Court of Appeal for Ontario

Citation: R. v. Moore, 2020 ONCA 662

Date: 2020-10-20

Docket: C65350

Judges: Fairburn A.C.J.O., Watt and Thorburn JJ.A.

Between:

Her Majesty the Queen, Respondent

and

John Moore, Appellant

Counsel:

Najma Jamaldin, for the appellant

Jeremy Streeter, for the respondent

Heard and released orally: October 15, 2020 by video conference

On appeal from the conviction entered on July 27, 2017 by Justice David S. Rose of the Ontario Court of Justice with reasons reported at 2017 ONCJ 513.

Reasons for Decision

[1] This is an appeal from conviction for trafficking in fentanyl. The appellant raises three grounds of appeal.

[2] First, he argues that the trial judge erred in finding that his s. 10(b) Charter rights were not breached shortly after his arrest.

[3] The trial judge found that the appellant had been properly informed of his right to counsel at the time of his arrest, but chose not to exercise that right until many hours later. When the appellant finally decided to speak with a lawyer at 1:30 a.m., the police attempted to facilitate that contact, but could not reach the appellant’s counsel of choice. The trial judge concluded that a s. 10(b) breach crystallized only at that time because, when they could not get in touch with the appellant’s counsel of choice, the police did not follow-up with the appellant to see if he wanted to speak with another lawyer. Even so, the trial judge found that the breach was minor in nature and no evidence should be excluded from the trial.

[4] The appellant argues that the trial judge erred by failing to conclude that his s. 10(b) rights were breached long before the attempt to facilitate contact with his lawyer. We do not agree.

[5] The appellant’s objection is rooted in the trial judge’s findings of fact, to which we owe deference. There was ample evidence to have enabled the trial judge to conclude that the appellant was informed immediately upon arrest and repeatedly of his right to counsel and repeatedly waived that right until he requested to speak with his counsel around 1:30 a.m. In these circumstances, we do not accept the argument that his right to counsel was breached prior to the time when he requested to speak with counsel.

[6] The s. 24(2) ruling is entitled to deference from this Court. There was a factual basis upon which the trial judge could conclude as he did, that the Charter breach at 1:30 a.m. was an isolated incident, and that the impact of the breach was minimal.

[7] Second, the appellant challenges the search of a cellphone carried by David Abbott, another person who was arrested just before the appellant. Immediately prior to his arrest, Mr. Abbott was seen attending at the appellant’s apartment building. The police believed Mr. Abbott purchased fentanyl from the appellant and, when he was arrested, after emerging from the building. Mr. Abbott was in possession of 15 grams of fentanyl. The appellant and Mr. Abbott were co-accused at trial.

[8] Mr. Abbott’s cellphone was searched at the time of his arrest. Mr. Abbott did not challenge the legality of that search at trial. Nor did the appellant. The legality of that search is raised for the first time on appeal.

[9] Among other things, as a prerequisite to advancing a new issue on appeal, there must be an adequate evidentiary record: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 43. In relation to the search of Mr. Abbott’s cell phone, the evidentiary record is entirely lacking. Because the issue was not raised at trial, the record is silent on a number of points necessary to the resolution of this issue, including why the police looked at Mr. Abbott’s phone at the time of arrest and how the investigation would have been adversely impacted had the phone not been looked at. The lack of an adequate evidentiary record is a bar to resolving this issue on appeal.

[10] In any event, what is available on the record points to the lack of a s. 8 breach. Arguably, based upon the evidence available for consideration by this Court, the search was brief, tailored and related to only one communication that was open on Mr. Abbott’s phone at the time of his arrest.

[11] Finally, the appellant argues that the trial judge misapplied the burden of proof. The appellant argues that the trial judge failed to appreciate that there was a lack of evidence that should have led to a reasonable doubt as to his guilt. We do not agree. This was a strong circumstantial case for trafficking in fentanyl. The trial judge’s reasons are unassailable.

[12] The appeal is dismissed.

CORRECTED DECISION:

Correction made on December 9, 2020: The “on appeal from” line at the outset of the judgment included a reference to a sentence appeal and a citation to the trial judge’s reasons for sentence. This reference and this citation have been deleted.

“Fairburn A.C.J.O.”

“David Watt J.A.”

“J.A. Thorburn J.A.”