Court of Appeal for Ontario

Date: 2018-03-13 Docket: C63746

Judges: Feldman, Watt and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Marcel Tennant Appellant

Counsel

Chris Sewrattan, for the appellant

Maria Gaspar, for the respondent

Heard and Released

Heard and released orally: March 13, 2018

Appeal Information

On appeal from the conviction entered on March 8, 2017 and the sentence imposed on June 23, 2017 by Justice Ann Watson of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant raises two grounds of appeal against conviction.

[2] The first is that the trial judge made a R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 error by failing to indicate that she was not relying on an impugned statement that was made by the police expert who gave evidence on aspects of drug trafficking versus drug possession.

[3] We do not agree that the failure of the trial judge in this judge alone trial to mention explicitly a Sekhon error made by an expert witness is, in and of itself, an error by the trial judge. While the expert did improperly state in cross-examination that "I haven't encountered users yet that would have that much heroin", there was no objection made by counsel. The trial judge is presumed to know the law. The trial judge is not required to explicitly refer to the improper evidence and state that she is not relying on it. Where there was no indication that the trial judge relied on the improper opinion evidence, this court will defer to the trial judge.

[4] In this case, the trial judge explained her reasons for rejecting the evidence of the appellant that the heroin was for his own use: they included his inability to afford the quantities he claimed to use, supported by the expert evidence regarding typical amounts that would be held by traffickers and by users.

[5] The second ground of appeal is that the trial judge erred in her s. 24(2) Charter analysis in admitting the evidence of the drugs and money that were found following a s. 10(a) breach by the arresting officer.

[6] We agree with the Crown that the trial judge did not improperly rely on inevitable discoverability in analyzing the second Grant factor. Rather the trial judge's reasoning was that there was no causative link between the s. 10(a) breach and the evidence because the evidence was real evidence and not conscriptive statements.

[7] With respect to the third Grant factor, the trial judge was entitled to consider the serious nature of the offence. While it would have been preferable for the trial judge to advert to the fact that the seriousness of the offence can cut both ways, it is not an error of law to fail to do so.

[8] The appeal against conviction is therefore dismissed. The appeal against sentence is dismissed as abandoned.

K. Feldman J.A.

David Watt J.A.

David M. Paciocco J.A.