Court of Appeal for Ontario

Citation: R. v. Li-Tin-Po, 2009 ONCA 238

Date: 20090317

Docket: C47909-C48499

Before: Doherty, Feldman and Watt JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Justin Li-Tin-Po and Gerald Hong

Appellants

Counsel: Joseph Di Luca, for the appellant, Li-Tin-Po Amit Thakore, for the appellant, Hong Hugh O’Connell, for the respondent

Heard and orally released: March 11, 2009

On appeal from the conviction entered by Justice Anderson of the Ontario Court of Justice dated April 25, 2007 and the sentence imposed on August 27, 2007.

ENDORSEMENT

[1] Assuming that the stop by the police constituted a breach of the appellants’ s. 9 rights, we would not exclude the evidence under s. 24(2).

[2] The assumed breach was not serious in that the privacy expectation of the appellants in the circumstances was minimal and the intrusion effected by the police stop was brief. The offence involves marijuana trafficking at a significant commercial level. There is also indication that there may well have been international connotations to the marijuana trafficking in which the appellants were involved in that they were found in possession of a good deal of American money relatively near the U.S.-Canada border. The police conduct in this case is not in any way infected by bad faith or gross negligence. It is common ground that trial fairness would not be compromised by the admission of the evidence. Having regard to these factors, we think exclusion of the evidence would bring the administration of justice into disrepute. In the result, the conviction appeal is dismissed.

[3] The appellants received sentences of six months incarceration. They argue that a conditional sentence would have been a fit sentence. We see no error in the trial judge’s rejection of a conditional sentence in all of the circumstances. We also think that the length of the sentence imposed by the trial judge, six months, was fit in all of the circumstances. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“Doherty J.A.”

“K. Feldman J.A.”

“David Watt J.A.”