Court of Appeal for Ontario

Date: 2017-04-24

Docket: C61282, C62117, C62144, C62147, C62156

Judges: MacPherson, Simmons and Brown JJ.A.

C61282

Between

Her Majesty the Queen Respondent

and

Bryan Quoc Ton Lam Appellant

C62117

And Between

Her Majesty the Queen Respondent

and

Thanh Hien Tran Appellant

C62144

And Between

Her Majesty the Queen Respondent

and

Wali Seddiqi Appellant

C62147

And Between

Her Majesty the Queen Respondent

and

Ba Tuan Tran Appellant

C62156

And Between

Her Majesty the Queen Respondent

and

David Hoc Truong Appellant

Counsel

Jill R. Presser and Jeff A. Marshman, for the appellant, Bryan Quoc Ton Lam

Daisy E. McCabe-Lokos, for the appellant, Thanh Hien Tran

Maija C. Martin, for the appellant, Wali Seddiqi

Melina Macchia, for the appellant, Ba Tuan Tran

Brian C. Eberdt, for the appellant, David Hoc Truong

Kevin Robert Wilson, for the respondent

Heard: April 19, 2017

On appeal from: the conviction entered on September 18, 2015 by Justice John B. McMahon of the Superior Court of Justice, and on appeal from the convictions entered on September 3, 2015 and the sentence imposed on May 17, 2016 by Justice Gary T. Trotter of the Superior Court of Justice.

A. Overview

[1] Bryan Quoc Ton Lam ran a Toronto-based marijuana distribution business that moved over 100 pounds per week at $2,500 to $3,000 per pound. Wali Seddiqi supplied Lam with marijuana from British Columbia. David Truong stored, packaged and distributed that marijuana. Ba Tuan Tran ("Ba Tran") distributed marijuana from Lam in the London area. Thanh Hien Tran ("Thanh Tran"), an associate of Lam, distributed marijuana in Toronto, including from a separate supplier in Montreal.

[2] All five appellants were convicted of drug related offences. All five appellants now appeal their convictions, challenging the application judge's admission of evidence against them pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. Ba Tran alone appeals his sentence.

[3] For the reasons that follow, we would dismiss the conviction appeals and Ba Tran's sentence appeal.

B. Background

[4] During the Asian Organized Crime Task Force ("AOCTF") investigation of Lam and his associates in 2012, the police obtained several warrants, including wiretap authorizations. The affidavits sworn in support of these warrants included evidence of drug charges laid against Lam in 2010 by Peel police. In 2014, Hill J. excluded the evidence relating to the 2010 charges because of police misconduct and Lam was acquitted: R. v. Lam, 2014 ONSC 3538.

[5] At the second trial, Lam challenged the admissibility of the evidence obtained as a result of the warrants from the second investigation. Justice MacDonnell acted as the Case Management Judge pursuant to s. 551.1 of the Criminal Code. Lam brought an application to exclude the evidence obtained pursuant to the 2012 authorizations. The other four appellants agreed to be bound by its result.

[6] On Lam's application, MacDonnell J. excised the 2010 evidence from the affidavits behind all of the 2012 orders: R. v. Lam, 2015 ONSC 2131, 343 C.R.R. (2d) 281. He found that, as a result, none of the 2012 orders could stand and that, therefore, the evidence gathered under them had been obtained in violation of s. 8 of the Charter. He concluded, at para. 64:

… I reject the Crown's submission that the warrants that were issued after April 30th could have issued notwithstanding the excision of the facts concerning the 2010 Peel Region investigation. Accordingly, all of the evidence gathered pursuant to the warrants was obtained in violation of s. 8.

[7] Turning to s. 24(2) of the Charter, the application judge applied the tripartite test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He concluded, at para. 101:

On balance, I am satisfied that the repute of the administration of justice would suffer more from exclusion of the evidence than by its admission.

Accordingly, the application judge dismissed the Charter application to exclude the evidence.

[8] After this ruling, the appellants resolved their trials in a way that preserved their rights of appeal on the Charter s. 8 ruling.

[9] Lam entered pleas of not guilty before McMahon J. to conspiracy to traffic in marijuana and possession of the proceeds of crime over $5,000. The Crown read in facts supporting findings of guilt and later filed a more comprehensive written summary of facts. Lam called no evidence in response and made no submissions on guilt or innocence. Justice McMahon found Lam guilty on both counts.

[10] Seddiqi, Truong, Thanh Tran and Ba Tran entered pleas of not guilty before Trotter J. to various drug related charges. The Crown filed and summarized facts supporting findings of guilt. All four called no evidence and agreed that the Crown could establish the facts it relied on. Justice Trotter found the four accused guilty.

[11] Of relevance to this appeal, Trotter J. imposed a sentence on Ba Tran of 15 months' custody after credit for eight days of pre-trial custody and restrictive bail conditions.

[12] All five appellants appeal their convictions. Ba Tran appeals his sentence.

C. Analysis

(1) Conviction Appeal (All Appellants)

[13] All of the appellants, led by Lam, contend that the application judge erred in two respects in his s. 24(2) analysis: first, he did not adequately recognize the impact of the misconduct of Peel Police in 2010 in conducting the s. 24(2) admissibility inquiry relating to the warrants obtained by the AOCTF police in 2012; and second, he did not give appropriate effect to his own finding that, in one respect, the content of Corporal Plume's affidavits in the 2012 investigation amounted to "serious carelessness".

[14] We do not accept these submissions. The application judge dealt explicitly with both of these issues. Where a trial judge has applied the relevant Grant factors, his or her decision is entitled to "considerable deference": Grant, at para. 86. The application judge engaged in a comprehensive review of the Grant factors. In our view, his analysis was fair and balanced. His conclusion is, easily, reasonable. Indeed, we would go farther – the application judge's decision is, in our view, correct.

(2) Conviction Appeal (All Appellants Except Lam)

[15] All of the appellants, except Lam, submit that the application judge failed to provide adequate reasons for his decision as it related to them.

[16] We do not accept this submission. The four appellants raising this ground of appeal agreed to be bound by the application judge's decision on Lam's Charter s. 8 application. The application judge gave comprehensive reasons that applied to all the appellants. It is telling that the four appellants who now advance this argument on appeal were all represented at trial by senior criminal counsel who did not raise this issue before either McMahon J. or Trotter J.

(3) Sentence Appeal (Ba Tran)

[17] The appellant Ba Tran appeals his custodial sentence of 15 months imprisonment on the basis that it is too harsh for "a first-time, youthful offender with tremendous potential for rehabilitation."

[18] In our view, the sentence imposed by Trotter J. was a fit sentence. The sentencing judge was entitled to reject a conditional sentence for this appellant on the basis of the scope of the drug trafficking enterprise and the appellant's role in it, namely his role in distributing drugs from Lam in the London area.

D. Disposition

[19] The conviction appeals are dismissed. We grant leave to Ba Tran to appeal sentence, but his sentence appeal is dismissed.

J.C. MacPherson J.A.

Janet Simmons J.A.

David Brown J.A.