DATE: 20040624

DOCKET: C39019 & C39286

COURT OF APPEAL FOR ONTARIO

LASKIN, ROSENBERG JJ.A. and AITKEN J. (ad hoc)

B E T W E E N:

HER MAJESTY THE QUEEN

John D. Dillon for the appellant John Major

(Respondent)

• and -

Michael S. Mandelcorn for the appellant Sherry Ellen McBride

JOHN MAJOR

(Appellant)

Susanne Boucher for the Crown

• and -

SHERRY ELLEN McBRIDE (Appellant)

Heard: March 15, 2004

On appeal from the convictions entered by Justice Douglas J. A. Rutherford, of the Superior Court of Justice, sitting with a jury, on June 20, 2002. The appellant John Major also appeals from the sentence imposed by Justice Rutherford on September 20, 2002.

ROSENBERG J.A.:

[1] The appellants John Major and Sherry Ellen McBride appeal their convictions for possession of heroin and marihuana for the purpose of trafficking. The appellant Major also appeals his sentence. At the opening of the appeal, counsel for the appellant McBride stated that his client was abandoning her sentence appeal. The appellants were tried by a court composed of Rutherford J. and a jury. While the appellants raise a number of grounds of appeal, their principal ground of appeal concerns the validity of a search conducted by correctional officers and police officers at a family-visit trailer on the grounds of Collins Bay Penitentiary. The trial judge found that the warrantless search was authorized by a regulation to the Corrections and Conditional Release Act, S.C. 1992, c. 20, that authorizes the search of an “inmate’s cell”.

[2] In my view, the trial judge properly interpreted the regulation and therefore properly found that the search was lawful. I would also not give effect to any of the other grounds of appeal. Accordingly, I would dismiss the appeals from conviction. I would also dismiss the appeal against sentence of the appellant Major.

THE FACTS

[3] On May 26, 2000, the appellant McBride attended at Collins Bay Institution, with her six-year-old daughter, for a visit with her husband, the appellant Major. McBride and her daughter were to stay the weekend with Major in one of the family-visit trailers on the grounds of the institution.

[4] Robert Frankovitch, the preventive security officer at Collins Bay, had received information in April 2000 that McBride would be bringing marihuana and one ounce of heroin into the penitentiary during the family visit scheduled for May 26th. The source of this information was an inmate whom Frankovitch considered reliable and who had provided reliable information in the past. Frankovitch was also authorized to intercept communications between the appellants, which he did over the course of a three-week period prior to May 26th. These communications confirmed the plan to bring in the drugs and that McBride was going to pick up the drugs in Toronto during the long weekend in May.

[5] The warden and deputy warden authorized Frankovitch to search the trailer that the appellants were to occupy during the visit on May 26th. In the week prior to the search, Frankovitch contacted legal counsel for Corrections Canada to determine whether the trailer was considered to be an extension of the inmate’s living quarters, which would negate the requirement of a search warrant. Counsel advised Frankovitch that the trailer was so considered.

[6] The search was conducted by correctional officers and members of the Ontario Provincial Police (the “O.P.P.”). The O.P.P. attended at the institution around 4:00 p.m. on May 26th and were briefed by Frankovitch. They left and returned around 8:00 p.m. for a second meeting. Because the search was conducted on penitentiary property, the officers did not believe they needed a search warrant. The trial judge found that there had been plenty of time to obtain a warrant, had one been necessary.

[7] Shortly after 9:00 p.m., the officers entered the appellants’ trailer. The officers found the appellants and their daughter sitting in the kitchen area. The adults were ordered to lie on the floor and were placed under arrest and handcuffed. The child was alarmed and upset by the entry and arrest. There was a dispute between McBride and the officers as to the manner in which the search was conducted. The trial judge found as a fact that the search was conducted in the manner to which the officers testified, and therefore rejected the allegations that the officers, for example, were brandishing firearms.

[8] After the arrests, Major led the officers to a rear bedroom where quantities of heroin and marihuana were found in balloons. The officers also found a quantity of marihuana in the kitchen. McBride admitted to the officers that she had brought the drugs into the institution. In all, the officers found about an ounce of heroin and eighty grams of marihuana.

[9] Jeffrey McKenna was one of the correctional officers who took part in the search. His role was to videotape the search. The authorities searched two of the family-visit trailers at about the same time. McKenna was involved in the search of the other trailer first, and then came to videotape the search of the trailer occupied by the appellants. The trial judge found that by the time McKenna arrived, the initial entry and arrest had already taken place and the drugs had already been found. By the time of trial, the videotape had either been lost or the contents of the tape had been replaced with other material. The appellants sought a stay of proceedings because of the loss of this evidence. The trial judge’s dismissal of that application also forms a ground of appeal.

[10] The appellant McBride testified at trial, and raised the defence of duress. She claimed that several men had come to her house and threatened that her family would be harmed if she did not cooperate. She also testified that she believed all the drugs were marihuana. She testified that she had never examined the contents of the packages, although some of the balloons had been left in her custody for several weeks prior to the visit.

THE GROUNDS OF APPEAL

[11] The appellants advanced the following grounds of appeal:

(i) The trial judge erred in finding that the warrantless search of the family visit trailer did not violate their rights under s. 8 of the Canadian Charter of Rights and Freedoms, and in refusing to exclude the fruits of that search under s. 24(2).

(ii) The trial judge erred in dismissing an application to stay the proceedings as a result of unreasonable delay contrary to s. 11(b) of the Charter.

(iii) The trial judge erred in dismissing an application to stay the proceedings as a result of the violation of the appellants’ rights under ss. 7 and 11(d) of the Charter due to the loss of the videotape.

(iv) The trial judge erred in permitting cross-examination of McBride on a previous incident in which she allegedly brought drugs into the institution and gave them to Major.

(v) The certificates of analysis were defective.

(vi) The trial judge erred in sentencing Major on the basis that he knew that one of the drugs was heroin.

ANALYSIS

(i) The Search

(a) The trial judge’s reasons

[12] The prosecution relied on provisions of the Corrections and Conditional Release Act and Regulations to justify the warrantless search of the trailer. Section 58 of the Act provides as follows:

A staff member may, in the prescribed manner, conduct searches of cells and their contents in the prescribed circumstances, which circumstances must be limited to what is reasonably required for security purposes. [Emphasis added.]

[13] Section 52 of the Regulations sets out the manner of the search:

(1) Subject to subsection (3), where a staff member believes on reasonable grounds that contraband or evidence of an offence is located in an inmate's cell, the staff member may, with the prior authorization of a supervisor, search the cell and its contents. [Emphasis added.]

(2) Subject to subsection (3), where a staff member searches an inmate's cell and its contents pursuant to subsection (1), another staff member shall be present at all times during the search.

(3) A staff member is not required to obtain an authorization or conduct a search in the presence of another staff member in accordance with subsections (1) and (2), respectively, where the staff member believes on reasonable grounds that delaying a search in order to comply with those subsections would result in danger to the life or safety of any person or the loss or destruction of contraband or evidence.

[14] Neither the Act nor the Regulations define the term “cell”. There are no provisions of the Act or Regulations that deal explicitly with family-visit trailers. In his ruling, the trial judge found that Frankovitch had the requisite reasonable grounds to search the trailer and had been properly authorized by his supervisors. The trial judge described the trailer in these terms:

Clearly the description of the family visiting unit makes it a different sort of cell at least physically if, indeed, it is a cell. It was described as a trailer or small, cottage-like structure. It is locked in by a fence and is within the prison walls. It had an open kitchen/living room/dining room area, a short hallway, at least two bedrooms, and a bathroom.

[15] In her materials, Crown counsel provided a brochure entitled “Private Family Visiting Program” that is apparently given to families that take part in the family visits. The brochure states that the inmate and visitors will be subject to the normal search procedures before and after each visit. Certain games and toys are available in the visiting units, and a recreation area with playground equipment is provided for children. When a visit is in progress, “staff members have regular contact with the inmate and visitor(s), to ensure their security and safety. Prior notice would normally be given and contact should be the least disruptive as possible.” The unit is fenced off from the rest of the institution. Inmates and their visitors are required to remain inside the visiting unit for the duration of the visit. A visit may be terminated at any time by the inmate or the visitors. Institutional staff may also terminate the visit for the security and safety of the inmate and the visitor. I will return to this brochure below.

[16] The trial judge concluded, “although not without doubt”, that the family-visit unit was a cell within the meaning of the Act and Regulations. He found that the ordinary meaning of the word did not lead to any “definitive conclusion”. The core of his reasoning for finding that the unit was a cell is found in these paragraphs from his ruling:

Given the comprehensive nature of the scheme for administering these federal institutions, it is my view that to construe the word “cell” narrowly to include the space in which an inmate resides normally but not when in a family visiting unit, notwithstanding that it is fenced in, locked, and within the walls of the prison, would deprive the scheme and the institution’s management of an important part of their intended responsibility. That inmates and visitors have some expectation of privacy even inside the institution is not the point, that privacy is subject to the terms of the legislation is the important point. In any case, a search of Ms. McBride’s person was not at issue here and her privacy in that regard was not violated.

I do not see that a visitor’s legitimate expectation of privacy is diminished by construing the term “cell” to include that enclosed, locked space in which a family member may be authorized to spend time, be it a day, a weekend, or whatever, with an inmate.

In my opinion, the management of a federal penitentiary does not have to go to a Justice of the Peace in order to search the normal cells or the cell that is a family, visiting unit when the conditions specified in regulation [52(1)] are met. Those family, visiting cells are to be governed, insofar as search and seizure is concerned, by the same comprehensive, regulatory scheme as governs the rest of the space, including the inmates’ traditional cells in the institution.

[17] Having found that the visiting unit was a “cell”, the trial judge held that the warrantless search was authorized by law and therefore there was no violation of s. 8 of the Charter. The appellants concede that if the trial judge correctly interpreted the Regulation, the search was valid. They did not attack the constitutionality of the Act or the Regulations.

(b) Reasonable expectation of privacy

[18] The appellants recognize that regardless of whether the search was validly conducted under s. 52 of the Regulations, they cannot succeed on this ground without establishing that they had a reasonable expectation of privacy in the trailer, and that they therefore have standing to assert a violation of their s. 8 rights. The trial judge did not expressly deal with the question of a reasonable expectation of privacy. However, it is implicit in his reasons that he was satisfied that the appellants had standing to raise the s. 8 issue. For example, he said the following:

Inmates and visitors to penitentiaries have privacy rights and privacy expectations. They are reduced, of course, from those of persons in ordinary life on the outside for obvious reasons related to both the safety and the security of the institutions and all within them.

The trial judge also noted:

That inmates and visitors have some expectation of privacy even inside the institution is not the point, that privacy is subject to the terms of the legislation is the important point.

[19] In any event, I am satisfied that the appellants had standing to raise the s. 8 issue. The leading case on what constitutes a reasonable expectation of privacy is the decision of the Supreme Court of Canada in R. v. Edwards (1996), 1996 255 (SCC), 104 C.C.C. (3d) 136. That case concerned the right of an accused to challenge the search of a third party’s premises, his girlfriend’s apartment.

[20] One issue not addressed by the parties in this case is whether the appellants could assert a reasonable expectation of privacy because of their ownership of the drugs themselves. That issue was raised in Edwards at para. 44:

In the case at bar, one of the bases upon which the appellant asserted his right to privacy in Ms Evers' apartment was his interest in the drugs. It is possible, in certain circumstances, to establish an expectation of privacy in the goods that are seized.

[21] In Edwards, the Court would not allow the accused to pursue that argument since his position at trial and in the Court of Appeal had been that the drugs were not his. By contrast, in this case the appellants have always admitted possession of the drugs. Their defence was that they held them under duress. However, since the matter was not pursued in argument in this court, nor was it apparently pursued at trial, I will approach the issue of standing by resort to the traditional Edwards analysis. The appellants’ admitted possession of the drugs will be one of several factors to consider. In Edwards at para. 45, Cory J. held that the “reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances”. He then listed seven factors for the court to consider, noting that the list was not exhaustive:

(i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation.

[22] The Crown contends that the appellants only meet the first factor, namely presence at the time of the search. In my view, while the appellants’ expectation of privacy in a trailer within a penitentiary is reduced from that which might be expected in an ordinary dwelling, they have a reasonable expectation of privacy sufficient to give them standing to challenge the validity of the search. I reach that conclusion for the following reasons.

[23] As conceded by the Crown, the appellants were present at the time of the search. They also had possession and control of the drugs. They had possession, although admittedly time-limited, of the premises. They had only limited control over the place to be searched. The appellants do not meet the third and fourth of the Edwards criteria since they do not own the place and have no history of using it. As to the fifth criterion, they had virtually no ability to regulate access. The appellants were not entitled to have other visitors in the unit. On the other hand, as noted above, the brochure produced by the Correctional Service promises that prior notice would normally be given of “contact” between the correctional officers and the inmate and visitors, and that contact should be the least disruptive as possible. Also, it seems that Major would only have to visit with the people he wanted, and that he regulated access by allowing/requesting that certain people come to visit.

[24] The most important factors in this case are the existence of a subjective expectation of privacy and the objective reasonableness of that expectation. To deal first with a subjective expectation, there need not be direct evidence of a subjective expectation of privacy. A subjective expectation of privacy can be inferred from all the circumstances. See R. v. Law (2002), 2002 SCC 10, 160 C.C.C. (3d) 449 (S.C.C.) at para. 18. In my view, in this case a subjective expectation of privacy can be inferred from all the circumstances. The trailer was locked. The appellants expected to sleep in the premises, and they brought their six-year old daughter with them. No doubt their expectations were tempered by the circumstances, in that they were on the grounds of a penitentiary and they did not hold the key to the lock. Nevertheless, I am prepared to find that they did have a subjective expectation of privacy. In terms of the objective reasonableness of the expectation, perhaps the most compelling evidence of the reasonableness of the expectation is the brochure itself. It describes the visits as private family visits and states the following:

Inmates have the opportunity to use separate facilities where they may meet privately to renew or continue personal relationships.

and

Visits take place in special family visiting units located within the institutional reserve in an area providing as much privacy as reasonable. [Emphasis added.]

[25] It seems to me that these statements by the Correctional Service fuel both the subjective expectation of privacy and its objective reasonableness. Considering all the circumstances, it is my view that the expectation of privacy, although much diminished, is sufficient to give the appellants standing. I find some support for this conclusion in the decision of the Supreme Court in Conway v. Attorney-General of Canada (1993), 1993 112 (SCC), 83 C.C.C. (3d) 1. That case concerned the reasonableness of cross-gender searches in the penitentiary. One of the practices to which the inmate objected was referred to in the penitentiary as the “wind”. During the wind a male or female guard would, without notice, walk the range and peer into the inmates’ cells. Speaking for the court, La Forest J. said the following at p. 4:

Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. [Emphasis added.]

[26] In contrast to the setting in Conway, in this case the trailer is not exposed and the Correctional Service promises to the inmate and his family a reasonable amount of privacy. The appellants had a reasonable expectation of privacy, giving them standing to engage the protection in s. 8 of the Charter.

(c) The meaning of “cell”

[27] The modern approach to statutory interpretation adopted by the Supreme Court of Canada in numerous decisions is as set out in Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87 as follows:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[28] See Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26. This approach has been adopted in the context of statutes authorizing search and seizure. For example, in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 26, LeBel J. said the following in relation to the wiretap provisions of the Criminal Code:

[W]e need to give the section a fair and liberal reading as part of our country's criminal justice legislation. Second, however, we must not forget that the text of s. 186(1) represents a type of constitutional compromise. In particular, the investigative necessity requirement embodied in s. 186(1) is one of the safeguards that made it possible for this Court to uphold these parts of the Criminal Code on constitutional grounds. … As a result, s. 186(1) must be read with a simultaneous awareness of the competing values of enabling criminal investigations and protecting privacy rights. [Emphasis added.]

[29] I would adopt an analogous approach in this case to the interpretation of the provisions involved in this case. Those provisions, s. 58 of the Act and s. 52 of the Regulations, must be read with an awareness of the competing values of the security and safety of the penitentiary and protecting the reasonable privacy rights of inmates and their visitors. The sections must also be read having regard to the scheme of the Act, its objects and the intention of Parliament. The trial judge adopted such an approach. He was particularly persuaded by the comprehensive nature of the legislation. As he said, to adopt a narrow approach to the term “cell” would “deprive the scheme and the institution’s management of an important part of their intended responsibility [that is, administering the penitentiary]”.

[30] While I share the trial judge’s unease about adopting this broad definition of the term “cell”, I am satisfied that he came to the correct conclusion. The purpose of the correctional system as set out in s. 3 of the Act is “to contribute to the maintenance of a just, peaceful and safe society”. This is accomplished by carrying out sentences through the safe and humane custody and supervision of offenders, and by assisting with the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in the penitentiary and the community. The private family-visit program is obviously one of those programs. The pamphlet sets this out explicitly in the introduction, stating that the program is established “in order that inmates may develop and maintain positive family and community relationships that will assist them to prepare for reintegration as law-abiding citizens”. Further, as I pointed out earlier, the pamphlet says that the program gives inmates “the opportunity to use separate facilities where they may meet privately to renew or continue personal relationships”.

[31] Thus, the Correctional Service has recognized that a necessary element to make this program effective is the condition of privacy to continue “personal relationships”. However, this provision of privacy still takes place within the penitentiary setting and the inmate remains subject to the control and discipline of the penitentiary.

[32] Sections 46 to 67 of the Act deal with search and seizure. The provisions are broad and comprehensive. The underlying principle appears to be that staff members may conduct all manner of searches without warrant. There is a rough hierarchy of search powers. Staff members may conduct routine non-intrusive searches and frisk searches without individualized suspicion of inmates. More intrusive searches require individualized suspicion or suspicion resulting from the context. Section 48, for example, authorizes a routine strip search where the inmate has been in a place where there is a likelihood of access to contraband. As well, the more intrusive the search, the greater the safeguards; for example, s. 52 requires written authorization by the institutional head for a body cavity search.

[33] This theme applies to visitors and even other staff members. Thus, s. 59 authorizes routine non-intrusive or frisk searches of visitors without individualized suspicion, but limits those searches to that which is required for security purposes. More intrusive searches of visitors, such as a strip search, must be based on reasonable grounds and requires the authorization of the institutional head (see s. 60(2)). Also, the visitor is given the option to leave voluntarily. Sections 63 and 64 similarly authorize warrantless searches of staff members. The Act also provides for the search of motor vehicles. This part of the Act concludes with s. 66, which provides for warrantless searches of an offender’s room in a “community-based residential facility” where an employee of the facility has reasonable grounds to suspect that the offender is violating or has violated a condition of parole, statutory release or temporary absence.

[34] Sections 43 to 72 of the Regulations complement the search powers in the Act by setting out in some detail the manner in which the various search powers may be exercised. Sections 51 to 53 address the searches of cells. They make operational the broad search power set out in s. 58 of the Act. Section 51 deals with systematic searches without individualized suspicion. Section 52, the section involved in this case, authorizes the search of individual cells based on reasonable grounds with the prior authorization of a supervisor. The section also provides for a search without prior authorization in exigent circumstances. Finally, s. 53 permits a search of cells in an emergency when the institutional head believes on reasonable grounds that contraband or evidence that relates to the emergency is located in the cells. The Regulations go on to deal with the search of visitors and staff members.

[35] In my view, when these provisions are looked at as a whole, Parliament’s intention is relatively clear. In view of the reduced expectation of privacy in the prison setting, Parliament intended to give the Correctional Service power to conduct warrantless searches throughout the penitentiary. That power extends to all persons within the penitentiary including inmates, visitors and staff, and even reaches out into the community to a room in a community-based residential facility that is occupied by an offender on parole or other temporary release. If the appellants are correct, the one search that must be conducted in a penitentiary with a warrant is the search of the family-visiting unit. It seems unlikely that Parliament intended such a result, given the broad warrantless-search provisions in respect of both other parts of the penitentiary and all persons within the penitentiary, which provisions authorize quite intrusive types of searches.

[36] Admittedly, the ordinary meaning of “cell” in the prison context is the cell described in Conway at p. 4: “A prison cell is expected to be exposed and to require observation.” It is open to the Correctional Service to provide living units of different descriptions that give inmates greater privacy in order to promote the objects and principles of the Act, especially, in the words of the pamphlet, “in order that inmates may develop and maintain positive family and community relationships that will assist them to prepare for reintegration as law-abiding citizens”. However, so long as that living unit is within the grounds of the penitentiary, in my view it can still fairly be considered the inmate’s cell.

[37] I am, of course, somewhat uncomfortable with the idea that in this case Major’s wife and six-year old daughter were sharing his “cell”. However, the family-visiting unit retains some of the attributes of a traditional cell. The unit is surrounded by wire fences and steps are taken to limit communication between people in the various trailers. The family is escorted to the trailer and locked behind a 10-15 foot gate. The units are monitored on a regular basis and the occupants must present themselves to correctional authorities on request. The unit becomes the inmate’s living quarters where he is confined for the length of the visit. There are extensive rules about items that may not be taken into the trailer, including such routine items as alarm clocks and radios. Even children’s toys may not be brought in except with the authorization of the institutional staff.

[38] To conclude, in my view, the family-visiting unit is a cell with enhanced privacy to facilitate one of the purposes of the Act. Such an interpretation provides a reasonable balance between the competing values of the security and safety of the penitentiary and protecting the reasonable privacy rights of inmates and their visitors. It allows the service to provide beneficial programming to the inmate while maintaining the necessary control over the inmate and visitors to ensure the safety and security of the institution.

[39] As the other conditions for the exercise of the search power in s. 52 of the Regulations were met, the search was authorized by law. Since the constitutionality of s. 52 was not challenged and the trial judge found as a fact that the search was carried out in a reasonable manner, all the conditions for a reasonable search within s. 8 of the Charter were met, and there was no violation of the appellants’ rights.

(d) [Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec24subsec2_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[40] Even if I am wrong and the search of the trailer was unreasonable, I would not exclude the drugs seized during the search. The admission of this evidence would not affect the fairness of the trial. See R. v. Buhay (2003), 2003 SCC 30, 174 C.C.C. (3d) 97 (S.C.C.) at para. 51. As to seriousness of the violation, the most important factor is that the officers acted in good faith reliance upon reasonable legal advice. This is not a case like R. v. Buhay, where the officers showed a casual disregard for the rights of the accused and an indifference to the requirements of the Charter. Here the officer in charge of the search sought out legal advice. He complied with the provisions of the Act and Regulations that he honestly and reasonably believed gave him the right to conduct a warrantless search. Importantly, he had reasonable and probable grounds for the search.

[41] There are some factors in this case that tend to make any violation more than trivial. This was an intrusion into the living space of the appellants and their daughter. There were no exigent circumstances. The officers had ample time to obtain a search warrant. However, because of the setting, the appellants had a greatly reduced expectation of privacy. On balance, I would find that any violation was not serious.

[42] As to the last set of factors to be considered under s. 24(2), the effect of exclusion on the reputation of the administration of justice, in my view, excluding the evidence would have a more serious impact on the repute of the administration of justice than admitting it. This was a very serious offence. Introduction of a drug such as heroin into the penitentiary setting is a very grave matter. The evidence adduced at the sentencing hearing in this case indicates that the majority of criminal offences committed within the institution are related to the sale and use of contraband drugs. There have also been a number of overdoses, some of them fatal, where inmates have ingested opiates. The drugs seized during the search were essential to prosecuting the case.

[43] For these reasons, even if there was a violation of s. 8, the appellants have not shown that the evidence should be excluded.

(ii) Unreasonable Delay

[44] There was a delay of just over two years to bring this case to trial. A delay of that length requires investigation. This delay caused some prejudice to the appellants. For example, pending trial, McBride was not allowed to visit Major. After the charges were laid, Major was transferred to Millhaven Penitentiary and remained there until just before the trial. The delay was apparently particularly stressful for McBride.

[45] The longest period of delay was in the Ontario Court of Justice, and lasted until the preliminary inquiry could be completed. Over one year elapsed between the time when the charges were laid and the time when the preliminary hearing began. A good part of this delay was attributable to preparation of disclosure, including wiretap transcripts. Another part of the delay is explained by the inherent time requirements of the case. All counsel agreed that one day would be required to complete the preliminary inquiry. On the first day of the preliminary inquiry, the defence conceded that there was sufficient evidence to justify an order that the appellants stand trial, and that they only wanted the preliminary inquiry for discovery purposes. At the end of the day, the preliminary inquiry was not completed because the issue of the lost videotape had emerged and the defence wanted to cross-examine other witnesses. Crown counsel offered to make the witnesses available to testify out of court, presumably before a special examiner. The defence declined that request and insisted on their right to a preliminary inquiry before a judge. Thereafter there were a number of delays necessary to complete the preliminary inquiry because of the court’s inability to schedule consecutive court days, and on occasion, because of the unavailability of witnesses.

[46] This further delay of five months to complete the preliminary inquiry substantially increased the time in the Ontario Court of Justice. The trial judge attributed this delay to the defence. In my view, it was open to him to make such a finding. The defence had conceded that there was sufficient evidence to warrant an order to stand trial. They had declined the offer to expedite the process of hearing from witnesses through an out-of-court process, and have offered no explanation as to why that process would not have been satisfactory.

[47] When the delay attributable to the defence is subtracted from the overall delay in the Ontario Court of Justice, the time between the charges being laid and the order to stand trial is slightly in excess of one year. The delay between the order to stand trial and the trial in the Superior Court of Justice was seven months, within the period of institutional delay suggested in R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.) at p. 21.

[48] I agree with the trial judge’s conclusion that the appellants did not establish a breach of their rights to a trial within a reasonable time under s. 11(b) of the Charter. As the trial judge said, the balancing of the interests of the accused against society’s interest in trying the charges on their merits required that the trial proceed.

(iii) Loss of Evidence

[49] The appellants argue that their rights under ss. 7 and 11(d) of the Charter were infringed because of the loss of the videotape. The appellants submit that this videotape would have assisted them in establishing that the manner in which the search was conducted was unreasonable. The appellants submit that this evidence would have supported McBride’s allegations that an excessive use of force and the brandishing of firearms were employed in the search. The evidence indicates that steps were taken initially to preserve the videotape. At some point, Frankovitch either lost the tape or allowed it to be reused because there was no apparent need for it. This may have been negligent on his part but it was not a deliberate destruction of evidence.

[50] For the appellants to make out a case for a stay of proceedings in these circumstances, they must show a reasonable possibility that the lost evidence would have assisted their case. However, the trial judge made findings of fact against them on this issue. He found that McKenna did not enter the trailer and start taping until after the initial entry, arrest and finding of the drugs. Thus, the videotape would not have assisted the appellants in their allegation that the search was conducted in an unreasonable fashion. That finding of fact is supported by the evidence. I would therefore not give effect to this ground of appeal.

(iv) Cross-examination on the Prior Incident

[51] This ground of appeal arises out of the cross-examination of the appellant McBride. Crown counsel asked her about a visit she had made to Collins Bay about a year and a half before the offences. He then asked this question:

Q. Do you recall Mr. Major being separated from you by the prison authorities at that time and you were later told that he had drugs in his possession?

A. Yes, I do.

[52] Counsel for the appellant Major then objected and submissions were made in the absence of the jury. The trial judge ruled that Crown counsel could ask McBride if she had brought drugs into the prison on an earlier occasion. When the question was asked, she denied the suggestion.

[53] I agree with the appellants that the question set out above was improper, if for no other reason than it called for a hearsay answer. It was also prejudicial to Major. I am satisfied, however, that this single improper question did not result in any substantial wrong or miscarriage of justice. In view of the nature of the defence, McBride could properly be asked if she had brought drugs into the institution on another occasion. The theory of the defence was that she brought the drugs into the trailer because of threats from unknown persons. If the Crown could show that McBride had engaged in the same kind of activity on occasions when she was not subject to those alleged threats, this would tend to undermine the defence. The probative value of that line of questioning outweighed its prejudicial effect. While the improper question was prejudicial to Major, realistically his defence hinged entirely on McBride’s evidence, and the impugned question, aside from its hearsay aspect, was not improper as it related to her position. The Crown did not try to prove the truth of the allegation and McBride denied the suggestion that she brought drugs in on the earlier occasion. Thereafter, no one made any further reference to this evidence and counsel did not object to the absence of a limiting instruction on the use of the evidence. I would not give effect to this ground of appeal.

(v) The Certificates of Analysis

[54] The appellants submit that because of a discrepancy in the certificates of analysis of the drugs, the Crown failed to prove the nature of the substances. Section 51(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, provides as follows:

Subject to this section, a certificate or report prepared by an analyst under subsection 45(2) is admissible in evidence in any prosecution for an offence under this Act or the regulations or any other Act of Parliament and, in the absence of evidence to the contrary, is proof of the statements set out in the certificate or report, without proof of the signature or official character of the person appearing to have signed it. [Emphasis added.]

[55] The officer in charge of the drugs testified that he submitted them for analysis on June 6, 2000 and received back the drugs, together with some of the certificates of analysis, on June 21, 2000. The certificates, however, are dated June 20, 2001. In my view, it was open to the trial judge to find that this obvious typographical error did not constitute evidence to the contrary. The certificates were therefore admissible to prove the identity of the substances. I would not give effect to this ground of appeal.

(vi) Major’s Sentence Appeal

[56] The appellant Major appeals the sentence imposed for the offence of possession of heroin for the purpose of trafficking. The trial judge imposed a sentence of three-years imprisonment consecutive to the sentence he was then serving.[^1] The appellant submits that the trial judge erred in principle in sentencing him on the basis that he knew the drug was heroin. He relies on the evidence of the appellant McBride that she believed she was only smuggling marihuana.

[57] In his reasons for sentence, the trial judge made this finding:

I think it most probable that the jury disbelieved Ms. McBride’s account as to the circumstances of duress and as to her professed limited knowledge of the nature of the drugs. [Emphasis added.]

[58] Once the Crown proved that the appellant was also in possession of heroin, the burden shifted to the appellant to show on a balance of probabilities, as a mitigating factor, that he believed the drug was only marihuana. See s. 724(3) of the Criminal Code. The trial judge was entitled to make the finding that he did pursuant to s. 724(2)(b) of the Code and to sentence the appellant accordingly. The sentence was a fit one given the seriousness of the offence.

CONCLUSION

[59] Accordingly, I would dismiss the appeals from conviction. I would grant Major leave to appeal sentence but dismiss the appeal. McBride’s sentence appeal is dismissed as abandoned.

Signed: “M. Rosenberg J.A.”

“I agree John Laskin J.A.”

“I agree C.D. Aitken J.”

RELEASED: “MR” JUNE 24, 2004

[^1]: He received nine months concurrent for the conviction for possession of marihuana for the purpose of trafficking.