DATE: 20050623

DOCKET: C39249

COURT OF APPEAL FOR ONTARIO

WEILER, SIMMONS and GILLESE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Alan D. Gold for the appellant

Respondent

• and -

SHUN GEE TSAI

Steve Coroza and Shannon McPherson for the respondent

Appellant

Heard: June 17, 2005

On appeal from the conviction entered on November 15, 2002 and the sentence imposed November 22, 2002 by Justice Bonnie J. Wein of the Superior Court of Justice, sitting alone.

BY THE COURT:

[1] The appellant was convicted of possession of marijuana for the purposes of trafficking and sentenced to 22 months imprisonment. He appeals against conviction and seeks leave to appeal against sentence.

[2] The grounds of appeal relate to: 1) whether the appellant was arbitrarily detained and unreasonably searched; 2) whether, if the search was unreasonable, the evidence should have been admitted; 3) the sentence.

FACTS

[3] The appellant’s arrest developed from an investigation by Toronto police into a man named Darren Cooper (“Cooper”). Investigators believed that Cooper and his associates were stealing drugs, sometimes in robberies involving violence. They received judicial authorization to intercept his phone conversations and those of his associates.

[4] On March 3, 2000, investigators intercepted a phone conversation between two of Cooper’s associates named Elie Salama (“Salama”) and Bobby Manchev (“Manchev”). The gist of the conversation was that an Asian man named Sean had 80 pounds of marijuana to sell, and that they should rob him. Sean drove a white Infiniti, and the two planned to harm him because he had been spreading rumours about them. There were a number of phone conversations with Sean to discuss meeting.

[5] On March 6, 2000, investigators intercepted conversations that led them to believe that Sean and Salama had arranged to meet that afternoon near the airport for a drug deal, and that Salama and his associates were planning to rob Sean at gunpoint. Officers drove to the airport in an attempt to intercept Sean before he was robbed. Further phone calls suggested that the meeting would take place at a Dunkin’ Donuts on Dixon Road. Officers parked in the area and saw the appellant drive into the parking lot in a white Infiniti. The officers pulled their car out behind the appellant and cut off Cooper who was following the appellant in a grey Cavalier. The appellant circled the donut shop, parked in the rear and got out of his car.

[6] Officers approached the appellant and arrested him for possession of a controlled substance for the purposes of trafficking. He was searched and nothing was found on his person. An officer approached the vehicle and could see a shrink-wrapped package appearing to contain marijuana under the driver’s seat.

[7] The appellant was not informed of his right to counsel until several minutes after the arrest, the search and looking in his vehicle. The arresting officer, Officer Dickson, said only “I have the duty to inform you that you have the right to retain and instruct counsel without delay.” He made no notes of any response, but believed that the appellant had understood.

[8] Officer Dickson then searched the appellant’s vehicle. Police found two garbage bags containing marijuana, two cell phones and a pound of Ketamine in the trunk, and the shrink-wrapped package of marijuana under the driver’s seat.

[9] The appellant was turned over to a uniformed officer, who did not advise the appellant of his right to counsel. The appellant was read his rights when he arrived at the police station, and called his lawyer at that time.

[10] The appellant applied at trial for the exclusion of the seized drugs, alleging a series of Charter violations. The trial judge found only one breach of the appellant’s Charter rights: the failure of Officer Dickson to fully provide the appellant with his right to counsel at the scene of the arrest. However, the trial judge did not agree that the evidence found in the appellant’s vehicle should be excluded. In her view, the officer did not display a subjective disrespect for the appellant’s Charter rights, and the admission of the evidence would not bring the administration of justice into disrepute given the significance of the offence and the lack of causal nexus between the s. 10(b) breach and the results of the search.

ISSUES

1. Was the appellant arbitrarily detained and unreasonably searched?

[11] The appellant concedes that Officer Dickson subjectively had reasonable and probable grounds upon which to arrest him but submits that there were no objective grounds for arrest. He argues that to have objective grounds the officer had to have reasonable and probable grounds to believe that there was marijuana in the car and that the person being arrested was the Sean referred to in the wiretaps.

[12] The intercepted telephone conversations led the police to believe that the appellant would be robbed of his drugs. At 1:30 in the afternoon, Dickson listened to a recorded call indicating that the drug deal would take place within a half hour or 45 minutes, likely at a hotel near the airport. Officers observed the appellant pulling out of a parking lot by the Days Inn and going back onto Airport road. They inferred that he may have already picked up the drugs. A further intercept indicated that a meeting would take place at the Dunkin’ Donuts in two minutes.

[13] The trial judge held at para. 43 of her reasons:

In this case, I am satisfied that the officer did have reasonable and probable grounds that a drug transaction was about to take place. It is clear on the evidence that the wiretaps logically revealed a discussion about a drug transaction of the scope and nature indicated by the officer.

[14] We agree. In response to the appellant’s submission that the police would only have had objective grounds to arrest if, on the balance of probabilities, they knew he had the drugs in his possession, we make two comments. First, objective grounds to arrest exist if a crime is about to occur and the trial judge found a drug transaction “was about to take place”. Second, the intercepted communications combined with the officers’ observations did provide Dickson with objective grounds from which to infer, on a balance of probabilities, that the appellant had drugs in his possession.

[15] With respect to whether the person arrested was the person named Sean in the wiretaps, Dickson knew they were looking for an Asian male who wore glasses and who would be driving a white Infiniti in the Dunkin’ Donuts parking lot. Dickson also knew that Sean would be meeting a person driving a gray Cavalier and the officer observed a gray Cavalier in the parking lot of the donut shop. The trial judge found that, “The appellant fit all of these descriptors and nothing about him was inconsistent with the information the police had. In these circumstances, it cannot be said that the arrest was not based on reasonable and probable grounds, as defined in R v. Debot, [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193.” We are not persuaded that the trial judge erred in her findings of fact and we agree with her conclusion.

[16] We would dismiss the first ground of appeal.

2. Did the trial judge err in her assessment of the seriousness of the Charter breach and the effect of the admission of the evidence on the administration of justice?

[17] The appellant submits that the trial judge’s reasons do not give sufficient weight to the wilful and deliberate nature of the breach of the appellant’s s. 10(b) rights. The officer was aware of his obligations, failed to comply with them, and had no good reason for his failure. The appellant further submits that the trial judge erred in suggesting that the seizure of the evidence was not sufficiently connected to the breach of the appellant’s s. 10(b) rights.

[18] In our opinion, the evidence was properly admitted. As noted by the trial judge, the breach of the informational component of s. 10(b) was inconsequential to the discovery of the drugs. Absent an error in principle, deference should be given to the trial judge’s decision on s. 24(2) issues. Here, the trial judge concluded that the s. 10(b) breach was marginal, and a full s. 10(b) warning would not have affected the search of the motor vehicle as the police had reasonable and probable grounds to believe there was marijuana in the vehicle. The infringement was motivated by a situation of urgency and the trial judge considered the conduct of the police officer in making her findings. We would therefore dismiss this ground of appeal.

3. The sentence appeal

[19] The appellant concedes that the sentence of 22 months was fit at the time it was imposed. He submits, however, that due to a change in his circumstances he should be given credit for four months in custody. Further, he submits that as he served some 8 months of his sentence in the Toronto East detention centre as opposed to a correctional institution and has been on bail pending the hearing of this appeal for almost two years, he ought not to be reincarcerated. Finally, the appellant is concerned that if he is reincarcerated the orthodontic work he has had done on his teeth will be at risk from other inmates.

[20] We would give effect only to the appellant’s first submission. The appellant was granted bail on these charges. He was then charged on other matters and on that bail application faced a reverse onus as a result of his outstanding charges in this case. The appellant was denied bail on the second set of charges. The Crown did not bring an application under s. 524 to have the appellant’s bail on the first set of charges withdrawn. Before the sentencing judge, counsel agreed that the time the appellant spent in jail on the second set of offences would not be taken into account. Subsequently, the second set of charges was withdrawn.

[21] The appellant submits that the time he spent in jail should now be credited towards this sentence. In support of his submission, the appellant relies on R. v. Reid. In that case, the accused was in custody on a second set of charges and served six months before the charges were subsequently withdrawn. At the time the appellant was refused bail on the second set of charges, the Crown had brought an application under s. 524 to revoke the accused’s bail on the first set of charges but the trial judge never dealt with that application. This court held that after being found guilty on the first set of charges, the trial judge should have taken the withdrawal of the second set of charges and the time served in relation thereto into account on sentencing and given the accused credit for pre-trial custody on the first set of charges.

[22] Applying Reid to this situation and giving the appellant credit on a two for one basis for the time he served we would reduce his sentence by four months. At the time the appellant was incarcerated in the Toronto East detention centre he no longer had the benefit of the presumption of innocence and he was eligible to earn remission on his sentence. The appellant’s elective decision to undergo orthodontic work also is not a reason to refuse to reincarcerate him. Many persons are granted bail pending their appeal. While it is always difficult to reincarcerate an appellant, having regard to the quantity of drugs involved, we would not otherwise interfere with the sentence.

DISPOSITION

[23] Accordingly, we would dismiss the conviction appeal, grant leave to appeal sentence, allow the appeal as to sentence and reduce the sentence to one of eighteen months.

RELEASED: June 23, 2005 (“KMW”)

“K. M. Weiler J.A.”

“Janet Simmons J.A.”

“E. E. Gillese J.A.”