Court of Appeal for Ontario
Before: Moldaver, Simmons and Juriansz JJ.A.
Between:
Her Majesty The Queen (Appellant)
And
Huy Phuoc Nguyen (Respondent)
Counsel: Karen Papadopoulos, for the appellant Joseph Di Luca and Kevin Tilley, for the respondent
Heard and released orally: July 9, 2010 On appeal from the dismissal of drug and gun related charges before Justice A. Bryant of the Superior Court of Justice dated October 2, 2009.
ENDORSEMENT
1With respect to the trial judge, we are of the view that he committed several material errors in concluding that the gun and drugs found in the trunk and interior of the Honda motor vehicle driven by the respondent should be excluded under s. 24(2) of the Charter.
2Although the trial judge found that the police violated the respondent’s Charter rights on several occasions in various ways, as we read his reasons, the most egregious of the breaches and the one on which his s. 24(2) analysis effectively turned was the second of two s. 10(b) breaches committed by P.C. Quail and the consequences flowing from it.
3The violation in question occurred following the respondent’s lawful arrest for driving while suspended and the lawful search of his person incident thereto, as found by the trial judge, which led to the discovery of a number of ecstasy pills concealed on his person. After asking the respondent what the pills were, knowing full well that they were ecstasy pills, and receiving an inculpatory response (the first of P.C. Quail's s. 10(b) breaches), P.C. Quail informed the respondent of his s. 10(b) rights and the respondent indicated that he wished to speak to a lawyer. Rather than refraining from asking further questions before facilitating the respondent’s request, P.C. Quail asked the respondent a question about officer safety in relation to the Honda. After a brief delay, the respondent replied that there was “half a pound of weed in the trunk”.
4Contrary to P.C. Quail’s testimony that he intended to search the vehicle, including the trunk, after finding ecstasy pills on the respondent and that the respondent’s answer that there was marijuana in the trunk was not the basis upon which he decided to search the car, the trial judge found otherwise. In short, he disbelieved P.C. Quail and found as a fact, at para. 66 of his reasons that “the [respondent’s] response ... that there was marijuana in the trunk was the basis for searching the trunk because [the respondent] told [P.C. Quail] that there was a half pound of weed in the trunk”.
5That finding was crucial to the trial judge’s s. 24(2) analysis. In short, the trial judge found that but for the second breach of the respondent’s s. 10(b) rights, P.C. Quail would not have searched the trunk or indeed the interior of the car and thus he would not have found the gun and marijuana or the other drugs secreted in the vehicle. And it was this second s. 10(b) breach, which the trial judge described as flagrant and deliberate, that largely dictated the outcome of the s. 24(2) analysis.
6In making the finding that P.C. Quail would not have searched the respondent’s vehicle but for the answer he received to his question about officer safety, we are respectfully of the view that the trial judge committed several material errors.
7First, in rejecting P.C. Quail’s evidence, the trial judge failed to consider critical evidence given by the respondent bearing directly on that issue. In particular, the respondent testified that after P.C. Quail discovered the ecstasy pills on his person, he and P.C. Quail had the following dialogue:
A. Well, he tells me “Okay, I’m going to search your car now”, and I respond to him, “No you can’t. It’s not my car”. And he then responds, “Well you lied to us and we found drugs on your – in your pocket, so we are going to search your car anyways”.
8While it is true, as the trial judge observed, that P.C. Quail did not recall telling the respondent that it was his intention to search the car after finding the ecstasy pills on his person, surely it was incumbent upon the trial judge to at least consider the respondent’s testimony in this regard before rejecting P.C. Quail’s evidence as incredible.
9In rejecting P.C. Quail’s evidence, the trial judge placed considerable emphasis on the timing of the search of the trunk. At para. 66 of his reasons, after finding that the basis for the search of the trunk was the respondent’s answer to P.C. Quail that there was marijuana in the trunk, the trial judge stated:
P.C. Quail said he informed the [respondent] of the possession of the ecstasy pills between 8:50 and 8:55. The trunk was not searched until 9:10 p.m. If P.C. Quail intended to search the vehicle when he found the ecstasy pills, there is no explanation why he waited until 9:10 p.m. to search the trunk.
10With respect, P.C. McGuigan testified that after learning about the marijuana in the trunk, he was uncertain whether he and his fellow officers had the right to search the trunk without a warrant. To that end, he contacted Detective Anderson of the Drugs and Vice Unit to determine if a warrant was needed. After outlining the circumstances of the respondent’s arrest, including the finding of ecstasy pills on his person and his statement to the police that he had a large amount of marijuana in his trunk, P.C. McGuigan was told that it was the impression of the Drug Unit that the search of the trunk was legal and that he and his fellow officers could continue their search. P.C. Quail confirmed this aspect of P.C. McGuigan’s testimony.
11In our view, P.C. McGuigan’s evidence was significant in two respects. First, it was capable of explaining the delay that preceded the search of the vehicle; second, it was capable of showing that the police were taking care to ensure that they were acting in compliance with the Charter.
12The trial judge did not take this evidence into account, either in assessing P.C. Quail’s evidence that it was his intention from the outset to search the respondent’s vehicle, including the trunk, or in assessing the seriousness of the police conduct in the context of his s. 24(2) analysis. With respect, he erred in failing to do so.
13The trial judge further erred in failing to consider the circumstances surrounding the second s. 10(b) breach – circumstances which in our view may have attenuated the impact of the Charter breach on the protected interests of the respondent.
14The question put to the respondent by P.C. Quail, in breach of the respondent’s s. 10(b) rights, was directed at officer safety. The respondent confirmed this in cross-examination as follows:
Q. And I’ll suggest to you, Mr. Nguyen, that he – just before searching the car, Constable Quail had asked you whether there was anything he needed to be aware of in your car for officer safety purposes...
A. I agree.
15While the respondent did not agree that he responded to that question by informing P.C. Quail about the marijuana in the trunk, the trial judge disbelieved the respondent in that regard and accepted P.C. Quail’s evidence.
16Two matters of significance arise from this. First, on the respondent’s own testimony, P.C. Quail’s question was not designed to elicit an incriminatory response about other drugs that might be in the car. His question was directed at officer safety.
17Second, the respondent provided an answer that was not elicited by the question, and he did so for a particular reason. As he explained in his testimony, he volunteered the information about the marijuana in the trunk because he wanted to protect his passengers, who knew nothing about it, from being arrested for it:
Q. Okay. Now you said just a little while ago that you felt that you had to tell Officer Quail about the marijuana in the trunk. Can you tell the court what caused you to feel that way?
A. Well, before I left the house I put the marijuana into the trunk of my car. I didn’t inform Jerry or Simon that there would be marijuana in the trunk of my car and I felt very bad that they would have to be in this position with me when they had no clue whatsoever, and it was all because of my doing. I felt as if they would be arrested and charged for something that they did not have any idea about.
18In our view, the nature of the question asked by P.C. Quail and the reason given by the respondent for volunteering the inculpatory information about the marijuana in his trunk could attenuate the impact of the second s. 10(b) breach on the respondent’s protected interests. Unfortunately, the trial judge did not take either of these factors into account in his s. 24(2) analysis. With respect, he erred in failing to do so.
19Apart from these specific problems with the trial judge’s s. 24(2) analysis, we are respectfully of the view that in rejecting P.C. Quail’s evidence as to his intention to search the vehicle from the outset, the trial judge failed to step back and ask himself why the police would not be intent on searching the vehicle when, according to the trial judge, they had the lawful right to do so, certainly in respect of the interior, once they discovered ecstasy pills on the respondent’s person. And upon searching the interior, they would of course have found cocaine, more ecstasy pills and ground-up ecstasy in the driver’s door, console and dashboard of the vehicle. That, in turn, would have given the police the right to search the trunk, if they didn’t have it beforehand, and this would have led to the discovery of the gun and marijuana.
20The trial judge made other errors in his s. 24(2) analysis. For example, he placed considerable emphasis on the conduct of the police towards the passengers in the respondent’s vehicle and found that the police breached their Charter rights in a number of respects. Those infringements, he found, indicated “institutional problems and support the exclusion of the evidence”.
21In assessing the seriousness of the police conduct towards the passengers, the trial judge found Charter breaches based on this court’s decision in R. v. Harris (2007), 2007 ONCA 574, 225 C.C.C. (3d) 193. In doing so, he failed to consider the fact that the offences for which the respondent was arrested occurred on July 28, 2006, more than a year before Harris was decided. In other instances, the trial judge appeared to judge the seriousness of the police conduct based on standards set in subsequent cases such as R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. With respect, in assessing the seriousness of police conduct for s. 24(2) purposes, care must be taken to judge the conduct against the state of the law as it existed at the time.
22All in all, we have serious difficulty with the trial judge’s finding that P.C. Quail would not have searched the car but for the information about the marijuana he received from the respondent. We also have concerns about his characterization of the conduct of the police and his findings that the officers were acting in flagrant disregard of the respondent’s Charter rights, as well as his finding that their conduct indicated “institutional problems”. Those findings, in our view, are undermined by trial judge’s failure to consider pertinent information in relation to them and his use of subsequent jurisprudence to judge the seriousness of the conduct of the police.
23For these reasons, we are of the view that the appeal must be allowed, the acquittals set aside and a new trial ordered. In so concluding, we have not ignored the additional issue raised by the respondent. In our view, it is a matter that is appropriately left for the new trial.
“M. J. Moldaver J.A.”
“Janet Simmons J.A.”
“Russel Juriansz J.A.”