - Aden's arguments narrowed down to a consideration of whether the trial judge had erred by failing to consider whether Constable Holovach had a subjective belief that Aden was trafficking in drugs - The trial judge had not explicitly indicated what Holovach believed at the moment of arrest, but it was patently clear that the trial judge had found that Holovach believed she was arresting Aden for drug trafficking - It could not have been reasonably questioned that Holovach did not have the required belief - The fact that the trial judge made no findings in this regard could not successfully undermine the ultimate conclusion that Holovach had reasonable and probable grounds to arrest Aden - See paragraphs 57 to 66.
Criminal Law - Topic 4354
Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Aden, Thompson, Omar and Durrant were jointly charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Aden was found guilty of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - On appeal, he asserted that the trial judge had improperly admitted evidence of other parties' actions as evidence against Aden - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge did not convict Aden on the basis of evidence gleaned from his participation in a joint enterprise, but on the basis of evidence directly implicating him - The trial judge's reference to Thompson having Aden's license was not an indication that he used the evidence in relation to Thompson to convict Aden - It was part of the evidence the trial judge had considered, but nothing more than that - See paragraphs 88 and 89.
Criminal Law - Topic 4358
Procedure - Charge or directions - Jury or judge alone - Directions regarding circumstantial evidence - Aden, Thompson, Omar and Durrant were jointly charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Aden was found guilty of both charges - On appeal, he asserted that the trial judge had improperly concluded that no rational explanation other than Aden's guilt could be inferred from the circumstantial evidence - The Saskatchewan Court of Appeal dismissed the appeal - Aden's arguments overlooked the differing roles of trial and appeal courts - An appeal court was not entitled to draw its own inferences except in narrow circumstances that were not present here - The issue was whether the inference drawn was reasonable or whether any finding of fact was the product of palpable and overriding error - Here, the trial judge's conclusions were entirely reasonable - It was not proper for the appeal court to consider each piece of evidence and reassign its appropriate weight - An appeal court had to accord deference to the trial judge's assessment of the evidence without considering the evidence in a piecemeal fashion or discarding pieces of evidence to arrive at its own verdict - Applying these principles here, there was no rational alternative explanation for the evidence pertaining to Aden - See paragraphs 92 to 97.
Criminal Law - Topic 4802
Appeals - Indictable offences - General principles - Burden on Crown appellant respecting errors by trial judge - Aden, Thompson, Omar and Durrant were jointly charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Thompson was also charged with trafficking in cocaine and a second count of possession of the proceeds of crime - The trial judge acquitted Thompson and Omar - The Crown appealed, asserting, inter alia, that the trial judge had erred in failing to consider whether Thompson and Omar were parties to the offences, rather than principals, apart from any consideration of a possible joint enterprise - The Saskatchewan Court of Appeal dismissed the appeal - The Crown's theory had been that this was a joint enterprise - Crown counsel made it clear that the accused were all principals - Given that position, it was neither appropriate nor possible for the court to retry the case as though Thompson and Omar had aided and abetted others - See paragraphs 108 and 109.
Criminal Law - Topic 4802
Appeals - Indictable offences - General principles - Burden on Crown appellant respecting errors by trial judge - Aden, Thompson, Omar and Durrant were jointly charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Thompson was also charged with trafficking in cocaine and a second count of possession of the proceeds of crime - The trial judge acquitted Thompson and Omar - The Crown appealed, asserting, inter alia, that the trial judge had erred in his application of the Carter test for determining whether an accused had participated in a joint enterprise - The Saskatchewan Court of Appeal dismissed the appeal - The critical question was whether Thompson and Omar were members of a joint enterprise to possess a drug or crime proceeds at remote locations or whether there was sufficient circumstantial evidence to prove those crimes - The evidence that Thompson and Omar were members of the joint enterprise was their presence together outside of Denny's, in a variety of cars and entering the motel, coupled with the expert witness's evidence about how drug traffickers operated, including who would be given a key to a room containing a significant stash of drugs - It was for the trial judge to determine whether this evidence amounted to proof on a balance of probabilities that they were members of a joint enterprise - This was a finding of fact not subject to the Crown's ability to appeal - If the trial judge had made the error the Crown suggested, a new trial would not have been ordered - The evidence of Thompson's and Omar's participation in a joint enterprise was not so strong as to overcome the burden on the Crown - See paragraphs 110 to 133.
Criminal Law - Topic 4802
Appeals - Indictable offences - General principles - Burden on Crown appellant respecting errors by trial judge - Aden, Thompson, Omar and Durrant were jointly charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Thompson was also charged with trafficking in cocaine and a second count of possession of the proceeds of crime - The trial judge acquitted Thompson and Omar - The Crown appealed, asserting, inter alia, that the trial judge had erred by not considering all of the evidence and by considering it in a piecemeal fashion - The Saskatchewan Court of Appeal dismissed the appeal, stating, "In my view, the Crown's arguments on this point run counter to the Supreme Court of Canada's instruction in Barros and invite the Court to allow the appeal on the footing that the acquittals are unreasonable. As I have indicated, the trial judge instructed himself on the law. He was fully aware of the whole of the evidence and his reasons do not disclose an error of law. Given the Crown's limited right of appeal from an acquittal, the Crown's argument on these points must fail." - See paragraphs 134 to 146.
Criminal Law - Topic 4806
Appeals - Indictable offences - General principles - Duty of appellate court - [See Criminal Law - Topic 4358 and all Criminal Law - Topic 4802 ].
Criminal Law - Topic 4853
Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - Aden was found guilty of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - On appeal, he raised an argument regarding his right to be informed of the reasons for his arrest under s. 10(a) of the Charter - The Saskatchewan Court of Appeal dismissed the appeal, stating, "At trial, the Crown did not approach examination and re-examination with s. 10(a) of the Charter in mind and no arguments were made to the trial judge on the point. ... This issue cannot be considered by the Court." - See paragraphs 77 and 78.
Criminal Law - Topic 4865
Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - Aden was found guilty of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - On appeal, he asserted that the verdict was unreasonable - The Saskatchewan Court of Appeal dismissed the appeal - There was ample evidence linking Aden to both premises where drugs were held for trafficking and proceeds of crime were stored - In addition to the individual pieces of physical evidence and surveillance, the trial judge was entitled to rely upon the evidence of the expert witness who offered his opinion on the habits of drug traffickers - All of this led to a conclusion that these verdicts were sustainable on appeal - Further, in holding that the verdicts survived the reasonableness analysis, the court took into account the fact that Aden did not testify nor was any rational alternative, in relation to all of the evidence, tendered - The trial judge had not erred by convicting on the basis of the circumstantial evidence presented to him and the verdict was not unreasonable - See paragraphs 98 to 103.
Criminal Law - Topic 4951
Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - [See second Criminal Law - Topic 4802 ].
Criminal Law - Topic 4975
Appeals - Indictable offences - Powers of the Court of Appeal - Appeal from an acquittal - [See all Criminal Law - Topic 4802 ].
Criminal Law - Topic 5320.2
Evidence and witnesses - Inferences - From circumstantial evidence - [See Criminal Law - Topic 4358 ].
Criminal Law - Topic 5842
Sentencing - Considerations on imposing sentence - Previous criminal offences (incl. not criminally responsible, repeat, dangerous or long-term offenders) - Aden, Thompson, Omar and Durrant were jointly charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Aden was found guilty of both charges - He was sentenced to 585 days' imprisonment after 615 days' credit for pre-sentence custody - On appeal from his sentence, Aden asserted, inter alia, that the sentence was demonstrably unfit - The Saskatchewan Court of Appeal dismissed the appeal - At age 27, Aden had a significant and lengthy record - The trial judge had found him to be a controlling figure in the enterprise - While Aden had a difficult childhood, it was clear that, at some point, denunciation, deterrence and protection of the public had to come to the forefront, given the number of serious offences on Aden's record - There was no basis for interfering with the sentence - See paragraphs 155 to 161.
Criminal Law - Topic 5848.2
Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - Aden was convicted of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - He was sentenced to 585 days' imprisonment after 615 days' credit (1:1 basis) for pre-sentence custody - On appeal from his sentence, Aden asserted, inter alia, that the trial judge had erred by not granting Aden enhanced remand credit under s. 719(3.1) of the Criminal Code - The Saskatchewan Court of Appeal dismissed the appeal - When he was arrested on these charges, Aden was granted bail on the condition that he leave Saskatchewan and return to his home in Ontario - He failed to do so and was arrested several months later on further charges - The show cause hearing judge found that Aden should not be released - As Aden was detained for the purposes of s. 524(8) of the Code, the exception created by s. 719(3.1), permitting the possibility of enhanced credit, did not apply - See paragraphs 180 to 196.
Criminal Law - Topic 5849.6
Sentencing - Considerations on imposing sentence - Prohibited or improper considerations - Aden, Thompson, Omar and Durrant were jointly charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Aden was found guilty of both charges - He was sentenced to 585 days' imprisonment after 615 days' credit for pre-sentence custody - On appeal from his sentence, Aden asserted, inter alia, that the trial judge had erred by treating Aden's personal circumstances and mitigating factors as aggravating factors - The Saskatchewan Court of Appeal dismissed the appeal - Clearly, the trial judge was concerned about what he considered to be a betrayal of good values, but the sentence imposed reflected only proper considerations - Considering Aden's criminal record and his role as a principal player, it was not evident that the trial judge had improperly attached a "premium" to the sentence - See paragraphs 148 to 154.
Criminal Law - Topic 6204
Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5842 and Criminal Law - Topic 5849.6 ].
Police - Topic 3063
Powers - Arrest - Without warrant - Reasonable and probable grounds - [See Criminal Law - Topic 3212 ].
Police - Topic 3185
Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1508 ].
Cases Noticed:
R. v. Patrick (R.S.), [2009] 1 S.C.R. 579; 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 2009 SCC 17, refd to. [para. 70].
R. v. Reddy (C.J.) (2010), 282 B.C.A.C. 51; 476 W.A.C. 51; 2010 BCCA 11, refd to. [para. 71].
R. v. Fearon (K.), [2014] 3 S.C.R. 621; 465 N.R. 205; 326 O.A.C. 1; 2014 SCC 77, refd to. [para. 72].
R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 83].
R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 92].
R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 99].
R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 102].
R. v. M.R. (2011), 277 O.A.C. 99; 2011 ONCA 190, refd to. [para. 109].
R. v. Arason (R.H.) and Derosier (G.L.) (1992), 21 B.C.A.C. 20; 37 W.A.C. 20 (C.A.), refd to. [para. 109].
R. v. Satkunananthan (S.) et al. (2001), 143 O.A.C. 1; 152 C.C.C.(3d) 321 (C.A.), refd to. [para. 110].
R. v. N.Y. (2012), 298 O.A.C. 297; 294 C.C.C.(3d) 313; 2012 ONCA 745, refd to. [para. 110].
R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 130].
R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 132].
R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 134].
R. v. Barros (R.), [2011] 3 S.C.R. 368; 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1; 2011 SCC 51, refd to. [para. 134].
R. v. Alves (L.M.) (2014), 442 Sask.R. 69; 616 W.A.C. 69; 2014 SKCA 82, refd to. [para. 134].
R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 155].
R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 157].
R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 157].
R. v. Summers (S.), [2014] 1 S.C.R. 575; 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 179].
R. v. Carvery (L.A.), [2014] 1 S.C.R. 605; 456 N.R. 35; 343 N.S.R.(2d) 393; 1084 A.P.R. 393; 2014 SCC 27, refd to. [para. 179].
R. v. Sawchuk (R.) (2014), 442 Sask.R. 164; 616 W.A.C. 164; 315 C.C.C.(3d) 153; 2014 SKCA 88, refd to. [para. 179].
R. v. Mayers (A.W.) (2011), 310 B.C.A.C. 188; 526 W.A.C. 188; 2011 BCCA 365, refd to. [para. 194].
Authors and Works Noticed:
Trotter, Gary T., The Law of Bail in Canada (3rd. Ed. 2010) (2015 Looseleaf Release 1), p. 11-3 [para. 184].
Counsel:
Ammy Murray, for the appellant (Mohamed Abdi Aden);
Wade E. McBride and Alexandra Pace, for the respondent/appellant;
Darren Sederoff, for the respondent (Raldo Dwayne Thompson);
Janani Shanmuganathan, for the respondent (Mustafa Yousof Omar).
These appeals were heard on March 20, 2015, by Jackson, Herauf and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. On June 5, 2015, Jackson, J.A., delivered the following reasons for judgment for the court.
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.... 447 Adams , R v , [1995] 4 SCR 707, 103 CCC (3d) 262 ............................................ 94 Aden , R v , 2015 SKCA 59 ................................................................ 75 AER , R v , (2001), 156 CCC (3d) 335, 43 CR (5th) 340 (Ont CA) ............................ 18......
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.... 498 Adams , R v , [1995] 4 SCR 707, 103 CCC (3d) 262 ................................. 100 Aden , R v , 2015 SKCA 59 ....................................................... 79 Adepoju , R v , 2014 ABCA 100 ................................................. . 449 AE , R v , 2021 ABCA 172 , ......
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...to arrest,” Lamer J held, 38 See e.g. R v Plummer , 2011 ONCA 350 ; R v Ellis , 2016 ONCA 598 ; R v Cuf , 2018 ONCA 276 ; R v Aden , 2015 SKCA 59. However, see also the diferent outcomes in R v Dunkley , 2016 ONCA 597 (where the vehicle was legally parked in a public parking lot); R v Reddy......
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...259, 277, 288 Adeleke , R v , 2017 ONCA 665 ........................................................ 190, 234 Aden , R v , 2015 SKCA 59 ................................................................. 94 AF , R v , 2020 ONSC 2880 ..................................................................
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R. v. Luu (J.), (2015) 472 Sask.R. 56 (CA)
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Table of Cases
.... 447 Adams , R v , [1995] 4 SCR 707, 103 CCC (3d) 262 ............................................ 94 Aden , R v , 2015 SKCA 59 ................................................................ 75 AER , R v , (2001), 156 CCC (3d) 335, 43 CR (5th) 340 (Ont CA) ............................ 18......
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...259, 277, 288 Adeleke , R v , 2017 ONCA 665 ........................................................ 190, 234 Aden , R v , 2015 SKCA 59 ................................................................. 94 AF , R v , 2020 ONSC 2880 ..................................................................
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.... 498 Adams , R v , [1995] 4 SCR 707, 103 CCC (3d) 262 ................................. 100 Aden , R v , 2015 SKCA 59 ....................................................... 79 Adepoju , R v , 2014 ABCA 100 ................................................. . 449 AE , R v , 2021 ABCA 172 , ......