Court of Appeal for Ontario
Date: 2019-06-10 Docket: C63498
Judges: Watt, Lauwers and Hourigan JJ.A.
Between
Her Majesty the Queen Respondent
and
Thao Thi Do Appellant
Counsel
Mindy Caterina, for the appellant
Jeremy Streeter, for the respondent
Heard: May 24, 2019
On appeal from the conviction entered by Justice Ramez Khawly of the Ontario Court of Justice on June 10, 2015.
Reasons for Decision
[1] The appellant was convicted under ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, for the offences of producing marihuana and possession of marihuana for the purposes of trafficking. We dismissed the appeal orally, for the following reasons.
[2] The police seized a large quantity of marihuana and several items linking the appellant to a bungalow where a grow-op was operating, under a valid search warrant executed several hours before the appellant arrived on the scene. The defence did not challenge the validity of the search warrant.
[3] The appellant was arrested just after she approached the bungalow. The arresting officer seized the key to the front door from her incident to her arrest. The appellant immediately requested access to her lawyer. However, the officers kept her at the scene while they completed their work and then transported her to the police station. Even there, she was required to wait before being permitted to contact a lawyer.
[4] The appellant argues that her right to contact counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms was breached, and further asserts that the s. 10(b) breach taints not only the seizure of the house key, but also the drugs and other items seized under the search warrant.
[5] The Crown rightly concedes a breach of s. 10(b), given the delay of over three hours in implementing the appellant's right to contact counsel. However, the Crown argues that since defence counsel abandoned the s. 10(b) challenge at trial, it was not open to her to raise it again on appeal.
[6] We proceed on the assumption, without agreeing, that the criteria in R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, leave to appeal refused, [2016] S.C.C.A. No. 432, guiding our consideration of a new issue on appeal are met, and that R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, changed the law sufficiently to warrant this court considering an argument previously abandoned at trial.
[7] We therefore consider anew whether the appellant's s. 10(b) rights were breached.
[8] We distinguish between the seizure of the drugs and other items under the search warrant, and the seizure of the house key from the appellant when she was arrested.
[9] The earlier seizure of the drugs and other items under a valid search warrant properly executed was a transaction largely completed at the time of the appellant's arrest, and was not precipitated by it, as in Pino. It was causally, temporally and contextually distinct and separate from the arrest, in the sense captured by Doherty J.A. in R. v. Plaha, 188 C.C.C. (3d) 289, at para. 45:
The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart, 107 C.C.C. (3d) 481 at 492-97.
[10] The facts in this case are quite unlike those in Pino, where Laskin J.A. noted, at para. 73:
Here, the two s. 10(b) breaches along with the s. 8 breach meet the "obtained in a manner" requirement. The marijuana seized from the trunk of Ms. Pino's car and all three Charter breaches are part of the same transaction. That transaction or the common link between the evidence and the breaches is Ms. Pino's arrest.
[11] Because the earlier seizure of the drugs and other items under a valid search warrant properly executed was a transaction largely completed at the time of the appellant's arrest, it was causally, temporally and contextually distinct and separate from the arrest. Any possible breach of s. 10(b) in the time following the appellant's arrest does not attach to that evidence.
[12] We now turn to the application of s. 24(2) of the Charter to the seizure of the house key incident to the appellant's arrest. While a causal relationship between the breach and the evidence need not exist, as noted in Pino, its absence is a factor in the s. 24(2) analysis that weighs against the exclusion of evidence resulting from a s. 10(b) breach: R. v. Lenhardt, 2019 ONCA 416, at para. 11.
[13] As noted, the police seized the key to the front door of the residence where the seizure of drugs was made from the appellant incident to her arrest. Because of the temporal connection to any possible s. 10(b) breach, the key is arguably subject to exclusion.
[14] However, the Grant factors (from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353) lead us to a different conclusion than in Pino. In our view the s. 10(b) breach was not strategic, nor was it serious or systemic. There was no deliberate police practice of the sort described in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135. The impact of the seizure of the house key from the appellant was minimal, because the validly obtained admissible evidence already connected her to the bungalow where the grow-op operated. As evidence, the key was real and reliable. Society has an interest in the appellant's trial on the merits, which favours the admission of the key.
[15] For these reasons, the appeal is dismissed.
"David Watt J.A."
"P. Lauwers J.A."
"C.W. Hourigan J.A."
