DATE: 20021212

DOCKET: C33056 & C33160

COURT OF APPEAL FOR ONTARIO

MCMURTRY C.J.O., MACPHERSON AND GILLESE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Marie Comiskey and Geoffrey Roy for the respondent

Respondent

• and -

SHU TONG LEE and JING JING WU

Christopher Hicks for the appellant Lee

Appellants

P. Andras Schreck for the appellant Wu

Heard: November 20, 2002

On appeal from the convictions by Justice Moira L. Caswell, sitting with a jury, on October 18, 1999 and from the sentences imposed on October 21, 1999, reported at [1999] O.J. No. 5257.

MACPHERSON J.A.:

A. INTRODUCTION

[1] The appellants Shu Tong Lee (“Lee”) and Jing Jing Wu (“Wu”) were charged with importing heroin and possession of heroin for the purpose of trafficking contrary to sections 6(1) and 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. They were tried before Caswell J., sitting with a jury, in Brampton. The jury returned guilty verdicts against both accused on both counts. The trial judge conditionally stayed the possession for the purpose of trafficking conviction for both accused on the basis of R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. She then sentenced both accused to a period of incarceration of 18 years, 4 months in addition to pre-trial custody of 22 months (credited as 44 months).

[2] The appellants appeal their convictions. They also seek leave to appeal their sentences. They raise several issues jointly on their conviction appeals. The principal one, in my view, involves consideration of whether a mistrial during the jury selection process has the effect of rendering nugatory a trial judge’s rulings on pre-trial motions. In addition, each appellant advances a separate ground of appeal. Lee contends that the trial judge’s admission into evidence of his fingerprints, airline ticket and boarding pass was contrary to ss. 8, 9, 10 and 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”). Wu contends that the trial judge erred by admitting a video re‑enactment of the alleged offence prepared and tendered as evidence by the Crown. Finally, both appellants submit that the sentences they received were based on the trial judge’s misapprehension of their position and role in an international drug enterprise and were, in any event, excessive.

B. FACTS

[3] Canadian Airlines flight C8 arrived at Pearson International Airport at approximately 6:40 p.m. on December 28, 1997. The flight originated in Hong Kong and continued, on another plane, from Vancouver to Toronto.

[4] During the flight, several members of the crew developed suspicions about the movements and activities of two passengers who were observed switching bags and entering various washrooms. Loud banging noises were heard coming from inside the washrooms. As a result of the flight attendants' concerns, one of the pilots sent a teletype message to the Canadian Airlines office in Toronto, informing Airport Operations of the suspicious activities. The message was relayed to Canada Customs. The pilot’s message said, inter alia:

FLT ATTS CONCERNED ABOUT SUSPICIOUS BEHAVIOUR OF TWO PAX MR. WU, SEAT 5B (OTHER ASIAN PAX IN SEAT 17D NAME?; . . .

. . . MR. WU WENT TO SEVERAL WASHROOMS WITH A BAG WHICH HE GUARDED VERY CLOSELY WHEN CSD ASKED IF HE WAS OK. MAN IN 17D NOW SITTING WITH . . .

. . . MR. WU. FLT ATTS SAID THEY SWITCHED BAGS (THE 17D PAX WENT TO WASHROOM 2R. MUCH UNUSUAL BANGING HEARD AS IF PANEL BEING FIDDLED . . .

WITH. BOTH MENS BAGS LOOKED THE SAME. ALL 4 FLT ATTS IN FWD SAID BEHAVIOUR REAL STRANGE. SO INSPECTED FWD WSHR MS WITH SEARCH MIRROR.

[5] Customs Inspector Dan Tangney went to flight C8 as part of his duties as cargo officer. He was told about the suspicious activities during the flight and shown the pilot's message. A search of the plane’s washrooms was conducted, and Tangney was informed that bricks appearing to be heroin had been discovered in a washroom.

[6] Tangney obtained the names of the passengers in seats 5B and 17D from Canadian Airlines as Mr. Lee and Mr. Wu. He proceeded to the customs area in Terminal 3 to ensure that all customs officers would look for passengers with those names.

[7] Elizabeth Harrison, an officer in the secondary inspection area, informed Tangney that she had spoken with a Mr. Lee and a Mr. Wu and had released them. Tangney and Harrison went out into the arrivals lobby looking for both men. They spotted Lee and, together with two uniformed Peel Regional Police constables, escorted him back to the secondary inspection area. Harrison questioned Lee with the assistance of an interpreter. He said that he was visiting a cousin named Ing (a name which, according to the testimony of the interpreter, can be translated as Wu). Lee gave Ing’s cell phone number to Harrison.

[8] Harrison and the interpreter called Ing, who was in fact the passenger Wu. Wu said that he would be at the airport in about half an hour to pick up Lee. Harrison told Tangney to arrest Lee. She then went to the arrivals lobby to wait for Wu. When Wu arrived, he was arrested. Both men were fingerprinted. Police seized their luggage, airline tickets and boarding passes.

[9] Sixty bricks of heroin weighing 42 kilograms and with a street value of about $50,400,000 were found behind the walls in six of the plane’s washrooms. Three of Lee’s fingerprints and eight of Wu’s were found on eleven of the heroin bricks.

[10] There are additional facts relevant to the appeal. However, they are better dealt with in the context of the specific grounds of appeal to which they relate.

C. ISSUES

[11] I would group the issues into four categories:

Conviction appeals - joint issues

(1) Did the trial judge err when, after the second declaration of a mistrial, she refused to re‑open the pre‑trial Charter rulings she had made?

(2) Did the trial judge’s conduct and rulings during the trial give rise to a reasonable apprehension of bias?

(3) Did the trial judge err by providing an inadequate charge to the jury on the issue of identification evidence?

(4) Did the trial judge err by permitting the jury to ‘experiment’ with some of the exhibits?

Lee appeal

(5) Did the trial judge err by admitting into evidence Lee’s fingerprints and documents seized from him?

Wu appeal

(6) Did the trial judge err by admitting the video re‑enactment evidence prepared and tendered by the Crown?

Sentence appeals

(7) Did the trial judge err by imposing sentences of incarceration of 18 years and 4 months in addition to pre‑trial custody of 22 months (credited as 44 months)?

D. ANALYSIS

Conviction appeals - joint issues

(1) Relationship between a mistrial during the jury selection process and rulings on pre‑trial motions

[12] One of the unintended, but nevertheless important, consequences of the advent of the Charter has been the lengthening of many criminal trials because of Charter‑based pre‑trial motions and applications.[^1] The trial of Lee and Wu was no exception.

[13] Pre‑trial motions dealing with the admissibility of statements made by both accused, their fingerprints and physical evidence seized from them (luggage, tickets and boarding passes) commenced on August 30, 1999. The evidence on the voir dire concluded on September 9. The Crown chose not to pursue the admission of the statements. On September 13, the trial judge made a brief oral ruling in favour of the admissibility of the fingerprints and the seized physical evidence,[^2] and followed up with a comprehensive written ruling on October 11.[^3]

[14] The jury selection process commenced on September 20, 1999. There was a challenge for cause component to the selection process. After four jurors had been found impartial and sworn, juror #3 came forward and informed the trial judge that she had not understood the question posed on the challenge for cause. The juror stated that she was in fact prejudiced. The same juror had participated as a trier in the challenge for cause of the panel member sworn as juror #4. After discussions with counsel, the trial judge, without objection from any counsel, declared a mistrial.[^4]

[15] The next day, counsel for the appellants indicated that they did not think they were bound by the trial judge’s pre‑trial rulings. The following exchange took place between Lee’s counsel and the trial judge:

MR. ADAMS: My problem is that the mistrial has annulled the pre‑trial rulings.

THE COURT: And you are not prepared to be bound by them?

MR. ADAMS: Yes, they are contrary to my client’s interests and I would be neglectful if I agreed to accept to include them.

THE COURT: I see.

MR. ADAMS: In the circumstances, I would also make the submission that for Your Honour to rehear those, having already heard them, even though Your Honour may be quite capable of setting aside any prejudgment, would necessarily introduce a reasonable apprehension of bias on the part of my client. Accordingly, I am asking you to excuse yourself.

THE COURT: The bottom line here is what?

MR. ADAMS: The bottom line is that having declared the mistrial, it is inappropriate, in my submission to you, to continue with picking a jury and it would be inappropriate for you to rehear the trial motions because of the apprehension of bias.

Counsel for Wu took the same position.

[16] The trial judge rejected the submission of the two accused on this issue. She summarized her reasons for declaring a mistrial, concluding with “I discharged the four jurors out of an abundance of caution.” She continued.

The proceedings then continued in the afternoon with a new panel and selection recommenced.

There were no objections to the continuation of the process by counsel and all counsel participated fully . . . Jury selection concluded at 4:40 p.m. and was scheduled to recommence this morning at 10:00.

Only this morning, counsel for Mr. Lee, and supported by counsel for Mr. Wu argued that because he did not agree to be bound by the pre‑trial motions when the new selection began, not only are the accused not bound but the court is now required to recommence the proceedings as a whole with the pre‑trial motions. As a corollary, since I, as the trial judge, have already ruled on these motions and to avoid any appearance of bias, I am required to excuse myself.

I see no merit whatsoever in the position taken by both defence counsel. This was only technically a new trial. It was really a continuum of the process, a continuum of the selection of a jury for the reasons given. I am fortified in my findings that this trial is a continuation process by the words of Ewaschuk J. in R. v. Curtis and also the Supreme Court of Canada in the case of Q. v. Basarabas.

[17] On this appeal, the appellants do not advance the apprehension of bias submission made by their predecessors at trial; they concede that after the mistrial the trial judge could preside at the new trial. However, the appellants do contend that the mistrial rendered nugatory the pre‑trial rulings made by the trial judge during nine days of pre‑trial hearings.

[18] I do not agree with the appellants’ submission. In my view, the trial judge’s reliance on R. v. Curtis (1991), 60 C.C.C. (3d) 156 (Ont.Ct. (Gen.Div.)) (“Curtis”) to support her decision that her rulings on the pre‑trial motions survived the mistrial was sound.

[19] In Curtis, the issue was whether Ewaschuk J. had the jurisdiction to hear pre‑trial motions and whether he was seised with the trial of the accused before a jury to be chosen at a later date. In answering these questions in the affirmative, Ewaschuk J. relied on s. 645(5) of the Criminal Code which provides:

645(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

[20] Ewaschuk J. analyzed this provision at pp. 159-60:

It is my view that when a judge makes evidentiary rulings pursuant to s. 645(5) of the Criminal Code he or she acts as the trial judge and, consequently, is necessarily seised with the trial. In fact, s. 645 immediately follows the heading “Trial” which, in my view, is confirmatory than an evidentiary hearing conducted pursuant to s. 645(5) is deemed to constitute part of a jury trial . . . .

Thus, an accused entitled to a jury trial is tried by a court composed of a judge and jury. For the judge, the trial commences on the hearing of an application pursuant to s. 645(5) of the Criminal Code – assuming such application is made. Otherwise it generally commences on the hearing of evidence before the jury: s. 669.1(1) of the Criminal Code. For the jury, the trial commences when the accused is put in their charge after the jury has been selected and sworn. In this unique sense, a jury trial may well commence at different stages of the trial proceedings for both the judge and the jury. Only when the trial actually commences for the judge and for the jury do they respectively become seized of the trial.

[21] I agree with this description of the process in a trial involving judge and jury. It is, in a sense, a bifurcated process with the trial judge being seised from the outset and the jury becoming seised once it has been sworn. It follows that there is no logical or legal reason for concluding that a mistrial in the jury selection process seeps back into the judge’s jurisdiction to hear and dispose of pre‑trial motions.

[22] A consideration of the consequences of the opposite interpretation supports this conclusion. Two possible consequences, both quite troubling, come to mind.

[23] First, a rule that a mistrial in the jury selection process rendered nugatory all pre‑trial rulings might literally sound the death‑knell of pre‑trial motions. In such a scenario, most judges would not embark upon such motions before the jury was sworn; it would simply be too risky. The consequence would be a de facto repeal of s. 645(5) which was enacted only in 1985 to permit pre‑trial motions to overcome the “logistical and administrative nightmares” associated with lengthy criminal trials where a jury is selected and then sent home “for weeks and even months” while the trial judge determined the issues relating to the admissibility of evidence: see Curtis, supra, at p. 159.

[24] An alternate, but no less troubling, scenario can be envisioned if the rule suggested by the appellants were adopted. A robust trial judge might proceed with the pre‑trial hearings and make her rulings. However, having invested the court’s resources in reaching these rulings, if problems arose during the jury selection process, she might be inclined to continue with the process rather than start again. In my view, this would be unfortunate given the long line of cases insisting that “[t]he selection of an impartial jury is crucial to a fair trial”: see R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694 at p. 710.

[25] In the present case, the trial judge was, in my view, properly cautious about ensuring that an impartial jury was sworn. A review of her discussions with counsel before her decision to declare a mistrial establishes that she was not prepared to accept any taint on the integrity of the jury which would be sworn for the trial over which she would preside. In my view, this caution was both consistent with the case authorities and laudatory. I fear that appropriate caution along these lines might recede if the consequences of such caution was the obliteration of weeks or even months of perfectly sensible pre‑trial work and rulings.

[26] The appellants rely on the decision of this court in R. v. Kalkhorany (1994), 1994 687 (ON CA), 89 C.C.C. (3d) 184 (“Kalkhorany”), in support of the argument that the trial judge lost jurisdiction after the second mistrial. I do not think that Kalkhorany is inconsistent in any way with Curtis or my reasons in this appeal.

[27] In Kalkhorany, the Crown purported to elect to proceed summarily on a hybrid offence. The trial started. After some evidence had been heard, defence counsel pointed out that the alleged offence date was seven months before the information had been sworn, thereby violating the six‑month limitation period in s. 786(2) of the Code. The trial judge permitted the Crown to re‑elect and proceed by indictment. Since the offence was within the jurisdiction of the then provincial court under s. 553 of the Code, the witness testifying at the time of the jurisdictional objection continued to testify. This court held that the continuation was fatal to the conviction of the accused because, in the words of Arbour J.A., “[t]he court which entered the conviction was never properly constituted in that it purported to seize itself of a trial in progress” (at p. 191). The jurisdiction to try the summary conviction offence was established by Part XXVII of the Criminal Code whereas the jurisdiction to try the indictable offence arose under Part XIX of the Code. Thus, although the judge was empowered to preside over both types of trial, the proceedings were still, as Arbour J.A. observed, “jurisdictionally different” (at p. 191). Further, the distinction is not merely technical: serious practical consequences flow from the Crown’s election to proceed by indictment (at p. 192).

[28] The situation in the present appeal is not similar. The second mistrial in no way altered the nature of the proceedings before the court. It follows that the new trial is not “jurisdictionally different” from the original trial. Accordingly, the trial judge’s description of it as a “continuation”, at least in terms of the rulings on the pre‑trial motions, was apt.

(2) Bias

[29] The trial judge declared two mistrials in this case. I described the second mistrial in the preceding section. The first mistrial arose very early in the voir dire shortly after the trial commenced. Court was convened at 11:35 a.m. on August 30, 1999. The accused were arraigned. The first witness on the voir dire, Customs Inspector Tangney, was sworn at 11:50 a.m. At about 12:15 p.m., the trial judge declared a mistrial, without objection from counsel, when it became apparent that the interpreter, who had never been involved in a criminal trial, was having difficulty translating the proceedings for both accused.

[30] Shortly before declaring the mistrial, the trial judge made a ruling in respect to notes and a ‘narrative report’ prepared by Tangney. She permitted Tangney, without objection from counsel, to refer to the notes he prepared contemporaneously with the events as they unfolded on the evening of December 28‑29, 1997. She refused to permit Tangney to refer to a narrative report – essentially, a summary and enlargement of his notes – which he had prepared about 12 hours later when he commenced his next shift.[^5]

[31] After the mistrial, the trial judge decided to revisit her ruling. Tangney was examined and cross‑examined about his notes and narrative report, counsel made submissions[^6], and the trial judge ruled that Tangney could refer to both the notes and the narrative report.

[32] The appellants contend that the alleged reversal of the trial judge’s ruling with respect to the narrative report after the first mistrial coupled with her refusal to re‑open her pre‑trial rulings after the second mistrial give rise to a reasonable apprehension of bias.

[33] I disagree. The test for reasonable apprehension of bias is settled. As articulated by de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 at 394 (“Committee for Justice”):

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information . . . [The] test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude . . . .”

[34] In my view, there is nothing in the chronology or contents of the trial judge’s two rulings that even begins to approach this test.

[35] The first ruling, which had two components, was made in relation to a relatively minor matter – whether a customs officer could refer during his testimony to a narrative report he had prepared about 12 hours after the relevant events. Moreover, I do not think that the appellants’ characterization of the second component is accurate. In the second component of the ruling, the trial judge allowed Tangney to refer to the narrative report in so far as it was “an elaboration” of his notes. She specifically reserved to counsel the right to cross‑examine Tangney to elicit whether the narrative report was based in part on any outside influences, including “speaking to the other officers”. It is clear from her ruling that she specifically reserved to herself the possibility of making further rulings on the use of the narrative report as an aid to Tangney’s testimony as that testimony unfolded.

[36] The second ruling, made after the second mistrial, in which the trial judge refused to reopen the pre‑trial rulings on the Charter matters was, as I determined in the previous section, legally sound. Moreover, in my view it does not raise even a hint of the concerns addressed in Committee for Justice. Indeed, I strongly suspect that if you asked the reasonable person what should be the consequence of an error in the jury selection process in the context of a trial involving weeks or months of pre‑trial motions, the answer would be “Fix the mistake in the jury selection process”, not “Blow up the whole trial”.

[37] There is a second component to the appellants’ bias argument. The appellants made a motion for a mistrial after the trial judge excused a potential juror who did not speak English well, admonished her for not raising her difficulty on Monday morning and suggested she try to learn English before her next appearance on a jury panel. Since the two accused were using an interpreter, the appellants contend that the trial judge’s comment to the prospective juror indicated that she was not sympathetic to persons who did not speak English well. The trial judge dismissed the motion for a mistrial “without reasons”. The appellants raise this issue again on the appeal.

[38] I disagree with the appellants’ submissions. Although the trial judge’s comment to the prospective juror would have been better left unsaid, it is clear from a reading of the entire trial record that the trial judge was scrupulously attuned to the constitutional right of the accused to receive complete and accurate translation of the entire trial into Cantonese. The trial judge’s brief, and perhaps exasperated, comment to a prospective juror does not diminish the overall care and attention that she devoted towards ensuring that the appellants understood everything that was being said during the trial. Nor does the single comment rise to the level of conduct required by the test in Committee of Justice.

(3) Identification evidence

[39] The appellants submit that the trial judge’s charge to the jury on the issue of identification was deficient in two respects – first, she did not instruct the jury in sufficiently strong language about the dangers of in‑dock identification evidence; and, second, she failed to adequately relate the identification evidence to the theory of the defence.

[40] I do not accept the appellants’ submissions on this issue.

[41] Concerning the first submission, the trial judge carefully warned the jury of the dangers of relying on the in‑dock identification of the appellants by the flight crew (only Sachira Tsuchida identified the two accused form the witness box; other flight personnel provided descriptive evidence about the features of the two passengers who caused concern during the flight). The trial judge advised the jury that most cases of miscarriage of justice have been caused by faulty eye witness testimony. She concluded with this observation: “If this was the only identification evidence before you then it would be certainly unsafe to convict the two accused.” In my view, these instructions were appropriate and sufficient.

[42] Turning to the second submission, the trial judge did relate various components of the identification evidence to the theory of the defence. With respect to the evidence of the flight attendants, the trial judge said:

It is the position of the defence that it would be unsafe to found a conviction on the Crown’s evidence. The evidence of the flight attendants are suspect. There are too many discrepancies relating to such matters as Mr. Wu’s actual height, being 5’11” and Ms. Neto’s description of his height being 5’5”, the custom’s photo revealed that Mr. Wu was wearing a sweater, not a business suit, Ms. Tsuchida said he had on a business suit and a tie, photographic evidence will show that Mr. Lee was wearing dark clothes, yet Ms. Tsuchida described him as wearing a white shirt.

[43] During her summary of Lee’s defence, the trial judge stated:

With respect to the suspicious activity in the air, only Ms. Tsuchida identified Mr. Lee and that was in the courtroom where surely she expected to see accused persons. There was never any form of a controlled line‑up in which Ms. Tsuchida was asked to participate. It is now 21 months later. Ms. Tsuchida was unable to describe any single feature of Mr. Lee. She got the clothing wrong. She referred to the blue bag as dirty.

Ms. Neto, herself, agreed that a number of passengers on the plane that evening were Oriental and that people do move around on planes. As far as the identification evidence on the flight, counsel has argued that it is full of holes, “shreds and patches” he said, and it would be unsafe to base a conviction on that evidence.

The trial judge gave similar instructions when she reviewed Wu’s defence.

[44] Finally, it should be observed that on the question of identification the crucial evidence related to the fingerprints of the appellants found on several of the bricks of heroin. On this component of the identification evidence, the appellants do not challenge the trial judge’s charge, including her coverage of the defence theory that the police planted the fingerprints on the bricks.

(4) The heroin exhibits

[45] After approximately 4½ hours of deliberations, the jury posed several questions, including:

2.(a) May we place the 60 bricks into the blue bag?

(b) If not, will the court place the 60 bricks into the blue bag?

3. May juror number 8 be allowed to lift the bag with bricks included?

4. May the jurors if they chose handle and or lift the bricks of heroin?

[46] The trial judge consulted with counsel. Crown counsel initially raised concerns about acceding to the request on the basis that the Crown’s theory of the case was not that the heroin came into the country in a single bag. The trial judge observed:

THE COURT: Counsel, I wasn’t thinking of this in terms of a demonstration, but if we had allowed the heroin to go into the jury room, which if it had not been such an incredibly large amount of such purity, we would have, and whatever the jurors did with it in the jury room, we would neither know nor care. Am I right on that? If all the exhibits were there, they would not have asked my permission to put the heroin in the blue bag. They would have just perhaps done it, but I don’t know what people do in jury rooms, but I assume they could have potentially done just that.

Crown counsel agreed with this analysis and resiled from his original position.

[47] Counsel for Wu then intervened, strongly supporting the trial judge:

MR. ORR: The Crown has indicated his concern here. In my submission it is ludicrous. The bottom line is, as I gathered Your Honour, your remarks to my learned friend were right on the money.

Counsel for Lee then stated that “I agree with Mr. Orr’s position”.

[48] When the jury returned to the courtroom, the trial judge informed them:

THE COURT: . . . Members of the jury, we are going to move in the heroin as per your request. You may do with it whatever you choose in the privacy of your jury room. I warn you though, please for your own safety wear gloves at all times and be very careful when handling the heroin. As you know, it is highly toxic, meaning poison and we do not want you subjected to any health risks.

No objection was taken to this ruling.

[49] On appeal, the appellants contend that the trial judge erred when she permitted the jury to conduct the experiment referred to in their questions which, they submit, is contrary to the case law: see, for example, R. v. Kluke, [1987] O.J. No. 766 at p. 11 (C.A.), wherein Lacourcière J.A. stated that “[i]t has always been a firm rule of criminal practice that at the conclusion of a case, after the jury has retired to consider its verdict, it is improper to allow further evidence to be adduced, even at the request of the jury.”

[50] In my view, the trial judge’s ruling does not infringe Kluke, which dealt with an in court demonstration after the jury deliberations had commenced. In her discussion with Crown counsel, the trial judge specifically disclaimed “thinking of this in terms of a demonstration”. Her ruling simply provided the jury with access to the heroin exhibits, access which was their right. As the trial judge observed, and as defence counsel vigorously endorsed, but for the quantity of heroin it would have been placed in the jury room along with the other exhibits at the start of the jury’s deliberations.

Conviction Appeal ‑ Mr. Lee

(5) Admission of Lee’s fingerprints and documents

[51] At the commencement of the trial, there was a long voir dire in which both the accused contested the admission of statements, fingerprints, and luggage, tickets and boarding passes on the basis of ss. 8, 9, 10 and 24(2) of the Charter. The Crown did not pursue the admission of the statements. In a lengthy ruling, the trial judge held that the appellants had not been detained when they returned to the secondary inspection area at the airport.[^7] Accordingly, neither s. 9 (arbitrary detention) nor s. 10(b) (right to counsel) of the Charter was infringed. The trial judge further held that there was no violation of s. 8 (unreasonable search and seizure) and, in any event, all of the physical evidence was admissible under s. 24(2).

[52] On appeal, Wu does not challenge the trial judge’s ruling. Lee does. He contends that the disputed evidence was obtained in a manner which breached his right to counsel under s. 10(b) and his right against arbitrary detention under s. 9. He also submits that the seizure of his fingerprints violated his s. 8 rights. Finally, Lee contends that the trial judge erred in her analysis of s. 24(2) of the Charter.

[53] In my view, it is possible to respond to these submissions in relatively brief fashion.

[54] The grounds, both subjective and objective, for arresting Lee were, in a word, overwhelming. Lee’s fingerprints were taken after the lawful arrest. Accordingly, there was no s. 8 violation with respect to them.

[55] With respect to the other seized evidence, even assuming (without deciding) that it was obtained after Lee was ‘detained’, there is no basis for interfering with the trial judge’s discretionary ruling that this evidence was admissible under s. 24(2) of the Charter: see R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607; R. v. Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341; and R. v. Granston (2000), 2000 5743 (ON CA), 146 C.C.C. (3d) 411(Ont. C.A.).

[56] The fairness of the trial was not affected by admission of the physical evidence which, it should be noted, was extremely minor evidence in contrast with the seized heroin and Lee’s fingerprints. This physical evidence could have been obtained after the lawful arrest which took place minutes after the alleged unlawful detention.

[57] The breach of Lee’s rights, if he was ‘detained’, was minimal. Once Customs Inspector Harrison was informed of the discovery of the heroin and the contents of the pilot’s teletype message, she had overwhelming grounds to arrest Lee. She delayed for a few minutes because she was, if anything, overly cautious about her suspicions and wanted to make sure she had subjective grounds. I would not link the notion of ‘extreme caution to arrest’ with ‘a serious Charter breach’.

[58] Similar reasoning applies to the factor relating to the effect of the exclusion of evidence on the administration of justice. The fingerprints were obtained pursuant to a lawful arrest. The physical evidence obtained before the arrest was not conscriptive evidence or particularly important evidence and would have been obtained in any event following the lawful arrest of Lee. To exclude this evidence because of a customs officer’s hesitation before making the lawful arrest would be inappropriate.

Conviction appeal ‑ Mr. Wu

(6) Video re‑enactment evidence

[59] During the trial, the Crown sought the admission of a videotape which was created in March 1999 by police officers. It showed the interior of the Canadian Airlines DC‑10 where the alleged incidents on flight C8 took place. The videotape initially proferred by the Crown lasted 20 minutes and featured Peel Regional Police Constable Catherine Heaney as guide and commentator.

[60] The trial judge, over the objections of both accused, admitted a six‑minute version of the videotape, without commentary from Constable Heaney. In this version, Constable Heaney is seen indicating the entrances of two of the washrooms. In one washroom, the image is the cavity behind the panel once the toilet paper holder is removed. In another washroom, a mechanic is seen removing the cowling from a toilet, and the cavity behind and below the toilet is visible.

[61] The trial judge admitted the shortened and silent version of the videotape. She reasoned:

In my view, the videotape, in its truncated version, should be seen by the jury as an aid to their understanding of the evidence only. They have heard a great deal of evidence about how the drugs were secreted in the washrooms and their ultimate location. They will, of course, be instructed by me that the videotape is a reconstruction by the Crown, and nothing more, created by the police in March 1999, a considerable period of time after the events that occurred on December 28^th, 1997.

Customs Inspector Metcalfe was cross‑examined extensively by the defence concerning his evidence as to how the bricks of heroin were inserted in the cavities beside and behind the bases of the toilets. Although it is not a Crown’s theory that the accused removed the cowlings from the toilets and inserted the drugs at the rear of the bases of the toilets, the defence cross‑examined Customs Inspector Metcalfe concerning how long it would take to remove the cowling and how difficult it would be to unscrew the fasteners.

The trial judge concluding by saying that she regarded the probative value of the videotape as “very high” and its prejudicial effect as “very little”.

[62] On appeal, Wu, but not Lee, challenges the trial judge’s ruling on two bases – first, the admission of the videotape was improper; and, second, the trial judge did not follow through on her expressed intention to instruct the jury that “the videotape is a reconstruction by the Crown, and nothing more.”

[63] This court engaged in an extensive analysis of the role of video re‑enactment evidence in a criminal trial in R. v. MacDonald and Varcoe (2000), 2000 16799 (ON CA), 146 C.C.C. (3d) 525. The court held that the video re‑enactment should not have been admitted because the many inaccuracies in the video when contrasted with the evidence “distorted the reality of the takedown” and gave the jury “a powerful and misleading image of what occurred” (at p. 541). The court commented on “how one‑sided the video re‑enactment evidence was” and concluded that the “one‑sided depiction of what occurred, presented in vivid and forceful imagery, was highly prejudicial” (at p. 542).

[64] The video in this appeal does not suffer from this defect. It is a straightforward, almost bland depiction of the interior of the actual DC‑10 in which the alleged events occurred. Moreover, the scenes depicted in the video are well‑grounded in the testimony (including cross‑examination by defence counsel) heard by the jury.

[65] In MacDonald and Varcoe, the court articulated the test for the admissibility of video re‑enactment evidence at pp. 539‑40:

In our view, the preferable approach recognizes the dangers of video re-enactments but adopts a case-by-case analysis. As with the admissibility of other kinds of evidence, the overriding principle should be whether the prejudicial effect of the video re-enactment outweighs its probative value. If it does, the video re-enactment should not be admitted. In balancing the prejudicial and probative value of a video re-enactment, trial judges should at least consider the video’s relevance, its accuracy, its fairness, and whether what it portrays can be verified under oath. . . . And as with rulings on the admissibility of other kinds of evidence, the trial judge’s decision to admit or exclude a video re-enactment is entitled to deference on appeal.

[66] Although MacDonald and Varcoe was decided after the trial judge made her ruling in this case, in my view her ruling tracks this analysis very closely. The trial judge explicitly considered and balanced probative value and prejudicial effect. She also was very attuned, in her discussions with counsel and ultimately in her ruling where she admitted a shortened and silent version of the video, to the specific factors set out in the above passage – relevance, accuracy, fairness and consistency with the evidence.

[67] Turning to Wu’s second submission on this issue, the trial judge instructed the jury that the video was “a reconstruction”. It is true that she did not add the words she suggested in her ruling – “and nothing more” – but I doubt that this omission affected the jury’s understanding of what they were seeing. The video was obviously Crown evidence and obviously a reconstruction.

[68] I make a final observation on this issue. During their deliberations, the jury asked to take a view of the aircraft. Arrangements were made and the view took place. In my view, the fact that the jury saw the interior of the actual aircraft used for flight C8 reduces significantly any concern (which I do not have) about the admission of the videotape.

Sentence appeals

[69] The trial judge sentenced both appellants to a period of incarceration of 18 years and 4 months in addition to pre‑trial custody of 22 months (credited as 44 months). The appellants contend that the trial judge’s misapprehension of the appellants’ position and role in the international drug enterprise improperly contributed to these high sentences. They also submit that the sentences are excessive in any event.

[70] On the first issue, the trial judge concluded that the two accused were not overseers or principals in the international drug enterprise; however, they were much more than simple mules. They were, she concluded, “trusted players well connected and of some importance in this dreadful business.” In my view, there is no basis for interfering with this conclusion which was entirely available to her on the evidence she heard.

[71] On the second issue, I make three observations.

[72] First, heroin is clearly one of the most deadly and devastating of all the proscribed drugs. That is the drug – in a 92 per cent pure form – the appellants carried.

[73] Second, importation is the most serious of all the drug offences. That is the offence the appellants committed.

[74] Third, the appellants imported 60 bricks of heroin with an estimated street value of $50,400,000. This quantity of heroin would have provided about 1,680,000 individual hits on the street.

[75] In my view, the appellants’ argument that the sentences they received were excessive dissolves against the backdrop of a simple listing of these factors.[^8]

E. DISPOSITION

[76] I would dismiss the appeals against conviction. I would grant leave to appeal the sentences and I would dismiss the sentence appeals.

RELEASED: December 12,2002

“J. C. MacPherson J.A.”

“I agree R. Roy McMurtry C.J.O.”

“I agree E. E. Gillese J.A.”

[^1]: For an excellent discussion of this phenomenon, see M. Moldaver, “A Trial Judge’s Perspective on the Charter”, in J. Cameron, ed., The Charter’s Impact on the Criminal Justice System (Scarborough: Carswell, 1996), 143 at 144-46.

[^2]: Reported at [1999] O.J. No. 5753.

[^3]: Reported at [1999] O.J. No. 3913.

[^4]: This was the second mistrial declared by the trial judge. The first occurred during the voir dire and will be discussed in the next section of these reasons.

[^5]: Counsel for Lee opposed permitting Tangney to refer to the narrative report. Counsel for Wu took no position on this issue.

[^6]: The record does not indicate what positions counsel advanced at this second stage.

[^7]: I described the circumstances surrounding these events in the Facts section of these reasons.

[^8]: The fresh evidence tendered on behalf of Wu, which I would admit, does not alter this conclusion.