Court of Appeal for Ontario

CITATION: R. v. Shin, 2015 ONCA 189

DATE: 20150319

DOCKET: C55565

Gillese, Watt and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Stephen Shin

Appellant

Peter Thorning and Richard Diniz, for the appellant

Nicholas Devlin and Carolyn Otter, for the respondent

Heard: February 17, 2015

On appeal from the convictions entered on February 29, 2012 and the sentence imposed on October 30, 2012 by Justice John R. McIsaac of the Superior Court of Justice, sitting with a jury, with reasons reported at 2012 ONSC 6293, 272 C.R.R. (2d) 120.

Gillese J.A.:

[1] Following a jury trial, Brian Shin (the “appellant”) was convicted of possession of marijuana for the purpose of trafficking and possession of the proceeds of crime over $5,000.

[2] He was sentenced to six years’ imprisonment, with an order restricting parole eligibility until he had served half of his sentence. The appellant was also ordered to pay, within three years of the date of sentence, a fine of $500,000 and a victim surcharge of $75,000.

[3] The appellant appeals from both conviction and sentence.

[4] For the reasons that follow, I would dismiss the conviction appeal, grant leave to appeal from sentence and allow the sentence appeal in part.

BACKGROUND IN BRIEF

The Appellant

[5] The appellant testified at his trial. Much of the following information comes from that testimony.

[6] The appellant is a young man with no criminal record prior to the offences under appeal. He comes from a supportive, hard-working family. He attended a gifted program in high school and went on to obtain a Bachelor of Commerce degree, with distinction, from the University of Toronto, and a Master of Taxation degree from the University of Waterloo.

[7] The appellant began selling marijuana when he was in grade 9. He continued to sell marijuana, in ever-increasing amounts, for the 14 years prior to his arrest. In grade 9, he sold at the dime bag level but by the end of high school he was selling 2 to 3 pounds per week at the quarter-pound level. By 2008, he was distributing 30 to 40 pounds of marijuana in two to three week cycles.

[8] Following graduation from university, the appellant worked at Deloitte and Touche, where he made $60,000 per year. He ran a successful clothing company from 2006 to 2009. Most recently, while on bail, he held the position of “senior associate – client services” (a recruiter) at a head-hunting firm, where he made an annual salary of $120,000.

Project Isis

[9] The appellant was investigated as part of Project Isis, a street-level undercover cocaine trafficking investigation conducted by the Durham Regional police. The lead investigators were Detective Hudson and Detective Gillis.

[10] Project Isis first targeted Michael Patrick, a cocaine dealer living in the Durham region. Through an authorized wiretap, police identified Jimmy Ngo, one of Patrick’s suppliers. The investigation then focussed on Ngo and Khanh Mac, a known associate of Ngo. The appellant was initially not known to police but became a target of the investigation based on evidence linking him to Mac and Ngo.

[11] Police observed Mac and Ngo entering an apartment building at 9017 Leslie Street several times in June and July 2009, where they generally stayed for only a few minutes. As a result of police surveillance and the execution of general warrants for covert entries into both Mac’s and Ngo’s residences, the police suspected that the Leslie Street property was being used as a “stash house”.

[12] From earlier surveillance, the police had a photo of Mac and an unidentified man. On August 4 and 5, 2009, Detective Constable French went to 9017 Leslie to determine whether Mac was connected with the Leslie Street condominium. He showed the picture to a security guard at the apartment building. The security guard did not recognize Mac but identified the other man in the picture as a tenant in the building by the name of “Gregory Pak”. The security guard said that “Pak” lived in lower penthouse 102 (the “Apartment”) and had been to the apartment building earlier that day and that he drove a BMW. Tenancy documents identified the tenant of that unit as Gregory Pak.

[13] Mr. Pak sublet the Apartment to the appellant beginning in March 2009. The appellant used the Apartment as a stash house.

[14] Police obtained the licence plate number of the BMW driven by the tenant of the Apartment and learned that it belonged to the appellant.

[15] Police also had information from a confidential informant indicating that the appellant was a cocaine dealer.

[16] Through an authorized wiretap, the police overheard two phone calls in July and August 2009 between a male with a distinctive voice and Mac and Ngo, respectively. The police believed that the unknown male was the appellant. In the first call, the man ordered a kilogram of cocaine from Mac. The second call was to Ngo on August 5, 2009. In it, the man and Ngo agreed to meet at the Peak Top restaurant in Richmond Hill approximately thirty minutes later.

[17] Det. Hudson ordered D.C. French to conduct surveillance at the Peak Top restaurant and observe the meeting. Det. Hudson received a call from D.C. French in which the latter confirmed that he saw the appellant, whom he had previously identified from the photograph and licence plate number, seated inside the restaurant with Ngo. D.C. French also said that the appellant’s BMW was parked outside of the restaurant.

[18] Det. Hudson ordered D.C. French to prepare a written report of his observations (the “Report”). The Report was subsequently completed and filed.

[19] Based on the Report and other information, the police believed that the Apartment was used to traffic drugs and they sought a warrant to search it.

[20] On August 5 and 6, Det. Gillis, as the affiant, prepared the 76-page ITO. In addition to a great deal of other information, Det. Gillis relied on the Report regarding the meeting between the appellant and Ngo at the Peak Top restaurant on August 5.

[21] The general warrant (the “Warrant”) was issued on August 6. It authorized covert entry into the Apartment to, among other things, search for and seize drugs and other items.

Execution of the Warrant and the Arrest

[22] On the evening of August 6, 2009, at approximately 7:45 pm, Det. Gillis, Det. Mason, and the rest of the police team entered the Apartment pursuant to the Warrant. The appellant was away from the Apartment and under surveillance.

[23] Once inside the Apartment, the police opened a locked bedroom door and found:

i. 2369.2 grams of 72% pure powder cocaine;

ii. 81.3 grams of crack cocaine;

iii. 6.1 grams of methamphetamine;

iv. 2.8 grams of heroin;

v. 525.7 grams of hashish;

vi. 7454.3 grams of marijuana;

vii. $235,335 in Canadian currency; and

viii. drug trafficking paraphernalia including a money counter, digital scales, vacuum sealer and vacuum seal packaging, latex gloves, empty kilogram quantity packaging, and 344 grams of a cocaine cutting agent.

[24] Det. Gillis decided to seize all of the substances and remove the evidence from the Apartment. Det. Gillis directed three other officers to remain in the Apartment in case the appellant returned. The time set out in the Warrant had not yet expired.

[25] The officers testified that they believed that the Warrant permitted them to remain in the Apartment and see if anyone entered it because that observation would constitute information about the offence, which the Warrant permitted them to gather. The officers believed they had grounds to arrest the appellant and to search his car incident to arrest.

[26] At 9:01 p.m., approximately half an hour after the seized items had been removed from the Apartment, the appellant entered. He used keys to enter the Apartment. The keys also opened the locked bedroom door. Police immediately arrested him and seized the keys, which the appellant had dropped on the floor during his arrest.

[27] The appellant’s car was searched incident to arrest and found to contain documentation in the appellant’s name, 4865.3 grams of marijuana, and $5,200 in Canadian currency.

[28] Det. Hudson testified that he directed that the appellant not be permitted to contact counsel, to ensure officer safety and the protection of evidence during the execution of various search warrants as part of Project Isis.

[29] The arresting officer advised the appellant of his right to counsel moments after the arrest, and the appellant immediately indicated he wished to consult counsel. However, the arresting officer began to question the appellant. The appellant told the arresting officer that the Apartment was his and that there was marijuana in his car. He gave the officer the password to his cell phone.

[30] The appellant was taken to a police station and told he could not contact his lawyer until the investigation was complete. He was not permitted to contact counsel until 3:00 a.m. the following morning, a period of approximately six hours. Three hours of the delay was due to the execution of other warrants for Project Isis. The other three hours of delay arose because of a mistake in one of the warrants, which necessitated obtaining a new warrant with the proper address.

[31] The appellant was charged with possession of marijuana, cocaine and heroin for the purpose of trafficking, and possession of the proceeds of crime over $5,000.

THE PRE-TRIAL CHARTER MOTION

[32] The appellant brought an application seeking to exclude from evidence the following:

• items seized from the Apartment during the execution of the Warrant;

• items seized from his car;

• observations made by police during the execution of the Warrant at the Apartment;

• data from his cell phone seized upon his arrest; and

• statements that he made immediately following his arrest.

[33] The Crown conceded that a violation of the appellant’s s. 10(b) Charter rights occurred when the police questioned him at the Apartment following his arrest. The Crown advised that it would not attempt to introduce the appellant’s statements as evidence.

[34] The application judge determined that the search of the Apartment violated the appellant’s s. 8 rights because the Warrant did not authorize the police to remain in the Apartment and wait for the appellant’s return after they had seized the evidence. The application judge also found that the appellant’s s. 10(b) rights were breached when police delayed the exercise of his right to counsel. He further found that the appellant’s ss. 8 and 10(b) rights had been breached when police questioned him after he indicated he wished to exercise his right to counsel.

[35] The application judge confirmed that the appellant’s statements following his arrest would be excluded. He also ruled that the data from the appellant’s cell phone seized at the time of arrest would be excluded, due to the improper questioning which led him to reveal the cell phone’s password. He ruled that the balance of the evidence should be admitted.

[36] In making these determinations, the application judge had to deal with, among other things, the appellant’s contention that the police had engaged in deliberate deception when they applied for the Warrant. One part of the ITO that was alleged to be false was the reference to D.C. French’s attendance at the Peak Top restaurant and his identification of the appellant at that meeting. When he testified on the Charter motion, D.C. French said he had no independent recollection of the events in question, including the making of the Report. Furthermore, D.C. French’s notes indicated that at the relevant time, he was driving from Lakeshore Boulevard in Toronto to another location. The notes did not mention the Peak Top restaurant.

[37] The application judge declined to quash the Warrant or excise the impugned references to the Peak Top restaurant in the ITO. After reviewing the evidence, he found that D.C. French’s testimony on this matter was not reliable. He referred to D.C. French’s ambivalent answers, absence of independent recollection, and very limited notes of his activities during the relevant time.

[38] The application judge also referred to the evidence that confirmed D.C. French’s attendance at the restaurant. Det. Hudson gave detailed evidence about the surveillance at the Peak Top restaurant. He said he ordered D.C. French to go to the restaurant to see whether the appellant was the person meeting with Ngo. Det. Hudson testified that D.C. French confirmed to him, by means of a telephone call, that the appellant’s BMW was in the restaurant parking lot, and that the appellant was seated in the restaurant with Ngo. At Det. Hudson’s direction, D.C. French wrote the Report describing his observations. Det. Gillis relied on the Report for the ITO.

[39] Furthermore, the application judge found that it was possible for D.C. French to have driven to the restaurant in the time available, if he rejected D.C. French’s notes about where he was. The application judge also noted and discussed several parts of the Report that were not consistent with manufactured evidence.

[40] The application judge concluded that he was not satisfied, on a balance of probabilities, that D.C. French was not at the Peak Top restaurant or that the references in the ITO to his attendance at the restaurant were false.

[41] As described above, the application judge concluded that the police violated the appellant’s ss. 8 and 10(b) Charter rights by:

• conducting the search of the Apartment in an unreasonable manner by reason of remaining in it to arrest the appellant;

• questioning the appellant after he said he wanted to consult counsel; and

• delaying implementation of his right to counsel.

[42] The application judge then considered whether the evidence obtained through these Charter breaches should be excluded under s. 24(2). His analysis was based on the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[43] Regarding the first Grant factor, the application judge concluded that there was no bad faith on the part of the police but it should have been obvious to them that the Warrant did not authorize this “investigative procedure” – that is, their remaining in the Apartment. In addition, as the Crown conceded, there was no basis for the police to question the appellant after he had clearly indicated he wanted to speak to his lawyer.

[44] Regarding the second Grant factor, the application judge found that there had been a minimal impact on the appellant’s Charter-protected interests when the police overstayed in the Apartment. The appellant had a minimal expectation of privacy in the Apartment, as it was not his residence nor was it a dwelling-place. Furthermore, the police had lawfully entered the Apartment to seize drugs and other evidence. The police committed only a technical breach of s. 8 by remaining in the Apartment after the evidence had been removed.

[45] The application judge found that the third Grant factor – society’s interest in adjudication on the merits – favoured admission of the evidence. Most of the evidence at issue was lawfully obtained, highly reliable, and crucial to the Crown’s case, and its admission would not bring the administration of justice into disrepute. Accordingly, only the appellant’s statements to the police following his arrest and the data from his cell phone were excluded pursuant to s. 24(2).

THE TRIAL

[46] At trial, the Crown’s case consisted of an agreed statement of facts and the testimony of Detectives Gillis and Mason.

[47] The appellant also testified. As indicated above, he told the jury about his background, including his long, lucrative career trafficking marijuana. The essence of his testimony was that although he was a career marijuana trafficker, he would not have gotten involved in trafficking other drugs because he considered it too dangerous. He took responsibility for the marijuana and the proceeds found in the Apartment but stated that he had no knowledge of any of the other drugs found there.

[48] Of the various charges for possession for the purpose of trafficking, the jury convicted the appellant only in respect of marijuana. It also convicted the appellant of possession of the proceeds of crime over $5,000.

THE SENTENCE

[49] The trial judge sentenced the appellant to a total of six years in prison: five years for possession of marijuana for the purpose of trafficking and 18 months, consecutive, for possession of the proceeds of crime. The latter sentence was reduced by six months to reflect 2:1 credit for pre-trial custody and onerous bail terms.

[50] In deciding the length of the sentence, the trial judge rejected the defence position that a conditional sentence was appropriate. He also rejected the Crown’s suggested four-year global sentence as unfit because it did not reflect the appellant’s fourteen year career as a marijuana trafficker. The trial judge relied on s. 725(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46, as interpreted in R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, in treating the appellant’s trafficking history as an aggravating factor “forming part of the circumstances of the offence that could constitute the basis for a separate charge.”

[51] The Crown did not seek a delay in parole eligibility or the imposition of a fine. Nonetheless, both were ordered.

[52] Pursuant to s. 743.6(1) of the Criminal Code, the trial judge ordered that the appellant serve half of his sentence before being eligible for release on parole.

[53] The trial judge imposed a fine of $500,000, to be paid within 3 years, under s. 734 of the Criminal Code. He further imposed a victim surcharge of $75,000, again to be paid within 3 years.

[54] The appellant declined to testify in support of a victim surcharge waiver, from which the trial judge inferred that the appellant sought to avoid exposure to cross-examination on his net worth.

THE ISSUES

[55] At the oral hearing on the conviction appeal, the appellant confined his submissions to two grounds of appeal. He submitted that the application judge erred in:

• failing to exclude the evidence relating to his entry into the Apartment (the “keyed entry evidence”) under s. 24(2) of the Charter; and

• finding that the Warrant had been lawfully obtained.

[56] On the sentence appeal, he argued that the sentence is manifestly unfit and that the trial judge erred by:

• considering the appellant’s prior marijuana trafficking as an aggravating factor under s. 725(1)(c) of the Criminal Code;

• imposing a $500,000 fine without evidence of the appellant’s ability to pay; and

• imposing a period of delayed parole eligibility without a statutory basis for so doing.

THE CONVICTION APPEAL

Did the Application Judge Err in Failing to Exclude the Keyed Entry Evidence?

[57] In his pre-trial application, the appellant requested an order excluding certain evidence relating to his entry into the Apartment just prior to his arrest, including the observations that the police made of the appellant as he came through the front door and the keys that he used to enter the Apartment. The keys were important evidence about the appellant’s knowledge and control over the Apartment. The appellant contends that the application judge failed to consider excluding the keyed entry evidence under s. 24(2) and that a proper consideration of that evidence under s. 24(2) would have led to its exclusion.

[58] I would not accept this submission.

[59] It is correct that the application judge did not expressly identify the keyed entry evidence in that part of his reasons in which he addresses s. 24(2). However, it is clear that he had that evidence squarely in mind throughout his ruling.

[60] In his reasons, the application judge mentioned three separate times that the appellant had the keys to the Apartment when he was arrested. He also explicitly noted that the police’s purpose in “overstaying” in the Apartment was to get “‘the best evidence’ by observing the [appellant] entering the premises with keys”. Furthermore, he began his ruling with a list of the evidence that the appellant sought to have excluded. That list included the “[o]bservations made by police officers during the execution of the [Warrant]”. Significantly, in the paragraph that follows the list, the application judge stated that the appellant also sought to exclude “statements made by the [appellant] immediately following his arrest”. Both of these items appear to refer to and/or include the keyed entry evidence.

[61] Moreover, the matter of the police “overstaying” – that is, remaining in the Apartment after the drugs and money had been seized for the express purpose of arresting anyone who might enter it – was the central focus of the application judge’s s. 24(2) analysis. Indeed, the vast majority of that analysis relates to the overstaying.

[62] While it would have been preferable for the application judge to have reiterated that he was considering the keyed entry evidence in his s. 24(2) analysis, in these circumstances, in my view, it is an inescapable inference that he did so in the context of his consideration of the overstaying issue.

[63] If I am wrong, however, and the application judge erred by failing to consider the keyed entry evidence as part of his s. 24(2) analysis, it falls to this court to do that. As I explain, that analysis would not change the result which the application judge arrived at pursuant to s. 24(2).

[64] Under s. 24(2) of the Charter, evidence obtained in a manner that infringed or denied Charter rights shall be excluded if it is established that, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Grant provides the analytical framework within which to perform the s. 24(2) analysis. It requires the court to assess three factors.

[65] First, the court must assess the seriousness of the Charter-infringing conduct. The Warrant in the present case authorized the officers to

covertly enter [the Apartment]…[t]o search the premises or storage unit for, to photograph, and to alter or seize any firearms, ammunition, controlled drugs, proceeds of crime (cash) and any other information about, or evidence, of the above-noted offences, including drug packaging, cocaine adulterants, debt lists, weigh scales, cellular telephones or telephone records, banking documents, documents relating to the occupancy of the residence and photographs of the co-conspirators.

[66] The Crown has conceded that the Warrant did not authorize the police to remain in the Apartment after the search and seizure. Assuming that the police conduct was overreaching, I do not find it to be a serious breach. Their conduct in remaining in the Apartment to determine who had possession of the drugs and cash was logically and reasonably connected to the core of the authorization under the Warrant. Furthermore, on the findings of the application judge, the police officers’ overstaying was not in bad faith and was not a deliberate violation of the Warrant. The overstaying was short in duration, occurred within the time that the Warrant authorized the police to be inside the Apartment, was done without the intention of breaching the terms of the Warrant, was a technique for which ample grounds existed, entailed no breach of privacy beyond that authorized by the Warrant, and was intended to end the investigation with an arrest in a safe and controlled manner.

[67] Accordingly, I view the breach to be honest, minor and technical in nature, falling at the less serious end of the spectrum. The admission of “evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law”: Grant, at para. 74. Furthermore, the absence of bad faith reduces the court’s need to disassociate itself from the police conduct. I do not find that the overstaying would tend to bring the administration of justice into disrepute.

[68] Second, the court must consider the impact of the breach on the appellant’s Charter-protected interests. In this case, there can be no serious challenge to the application judge’s finding that the appellant had a diminished expectation of privacy in the stash house. A dwelling used solely for the commercial trade in drugs attracts a diminished privacy interest: R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at para. 61. The Apartment was a storage and packaging facility for drugs and the illicit proceeds of trafficking in drugs.

[69] The Warrant authorized the police to enter the Apartment, conduct an invasive search and create property damage. There is nothing to suggest that the officers acted improperly in the short period between the seizure of drugs and money, and the appellant’s arrival at the Apartment. In these circumstances, staying inside the Apartment for a short while longer than was authorized is a minimal intrusion. Furthermore, the police gained no special or private information by remaining inside the Apartment. Had they waited in the corridor outside the Apartment or followed the appellant to it, they would have seen the appellant use his keys to enter the Apartment. Thus, in my view, the impact of the overstaying on the appellant’s Charter-protected rights was minimal.

[70] Third, the court must consider society’s interest in the adjudication of the case on its merits. These were very serious crimes. The keyed entry evidence was real and reliable. In my view, the third Grant factor points squarely to admission of the keyed entry evidence.

[71] After considering the overstaying in conjunction with the other breaches as found by the application judge, a balancing of the three Grant factors leads me to conclude that admission of the keyed entry evidence would not bring the administration of justice into disrepute.

[72] Accordingly, I would dismiss this ground of appeal.

Did the Application Judge Err in Finding that the Warrant had been Lawfully Obtained?

[73] The appellant’s challenge to the sufficiency of the Warrant is based on D.C. French’s lack of recollection, at the time of the pre-trial motion, of his attendance some two years earlier at the Peak Top restaurant on August 5, 2009, and his lack of notes on the same matter (the “French issue”).

[74] At the oral hearing of the appeal, the court found it unnecessary to call on the Crown to respond on this ground of appeal.

[75] The French issue does not assist the appellant because there were sufficient grounds for the Warrant to be issued without the evidence of the Peak Top restaurant meeting between the appellant and Ngo. This is well-explained in para. 25 of the Crown’s factum, which reads as follows:

[25] The I.T.O. contained 68 pages of information, summarizing the undercover officer activities, observations and interceptions gathered by the investigators up to that point. It established the following facts, which were not disputed on the s.8 challenge:

i. An undercover officer bought cocaine from a dealer named Patrick four times between May and June 2009. Wiretaps showed that Patrick was being supplied cocaine by one Ngo. Further interceptions showed that Ngo was, in turn, being supplied cocaine at the kilogram level by two sources: (1) MAC; and (2) another unidentified individual.

ii. Police saw both Ngo and Mac go to [the Apartment]. They observed Mac go there five times, and Ngo once.

iii. Crucially, on one of the dates that Mac went to [the Apartment], he left carrying a black shoulder bag. He was followed and was seen to participate in a bag drop consistent with his observed trafficking pattern.

iv. A security guard at [the Apartment building] identified the Appellant as an occupant of [the Apartment].

v. Mac [and] the Appellant called one another 132 times in a 30 day period during the investigation. The Appellant was Mac’s second most contacted person.

vi. The Appellant was seen meeting with Mac on June 29, [2009].

vii. A proven-reliable confidential informer with no criminal record, told police during the spring of 2009 that the appellant was a kilogram level cocaine trafficker who resided in a condominium.

[Emphasis and footnotes omitted.]

[76] Thus, regardless of D.C. French’s evidence respecting the appellant’s meeting with Ngo at the Peak Top restaurant on August 5, the police had facts providing reasonable and probable grounds that the Apartment was a place where evidence of trafficking by one or more of their targets would be found.

[77] In any event, I would reject the appellant’s arguments on the French issue.

[78] In assessing the sufficiency of a warrant application, the critical question is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The reviewing court must excise erroneous information included in the original ITO: Morelli, at para. 41. The reviewing court may also consider “amplification” evidence (that is, evidence presented at the voir dire to correct minor errors in the ITO), provided that this additional evidence corrects the police’s good faith errors in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice: Morelli, at para. 41. However, warrants are presumed to be valid: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83. Accordingly, the accused bears the burden of demonstrating that the ITO was insufficient to justify the warrant: R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 14.

[79] In this case, the appellant failed to discharge that burden.

[80] At the pre-trial motion, Det. Hudson testified that he directed D.C. French to attend at the Peak Top restaurant, and that he spoke directly with D.C. French afterwards, took contemporaneous notes on that conversation, and directed D.C. French to prepare the Report. At its highest, D.C. French could not recall being at the Peak Top restaurant and made some statements that conflicted with his presence there. He testified that, according to his notes, he travelled from Lakeshore Blvd. in Toronto to the Durham police Project Room around the time he was supposed to have been at the Peak Top restaurant. However, the application judge rejected D.C. French’s evidence on this matter as unreliable. He gave no weight to D.C. French’s testimony about his activities on that evening. Thus, the application judge rejected the only evidence supporting the appellant’s submission that the observations of the Peak Top meeting could not have been made.

[81] I would conclude on this issue simply by noting that the appellant’s own evidence at trial confirmed that he did meet with Ngo at the Peak Top restaurant on August 5 at the relevant time.

Three Final Points on the Conviction Appeal

[82] In his factum, the appellant submitted that the police were trespassers in the Apartment at the time that they arrested the appellant and, thus, both his arrest and the search of his car incident to arrest were unlawful.

[83] To the extent that the appellant continues to advance this submission, I would reject it.

[84] Once the police located the drugs and money in the appellant’s stash house, he was “arrestable”. The application judge found as a fact that the Apartment was not the appellant’s residence but, rather, was something between a place of business and a storage place in which the appellant had a minimal expectation of privacy. As the stash house was not a dwelling-house within the meaning of s. 529.1 of the Criminal Code, that provision did not apply to his arrest. Moreover, there is nothing to the suggestion that the police officers became trespassers in the brief period following seizure of the evidence and the appellant’s entry into the Apartment, a period within that which was authorized by the Warrant.

[85] Given that the appellant’s arrest was lawful, the argument that the search of the car incident to arrest was unlawful falls away.

[86] Finally, the appellant’s argument that the application judge’s s. 24(2) analysis was flawed is based largely on his assertion that the application judge erred in relation to the keyed entry evidence and the validity of the Warrant. As I have explained, I see no error in respect of either. Nor do I see any error in the application judge’s overall s. 24(2) analysis. On the contrary, he made careful factual findings that are fully supportable on the record. He also properly articulated and applied the relevant legal principles and considered the appropriate Grant factors. In my view, there is no basis on which this court could interfere with his s. 24(2) assessment.

THE SENTENCE APPEAL

Section 725(1)(c) and the Length of Sentence

[87] In my view, the trial judge did not err in his treatment of s. 725(1)(c) of the Criminal Code nor is the length of the sentence outside the range.

[88] Section 725(1)(c) reads as follows:

In determining the sentence, a court …

(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate change.

[89] Section 725(1)(c) permits the sentencing judge to take into account any fact that forms part of the circumstances of the offence, if the fact could form the basis for a separate charge. Offences for which the offender has not been charged but which are proven under s. 725(1)(c) may be treated as “aggravating circumstances” under s. 718.2(a) of the Criminal Code: Larche, at para. 28.

[90] In Larche, the Supreme Court set out three requirements that determine when uncharged offences can constitute an aggravating circumstance under ss. 725(1)(c) and 718.2(a). In this case, all three are met.

[91] First, if the accused disputes his guilt of the uncharged offence, the presumption of innocence applies and the Crown must prove the uncharged offence beyond a reasonable doubt: Larche, at paras. 43-44. In this case, the appellant did not deny that he had been trafficking in marijuana for a lengthy, unbroken period of time beginning when he was in high school. He admitted it.

[92] Second, there must be a nexus or “connexity” between the uncharged criminal conduct and the offence for which the offender has been convicted: Larche, at para. 48. The connexity requirement is met when the uncharged offence forms part of the same transaction as the offence for which the offender is being sentenced: Larche, at para. 51.

[93] In addition, however, s. 725(1)(c) encompasses “the broader category of related facts that inform the court about the ‘circumstances’ of the offence more generally”: Larche, at para. 54. Justice Fish explains, at para. 55 of Larche:

‘Facts’ (or uncharged offences) of this sort that have occurred in various locations or at different times cannot properly be said to form part of the transaction covered by the charge for which the offender is to be sentenced. Recourse to s. 725(1)(c) may nevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of the circumstances surrounding its commission. In determining whether they satisfy this requirement of connexity, the court should give appropriate weight to their proximity in time and to their probative worth as evidence of system or of an unbroken pattern of criminal conduct. [Emphasis added.]

[94] In the present case, the appellant submits that there was insufficient “connexity” between the offences for which he was convicted and his prior marijuana trafficking. I would not accept this submission.

[95] The appellant testified about his unbroken history of selling marijuana throughout his high school years, his undergraduate and graduate university programs, and afterwards to the time of his arrest. His marijuana trafficking career was at its zenith in the period leading to his arrest, when he was selling around ten pounds of marijuana per week and twenty pounds in a busy week. The appellant’s testimony about his unbroken pattern of trafficking in marijuana, including in the period leading to his arrest, shows a sufficient proximity in time to the charged offences and is clear evidence of a system or unbroken pattern of criminal conduct, within the meaning of connexity as explained in Larche, at para. 55. Indeed, the appellant’s testimony as to his system and pattern of trafficking in marijuana was what he used to distance himself from the cocaine and other hard drugs found in his stash house.

[96] Third, the court should decline to consider uncharged offences under s. 725(1)(c) if doing so would result in unfairness to the offender: Larche, at para. 46. The trial judge found that the appellant admitted his prior marijuana trafficking to avoid being convicted of offences relating to the cocaine and heroin found in the stash house. As the appellant gained a tactical benefit from admitting his prior trafficking, it is not unfair to take that trafficking into account in sentencing. Furthermore, since the appellant’s prior marijuana trafficking has been considered under s. 725(1)(c), the Crown cannot now charge him in respect of that trafficking: see s. 725(2), discussed in Larche, at para. 26. Accordingly, taking the uncharged conduct into consideration did not result in unfairness to the appellant.

[97] Thus, in my view, in the circumstances of this case, the trial judge did not err in taking the appellant’s prior trafficking history into account under s. 725(1)(c).

[98] Furthermore, I see no other basis on which to interfere with the six-year global sentence.

[99] Contrary to the appellant’s submission, in my view, the sentence for possession for the purpose of trafficking was within the range. In R. v. Tran, [2005] O.J. No. 5920 (S.C.), aff’d [2006] O.J. No. 4161 (C.A.), the accused was involved in a scheme to ship containers filled with marijuana from B.C. to Toronto for distribution. He pled guilty to possession of marijuana for the purpose of trafficking. The trial judge found that the trafficking “involved large amounts [of marijuana] being transported across the country and warehouse[d] and distributed in a well planned business-like manner” and imposed a four-year prison sentence. That sentence was affirmed on appeal to this court.

[100] The present case has many similarities. Although the appellant did not plead guilty, his own evidence amply supported the trial judge’s conclusion that he was a “career drug trafficker.” That evidence unequivocally demonstrated that the appellant sold hundreds of pounds of marijuana, over a period of fourteen years, in a well-planned business-like manner.

[101] It is of interest to note that similar sentences have been imposed elsewhere in Canada as well. R. v. Hickey, 2000 MBCA 97, 150 Man. R. (2d) 158, is one such example. In Hickey, the Manitoba Court of Appeal imposed a five-year sentence for a person convicted of trafficking nine pounds of marijuana because he was “a significant participant in the drug trade”.

[102] To the extent that there is any challenge to the fitness of the sentence for possession of the proceeds of crime, I see nothing in it, given the appellant’s willing facilitation of the safe storage of the proceeds from large scale cocaine trafficking.

Delayed Parole Ineligibility

[103] The trial judge relied on s. 743.6(1) of the Criminal Code to order that the appellant serve half of his sentence before being released on full parole. The Crown concedes that s. 743.6(1) does not apply to the possession of the proceeds of crime conviction. I agree and, in my view, the appeal must be allowed to that extent.

[104] Section 743.6(1) reads as follows:

[W]here an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more…on conviction for an offence set out in Schedule I or II to [the Corrections and Conditional Release Act] that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.

[105] Possession for the purpose of trafficking is listed in s. 3(a) of Schedule II to the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA). Therefore, the trial judge could order delayed parole eligibility under s. 743.6(1) in respect of that conviction.

[106] However, possession of the proceeds of crime is not listed in the Schedules to the CCRA. Thus, delayed parole eligibility cannot apply to that part of the appellant’s sentence attributable to his conviction for possession of the proceeds of crime (one year in prison net of credit for pre-trial custody and onerous bail conditions).

[107] I would make no other alteration to the delayed parole component of the sentence. In light of the magnitude of the uncharged criminal acts of trafficking and the extensive quantities involved, in my view, the trial judge made no error in imposing a delayed parole order.

The Fine

[108] The trial judge inferred that the appellant had the ability to pay a fine from his trafficking career that “must have profited him hundreds of thousands, if not millions, of dollars”. He then imposed a fine of $500,000, to be paid within 3 years.

[109] The appellant notes that the Crown had not sought the imposition of a fine and submits that the trial judge erred by imposing one in the absence of evidence of his ability to pay.

[110] There is strength to this submission. The trial judge did not make the requisite legal findings before imposing the fine, the record does not support the trial judge’s inferences as to the appellant’s ability to pay, and there is no rationale offered to justify setting the fine in the amount of $500,000.

[111] The court’s authority to impose a fine is found in s. 734(1) of the Criminal Code. That power, however, is circumscribed by s. 734(2), which precludes the imposition of a fine unless the court is satisfied that the offender is able to pay the fine or discharge it under s. 736. Section 736 is not in issue in this appeal. Subsections 734(1) and (2) read as follows:

Power of court to impose fine

734. (1) Subject to subsection (2), a court that convicts a person, other than an organization, of an offence may fine the offender by making an order under section 734.1

(a) if the punishment for the offence does not include a minimum term of imprisonment, in addition to or in lieu of any other sanction that the court is authorized to impose; or

(b) if the punishment for the offence includes a minimum term of imprisonment, in addition to any other sanction that the court is required or authorized to impose.

Offender’s ability to pay

(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.

[112] The trial judge did not make the finding that he was satisfied that the appellant was able to pay the fine. However, the trial judge inferred that he was. Thus, the question is whether he was entitled to draw that inference. To answer that question, I begin by considering R. v. Topp, 2011 SCC 43, [2011] 3 S.C.R. 119, the leading case on ss. 734(1) and (2).

[113] In Topp, at para. 18, Fish J., writing for a unanimous court, noted that the legislative purpose behind s. 734(2) is to prevent offenders from being fined amounts that they are truly unable to pay, and to correspondingly reduce the number of offenders who are incarcerated in default of payment.

[114] He noted that the court may impose a fine where none is requested: Topp, at para. 17. However, a fine can be imposed only if the court is satisfied on the evidence and information properly before it, on a balance of probabilities, that the offender is able to pay the fine: Topp, at paras. 20-24. The party opposing the fine is entitled to present any evidence or information admissible on sentence tending to show the offender is unable to pay but that party does not assume a formal burden of proof: Topp, at para. 23.

[115] In the absence of a reasonable explanation to the contrary, past receipt of illegally-obtained funds will often, but not always, support an inference that the offender still possesses sufficient funds to pay a fine: Topp, at para. 27. However, the weight reasonably attributable to the past receipt of funds will vary according to at least two factors: the amount of funds acquired and the length of time that has passed between the acquisition of the funds and the imposition of sentence: Topp, at para. 30.

[116] In the present case, as I have mentioned, the Crown did not seek the imposition of a fine, though it acknowledged that the court had the authority to impose one. The appellant was not cross-examined on his ability to pay a fine or on what had become of the profits from his illegal activity. Consequently, the record is virtually non-existent on the matter of the appellant’s assets and his ability to pay a fine. The pre-sentence report stated that the appellant had advised its author that he had frittered away the profits he made on clothes, vacations, nights out in clubs, and funding his university education.

[117] I return to the question: does the record support the trial judge’s inference that the appellant had the ability to pay? That inference flowed from the trial judge’s assumption that the appellant made hundreds of thousands or millions of dollars in profits over his 14-year career in marijuana trafficking. The trial judge’s assumption was based on his finding that from 2008 onwards, the appellant made approximately $30,000 in profit per month from the sales of marijuana. On the record, that finding was not available. Before turning to the relevant parts of the appellant’s trial testimony to show this, some factual context is needed.

[118] Recall that when the police entered the stash house pursuant to the Warrant, they found $235,335 in cash. Recall also that when they arrested the appellant that night and searched his car, they found a further $5,200 in cash. Of the money found in the Apartment, the appellant testified that approximately $150,000 was his: $120,000 was money that he owed to his marijuana supplier, and he owned the remaining $30,000. The rest of the money found in the Apartment was Mac’s. (The court imposed a forfeiture order over all of the money that was found.)

[119] The appellant testified that, during his undergraduate years, he made approximately $1,000 to $2,000 per week in profit from his marijuana sales:

Q: Okay. And when you’re in undergrad, can you give the jury any idea how much money per week that you were clearing selling marijuana?

A: Sure. Well, I was selling, as I mentioned, probably around five pounds of weed a week and making anywhere from, at that point, maybe 250 to $400 a pound. So, you know, let’s say, at the high end, I’m making $2,000 a week and on the low end, I’m making about 1,000. [Emphasis added.]

[120] The appellant later confirmed that in the period leading up to his arrest, he made approximately $2,000 per week in profit:

Q: You didn’t need Mac to chip in to the rent at Leslie, did you?

A: Well, yes and no. By that time, so this is March, 2009, the clothing business was – I want to say it was burning up a bit of cash because we had an office, we had an employee and it was just not generating a lot of revenue. So, although $600 a month is probably not – in hindsight, is not a lot of money, it seemed like a bit of money at the time.

Q: But you were – I believe you said yesterday that you were making upwards of $2,000 a week. That was profit in marijuana sales, correct?

A: That’s correct. [Emphasis added.]

[121] The Crown points to the following portion of the appellant’s testimony to argue that the appellant was making a profit of around $30,000 per month from his marijuana sales:

Q: Okay, and you told us yesterday that when – that the money that was in the stash house, your chunk of the money, was $150,000, correct?

A: My chunk of the money?

Q: Yes.

A: No, my chunk of the money was 30,000.

Q. Right, but the bag…

A: Oh.

Q. …that was yours was 150,000, right?

A: Correct.

Q: So 30,000 of that is yours. That’s your profit?

A: No, that’s – like my profit from one delivery or…

Q: I’m just asking how are you defining that 30,000 is yours?

A: Well, that was money that I had – I guess you can essentially think of it as capital that I had which was the accumulated profits from however long I was doing it.

Q: Right, and the rest that was in there, that was to pay back suppliers for the next – for the last sort of shipment that you received basically on consignment, correct?

A: That’s correct. [Emphasis added.]

[122] In my view, this testimony does not support the factual conclusion that the appellant made $30,000 in profit from each monthly delivery of marijuana. Instead, I understand the testimony to be that the $30,000 found in the Apartment was “accumulated profit” from an unspecified period. When the appellant said “No, that’s – like my profit from one delivery”, he was interrupted and asked, in effect, what he meant by saying the $30,000 was his. Thus, the words “like my profit from one delivery” are not a statement that the $30,000 represented his profit from one delivery of marijuana. To the contrary, his answer to the very next question is that the $30,000 was his “accumulated profits” for an unspecified period of time. Furthermore, it will be recalled, the appellant testified that in the period leading up to his arrest, his profit was approximately $2,000 per week.

[123] It appears that in finding that the appellant had the ability to pay, the trial judge may also have relied on the fact that the appellant had three residences over the years he was trafficking and that he had started a clothing business. However, the appellant testified that the clothing business operated only up until his arrest and that, by the time of his arrest, he had sold his residences and was living in a rental unit. There is nothing in the record about the sales of the residences, and whether the appellant received funds on their sales. Nor is there any relevant information about the appellant’s ability to pay based on the clothing business. The evidence on the clothing business was essentially that it was “burning up a bit of cash”, not generating a lot of revenue and had ceased operation when he was arrested.

[124] Finally, whatever profits the appellant acquired from the marijuana sales had been earned over a substantial period of time (14 years).

[125] While past receipt of illegally-obtained funds can support an inference that the offender still possesses sufficient funds to pay a fine, Topp identified two factors weighing against such an inference: the amount of funds that were acquired, and the length of time that passed between the acquisition of the funds and the imposition of sentence. In this case, there is no finding as to the amount of funds that the appellant acquired and whatever those funds were, they had been acquired over a lengthy period of time.

[126] It is against this backdrop, however, that we must assess what transpired in relation to the victim surcharge. After the trial judge indicated that he was imposing a fine of $500,000, he gave the appellant the opportunity to seek a financial hardship exemption from the mandatory victim surcharge of $75,000 that would follow the imposition of the fine. The appellant declined that offer. The trial judge inferred from the appellant’s refusal that the appellant wished to avoid exposure to cross-examination on his net worth. In the circumstances of this case, that inference supports the finding that the appellant is able to pay a fine of $75,000. As there is no evidence capable of quantifying an ability to pay an amount beyond that, I would reduce the fine from $500,000 to $75,000.

[127] At the time of sentencing, a victim surcharge of 15% of the fine was required to be imposed, absent a hardship exemption. In light of the fine reduction, the victim surcharge must be reduced accordingly.

[128] In my view, allowing the appellant three years from the date he is released from prison within which to pay the fine and victim surcharge is reasonable and I would so order.

DISPOSITION

[129] Accordingly, I would dismiss the conviction appeal.

[130] I would grant leave to appeal sentence and allow the sentence appeal in part. That part of the appellant’s sentence relating to the possession of the proceeds of crime conviction is not subject to delayed parole eligibility under s. 743.6(1) and I would vary the sentence accordingly. Further, I would reduce the fine to $75,000. As a result of the reduction in the fine, the victim surcharge must be reduced correspondingly to $11,250. I would give the appellant 3 years from the date he is discharged from prison within which to pay both the fine and the surcharge.

Released: March 19, 2015 (“E.E.G.”)

“E.E. Gillese J.A.”

“I agree. David Watt J.A.”

“I agree. P. Lauwers J.A.”