Court of Appeal for Ontario

Date: 2019-03-05 Docket: C62472

Judges: Doherty, Benotto and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Huy Hoang Nguyen Appellant

Counsel

Jeff Marshman, for the appellant

Kathleen Healey, for the respondent

Hearing and Appeal

Heard: March 1, 2019

On appeal from the conviction entered on July 7, 2015, and the sentence imposed on August 2, 2016, by Justice Gregory A. Pockele of the Ontario Court of Justice.

Appeal Book Endorsement

[1] The appellant does not press the alleged breach of ss. 8 and 9. We think that was wise. We accept the trial judge's finding that the police had grounds to arrest the appellant after he entered the garage. It is uncontested that if the arrest was lawful, the search of the vehicle as an incident of the arrest was lawful.

[2] We agree with the appellant that his s. 10(b) rights were violated. The appellant indicated that he wished to speak with counsel when he was arrested. The appellant was not afforded an opportunity to contact counsel until about 80 minutes later after he was taken to the station. While it may have been appropriate to wait until the appellant was at the station before allowing him to speak to counsel, there was no reason for delaying his transportation to the station by some 50 minutes. At the station, the police further failed to advise the appellant that the lawyer he had asked for could not be reached when called by the police. Instead, the police simply left the appellant in the cell until he was released about 30 to 35 minutes later. The police should have told the appellant that his named lawyer was not available and advised him of his right to speak to duty counsel if he wished to do so.

[3] The outcome of the s. 24(2) analysis turns on a proper characterization of the police conduct. We do not see this conduct as demonstrating a systemic indifference to s. 10(b) rights, or the existence of a police policy or practice that undermined the rights protected by s. 10(b). The officers at the residence did not expect to encounter anyone at the scene. When they did, they failed to adjust their pre-set plan to execute the search warrant to take into account the appellant's s. 10(b) rights. While this is not acceptable, we do not see this as more than a situation-specific failure to comply with s. 10(b).

[4] The failure to give the appellant the opportunity to speak to duty counsel at the station is explained by one officer's mistaken belief as to which officer was obliged to ensure the appellant had a full opportunity to exercise his s. 10(b) rights. Once again, this is unacceptable, but we do not see it as indicative of an institutional or systemic problem.

[5] The police conduct still points towards the exclusion of the evidence to some extent. However, as counsel acknowledges, the negative impact on the appellant's rights is only moderate. The third factor in Grant strongly favours admission. Considering the three factors together, we would admit the evidence of the material seized from the appellant's car.

[6] The conviction appeal is dismissed.

[7] The parties agree that the sentence appeal should be allowed and the sentence varied to 12 months. So ordered.