Court of Appeal for Ontario
Date: 2019-12-20 Docket: C65228 Judges: Watt, Lauwers and Paciocco JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Tranh Tran Appellant
Counsel
Frank Miller, for the appellant
Brian Puddington, for the respondent
Hearing and Trial Information
Heard: October 10, 2019
On appeal from: The conviction entered on January 24, 2018, and the sentence imposed on April 6, 2018, by Justice Kirk W. Munroe of the Superior Court of Justice.
Reasons for Decision
[1] Introduction
After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of two counts of each of production and possession for the purpose of trafficking in marijuana and of theft of electricity. The charges arose out of the operation of two marijuana grow operations in otherwise unoccupied residential premises owned by the appellant. He received a blended sentence, including a term of imprisonment followed by a period of probation. He appeals both conviction and sentence.
[2] Disposition at Conclusion of Argument
At the conclusion of argument, we dismissed the appeals, except for one aspect of the appeal from sentence. At that time we said our reasons would follow. These are our reasons.
The Background Facts
[3] Principal Evidence
The principal evidence against the appellant consisted of items found when warranted searches were conducted at both grow houses and at the appellant's residence.
[4] Challenge to Search Warrants
At the outset of the trial, the appellant challenged the validity of the search warrants under which the searches were conducted and evidence seized. The ITO was common to all three warrants. Leave was given to cross-examine the affiant.
[5] Appellant's Submissions on Warrant Validity
On the application to exclude the evidence gathered as a result of the search, the appellant submitted that, stripped of information obtained by unconstitutional seizures and other information that was erroneous, false, misleading or strategically omitted, and taking into account any information obtained by amplification, there remained an insufficient reliable evidentiary predicate upon which the warrants could have been issued. It followed, the appellant said, that the warrants should fall and the evidence should be excluded.
[6] Alternative Argument
In the alternative, the appellant argued, the trial judge should exercise his discretion to set aside the warrant, even if properly issued, because the affiant's conduct was subversive of the pre-authorization process.
[7] Trial Judge's Excision of Information
The trial judge declined to set aside the enabling warrants. He excised:
i. the information obtained by unconstitutional conduct by the police; and
ii. other information he considered improper, including the appellant's unrelated criminal record and contact with the police, and false or misleading information about two incidents occurring several years earlier.
Despite excision of this information, the trial judge concluded that there remained sufficient reliable evidence on the basis of which the warrants could have issued.
[8] Trial Judge's Consideration of Subversion of Pre-Authorization Process
The trial judge also considered whether the search warrants should be set aside because the affiant's conduct in connection with the ITO was so subversive of the pre-authorization process that the warrants, grounded on an adequate evidentiary foundation, should nonetheless be set aside. He declined to do so.
The Appeal from Conviction
[9] Re-Invigoration of Trial Arguments
In this court, the appellant re-invigorated the arguments he advanced at trial seeking to have the search warrants quashed and evidence obtained on the searches excluded. In our view, these arguments fail here as they did at trial.
[10] Trial Judge's Correct Application of Garofoli Test
On the Garofoli hearing with which the trial proceedings began, the trial judge correctly stated the test he was to apply and the identified evidentiary predicate to which he was to apply it. He fully appreciated that his task required him to excise from the ITO information that was obtained by constitutional infringement, as well as information which was misleading or erroneous, and to determine whether what remained in the ITO, as amplified on review, afforded sufficient reliable evidence on the basis of which the warrant could have issued.
[11] Excision of Enwin Utilities Information
The trial judge excised from the ITO, as the product of constitutional infringement, information received from Enwin Utilities, the electrical services provider at the premises where the two marijuana grow ops were located. This information, which disclosed the consumption of electrical energy at both places, was provided to the police without a warrant or production order. It included consumption data specific to each location and a comparison with consumption for similar-sized residences in the same neighbourhood. It was relied upon to support an inference that a by-pass was installed at each location to mask the electrical consumption necessary for a marijuana grow operation.
[12] Excision of Misleading and Irrelevant Information
The trial judge also excised information in the ITO he considered misleading, irrelevant or erroneous. This included:
i. the appellant's dated prior convictions of two Criminal Code motor vehicle offences;
ii. ten contacts of the appellant with the investigating police service over a period of nine years, the most recent of which occurred 6 years before the offences being investigated and the oldest 15 years before the current investigation; and
iii. information about two incidents involving marijuana grow ops more than a decade earlier in one of which the appellant was not charged and in the other of which he was acquitted of charges of production of marijuana and possession of marijuana for the purposes of trafficking.
[13] Application of Araujo Standard
After excising from the ITO the information obtained by constitutional infringement, as well as information he considered erroneous or misleading, the trial judge bent to the task of considering what remained in the ITO, together with the amplifying evidence adduced on the Garofoli hearing. This became the evidentiary predicate he considered in determining whether there was reliable evidence, which might reasonably be believed, on the basis of which the warrant could have issued: see R. v. Araujo, 2000 SCC 65, at para. 54.
[14] Remaining Evidence Considered by Trial Judge
What remained for the trial judge to consider in applying the standard fixed for authorization review by Araujo was:
i. information provided over several months by a confidential informer about an alleged grow house at a specified address apparently monitored by a man fitting the general description of the appellant and driving a motor vehicle of the same make and model as that registered to the appellant's wife;
ii. police surveillance of the premises shortly before the warrant was obtained and executed at two premises on the same street which property records confirmed were owned by the appellant, both apparently unoccupied but with windows covered, roof vents spinning when vents on adjacent houses remained static, and an odour of vegetative marijuana emanating from one of the residences;
iii. confirmation of the appellant's brief attendance at both properties by police surveillance on the day before the warrant was obtained and executed, driving a vehicle registered to his wife identical in make and model to that described by the confidential informer; and
iv. the opinion of an experienced drug investigator describing the inferences she drew from the confidential informer's information and confirmation of it by police surveillance property records and vehicle registration.
[15] Trial Judge's Satisfaction with Evidentiary Standard
The trial judge was satisfied that the evidence, considered as a whole, met the Araujo standard, that is to say, it constituted sufficient reliable evidence on the basis of which the warrant could have issued.
[16] No Error in Trial Judge's Reasoning
In our view, the reasons of the trial judge do not reveal any error of law or of principle, nor any material misapprehension of the evidence adduced. His conclusion was open to him on the evidence and is not plainly unreasonable. We are not persuaded that the reasons demonstrate any palpable and overriding error of fact.
[17] Refusal to Exercise Residual Discretion
We are also not satisfied that the trial judge erred in refusing to exercise his residual discretion to set aside the warrants on the basis that the affiant's conduct in the pre-authorization process amounted to a subversion of that process. Once again, we are persuaded that the trial judge stated and applied the proper standard. His decision is not cumbered by any error of law or of principle, any misapprehension of evidence or any palpable and overriding error of fact. Nor is it plainly unreasonable.
[18] Cautionary Note on Affiant's Conduct
On the other hand, we consider it appropriate to add that the affiant's conduct in this case should not be repeated. The obligation of full, fair and frank disclosure is not a licence to include irrelevant information; invite propensity reasoning; contest factual determinations explicit or implicit in decisions of courts of competent jurisdiction; or offer opinions unsupported by essential factual underpinnings.
[19] Dismissal of Conviction Appeal
The appeal from conviction is dismissed.
The Appeal from Sentence
[20] Challenge to Fitness of Sentence
The appellant also challenges the fitness of the sentence imposed upon him, a blended sentence of imprisonment for 15 months followed by a period of probation of 1 year.
[21] Sentencing Submissions at Trial
At trial, the Crown sought a sentence of imprisonment of two years, but acknowledged that a range of sentence of imprisonment for 15-18 months was perhaps a more accurate sentencing range in this case. Defence counsel, who also appears on appeal, put the applicable range at 10-18 months and sought a sentence of 12 months.
[22] Sentencing Considerations
The trial judge was obliged to impose a fit sentence on a 49-year-old offender with no related or relevant convictions. This was a sophisticated two-location marijuana grow operation in a residential area powered by electrical by-passes. The predominant sentencing objectives, as the trial judge recognized, were denunciation and deterrence. But the trial judge was also aware that rehabilitation was in play for the appellant.
[23] Fitness of Sentence Imposed
In our view, the sentence imposed was fit. It reflects no error of law or of principle. It is not founded on any material misapprehension of fact and sits comfortably within the range of sentencing dispositions considered appropriate in cases such as this in recent decisions of this court.
[24] Disposition of Sentence Appeal
Leave to appeal sentence is granted, but the appeal from sentence is dismissed except that the victim surcharge imposed by the trial judge is set aside.
"David Watt J.A."
"P. Lauwers J.A."
"David M. Paciocco J.A."