Court of Appeal for Ontario
Date: 2019-01-15 Docket: C63984
Judges: MacPherson, Roberts and Paciocco JJ.A.
Between
Her Majesty the Queen Respondent
and
Matthew Wawrykiewicz Appellant
Counsel
Gregory Lafontaine and Ricardo Golec, for the appellant
Kevin Wilson and Wendy Levant, for the respondent
Heard
January 11, 2019
Appeal Information
On appeal from the convictions entered by Justice Robert F. Goldstein of the Superior Court of Justice, sitting without a jury, dated February 15, 2017, and the sentence imposed on June 12, 2017, with reasons reported at 2017 ONSC 3527.
Reasons for Decision
[1] Overview of Appeal
The appellant appeals against his convictions for multiple drug offences and seeks leave to appeal his sentence.
[2] Charges and Indictments
The charges against the appellant stemmed from two indictments.
[3] First Set of Charges – Hotel Room Entry
The first set of charges arose from the December 29, 2013 warrantless entry by the police into a hotel room occupied by the appellant. The police went to the hotel room at the request of hotel management following complaints about excessive noise and the odour of marijuana reported near the appellant's hotel room. The officers went to the room and, after there was no response when they knocked and identified themselves, they opened the lock with a key. They then entered the room after the appellant released the safety latch and stepped back. In plain view in the hotel bathroom, the police observed evidence of drug possession. They then obtained a warrant resulting in the seizure of cocaine and crack cocaine in what the appellant concedes were trafficking quantities. The police also executed a search warrant for the appellant's car resulting in the seizure of more crack cocaine. Of particular significance to this appeal, the police also seized two cell phones incident to the appellant's arrest.
[4] Second Set of Charges – Subsequent Searches
Subsequently, the police had reason to examine the two cell phones and did so pursuant to a valid search warrant. The phone searches led the police to two addresses associated with the appellant, 105 The Queensway, Apartment 1905, and 83 Humbercrest Blvd., in Toronto, and gave the police the grounds to obtain drug related search warrants for those addresses. The second set of charges resulted from the execution of the Queensway and Humbercrest warrants. During those searches, conducted on February 18, 2014, the police seized great quantities of cocaine, heroin, marijuana, drug trafficking paraphernalia and drug proceeds.
[5] Charter Application – Section 8 Breach
The appellant brought an application for exclusion of the cell phones and the other evidence seized on both occasions. The heart of the application was the claim that the appellant's right under s. 8 of the Canadian Charter of Rights and Freedoms to be secure from unreasonable search or seizure had been violated by the unlawful entry into the hotel room. The appellant argued that since the information required to support the February 18, 2014 search warrants came from the cell phones seized from the hotel room, evidence secured during the February 18, 2014 searches should be excluded as well.
[6] Trial Judge's Finding of Charter Breach
The trial judge agreed that the entry into the hotel room by the police was without lawful authority and therefore a violation of s. 8, and that the unlawful hotel room search tainted the subsequent February 18, 2014 searches.
[7] Trial Judge's Ruling on Evidence Admissibility
Despite finding a s. 8 Charter breach, the trial judge held that all of the evidence on both charges was admissible. He determined that the seriousness of the illegal entry into the hotel room was tempered by the good faith of the police officers and that the impact of the breach was reduced by circumstances that lowered the appellant's expectation of privacy. Since the reliable evidence seized was crucial to the prosecution of trafficking charges involving very serious quantities of drugs, he reasoned that exclusion of that evidence would adversely affect the repute of the administration of justice far more than would its admission. He therefore dismissed the appellant's application.
[8] Conviction and Sentencing
After this ruling, the appellant did not contest the Crown's case against him. He was convicted of all charges. He was given a global sentence of 10 years, less 353 days of credit for pre-sentence custody and strict house arrest bail conditions. The trial judge declined to grant additional credit for the time the appellant spent on curfew.
[9] Sentencing Details
The ten year global sentence consists of one year of concurrent sentences for the December 29, 2013 offences, with a further nine years consecutive for the February 18, 2014 offences. The nine years of consecutive sentences for the February 18, 2014 offences includes a sentence of four years for possession for the purpose of trafficking of approximately 1.8 kg of powder cocaine and 8.5 g of crack cocaine, and five further years for possession for the purpose of trafficking of approximately 173 g of heroin. The other four of the six February 18, 2014 offences were sentenced concurrently to each other.
[10] Grounds of Appeal
The appellant pursued appeals before this court based on the following alleged errors:
The trial judge committed a palpable and overriding error in his decision not to exclude the evidence pursuant to s. 24(2) of the Charter because his good faith finding was largely based on erroneous factual findings that were against the weight of the evidence at trial, and he incorrectly concluded that the absence of bad faith equals good faith.
The trial judge identified an erroneous starting point for his sentence for possession of cocaine for the purpose of trafficking, and failed to give effect to two mitigating factors, namely, the appellant's self-employment in renovating a home for resale, and the hardship of his bail conditions.
[11] Court's Assessment
We are not persuaded by the appellant's submissions.
[12] Good Faith Finding – No Palpable Error
The trial judge did not make palpable and overriding errors in finding that the entry into the hotel room was made in good faith. Despite conflicting evidence about whether the hotel manager asked Constable McInerney to evict the occupants, the trial judge was entitled to accept Constable McInerney's evidence that this happened. There is no basis for concluding that the trial judge misapprehended the evidence on this point. Nor was it unreasonable for the trial judge to infer that the hotel manager did not remember doing so, given that Constable McInerney's evidence found support in the evidence of both Constables Dills and Panayotov.
[13] Appellate Deference to Trial Judge Findings
The trial judge was also entitled to accept Constable McInerney's evidence that he believed that the hotel manager's request gave him the lawful authority to enter the hotel room. The deference we owe to the trial judge's findings of fact is not lessened because the Charter application was based on preliminary inquiry transcripts and documentation rather than oral evidence. As this court said in FL Receivables Trust 2002-A v. Cobrand Foods Ltd., 2007 ONCA 425, 85 O.R. (3d) 561, at para. 46:
The principle of appellate deference to a trial judge's fact-finding and inference-drawing applies even when the entire trial record is in writing. That is so because the principle of deference is grounded in more than a trial judge's ability to see and hear the witnesses. Deference recognizes that even on a written record, the trial judge "lives through" the trial while a court of appeal reviews the record only through the lens of appellate review. Deference also preserves the integrity of the trial process, maintains the confidence of litigants in that process, reduces the number and length of appeals and therefore, the cost of litigation, and appropriately presumes that trial judges are just as competent as appellate judges to resolve disputes justly.
[14] Good Faith Analysis – Reasonableness of Belief
Nor did the trial judge equate the absence of bad faith with good faith, or base his good faith findings solely on the subjective belief of the officers that they were acting lawfully. It is clear that the trial judge considered the reasonableness of the officers' beliefs before making his good faith findings. He noted that there was a dearth of case law regarding the statutory authority to enter a hotel room before finding that Constable McInerney believed he was acting under the authority of the Trespass to Property Act, R.S.O. 1990, c. T.21, and was attempting to comply with its requirements. He then assessed the reasonableness of the belief by other officers that the appellant had implicitly invited them to enter the hotel room. We would not give effect to this ground of appeal.
[15] Sentencing Appeal – Starting Point
We also dismiss the sentencing appeal. The trial judge committed no error of principle in identifying the starting point sentence for the February 18, 2014 cocaine offence. His decision shows that he was well aware of the decision of this court in R. v. Bryan, 2011 ONCA 273, stating that sentences in the five to eight year range are appropriate for first offenders possessing for the purpose of trafficking slightly more than a pound of cocaine. We agree with the submission of the Crown that it was in the particular circumstances of this case that the trial judge concluded that the appropriate sentence for possession of approximately 1.8 kg of cocaine should begin at eight years. This was a second set of drug offences committed by a "large-scale professional commercial drug dealer" who was still on bail release for drug trafficking, and the trafficking count involved both powder and crack cocaine. In any event, after consideration of the principle of totality, the trial judge imposed a sentence for this offence of four years, far below the starting point he had identified.
[16] Self-Employment Consideration
Nor did the trial judge fail to consider the appellant's self-employment in renovating a home for resale. He discussed the appellant's enterprise in some detail in his sentencing decision. His decision not to give it weight was reasonable. On the evidence, the appellant was living well, not on his pro-social earnings from home renovation, but from his large scale professional drug dealing, and because, for a 31-year-old man, his employment record was "sketchy".
[17] Bail Conditions Credit
Finally, the trial judge had discretion whether to give the appellant credit for the harsh conditions of bail release. The trial judge chose to give the appellant 90 days of credit for time he spent under strict house arrest, but not to give additional credit for the period he was under curfew. This was the trial judge's decision to make. We would not interfere.
[18] Disposition
The conviction appeal is dismissed. Leave to appeal the sentence is granted, but the sentence appeal is dismissed.
J.C. MacPherson J.A.
L.B. Roberts J.A.
David M. Paciocco J.A.
