In the recent Court of Appeal decision of R v. Francis, the Court allowed the appellant’s appeal in part with respect to sentencing. The Court upheld a finding that there were reasonable and probable grounds present in the circumstances which supported the constitutional validity of a strip search and highlighted the importance of the principle of restraint which the courts must consider in sentencing young offenders who have not previously been sentenced to incarceration.
Vehicle Stop for an Oustanding Warrant Results in a Strip Search
In R v. Francis, the appellant was arrested by a police officer at a vehicle stop under an outstanding warrant. The appellant was suspected of being involved in a prior shooting and was charged with weapons-related offences and attempted murder, although the charges were later withdrawn.
At the vehicle stop, the police officer conducted a pat-down search of the appellant.
A second officer arrived at the scene to impound the vehicle. The second officer conducted an inventory search on his own initiative. Upon searching the car, the officer located two bags of white powder and a satchel containing a handgun situated behind the driver’s seat.
The appellant was taken to the police station, and a strip search was conducted based on the nature of both the charges and items found inside the vehicle. The search was conducted in the presence of two male officers with the doors closed, and the appellant was never completely unclothed. The search resulted in officers finding more drugs on his person. Altogether, the police officers seized heroin, fentanyl, powdered cocaine, phenacetin, ammunition, and a loaded gun.
Possession of Firearm and Drugs Results in Seven Year Imprisonment Term
At trial, Justice O’Marra of the Superior Court of Justice convicted the appellant of one count of possession of a loaded firearm under section 95(1) of the Criminal Code and two counts of possession of drugs for the purpose of trafficking under section 5(2) of the Controlled Drugs and Substances Act.
Reasonable and Probable Grounds Justifying Strip Search
The appellant appealed both his conviction, based on the officers’ actions before and after his arrest, and his sentence on the basis that it was unfit and excessive. The appellant submitted that the vehicle search was not valid, the strip search was not valid or lawful, and the trial judge erred in not addressing his section 10(b) Charter application.
The Court referred to R v. Collins, which states that a strip search is lawful if it is authorized by law, the law is reasonable, and the search is performed in a reasonable manner. While the appellant claimed that the strip search was unnecessary after a pat-down search at the vehicle stop, the respondent contended that the search was a valid search incident to arrest and for custodial safety.
The Court agreed that the strip search was lawful, mainly due to the discovery of the gun in the appellant’s vehicle and the fact that during the strip search, the appellant stated that he had “more stuff”.
No Breach of Charter Rights
The Court of Appeal found that the vehicle search was lawful as it related to the appellant’s arrest and did not breach his Charter Rights. Upon balancing the factors in R v. Grant, the Court determined that “admission of the evidence would not bring the administration of justice into disrepute.” Therefore, the appellant’s conviction appeal was dismissed.
Principle of Restraint Not Considered
The Court found merit in the appellant’s claim that the trial judge failed to consider and apply the principle of restraint when determining a sentence. Justice Tulloch stated that the important role of the principle of restraint has been emphasized by the Court of Appeal regarding the impact when sentencing a first-time, youthful offender.
His Honour stated that in most cases, the denunciation and deterrence objectives must be considered but should not be the sole determinants of a first penitentiary sentence. Referring to the case of R v. Borde, the Court affirmed that the shortest possible sentence ought to be imposed on young, first-time offenders.
The Court found that while the trial judge noticed that the appellant was a “young man with no criminal record,” these factors did not play a role in the analysis regarding sentencing. Therefore, the Court was required to perform its own analysis to determine an appropriate sentence by applying the principles to the facts without defence to the existing sentence.
Court Vacates Sentence Imposed by the Trial Judge
While the Court recognized that firearm possession and drug trafficking offences are serious crimes, Justice Tulloch also highlighted various mitigating factors, including:
- The social context of the appellant, who was raised in a violent neighbourhood and lost friends to street violence;
- The positive rehabilitative prospects of the appellant, including a supportive network of friends, family and community workers; and
- The fact that the appellant is young with no prior criminal record or incarceration sentences.
Upon completing the analysis, Justice Tulloch granted leave to appeal the sentence and allowed the sentence appeal. In place of the trial judge’s imposed sentence, his Honour substituted a five years custodial sentence. Considering the agreed-upon credit for pre-sentence custody totalling four years and one month, the sentence was 11 months.
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The experienced criminal defence lawyers at Hicks Adams utilize their extensive experience to defend clients against various criminal law matters, including firearms and drug offences. Our team ensures that your Charter and constitutional rights are protected throughout the process. Located in downtown Toronto, our team of lawyers proudly represent clients throughout Ontario at all levels of Court. Contact us online or call us at 975-1700 (or toll-free at 1-877-975-1700) for a free consultation.
