COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pham, 2016 ONCA 258

DATE: 20160407

DOCKET: C59824

Watt, Epstein and Tulloch JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Thi Nga Pham

Appellant

Venus Sayed, for the appellant

Stephen Dawson, for the respondent

Heard: March 24, 2016

On appeal from the conviction entered on August 12, 2014 and the sentence imposed on December 17, 2014 by Justice C.D. Anderson of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals her conviction of possession of 48 pounds of marijuana for the purpose of trafficking and seeks leave to appeal her sentence of imprisonment for a term of six months imposed as a result of that conviction.

[2] The appellant was the driver of a sport utility vehicle that was pulled over by a police officer on Highway 401 in Eastern Ontario. In a cardboard box in the cargo area of the vehicle, police located several bags of packaged marijuana.

[3] The genesis of the traffic stop was a report from another police officer about unsafe driving and observations by the arresting officer who followed the vehicle for several kilometers. The officer who stopped the vehicle approached it. He made several observations as he waited for the occupants, in particular the appellant, to produce information he requested of them. Both occupants seemed nervous. The appellant kept looking back towards two large black suitcases in the rear of the vehicle. There were several cellphones on the console. The officer detected a strong smell of raw marijuana from the vehicle. As he walked by the vehicle to return to his cruiser, the officer noticed a cardboard box with Ziploc bags protruding from it containing material of the shape and size of marijuana. He made this observation through heavily tinted windows.

[4] On his return to his cruiser, the officer conducted a CPIC check on his computer. He returned to the vehicle driven by the appellant and arrested the appellant and her passenger on a charge of possession of marijuana for the purpose of trafficking.

[5] The appellant advances three grounds of appeal against conviction. She says that the trial judge erred:

i. in failing to find that the police lacked reasonable grounds to detain the appellant and thereby lacked the authority to search the vehicle incident to her arrest;

ii. in failing to exclude the marijuana as evidence obtained by Charter infringement under s.24(2) of the Charter; and

iii. in misapprehending the evidence of the arresting officer and thereby rendering an unreasonable verdict based on his evidence.

[6] We would not give effect to any of these grounds of appeal.

[7] We are satisfied, as the appellant acknowledges, that the initial traffic stop was fully justified under s. 216(1) of the Highway Traffic Act. The same may be said of the request for documents identifying the occupants and the authority of the driver to operate the vehicle with appropriate insurance coverage. Any additional purpose the officer had was neither improper nor did it entail an infringement on the liberty or security of the occupants beyond what is contemplated by the purpose animating s.216(1) of the Highway Traffic Act. See, Brown v. Regional Municipality of Durham Police Service Board, (1998) 1998 CanLII 7198 (ON CA), 116 O.A.C. 126, at para. 31.

[8] We are equally satisfied that the trial judge made no error in concluding that the investigating officer had reasonable and probable grounds to arrest the appellant for possession of marijuana.

[9] When the officer reached the vehicle, he detected a strong odour of raw marijuana. New air fresheners hung from the rear-view mirror. Several cellphones were in the vehicle. Both occupants were nervous. The appellant repeatedly looked back at the large bags in the rear seat or cargo area. The officer noticed a large box with bags containing a substance that resembled marijuana in size and shape protruding from it. The cumulative effect of these observations amounted to reasonable and probable grounds to arrest the appellant. It followed that the search of the vehicle incident to the lawful arrest and carried out in a reasonable manner was constitutionally valid.

[10] The trial judge found a breach of s.10(b) when the arresting officer did not inform the appellant of her s.10(b) rights immediately upon arrest. The informational component of the right was delayed three to four minutes. The trial judge rejected the appellant’s claim that she did not speak to a lawyer, rather only to an interpreter, after the investigating officer called the toll-free number for duty counsel advice and, in accordance with his usual practice, requested a response from a Vietnamese-speaking lawyer. We see no basis upon which to interfere with this finding or the trial judge’s decision to admit the real evidence found in the vehicle.

[11] The appellant also seeks leave to appeal the sentence of imprisonment for a term of six months imposed upon her. She says the trial judge erred in failing to impose a conditional sentence of imprisonment. The sentence imposed at trial, she contends, is demonstrably unfit for a 52 year-old first offender, the sole support of her daughter, a university student. A conditional sentence order would permit her to continue operating her business, to maintain her home, and would also achieve the predominant sentencing objectives.

[12] We would not interfere with the sentence imposed at trial. We measure the sentence imposed for its adherence to the cardinal principle of sentencing –proportionality – regardless of whether trial judge erred in principle when crafting it. We see no error in principle in the judge’s approach or any misapprehension of relevant evidence, let alone any error that had an impact on the sentence ultimately imposed.

[13] The offence involved a significant quantity of marijuana. The crime was motivated entirely by financial gain. The offender who committed it, by her own admission, gave perjured testimony on the voir dire, if not on the trial proper in a desperate effort to escape conviction.

[14] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

“David Watt J.A.”

“Gloria Epstein J.A.”

”M. Tulloch J.A.”