COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Duong, 2014 ONCA 375
DATE: 20140513
DOCKET: C56092
Goudge, Juriansz and Epstein JJ.A
BETWEEN
Her Majesty the Queen
Respondent
and
Hau Duong
Appellant
Gregory Lafontaine, for the appellant
Niall Gilks, for the respondent
Heard: November 29, 2013
On appeal from the convictions entered on March 16, 2012 and the sentence imposed on October 9, 2012 by Justice J. Stephen O’Neill of the Superior Court of Justice, sitting without a jury.
Epstein J.A.:
OVERVIEW
[1] In April of 2010 police discovered a marijuana grow operation and a large quantity of dry marijuana on the appellant’s cottage property. The appellant was charged with possession of marijuana for the purpose of trafficking, producing marijuana, trafficking in marijuana, possession of a weapon for a purpose dangerous to the public peace, and unlawfully transporting a firearm in a careless manner. After a three-day judge-alone trial, the appellant was convicted on all charges and sentenced to three years’ imprisonment. The trial judge also made various ancillary orders including a 10-year weapons prohibition and forfeiture of 50% of the appellant’s cottage property.
[2] The appellant’s conviction appeal is based on his submission that the trial judge erred in drawing an adverse inference from the appellant’s exercise of his right to silence and in finding his credibility adversely impacted by the lack of detail in certain parts of his evidence.
[3] The appellant also seeks leave to appeal and if leave is granted, appeals that part of his sentence that ordered he forfeit 50% of his cottage property. The appellant contends that the trial judge erred in his weighing of the factors set out in s. 19.1(3) of the Controlled Drugs and Substances Act, (the “CDSA”) and imposed an order that is demonstrably unfit. The appellant submits that the order should only apply to 33% of the property.
[4] For the reasons that follow I would dismiss the conviction appeal. I would grant leave to appeal sentence and dismiss the sentence appeal.
BACKGROUND FACTS
[5] The evidence at trial spoke to two completely different versions of events relating to the marijuana and related grow operation materials that the police found on the appellant’s cottage property.
[6] In his trial testimony the appellant described how two men, whose names he learned were Fred Williams and a man referred to only as “Bruno”, kidnapped him and held him captive for five days prior to his arrest. According to the appellant, these two men were responsible for the drugs discovered on his property.
[7] Williams, testified and gave a different account of his involvement – one in which he had nothing to do with the drugs or the grow operation. Williams’ evidence was that the appellant approached him and asked him to falsely take responsibility for the drugs in return for a substantial cash payment. Williams agreed to do this and, in accordance with the agreement, confessed to the police. Williams told the court that he later recanted. As a result the police charged him with fabricating evidence and obstructing justice. Williams pleaded guilty to the charges and was sentenced to 90 days in jail.
The Appellant’s Trial Evidence Concerning the Kidnapping and Confinement
[8] The appellant described, in detail, a harrowing five days immediately prior to his arrest during which Bruno and Williams held him captive.
[9] His ordeal started on October 9, 2010. He was alone at his cottage property when two men, brandishing a gun and a knife, suddenly appeared. The men assaulted him and tied him to a wall inside his cottage. The men got hold of the appellant’s gun and ammunition and threatened harm to him and his family if he did not do as they directed.
[10] According to the appellant, Williams and Bruno told him he could not call the police, must do what he was told and must not try to escape or say anything to anyone. They said they “knew the details” of his information.
[11] The two men then forced the appellant to drive them in his truck to a farm in Sutton where they blindfolded him and put him in the back seat of the truck. Later the men drove to a warehouse where they left the appellant in the truck for at least six hours. The two men returned the next morning and drove to a restaurant where they removed the appellant’s blindfold. Williams went into the restaurant for about a half hour while Bruno remained in the truck with the appellant. Williams returned and the men drove back to the cottage at which point the two men sent the appellant to stay in a trailer the appellant had on the property.
[12] The next evening, the evening of October 10, the appellant drove the men to Barrie on their instruction. The men met with some other people and then all three returned to the cottage.
[13] On October 11, Williams, Bruno and the appellant drove to Orillia. They returned to the cottage later in the day.
[14] The appellant and his captors remained on the property on October 12. The appellant, at the direction of the men, went into the bush and cut firewood.
[15] Early the next morning, October 13, again in response to the order of the two men, the appellant loaded the wood into his truck. The appellant was driving his truck loaded with wood along the driveway back to the cottage when he encountered the police and was arrested.
The Arrest
[16] On the morning of October 13, 2010, Officer Ronald Marshall and Officer Roch Perreault drove up the driveway of the appellant’s cottage property to execute a search warrant the police had obtained based on information that four men of Asian descent had been seen unloading marijuana from canoes on the river into a container on the appellant’s property. The police met the appellant driving his truck and pulling a trailer.
[17] Officer Marshall got out of his car and spoke to the appellant who identified himself and admitted owning the property. Officer Marshall immediately placed the appellant under arrest for cultivating marijuana.
[18] The appellant’s pick-up truck had a locked cap on the back. The officers unlocked the cap and discovered two large dogs and a gun case that contained a Browning rifle with no trigger lock on it and a magazine loaded with live ammunition. The trailer was filled with firewood with a net strung across the top. Beneath the firewood the police discovered a false bottom under which they found eleven large plastic bags of dry marijuana.
[19] The officers searched the property and discovered potting soil, fertilizer, a drying rack and more dried marijuana in various other locations. The police seized thirty-one bags of marijuana totalling approximately 700 pounds.
The Statement
[20] Later that day the appellant provided a video-recorded statement to Officer Ralph Betts. The appellant admitted that the drugs were his and that no one else was involved. He provided details about his marijuana grow operation, including start-up costs and anticipated revenue. The appellant also described where he had obtained the fertilizer and the seedlings. He drew a map of the property indicating where he had planted the marijuana.
The Appellant’s Trial Testimony
[21] At trial, the appellant recounted the circumstances of being kidnapped and held captive. He said that when the police arrived and arrested him the two men disappeared. The appellant testified that Williams and Bruno had arrived in canoes and that they must have placed the marijuana and related equipment around the property. He testified that did not know that there was a loaded rifle in his truck.
[22] The appellant gave evidence that, upon arrest, he did not tell the police about the two men as he thought they were close by. He then falsely confessed to the crimes as instructed by the two men. He was under extreme stress and he feared for his family, life and property.
[23] He said that once released on bail he contacted Williams whose telephone number he knew from having heard it while in captivity. Williams eventually agreed to meet with him. At the meeting, he told Williams to surrender to the police and confess or he (the appellant) would report Williams’ involvement with the drug operation to the police himself.
[24] The appellant testified that he had nothing to do with any of the drugs or related grow operation equipment found on his property.
Williams’ Evidence Regarding the Fabrication of Evidence and Attempt to Obstruct Justice
[25] In his trial testimony Williams detailed how he had agreed to accept a payment of money in return for taking responsibility for the drugs.
[26] He testified that a friend, Harold Pinnance, introduced him to the appellant. The two men first met on February 8, 2011. After several meetings, Williams agreed to accept money in exchange for pleading guilty to the drug offences but not the weapons offences. In March 2011, Williams went to the appellant’s cottage property with Pinnance and someone named Simon. The visit was so Williams would be familiar with the property for the purpose of his confession. Williams also met with a lawyer and prepared a written confession.
[27] Officer Marshall testified that on April 5, 2011, he received a call from a woman claiming to be from someone at a law office indicating that a man wanted to meet with him. Williams went to the police station, met with Officer Marshall and provided a written statement in which he claimed responsibility for the drugs found on the appellant’s property. Officer Marshall arrested Williams on charges of cultivation and conspiracy to export marijuana and placed him in a cell.
[28] Later that day, during a follow-up interview with Officer Betts, Williams asked for the audio/video recording to be turned off and had a conversation with Officer Betts. As a result of the conversation Williams was charged with obstructing justice and fabricating evidence. Williams pleaded guilty to those offences and served the sentence imposed of 90 days in jail.
[29] Williams testified that he had nothing to do with the drugs.
REASONS FOR JUDGMENT
The Conviction Appeal
[30] At the outset of his analysis, the trial judge set out factors that he took into account in assessing the credibility of the two main witnesses - the appellant and Williams.
[31] In para. 82, the trial judge identified a number of points that caused him to question the appellant’s version of events:
The [appellant] stated that he was threatened with his own rifle and the ammunition that he had stored in the cabinet in the house trailer. But he had already been approached earlier by two people one carrying a knife and one holding a gun. Yet he testified that he was not threatened until the rifle was retrieved and the ammunition was located in the house trailer cabinet.
The [appellant] drove his truck with the other two men to Sutton. He was taken to a large warehouse and blindfolded and he remained in the truck for 6 hours. The [appellant] offered no evidence as to whether anything was taken in the truck to the warehouse or whether any materials were taken from the warehouse and returned to the truck. The [appellant] was alone in the truck and blindfolded for 6 hours. He testified that he was tied in the truck but he gave no evidence as to what efforts, if any, he made to escape during the 6 hour period.
On the second evening, at approximately 8:00 to 9:00 p.m. the [appellant] drove the two men to Barrie and down a road that travelled toward Angus. The [appellant] did not testify that he was blindfolded or tied on this trip. He testified that the two men went to another place to see other people and that they talked. He offered no information as to what efforts, if any, he utilized to escape or to seek help.
On the following morning, the [appellant] testified that he and the two men drove to Orillia, returning in the afternoon. But he did not offer or explain what happened in Orillia, where in Orillia the two men went to, and what they did when they arrived there.
The [appellant] testified that just as the police arrived on the morning of October 13th the two men disappeared. The [appellant] in no way indicated to the police that he had been a captive for four days nor did he seek to explain to them, when he was placed under arrest, that the responsibility for the marihuana operation rested with two men who had been on his property for 5 days and who had just left. The [appellant] did not explain or offer to the court where the men went to when the police arrived.
The cap of the truck had windows but the [appellant] testified that he did not see his rifle in the back of the truck, under the cap.
The [appellant] testified that he was under great stress and fear when he gave his police statement on the day that he was arrested. Yet in his police statement, he was able to provide considerable detail with respect to the grow operation including drawing a sketch of where the marihuana plants were growing, the number of plants that he grew, the amount of his start-up costs, the fact that he purchased potting soil and fertilizer at Canadian Tire and the fact that he could see the plants from a location in his cottage.
The [appellant] conceded that he was at liberty to telephone family and friends when he was a captive and that he was able to speak in Cantonese. Yet despite this freedom he asked no family member or friend to assist him in his predicament or to contact the police.
The [appellant] testified that an appointment was initially made with Mr. Williams on January 12, 2011 but that Mr. Williams did not show up. The appellant offered no details as to where the meeting was to take place, or the details with respect to the planned meeting.
The [appellant] testified that he gave an ultimatum to Mr. Williams in Chatham. But he didn't explain why he travelled for more than 5 hours to deliver the ultimatum when he could have delivered the ultimatum to Mr. Williams when he spoke to him on the phone on February 6, 2011. Nor did he explain why Mr. Williams, who he acknowledged he still feared to a certain extent, would so readily turn himself in to the police when he had not done so between October of 2010 and February 2011. If Bruno and Mr. Williams had physically assaulted, threatened and forcibly confined [the appellant], as he testified, over a period of 5 days, why would Mr. Williams so readily, and without further threats or actions agree at the meeting in Chatham to turn himself in to the police.
The [appellant] testified that Mr. Williams delayed turning himself in because he couldn't find a lawyer and that he needed the name of [the appellant’s] lawyer. Yet the information before the court confirms that Mr. Williams met with another lawyer and made necessary arrangements to prepare the statutory declaration through that lawyer’s office.
[The appellant] testified that some of the ply wood was freshly cut and that he noticed this on the trailer, yet in the picture placed before the court he was unable to point out any signs of newly cut plywood.
Why would the [appellant] locate a shipping container on his property when solar panels could be mounted to a shed, his cottage roof or to a mounting pole?
[The appellant] detailed the movements of Bruno and Mr. Williams between October 9th and October 13th, but he did not explain how, or when, in this time frame, the two men harvested, transported and set out the plants for drying.
[The appellant] did not explain why he only expected Mr. Williams and not Bruno to plead guilty and he did not mention Bruno to the police when he was arrested a second time in October of 2011.
[32] The trial judge also noted that, once the appellant was free of the control of Williams and Bruno, rather than going to the police, he met personally with Williams.
[33] The trial judge then turned to problems with Williams’ evidence. Under cross-examination, Williams admitted to certain errors in his earlier statements to the police. Williams confirmed that he had misstated the amount of money he was to be paid to take responsibility for the drug operation, and the amount of money the appellant provided him for expenses. Williams also expressed confusion about certain matters such as the location of the lawyer's office. The trial judge identified these problems as “minor inconsistencies”, many of which Williams clarified, and concluded that they did not seriously damage Williams' credibility.
[34] The trial judge found that no evidence, other than the appellant's testimony, connected Williams to the appellant’s property or the marijuana grow operation. Rather, the evidence, viewed in its totality, was consistent with the appellant’s owning and controlling his property and cultivating marijuana in the locations on the property that he had sketched out for the police in the course of his confession.
[35] The trial judge returned to the appellant’s evidence about the kidnapping and captivity, and found that:
[it] strains credulity to suggest that [the appellant] would not have attempted to seek help, escape, call for help or immediately or thereafter spoken to the police to advise them of the role played by Bruno and Mr. Williams in the grow operation. Accordingly, I am unable to accept [the appellant’s] evidence and I discount most of it, except the statement which he gave to Officer Betts on October 13th, 2010.
[36] Having rejected the appellant’s evidence, the trial judge held that it did not raise a reasonable doubt. He then concluded, on the basis of the prosecution evidence that, in relation to the drug charges, the Crown had proved the appellant’s guilt beyond a reasonable doubt.
[37] Turning to the firearms offences, the trial judge noted that the appellant owned a Firearms Possession and Acquisition Licence and a Firearm Registration Certificate for the Browning rifle found under the truck cap.
[38] The appellant was found in possession of a Browning rifle and a magazine containing live ammunition. There was no trigger lock on the rifle and the gun case within which the rifle was located was not locked.
[39] The trial judge therefore concluded that the Crown had proven the offence of unlawfully transporting a firearm in a careless manner beyond a reasonable doubt.
[40] In relation to count 5, the trial judge further concluded that the appellant had the Browning rifle in his possession for a purpose dangerous to the public peace. The appellant had been convicted of the drug charges. The loaded Browning rifle was under the truck cap in the vicinity of hidden marijuana in the trailer’s compartment. The appellant was involved in illegal drug activity. There was no evidence that supported any innocent explanation for the possession of the loaded Browning rifle. As the trial judge found at para. 95 of this reasons, it was therefore “reasonable to conclude that the appellant would require a loaded firearm readily available to defend himself in the context of this illegal and potentially highly dangerous activity.”
[41] The trial judge therefore convicted the appellant of possession of a weapon for a purpose dangerous to the public peace.
The Sentence Appeal
[42] In the sentencing hearing the Crown sought forfeiture of 100% of the cottage property pursuant to s. 16(1)(b) of the CDSA. The defence did not resist the order itself. Rather, the defence argued that only 33% of the property should be subject to forfeiture.
[43] The trial judge considered the factors in s. 19.1(3) of the CDSA. The appellant purchased the rural property in 2007 for $70,000 and had started to build a cottage on it. The cottage was only partially finished and had no hydro. But for the partially-built cottage, all that was on the property was a steel shipping container, a house trailer where the appellant resided while on the property, and a wooden shed.
[44] The trial judge referred to sections 16 and 19.1 of the CDSA and R. v. Craig, https://www.canlii.org/en/ca/scc/doc/2009/2009scc23/2009scc23.html, 1S.C.R. 762 and R. v. Baldasaro https://www.canlii.org/en/on/onca/doc/2009/2009onca676/2009onca676.html, 265 O.A.C. 75 for the principles applicable to forfeiture applications affecting real property, including the nature and gravity of the offence, the circumstances surrounding the commission of the offence, and the offender’s criminal record.
[45] The trial judge concluded that a forfeiture order of 50% was appropriate in the light of circumstances that included that the appellant had no previous criminal record, the cottage and trailer had not been altered for the criminal enterprise and the construction of the partially-completed cottage had increased the value of the property.
ISSUES
[46] The appellant raises the following issues in his conviction appeal. In assessing the appellant’s credibility:
The trial judge erred by drawing an adverse inference from the appellant’s exercise of his right to silence at the time of his arrest.
The trial judge erred by drawing adverse inferences based on a lack of detail in parts of his evidence.
[47] In his sentence appeal the appellant submits that the trial judge erred in concluding that there should be a forfeiture order in relation to 50% of the cottage property. The appellant submits that forfeiture should have been limited to 33% of the property.
ANALYSIS
Issue 1 – In assessing the appellant’s credibility did the trial judge err by drawing an adverse inference from the appellant’s exercise of his right to silence?
[48] The appellant contends that the trial judge erred by drawing an adverse inference against his credibility based on his silence at the time he was arrested. In support of this argument, the appellant highlights point 5 listed in para. 82 of the trial judge’s reasons, reproduced above. For convenience, I set it out again:
The [appellant] testified that just as the police arrived on the morning of October 13th the two men disappeared. The [appellant] in no way indicated to the police that he had been a captive for four days nor did he seek to explain to them, when he was placed under arrest, that the responsibility for the marihuana operation rested with two men who had been on his property for 5 days and who had just left. The [appellant] did not explain or offer to the court where the men went to when the police arrived.
[49] The appellant argues that in this passage the trial judge relied on the appellant’s right to silence as a basis for finding him not credible and that, in doing so, he erred.
Principles
[50] The common law principle against self-incrimination has been constitutionally enshrined as a principle of fundamental justice through s. 7 of the Charter. The “unifying theme” of the principle against self-incrimination, as Abella J. described it in R. v. Turcotte, https://www.canlii.org/en/ca/scc/doc/2005/2005scc50/2005scc50.html, S.C.R. 519, at para. https://www.canlii.org/en/ca/scc/doc/2005/2005scc50/2005scc50.html#par43 43, quoting from McLachlin J. in R. v. Hebert, https://www.canlii.org/en/ca/scc/doc/1990/1990canlii118/1990canlii118.html, [1990] 2 S.C.R. 151, at p. 164, is “the idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent.” Individuals are under no obligation to assist the police. To allow evidence of an accused’s exercise of his or her constitutional right to silence as evidence of guilt would render the right meaningless – a “snare and a delusion”, to use the evocative language of Cory J. in R. v. Chambers, https://www.canlii.org/en/ca/scc/doc/1990/1990canlii47/1990canlii47.html, [1990] 2 S.C.R. 1293, at p. 1316.
[51] In R. v. Osmar, https://www.canlii.org/en/on/onca/doc/2007/2007onca50/2007onca50.html, 84 O.R. (3d) 321, at paras. https://www.canlii.org/en/on/onca/doc/2007/2007onca50/2007onca50.html#par39 39-41, Rosenberg J.A. concluded that McLachlin J.’s definitive language in R. v. Hebert (1990), https://www.canlii.org/en/ca/scc/doc/1990/1990canlii118/1990canlii118.html, 57 C.C.C. (3d) 1 still governed post-Turcotte and that, accordingly, the constitutional right to silence is only engaged upon detention.
[52] It is clear that the appellant’s detention started when the police blocked his truck in his driveway and immediately arrested him. It follows that the appellant’s constitutional right to silence was engaged throughout his interaction with the police.
[53] The appellant submits that it is clear from the passage set out above that the trial judge rejected his trial testimony in part because of his silence at the time of arrest.
[54] I agree. It was open to the trial judge to reject the appellant's explanation given at trial because it was not believable and to use that finding in assessing his credibility. However, here the trial judge used the appellant's silence when he was first arrested as one basis for finding him incredible and ultimately rejecting his testimony. This, he was not entitled to do.
[55] The appellant had a constitutional right to remain silent. The use of his silence at the time of his arrest as a basis upon which to reject his trial testimony is offensive to the fundamental right to silence. It can only be characterized as a serious error in law. See: R. v. Ricketts, https://www.canlii.org/en/on/onca/doc/2010/2010onca820/2010onca820.html, at para. https://www.canlii.org/en/on/onca/doc/2010/2010onca820/2010onca820.html#par7 7.
[56] But for my view concerning the application of the curative proviso, set out below, I would give effect to this ground of appeal.
Issue 2 - Did the trial judge err by drawing adverse inferences in relation to the appellant’s credibility based on a lack of detail in parts of his testimony?
[57] The appellant submits that the trial judge erred by finding the appellant incredible by reason of his failure to “offer or explain” details with respect to points. 2, 3, 4, 9, 10 14 and 15 listed in para. 82 of the trial judge’s reasons, set out above.
[58] In R. v. R.C., https://www.canlii.org/en/on/onca/doc/2008/2008onca98/2008onca98.html, 77 W.C.B. (2d) 696, at para. https://www.canlii.org/en/on/onca/doc/2008/2008onca98/2008onca98.html#par9 9, this court held that the absence of detail in an accused’s evidence does not warrant the rejection of that evidence as incredible, saying:
We have reviewed the evidence of the appellant. He answered the questions that were put to him. His failure to offer detail not sought by the questions asked cannot provide a reasonable basis for disbelieving the appellant’s evidence. Counsel examining the appellant in-chief may have chosen, for tactical reasons, to avoid detail, leaving it to the cross-examiner to extract details. Whatever the merits of that tactic, it cannot be used as a ground for disbelieving the evidence of the appellant who simply answered the questions put to him by his counsel.
[59] I agree with the respondent that of the seven impugned findings, only three, the first half of point 2, point 9, and part of point 10, demonstrate that the trial judge erroneously disbelieved the appellant due to his failure to provide details in certain parts of his evidence.
[60] The remaining factors speak to something quite different - broad gaps in the appellant’s evidence. I summarize these evidentiary gaps to illustrate my point:
In the last half of point 2 and in point 3, the trial judge drew a negative credibility finding on the basis that the appellant did not testify as to having taken any efforts to escape or draw attention to his situation during the long periods of time when he was travelling with the two men.
In point 4 the trial judge addressed a similar type of gap in the appellant’s evidence – a period of time during which the appellant was driving around with the two men.
In these points the trial judge expresses concern with the gaps in the appellant’s evidence regarding any opportunities he had to consider escape or at least to draw attention to his plight.
In point 10, the trial judge pointed out that the appellant failed to explain why he felt it necessary to meet with Williams in person when he had, just two days earlier, dealt with him over the telephone.
In point 14, the trial judge considered the appellant’s failure to explain how the two men performed all the tasks necessary to set up the grow operation on his property.
In point 15, the trial judge took into account the appellant’s failure to explain why he insisted that Williams turn himself in and not Bruno.
In these points the trial judge is expressing concern about other types of gaps, in which common sense requires an explanation be provided.
[61] There is a distinction between a version of events in which details have not been provided and a version of events in which there are gaps that, pursuant to common sense require an explanation. Here, this distinction is particularly significant given the nature of the appellant’s version of events. An assessment of the veracity of such an unusual scenario necessarily requires thoughtful consideration of issues such as any opportunity the appellant may have had to escape or at least to attempt to escape and other details that would assist in lending credence to his version of events. In my view, the gaps in the appellant’s evidence legitimately contributed to the trial judge’s conclusion that the appellant’s version of events simply did not accord with human experience and common sense.
[62] The Crown fairly concedes that the trial judge erred in taking two factors into account in concluding that the appellant was not to be believed. These are: 1) failing to provide details about a meeting with Williams on January 12, where Williams did not show up (point 9) and, 2) failing to explain why Williams would suddenly decide to turn himself in after the appellant’s ultimatum (part of point 10).
[63] For the foregoing reasons, I see nothing wrong in the trial judge’s reliance on any of the points in para. 23 listed above other than those set out in the first half of point 2, point 9 and part of point 10.
The Curative Proviso
[64] The Crown submits that notwithstanding these errors, and even if the trial judge erred in relying on the appellant’s right to silence in disbelieving his trial testimony, the curative proviso should be applied because of the overwhelming nature of the case. The Crown submits that on this evidence, a reasonable trier of fact, acting judicially, could only have convicted the appellant.
[65] I agree, as I am satisfied that the high standard for the engagement of s. 686(1)(b)(iii) of the https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html has been met. In my view, on the strength of the Crown’s unchallenged evidence, even if the trial judge had not erred in the ways I have identified, there is no reasonable possibility that the verdict would have been different: R. v. Bevan, https://www.canlii.org/en/ca/scc/doc/1993/1993canlii101/1993canlii101.html, [1993] 2 S.C.R. 599 at 616-618; and R. v. Merz (2000), https://www.canlii.org/en/on/onca/doc/1999/1999canlii1647/1999canlii1647.html, 46 O.R. (3d) 161 (C.A.) at 178-180.
[66] Under s. 686(1)(a) of the Code, an appeal against a conviction may be allowed only in the event of an error of law, an unreasonable verdict, or a miscarriage of justice. In this case, the trial judge’s reliance on the appellant’s right to silence is an error of law that falls within s. 686(1)(a)(ii). However, it still falls to this Court to determine whether the convictions can be upheld despite the existence of such an error, with resort to s. 686(1)(b)(iii) of the Code. Under this provision, a conviction can be upheld provided that the error has not resulted in a substantial wrong or a miscarriage of justice.
[67] The Crown bears the burden of satisfying the court that the conviction should stand notwithstanding the error. To do so, it must establish that the error of law falls into one of two categories. The first is errors harmless on their face or in their effect. In the second category are serious errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain: R. v. Khan, https://www.canlii.org/en/ca/scc/doc/2001/2001scc86/2001scc86.html, [2001] 3 S.C.R. 823; R. v. Trochym, https://www.canlii.org/en/ca/scc/doc/2007/2007scc6/2007scc6.html, [2007] 1 S.C.R. 239.
[68] The ability to uphold a conviction in the face of a serious error at trial was expressed by Sopinka J. in R. v. S. (P.L.) https://www.canlii.org/en/ca/scc/doc/1991/1991canlii103/1991canlii103.html, [1991] 1 S.C.R. 909, at p. 916 where he wrote that “depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction.” Also see: Khan, at para. https://www.canlii.org/en/ca/scc/doc/2001/2001scc86/2001scc86.html#par31 31.
[69] This court, in Ricketts, at para. https://www.canlii.org/en/on/onca/doc/2010/2010onca820/2010onca820.html#par7 7, held that a breach of the common law right to silence is a serious error of law. In my view, the same must be said of a breach of the right to silence protected by s. 7 of the Charter. As serious as a Charter breach is, the task of an appellate court remains the same – to “determine whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made.” (Bevan, para. https://www.canlii.org/en/ca/scc/doc/1993/1993canlii101/1993canlii101.html#par42 42). If the answer to that question is no, the curative proviso remains available: R. v. E.B, https://www.canlii.org/en/on/onca/doc/2011/2011onca194/2011onca194.html, 269 C.C.C. (3d) 227, at paras. https://www.canlii.org/en/on/onca/doc/2011/2011onca194/2011onca194.html#par79 79-83; R. v. Boughner (2002), https://www.canlii.org/en/on/onca/doc/2002/2002canlii44975/2002canlii44975.html, 159 O.A.C. 316, at paras. https://www.canlii.org/en/on/onca/doc/2002/2002canlii44975/2002canlii44975.html#par30 30-31.
[70] The evidence against the appellant is powerful. I refer to the substantial body of evidence that connected the appellant to the marijuana grow operation, including: (1) He owned the property; (2) When the police encountered him the appellant was driving a truck carrying a concealed loaded weapon and dry marijuana; (3) The police discovered various components of a marijuana grow operation on the appellant’s property, including a shed that contained harvesting tools, a pesticide sprayer and hip waders and a drying rack that held marijuana detritus; (4) In his statement to the police, the appellant accurately described the places where the police actually found the stashes of substantial quantities of dry marijuana.
[71] In addition to this very strong circumstantial evidence, the factors recited in paragraph 23 above provide a powerful evidentiary basis for the trial judge’s disbelief of the appellant, even excluding those on which he ought not to have relied. By way of example only, the appellant conceded that during the time he was held captive he was free to telephone family and friends and was able to speak in Cantonese to them. Yet the appellant did not ask for help.
[72] Having regard to the strength of the Crown's case and the obvious weaknesses in the appellant's exculpatory evidence, I see no realistic prospect that the trial judge’s decision would have been different had he not made the errors identified above.
[73] Consequently, I would apply the curative proviso and dismiss the conviction appeal.
The Sentence Appeal
[74] The appellant submits that the trial judge gave insufficient weight to the factors set out in s. 19.1(3) of the CDSA. Relying on R. v. Van Bemmel (2010), https://www.canlii.org/en/on/onca/doc/2010/2010onca276/2010onca276.html, 253 C.C.C. (3d) 284 (Ont. C.A.), the appellant argues that the trial judge erred in ordering forfeiture of 50% of the cottage property. In support of his argument, the appellant points to several facts that were also before the trial judge. The offences are not serious. The grow operation was not sophisticated. The property had not been altered to accommodate the criminal activity. The appellant took no steps to conceal detection. There was no risk to public safety. The appellant had no previous involvement with the criminal justice system.
[75] I would not give effect to this argument.
[76] Unlike in Van Bemmel, in which the appellant lived and worked on a farm that he had owned for decades, the appellant’s property cannot be said to have any of the characteristics that would support the conclusion that a portion should be protected