Court of Appeal for Ontario

Date: 2018-10-17 Docket: C63358 Judges: Feldman, Roberts and Trotter JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Banh La and Jiahoa Li Appellants

Counsel

Ravin Pillay, for the appellant

Sarah Shaikh, for the respondent

Hearing

Heard: April 19, 2018

On appeal from: the convictions entered by Justice John F. Adamson of the Ontario Court of Justice on April 22, 2016.

Decision

Roberts J.A.:

A. Overview

[1] The appellant appeals from his convictions for production of marijuana and possession of marijuana for the purpose of trafficking. He received a global custodial sentence of 15 months followed by 2 years' probation, which is not the subject of this appeal.

[2] While the appellant raises two other related grounds, at the heart of this appeal is whether inculpatory evidence seized by the police in admitted breach of the appellant's ss. 8, 9 and 10(b) Charter rights should have been excluded from the evidence at his trial under s. 24(2) of the Charter. The appellant submits that once that evidence is excluded, the convictions are unreasonable and should be set aside, and that acquittals should have followed. In the alternative, the appellant asks for a new trial.

[3] While I agree that the impugned evidence should have been excluded from the appellant's trial as a result of the admitted s. 10(b) Charter breach, I would nevertheless dismiss the appeal. Even without the impugned evidence, there was ample evidence on which the trial judge could and did reasonably found the appellant's convictions.

B. Brief Factual Background

[4] The appellant's arrest on the charges of which he was convicted followed three days of police surveillance. Working on an anonymous tip, the police carried out surveillance of a residential house in Bowmanville, Ontario, as a suspected marijuana grow operation.

[5] During the surveillance, the police observed window coverings and condensation. They also noted a loud electrical humming noise and the smell of fresh marijuana coming from the house.

[6] On the third and last day of surveillance, the police noted that the appellant had spent over four and a half hours in the house. Upon the appellant's departure from the house, the police stopped his vehicle a short distance away and arrested him for possession of marijuana for the purpose of trafficking. The arresting officer detected a "very, very pungent" smell of fresh marijuana emanating from the appellant and seized a water bill for the house from the appellant's shirt pocket. She also seized three cellphones, $1,710 in cash, and a key ring with 40 to 50 keys on it.

[7] The arresting officer immediately gave the appellant his rights to counsel and caution. However, on the direction of the officer in charge of the investigation, the appellant's access to counsel was denied for over eight and a half hours until a search warrant of the house had been judicially authorized and completely executed by the police.

[8] The police search revealed that the entire house was given over to the use of a sophisticated marijuana grow operation. The indicia of a large grow operation for sale and profit were apparent upon entering the house. The overpowering odour of marijuana and heat made the main floor quite uncomfortable. The basement served as the centre of the grow operation: divided into three areas, each area contained marijuana plants in different stages of growth; there were water and hydro bypasses; and numerous growing paraphernalia and plants were seized, including a growing and fertilizer schedule, 2,460 marijuana plants, 7 refrigeration units, shrouds, high intensity light bulbs, ballasts, electrical and timer panels, dehumidifiers, carbon dioxide generators, vent fans, and 4 garbage bags of marijuana shake which weighed 60 pounds. A ventilation system stretched from the basement to the attic. The mudroom was converted into an electrical room. Police seized 400 marijuana clone seedlings from the kitchen fridge on the main floor. The master bedroom served as a drying room with equipment and the washroom within the master bedroom contained significant marijuana growing equipment. The Crown's expert estimated the potential street value of the marijuana produced at between 1.1 and 2.3 million dollars and the value of the equipment recovered at about $33,620.

[9] The police also arrested the appellant's co-accused, Jiahao Li, who was found sleeping in a locked bedroom on the main floor of the house.

C. The Trial Proceedings, Rulings on the Appellant's Directed Verdict and Charter Applications, and Judgment

[10] The trial commenced on April 7, 2015. At the beginning of trial, the Crown conceded that the appellant's Charter rights under ss. 8, 9 and 10(b) had been breached. The appellant brought an application to stay the proceedings (which is not pursued on appeal). He also applied to exclude the evidence of the marijuana odour and of the water bill for the house seized incident to his arrest. The appellant also sought to exclude from his trial (but not on appeal) the evidence realized from the execution of the search warrant at the house.

[11] The parties had initially agreed that the appellant's Charter application would proceed by way of a blended trial and voir dire. However, towards the close of the Crown's case on April 8, 2015, the appellant requested a ruling on the Charter application. The trial judge did not accede to the defence request because of his concern that the trial would be unduly delayed, Li was "not so keen" on waiving any delay, and a new Crown counsel would have to take over the prosecution. Counsel for Li advised that he would be testifying.

[12] Following the close of the Crown's case, on April 10, 2015, the appellant brought a motion for a directed verdict and expressed his concern about proceeding on the motion without a ruling on his Charter application and without knowing what evidence, if any, would be excluded from his trial. The trial judge advised that the appellant should argue his motion as if the Charter application were denied and none of the impugned evidence excluded.

[13] Immediately after hearing the motion, the trial judge dismissed it, determining that the evidence of the appellant's extended presence in the house and possession of the water bill provided sufficient evidence to support a reasonable inference of his knowledge of and control over the marijuana grow operation.

[14] Following his ruling, the trial judge asked the appellant again if he wished to call any evidence. The appellant indicated that he would not testify nor call any evidence. When the trial judge asked Li, he chose to testify.

[15] Li testified at trial on April 10 and June 10, 2015. In his testimony, Li implicated the appellant in the grow operation. Specifically, Li testified that the appellant had hired him to work at his "legal plantation of marijuana" by taking care of the house, including snow shoveling and garbage disposal, as well as providing security against theft of the marijuana plants. Li testified that he saw the appellant go down to the basement on a number of occasions, including on the day of his arrest. Li also testified that on other occasions, the appellant would sometimes be accompanied by two others who also went with the appellant to the basement.

[16] On November 13, 2015, the trial judge heard submissions on the appellant's Charter applications. Prior to hearing submissions, the trial judge advised the appellant that he would be provided with an opportunity to call evidence, if he chose to do so, once the Charter issues were determined.

[17] After breaking for just over two hours, the trial judge dismissed the application.

[18] The trial judge engaged in the requisite analysis set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He accepted the Crown's concession that the appellant's rights under ss. 8, 9 and 10(b) of the Charter had been breached. However, the trial judge concluded that the breaches were not serious, the impact of the s. 10(b) breach was negligible, and the societal interest in the trial of the very serious charges on their merits outweighed any prejudice to the appellant.

[19] With respect to the seriousness of the ss. 8 and 9 Charter breaches, the Crown argued on the application that the original traffic stop of the appellant was reasonable for investigative purposes but conceded that his arrest was without sufficient, reasonable and probable grounds. The trial judge accepted that the officers had a reasonable basis for an investigative detention of the appellant, if not reasonable and probable grounds for his arrest or "very close, indeed" because of their previous observations about the house and the appellant's extended presence in it. The trial judge concluded that the seriousness of these breaches did not favour a stay or exclusion of the impugned evidence.

[20] Similarly, the trial judge held that the s. 10(b) breach was not serious. He rejected the defence suggestion that the officers' attitude was "cavalier, arrogant and defiant" because the police had concerns about officer and public safety and destruction of evidence which did not "so undermine the integrity of the process" that the charges should be stayed, or the evidence excluded.

[21] The trial judge determined that the impact of the ss. 8 and 9 breaches on the appellant's Charter-protected rights favoured exclusion of the impugned evidence. However, he found that the impact of the s. 10(b) breach was "negligible" because the officers had "scrupulously abstained from any efforts to secure evidence from [the appellant] in the period while he was unable to call counsel".

[22] The trial judge concluded that the evidence was real evidence and not conscripted, and that on balance, the societal interest in the case being tried on its merits strongly favoured the admission of the evidence and that its admission would not affect trial fairness.

[23] After delivering his ruling on the Charter application, the trial judge gave the appellant another opportunity to call evidence. The appellant asked for some time to consider whether he would do so. As a result, the trial judge adjourned the trial for 24 days to permit the appellant another opportunity to consider whether he would elect to testify or call any evidence at trial. Upon resuming on December 7, 2015, the appellant advised that he would not do so and requested an adjournment to prepare closing submissions. The trial judge adjourned the trial for more than three months to March 24, 2016 to permit the appellant to prepare closing submissions. After hearing submissions from the parties, the trial judge adjourned the matter to April 22, 2016 for delivery of his reasons for judgment.

[24] On April 22, 2016, the trial judge convicted the appellant of the charges now under appeal. He concluded that the Crown had proven beyond a reasonable doubt the appellant's knowledge of and control over the marijuana grow operation. He based his conclusion on the circumstantial evidence of the officers' observations of the house, the appellant's extended presence in it, the odour emanating from him, his possession of the water bill, as well as Li's evidence.

D. Issues

[25] The appellant submits the trial judge erred and seeks acquittals on the charges or a new trial. He raises the following grounds of appeal:

(i) the trial judge erred in failing to rule on the appellant's Charter application at the close of the Crown's case;

(ii) the trial judge erred in failing to exclude under s. 24(2) of the Charter the evidence of the marijuana odour and water bill seized from the appellant;

(iii) the trial judge erred in misapprehending and relying on the evidence of the appellant's co-accused, Li.

[26] I shall consider each of these grounds in turn.

(1) Did the trial judge err in failing to determine the appellant's Charter application at the close of the Crown's case?

[27] The appellant contends that the trial judge prejudged his Charter application. The appellant submits that the trial judge prejudiced his fair trial rights and undermined his motion for a directed verdict and his election to call evidence by failing to accede to his request for a ruling on his Charter application at the close of the Crown's case.

[28] First, I am not persuaded that the trial judge prejudged the appellant's Charter application.

[29] The circumstances of the judge's direction that the appellant assume that his Charter application was dismissed do not meet the very high threshold required to demonstrate a reasonable apprehension of judicial bias. Although the trial judge's instruction to the appellant may not have been pristine, there is no indication from his reasons on the directed verdict or his subsequent reasons on the appellant's Charter application that he had prejudged any of the issues. Indeed, on giving his direction on the appellant's motion for a directed verdict, the trial judge stated that he had not yet made any decision on the Charter application. In my view, an informed person, viewing the trial judge's direction and the circumstances surrounding it realistically and practically, and having thought the matter through, would not conclude that the trial judge had prejudged the Charter application: R. v. G(P), 2017 ONCA 351, 138 O.R. (3d) 343, at para. 25.

[30] With respect to the next issue, the appellant raises important questions regarding the timing of the Charter ruling and its effect on the appellant's motion for a directed verdict. While there was an agreement that the appellant's Charter application would be heard as part of a blended voir dire and trial, circumstances changed when the appellant sought to bring a directed verdict application. I recognize the trial judge's discretion to manage the proceedings. However, here, the trial judge should have realized that the agreed upon course of proceedings had to be altered. The trial judge ought to have appreciated that he could not determine the directed verdict application without first resolving the Charter issue. The appellant was entitled to argue his directed verdict application based on what had already been determined to be admissible evidence.

[31] However, while the procedure followed at this trial was not ideal, it did not prejudice the appellant. The outcome of the appellant's motion for a directed verdict would have been the same even if the evidence impugned on appeal had been excluded. In considering the appellant's motion, the trial judge had to decide whether there was a basis in the evidence upon which a reasonable trier of fact, properly instructed, could convict the appellant: R. v. Kelly, 2017 ONCA 920, 138 O.R. (3d) 241, at para. 19. Even if the evidence of the odour of marijuana from the appellant and the water bill had been excluded, the trial judge made no error in dismissing the motion. A reasonable trier of fact, properly instructed, could return a verdict of guilty against the appellant on the basis of the evidence of the officers' observations of the noise and smell of marijuana emanating from the house, the covered and condensed windows, and the appellant's lengthy presence for more than 4.5 hours in the house that was patently devoted to a sophisticated marijuana operation.

[32] Finally, the timing of the trial judge's Charter ruling did not prevent the appellant from making an informed decision as to whether to testify or call any evidence. The trial judge gave the appellant a second opportunity and a substantial adjournment to consider his position. The trial judge adjourned the trial for more than three months for the preparation of submissions. The appellant knew the entire extent of the case he had to meet, including Li's evidence, before he elected not to call evidence or made his closing submissions. As a result, there was no prejudice to the appellant's ability to make full answer and defence to the charges against him: R. v. Rose, [1998] 3 S.C.R. 262, at paras. 102-103.

[33] Therefore, I would reject this ground of appeal.

(2) Did the trial judge err in failing to exclude from trial the evidence of the odour of marijuana and the water bill under s. 24(2) of the Charter?

[34] As already noted, the Crown at trial (who was not Ms. Shaikh) conceded that the appellant's ss. 8, 9 and 10(b) rights had been breached. Assuming for the sake of argument that the conduct of the officers who stopped and arrested the appellant infringed ss. 8 and 9 of the Charter, for the reasons that follow, I am of the view that the breach of the appellant's s. 10(b) rights alone warrants exclusion of the evidence of the odour of marijuana and the water bill.

[35] While there was no causal connection between the discovery of the odour of marijuana and the water bill, and the s. 10(b) breach, there was a close temporal connection. There was no dispute that the connection is sufficient to engage s. 24(2): see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 52, 72 and 74; R. v. Rover, 2018 ONCA 745, at para. 35.

[36] In undertaking the s. 24(2) analysis, the trial judge correctly referenced the following criteria set out by the Supreme Court of Canada in Grant, at para. 71:

(1) The seriousness of the state-infringing conduct;

(2) The impact of the breaches on the appellant's Charter-protected interests; and

(3) The societal interest in the adjudication of the very serious charges on their merits.

[37] Absent error, the trial judge's s. 24(2) analysis as to what would bring the administration of justice into disrepute is subject to deference on appeal: Grant, at para. 86. However, I am of the view that the trial judge erred in principle and also misapprehended material evidence which caused him to underestimate the seriousness of the police conduct and its impact on the appellant's s. 10(b) Charter rights in this case. As a result, the evidence of the marijuana odour and water bill ought to have been excluded from the appellant's trial.

[38] As the trial judge properly recognized, it is well-established that the police must inform a detainee of his right to retain and instruct counsel and facilitate that right immediately upon detention, subject to concerns for officer or public safety and such limitations prescribed by law and justified under s. 1 of the Charter: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42; Rover, at paras. 25-26.

[39] Those concerns must be circumstantially concrete. General or theoretical concern for officer safety and destruction of evidence will not justify a suspension of the right to counsel: R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78; R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at paras. 41-42, and R. v. Proulx, 2016 ONCJ 352, at para. 47. Rather, the assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination: Wu, at para. 78.

[40] The emphasis in the s. 10(b) jurisprudence for a fact specific contextual analysis was recently explained by Doherty J.A. for this court in Rover at para. 27:

These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel. [Citations omitted].

[41] Here, the trial judge erred by accepting the existence of a general duty on the part of the officers to protect themselves, the public and the preservation of evidence as an overarching justification for the s. 10(b) breach without analyzing, as he was required to do, whether the officers' concerns were reasonable in the circumstances of this case.

[42] In my view, the officers' testimony did not rise above concerns of a "general or non-specific nature applicable to virtually any search". The officers testified that they were concerned about officer and public safety, as well as the destruction of relevant evidence. Specifically, they said that if allowed to speak to counsel, the appellant might communicate with associates to set up booby traps within the house or set fire to the grow operation, or counsel, by advising potential sureties of the appellant's arrest may inadvertently trigger the appellant's associates to set those steps into motion. However, neither officer could point to any evidence that either concern could possibly materialize in this case. The officer in charge's concern was entirely theoretical and based on her training alone; she admitted receiving no instructions or directions from senior officers. She testified that it was simply a matter of "common sense". While the arresting officer had previously experienced booby traps on a couple of occasions, she admitted that her experience was unrelated to this case, dated, and from a different jurisdiction. She had never experienced booby traps during the execution of drug warrants in the jurisdiction where this case took place. There was no evidence that the arresting officer had shared this information with the officer in charge.

[43] While the Court in Grant, at para. 75, stated that "[e]xtenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach", in this case, the officers' speculative concerns should not have served to lessen the seriousness of their breach of the appellant's s. 10(b) rights because of their ignorance of the law.

[44] There is also no question that the prolonged suspension of the appellant's s. 10(b) rights was deliberate. The arresting officer believed that the suspension of an accused's right to counsel was justified to preserve evidence and to protect the safety of officers and the public. The officer in charge stated that they did nothing wrong and would do the same thing again in the same circumstances. As the officer in charge testified during her cross-examination:

Q. So you're fully prepared to suspend somebody's right to speak to counsel until you've executed a search warrant?

A. Yes, and I would do it again. I don't regret anything I did that night.

A. I don't believe I did anything wrong.

[45] The officers' erroneous belief that they could indefinitely suspend the appellant's right to speak to counsel until the search warrant was issued and executed was not justified in the circumstances of this case. This is not a case where the delay in facilitating the appellant's right to counsel was minimal and necessary and where no attempts were made to elicit incriminating information. The officers' ignorance of the very well-entrenched rights of an accused to immediate access to counsel and their insistence on the rightness of their actions put their conduct on the very serious end of the spectrum.

[46] I next turn to the trial judge's analysis of the second Grant criterion. The trial judge's conclusion that the s. 10(b) breach had minimal impact on the appellant's Charter-protected rights flowed from a misapprehension of the evidence and a misapplication of the Grant criterion.

[47] The trial judge misapprehended the evidence when he wrote that the police "scrupulously abstained from any efforts to secure evidence from [the appellant] in the period while he was unable to call counsel." This was not the case here. Immediately following the appellant's arrest, rights to counsel and caution, and his request to speak to counsel, the arresting officer attempted to elicit incriminating information from the appellant about his bundle of keys. This occurred, despite the officer in charge testifying that, "obviously", no statement would be elicited from the appellant. The appellant refused to answer the officer's questions.

[48] The trial judge's evidentiary error affected his analysis. Because of his evidentiary error, he wrongly determined that there was minimal impact on the appellant's rights. Specifically, he failed to consider the extent to which the s. 10(b) breach undermined all the interests it protects, regardless of whether the police succeeded in obtaining an incriminating statement from the appellant. Those interests go well beyond the appellant's fair trial rights as considered by the trial judge and include the vulnerability of an arrested accused who requires the immediate ability to consult with a lawyer to obtain counsel, not just for legal advice, but as a lifeline to the outside world: Pino, at para. 105; Rover, at para. 45.

[49] Turning to the third Grant criterion, the trial judge failed to give effect to the fact that there were multiple, deliberate breaches of the appellant's Charter-protected rights. Moreover, the plan to deny the appellant his rights was formed prior to the police stopping the appellant. The officers were directed to arrest him as soon as he left the house and to prevent the appellant from speaking to counsel until the search warrant of the house was authorized and executed.

[50] As the Court explained in Grant, at para. 73, preservation of public confidence in the rule of law and its processes is the main concern. In the present case, the breaches were neither minor nor inadvertent but formed part of a pattern of conduct that the officers did not regard as wrong and would repeat again in the same circumstances. It is therefore necessary that the court dissociate itself from such conduct: Grant, at para. 75.

[51] Moreover, the exclusion of the impugned evidence would not end the Crown's case against the appellant. While the trial judge considered the effect of the exclusion of all the seized evidence, on appeal, the appellant argues that only the evidence of the marijuana odour and the water bill ought to have been excluded. The latter evidence, though real and reliable, was not central to the Crown's case against the appellant.

[52] As a result, the evidence of the marijuana odour and the water bill should have been excluded from the appellant's trial. However, as I will explain, the exclusion of this evidence would not have changed the outcome of the appellant's trial.

(3) Did the trial judge err by misapprehending and relying on Li's evidence?

[53] The appellant submits that the trial judge erred in accepting and relying on Li's evidence concerning the appellant's role in the grow operation and his denial of having anything to do with its maintenance, particularly in the light of the Crown's position that Li's evidence should be rejected in its entirety. The appellant further submits that the trial judge failed to apprehend many inconsistencies and other problems with Li's evidence, including his powerful motive to lie and implicate the appellant.

[54] I do not accept the appellant's submissions. Notwithstanding the appellant's and Crown's disavowal of his evidence, it was still open to the trial judge to accept some, all or none of Li's evidence: R. v. Bristol, 2011 ONCA 232, 280 O.A.C. 334, at para. 14.

[55] A court must exercise caution in accepting the evidence of a co-accused who is awaiting trial or sentencing. Nevertheless, a co-accused or accomplice's evidence is admissible, and the trier of fact must employ care to determine the weight to be assigned to such evidence: R. v. McGown, 2016 ONCA 575, 341 C.C.C. (3d) 53, at paras. 39-40.

[56] The trial judge's reasons demonstrate that he adverted to all the frailties and inconsistencies in Li's evidence, including his varying accounts of the appellant's visits to the basement and Li's motive to lie because of deportation consequences. He exercised appropriate caution with respect to Li's evidence and correctly determined that it was corroborated by the Crown's circumstantial evidence concerning the house and the appellant's extended presence in it. Such evidence could reasonably provide comfort to the trial judge that the witness was being truthful.

[57] The trial judge made no error in concluding that Li's evidence helped to establish that the appellant had knowledge and control of the extensive marijuana grow operations in the house.

[58] In consequence, I would reject this ground of appeal.

E. Disposition

[59] The appellant submits that if the evidence of the marijuana odour and water bill were excluded, the convictions against him should be set aside and acquittals entered, or a new trial ordered.

[60] I disagree. On appeal, the appellant did not contest that the search results of the contents of the house were properly included at trial. As a result, even without the impugned evidence, the Crown had a strong circumstantial case against the appellant. The appellant's sustained presence in the house that was unmistakably given over to an extensive and sophisticated marijuana grow operation, together with Li's evidence that the appellant spent considerable time in the house and the basement, established the appellant's knowledge of and control over the grow operation. This evidence amply supported the convictions.

[61] For these reasons, I would dismiss the appeal.

Released: October 17, 2018

"L.B. Roberts J.A."

"I agree K. Feldman J.A."

"I agree G.T. Trotter J.A."

Footnote

[1] The breaches of ss. 8 and 9 of the Charter were conceded by the Crown at trial. While not rejecting this concession, the trial judge nevertheless concluded that the officers had a reasonable basis for an investigative detention of the appellant, if not reasonable and probable grounds for his arrest or "very close, indeed". As a result, I should not be taken as agreeing that the conduct of the officers who stopped and arrested the appellant infringed these sections of the Charter. However, since I conclude that the s. 10(b) breach is sufficient to warrant the exclusion of the evidence, it is not necessary for me to resolve this issue.