Court and Parties

Court of Appeal for Ontario Date: 2023-08-09 Docket: C68086

Before: Benotto, Miller and Paciocco JJ.A.

Between: His Majesty the King, Respondent and Kevin Tran, Appellant

Counsel: Gregory Lafontaine, for the appellant Ildiko Erdei and Lisa Mathews, for the respondent

Heard: May 9, 2023

On appeal from: the convictions entered on April 29, 2019, by Justice Louise A. Botham of the Ontario Court of Justice.

Judgment by: Paciocco J.A.

Overview

[1] The appellant, Kevin Tran, was charged in a joint information with Thanh Nguyen and Catherine Vu, with narcotics, proceeds of crime, and firearm charges arising out of a drug investigation. The three co-accused presented s. 11(b) and s. 8 Charter motions that were heard together at trial.

[2] On April 29, 2019, after those motions failed to result in a stay or the exclusion of evidence, Mr. Tran entered into an agreed statement of facts and conceded that based on this agreed statement of facts and the evidence presented during the s. 8 voir dire, there was sufficient evidence to find him guilty of the charges for which he was convicted. His trial was severed from Mr. Nguyen’s trial, and the charges against Ms. Vu were stayed. The trial judge convicted Mr. Tran of 13 offences: two counts of possession of proceeds of crime, contrary to s. 354(1) of the Criminal Code, R.S.C. 1985, c. C-46; three firearms offences contrary to ss. 91(3), 92(3) and 95(1) of the Criminal Code (all related to the same firearm, a .32 calibre handgun); and eight counts of possession for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[3] Mr. Tran now appeals his convictions, arguing that: (1) the verdicts against him are unreasonable; (2) the trial judge erred in not excluding evidence under s. 24(2) of the Charter; and (3) the trial judge erred in not staying the proceedings against him because of unreasonable delay.

[4] For the reasons that follow, I would dismiss Mr. Tran’s appeal.

Material Facts

[5] Aided by surveillance conducted in connection with a large-scale drug investigation, a police officer formed the opinion that 235 Sherway Gardens Road, unit #441, was being used as a “stash house” where narcotics were kept for the purpose of trafficking.

[6] On October 16, 2017, Mr. Nguyen, a suspect in the investigation, was observed entering unit #411 with one bag and exiting with another. The unit was not rented in his name.

[7] On October 17, 2017, Mr. Nguyen was seen entering 235 Sherway Gardens Road. That same day Mr. Tran was also observed entering that building separately, using a key fob. CCTV footage showed Mr. Tran entering the elevator with Mr. Nguyen on the fourth floor, and the two subsequently left the condominium building together, with Mr. Tran carrying a black bag.

[8] On October 23, 2017, Mr. Nguyen was identified again in 235 Sherway Gardens Road. He was observed carrying a weighted bag that he had retrieved from inside unit #441, which he then placed in the trunk of his vehicle. He drove his vehicle into an underground parking lot. Upon exiting, he was arrested. The bag he had placed in the trunk of his vehicle before entering the underground parking lot was now gone, and he held a large amount of cash on his person.

[9] Based on this and other information, the police obtained warrants to search unit #411 (the “Sherway warrant”) as well as 1205-2240 Lake Shore Blvd., Ms. Vu’s residence (the “Lake Shore warrant”), where it was determined that Mr. Tran had been staying. Both warrants were secured on the same Information to Obtain (the “October 23, 2017, ITO”), and both searches were executed on October 23, 2017.

[10] Upon entry, unit #411 proved to be a stash house, as the police had suspected. It contained some furniture and food, but no bed or clothing. Drug paraphernalia was present in plain view. In the lone bedroom, approximately $80,000 in Canadian currency, as well as significant quantities of several kinds of narcotics, including fentanyl, cocaine, heroin, ketamine, and methamphetamine, were found. The narcotics were mostly in drawers. In a drawer in the living room below the television set, police also found a .32 calibre handgun and ammunition. DNA was later found on the handgun. These seizures ultimately resulted in 9 of the 13 convictions Mr. Tran is now appealing.

[11] At Ms. Vu’s Lake Shore Blvd. residence, police discovered approximately $40,000 in Canadian currency, as well as significant amounts of cocaine, MDA, and marijuana, which the trial judge ultimately found to have been in Mr. Tran’s possession. These seizures resulted in 4 of the 13 convictions Mr. Tran is now appealing.

[12] When Mr. Tran was arrested, he was found to have a key and a fob to unit #411, as well as a key fob to Ms. Vu’s Lake Shore Blvd. residence.

[13] On January 22, 2019, more than 15 months after the execution of the Sherway warrant and the Lake Shore warrant, the police obtained a warrant to seize DNA from Mr. Tran (the “DNA warrant”). The sample obtained linked Mr. Tran to the DNA on the handgun found in unit #411.

[14] At his trial, Mr. Tran challenged the validity of the Lake Shore warrant and the DNA warrant. He did not assert standing to challenge the Sherway warrant.

[15] The trial judge found the Lake Shore warrant to be unconstitutional, as the affiant had not provided reasonable and probable grounds to believe that evidence relevant to the investigation would be found in Ms. Vu’s apartment. But she nonetheless admitted the evidence obtained in the Lake Shore Blvd. search, finding that its admission would not bring the administration of justice into disrepute. The trial judge upheld the DNA warrant. She accepted Mr. Tran’s submission that two items of information relied upon to secure the DNA warrant were inaccurate and had to be excised but found that the remaining information in the DNA warrant ITO provided reasonable and probable grounds for the DNA warrant.

[16] The trial judge also denied Mr. Tran’s s. 11(b) application to stay the proceedings against him for unreasonable delay.

Issues

[17] Mr. Tran challenges his conviction, based on the following grounds of appeal, only the last of which was pressed in oral argument. Since the first two grounds of appeal were not formally abandoned, I will address them as well:

A. Was the verdict unreasonable and against the weight of the evidence? B. Did the trial judge err by not excluding the evidence pursuant to s. 24(2)? C. Did the trial judge err in dismissing the s. 11(b) application?

[18] I would find that none of these errors occurred.

A. Was the verdict Unreasonable

[19] At trial, Mr. Tran accepted that if the trial judge did not exclude the evidence against him pursuant to his Charter applications, there was sufficient evidence to find him guilty. He presented no evidence to the contrary. In arguing on appeal that his conviction was unreasonable, Mr. Tran does not appear to be resiling from this concession by claiming that a properly instructed, reasonable trier of fact could not have found him guilty of the offences for which he was convicted on the evidence admitted. Instead, Mr. Tran appears to be arguing that if the trial judge erred by not excluding the unconstitutionally obtained evidence under s. 24(2) of the Charter, once that evidence is excluded the remaining evidence will be inadequate, thereby rendering the verdicts of guilt unreasonable.

[20] With respect, this ground of appeal is misconceived. Unreasonable verdict appeals are evaluated based on the evidence that is admitted. Subject to the application of the curative proviso in s. 686(1)(b), if a trial judge does commit an error of law by admitting evidence that should not have been received, that error of law will support a self-standing appeal without the need for an unreasonable verdict appeal. Mr. Tran’s unreasonable verdict ground of appeal is therefore redundant, being entirely dependent on his legal challenge to the trial judge’s decision to admit unconstitutionally obtained evidence. I would dismiss it.

B. Did the trial judge err by not excluding the evidence pursuant to s. 24(2)?

[21] Even if successful, Mr. Tran’s appeal of the trial judge’s decision to admit the unconstitutionally obtained evidence would have limited reach. Mr. Tran conceded at trial that he did not have standing to challenge the Sherway warrant, which led to the evidence relied upon to convict him of 9 of the 13 counts. The Sherway warrant was upheld, so there is no realistic possibility the evidence obtained in the execution of that warrant could be subject to s. 24(2) exclusion. Nor does Mr. Tran advance an appeal of the trial judge’s ruling on the DNA warrant, which was relevant to his possession of the firearm located in the 235 Sherway Gardens Road search. Therefore, even if successful, Mr. Tran’s submission that the trial judge erred in not excluding evidence pursuant to s. 24(2) could only affect Mr. Tran’s convictions on the four of the 13 counts that were based on the Lake Shore Blvd. search. It is not clear from Mr. Tran’s factum or his argument that he appreciates the limited application of this ground of appeal.

[22] In any event, I am not persuaded that the trial judge made any errors in her s. 24(2) decision. I do not accept Mr. Tran’s submissions that she materially misapprehended the evidence or erred by finding that the s. 8 breach was committed “in good faith”.

[23] Mr. Tran advanced two alleged misapprehensions of evidence arguments. The first is the trial judge’s finding that the fob Mr. Tran used on October 17, 2017, to gain access to the 235 Sherway Gardens Road condominium building “was connected to Unit 411.” I am not persuaded that this finding was a misapprehension of the evidence, and I reject Mr. Tran’s submission that this finding “expressly contradicted” the agreed statement of facts. Moreover, even if this finding was a misapprehension of evidence, it was not material to the reasoning of the trial judge, as it must be in order to ground an appeal: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. I will address each of these points in turn.

[24] First, there was an evidentiary basis for the trial judge’s impugned finding. The affiant asserted directly that the fob was “later identified to apartment #411”. Mr. Tran challenged this testimony as inaccurate during oral argument, but, with respect, his submissions were anything but clear, and the trial judge rejected them. Hence my conclusion that Mr. Tran has not established that this alleged misapprehension of evidence occurred.

[25] I also reject Mr. Tran’s submission that there is an “express contradiction” between the October 23, 2017, ITO, which says that the fob Mr. Tran used was linked to unit #411, and the agreed statement of facts. I recognize that the agreed statement of facts confirms only that Mr. Tran entered the 235 Sherway Gardens Road condominium building with a fob and says nothing about the link between the fob and unit #411. However, the fact that the agreed statement of facts does not specify that link does not contradict testimony that such a link existed. Therefore, I fail to see a contradiction. In any event, the agreed statement of facts was not presented until after the trial judge’s s. 24(2) ruling. What the agreed statement of facts says is immaterial to the trial judge’s comprehension of the evidence at the time of her s. 24(2) ruling.

[26] Finally, as I have indicated, even if the trial judge’s conclusion that the fob “was connected to Unit 411” was a misapprehension of the evidence, it is not material to the admission of the unconstitutionally obtained evidence. Evidence in the October 23, 2017, ITO put Mr. Tran in the company of Mr. Nguyen, who had previously been seen entering unit #411. The October 23, 2017, ITO also included evidence that on that date, Mr. Tran took the elevator to the fourth floor prior to leaving the building with Mr. Nguyen. In my view, this circumstantial evidence supports the same inference that the impugned evidence about the link between the fob and unit #411 supported, namely, that Mr. Tran’s presence at the 235 Sherway Gardens Road condominium building on October 17, 2017, was associated with unit #411.

[27] As well, the finding by the trial judge that the fob was linked to unit #411 did not feature in her s. 24(2) decision. She did not even mention it in explaining that ruling. Indeed, the breach she was addressing when considering s. 24(2) exclusion had nothing to do with Mr. Tran’s link to unit #411 but arose because of the absence in the October 23, 2017, ITO of evidence that there were reasonable and probable grounds to believe that related evidence would be found in Ms. Vu’s Lake Shore Blvd. apartment. In these circumstances, it is difficult to see how a misapprehension of evidence about Mr. Tran’s link to unit #411 could have a material bearing on whether evidence obtained at the Lake Shore residence should be excluded.

[28] I therefore reject Mr. Tran’s reliance on his first alleged misapprehension of evidence.

[29] The “second misapprehension” of the evidence that Mr. Tran advances allegedly occurred when the trial judge said, “there is no suggestion of inaccuracy in the information provided to the issuing justice or that it was misleading”. Mr. Tran submits that since he argued at trial that the claimed link between the fob and unit #411 in the October 23, 2017, ITO was misleading, this statement by the trial judge was a misapprehension. I am not persuaded that this is so. First, if this was a “misapprehension”, it would be a misapprehension of a submission, not a misapprehension of evidence that could ground an appeal. Second, and in any event, it is not at all clear that in making this comment the trial judge was purporting to describe Mr. Tran’s position. She made this statement while explaining her conclusion that there is no basis for a finding that the police did not act in good faith. Given the context of the statement, when the trial judge said, “there is no suggestion of inaccuracy … or that [the October 23, 2017, ITO] was misleading”, she may simply have been summarizing her own read of the evidence rather than summarizing the positions before her.

[30] Mr. Tran’s final submission in support of his claim that the trial judge erred in failing to exclude evidence pursuant to s. 24(2) of the Charter is that the trial judge unreasonably made a “good faith” finding “despite the finding of several and repeated errors.” He said, this is “particularly the case with respect to the DNA warrant”. I do not accept these submissions.

[31] First, the trial judge did not identify any inaccuracies or errors in the October 23, 2017, ITO that produced the unconstitutional October 23, 2017 search warrant for Ms. Vu’s Lake Shore Blvd. apartment. The only factual inaccuracies that the trial judge identified were in the ITO for the DNA warrant that was not even sworn until approximately 15 months after the October 23, 2017 search. The errors in the DNA warrant could therefore have no bearing on the “good faith” of the officers when the October 23, 2017 warrant was secured. Simply put, Mr. Tran is attempting to have this court assess the trial judge’s good faith finding relating to the October 23, 2017, search, based on the police officer’s conduct more than a year later.

[32] I would therefore reject Mr. Tran’s ground of appeal relating to the trial judge’s s. 24(2) ruling.

C. Did the trial judge err in dismissing the s. 11(b) Application?

[33] I would deny Mr. Tran’s appeal of the trial judge’s s. 11(b) ruling, as well. I accept that the net delay exceeded the 18-month presumptive ceiling for trials in the Ontario Court of Justice by nine days, but this was a joint trial. As I will explain, if the Crown establishes that a joint trial is being undertaken in the interests of justice, and delay has arisen because of that joint trial that the Crown could not reasonably have prevented or ameliorated, the Crown will have established an “exceptional circumstance” justifying a prima facie unreasonable delay, within the meaning of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. In my view, the Crown established these things, thereby justifying the prima facie unreasonable delay. I would therefore dismiss this ground of appeal. I will begin by reviewing the material facts.

[34] Mr. Tran was arrested on October 23, 2017. There was no defence delay attributable to him. Therefore, to avoid a prima facie violation of s. 11(b), the trial should have been held by April 23, 2019.

[35] Initially, pretrial motions were scheduled for November 29, 2018, and November 30, 2018, with the trial to follow between January 7, 2019, and January 11, 2019, all well within a period of reasonable delay.

[36] But both co-accused, Mr. Nguyen and Ms. Vu, changed counsel in the summer of 2018, after those dates had been set. The trial judge found that the Crown learned by October 5, 2018 that the new counsel could not be ready in time for the pretrial motions that had been scheduled. It was plain that an adjustment to the schedule was required if Mr. Nguyen and Ms. Vu were to be effectively represented. A pretrial appearance was promptly arranged for October 10, 2018, six days later, at which time the Crown agreed to adjourn the pretrial motion dates, over Mr. Tran’s s. 11(b) objection.

[37] When the parties attended at the trial co-ordinator’s office to secure new dates for the pretrial motions and trial, the trial co-ordinator offered numerous dates within the period of reasonable delay that were available to everyone but Mr. Tran’s counsel. The Crown advised the court that given this, the parties decided that the trial dates would have to be vacated, along with the pretrial motion dates. When replacement dates were sought, there were no dates available to Mr. Tran’s counsel until five days outside the prima facie reasonable period of delay, on April 29, 2019, with the trial finishing on May 3, 2019, nine days outside the prima facie reasonable period of delay. So those dates were selected.

[38] In these circumstances, I would find the presumption of unreasonable delay has been rebutted and that the trial judge was right to deny Mr. Tran’s s. 11(b) motion.

[39] To be sure, where a trial is being conducted jointly, delay caused by a co‑accused is not “defence delay” by the accused that counts against the accused. Therefore, the delay caused by Mr. Nguyen and Ms. Vu’s change of counsel continues to form part of the period of prima facie delay in Mr. Tran’s trial. As Gillese J.A., recognized for the majority in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at paras. 128, 136, an individualized approach must be taken in calculating delay. The trial judge fully appreciated that. The delay in Mr. Tran’s trial was therefore in prima facie breach of s. 11(b).

[40] However, the majority in Gopie also accepted that delay caused to the accused by the conduct of a joint trial can qualify as an “exceptional circumstance” that may permit delay in excess of the prima facie unreasonable delay period: Gopie, at paras. 142, 170. For delay caused by a joint trial to qualify as an exceptional circumstance it must first be in the interests of justice to conduct a joint trial: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 373, leave to appeal denied, [2017] S.C.C.A. No. 37322. To qualify as an exceptional circumstance in any context, the delay must arise from “circumstances [that] lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in the original): Jordan, at para. 69. Therefore, to rely upon exceptional circumstances to excuse delay that has been caused as the result of the prosecution of a joint trial, the Crown must establish that: (1) the joint trial is being undertaken in the interests of justice; (2) the delay has arisen because of the joint trial; (3) the delay is unforeseen or reasonably unavoidable; and (4) the Crown could not reasonably have ameliorated that delay.

[41] The Crown has established that all of these prerequisites were met. First, it is not disputed that it was in the interests of justice for the Crown to undertake a joint trial in this case. As the trial judge recognized, it would have been wasteful not to do so and could have led to inconsistent verdicts.

[42] Second, it is also obvious that the delay arose because of the joint trial, as it was caused by the change in counsel by the co-accused, Mr. Nguyen and Ms. Vu, an event outside the control of the Crown.

[43] Third, the Crown has established that this short nine-day delay in excess of the period of prima facie unreasonable delay was not reasonably avoidable. Specifically, it would not have been reasonable for the Crown to resist an adjournment that counsel for the co-accused required to be able to properly represent their clients; the Crown and the court identified possible dates within a period of reasonable delay, but they were unavailable to Mr. Tran’s counsel; and it would have been thoroughly unreasonable to expect the Crown to abandon a joint trial format that was undertaken in the interests of justice to avoid a nine-day delay.

[44] Finally, the delay could not reasonably have been ameliorated by the Crown. This case is not like Manasseri, where the Crown failed to meet its burden of establishing that the exceptional circumstance exception operated to justify 68 months of net delay that occurred in trying Mr. Kenny. In that case the Crown had utterly failed to develop a concrete plan to minimize this alarming, accumulating delay, when the Crown could have minimized it by directly indicting Mr. Kenny or severing his charges to permit his trial to proceed unaffected by the languid pace that Mr. Manasseri’s counsel had established. Manasseri therefore recognizes that there may come a point where the Crown will have to minimize accumulating delay resulting from a joint trial, by giving up on the joint trial plan and trying co-accused persons separately. But in my view, that point was far from being reached in the circumstances of this case. As indicated, the period of prima facie unreasonable delay in this case was only nine days, a delay that simply does not warrant the abandonment of a plan to conduct a joint trial that is being conducted in the interests of justice.

[45] Mr. Tran has attempted to prevent the Crown from relying on the “exceptional circumstances” exception I have just described by arguing on appeal, as was argued on the motion, that Mr. Tran’s trial would have been unreasonably delayed even if delay had not been caused by the joint trial. He argues that since the Crown was still making disclosure after the original trial dates had passed, the original trial dates would have been lost because of Crown delay, whether or not Mr. Nguyen and Ms. Vu changed counsel. Put otherwise, it is his theory that the fact that the delay that arose from the joint trial qualifies as an exceptional circumstance is immaterial, given that an unreasonable delay would have occurred in any event.

[46] In my view, the late disclosure Mr. Tran identifies is a red herring, and there is no need to speculate about how things would have unfolded had the original dates not been disturbed as a result of the change in counsel by the co-accused. The material issue is not whether a trial would have been completed without unreasonable delay, had the delay attributable to the exceptional circumstance not occurred. It is whether the trial was unreasonably delayed in the actual circumstances that occurred. Given the special circumstances that in fact caused the delay, the exceptional circumstances exception applies.

[47] I am therefore persuaded that the trial judge came to the correct decision in denying Mr. Tran’s s. 11(b) motion and would reject this ground of appeal.

Conclusion

[48] I would dismiss the appeal.

Released: August 9, 2023 “M.L.B.” “David M. Paciocco J.A.” “I agree. M.L. Benotto J.A.” “I agree. B.W. Miller J.A.”