Court of Appeal for Ontario

Date: 2022-09-16 Docket: C69046

Before: Benotto, Miller and Coroza JJ.A.

Between: His Majesty the King Respondent

And: Asher Veliz Appellant

Counsel: Maija Martin and Stephanie Brown, for the appellant Diana Lumba, for the respondent

Heard: September 13, 2022

On appeal from the convictions entered on November 26, 2020 and the sentence imposed on March 8, 2021 by Justice Shannon B. McPherson of the Ontario Court of Justice.

Reasons for Decision

[1] The police received an anonymous tip that “Asher V.” was trafficking in cocaine. Believing him to be the subject of this tip, the police conducted surveillance of the appellant over several days and observed him engaging in several brief interactions with others. The police officers believed that some of these interactions were drug transactions. The appellant was arrested for drug trafficking. The police subsequently obtained a warrant under the Controlled Drugs and Substances Act, S.O. 1996, c. 19, to search his home. The search revealed 127 grams of cocaine in individually wrapped dime bags, currency, and a weighing scale. A safe recovered on site contained more cocaine, as well as a handgun and ammunition.

[2] At trial, the appellant claimed breaches of his rights under ss. 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms. He sought the exclusion of all of the evidence seized at the time of arrest and pursuant to the execution of the search warrant. The Charter claims failed, and the appellant was convicted and sentenced to a global net sentence of 4.5 years.

[3] On appeal, the appellant renewed his Charter arguments and also appealed from sentence. At the conclusion of the appellant’s submissions, we dismissed the appeal with reasons to follow. These are those reasons.

The s. 9 argument

[4] The appellant argues that the trial judge erred in finding there were reasonable and probable grounds to arrest him for trafficking cocaine. We see no merit in this submission. After receiving the anonymous tip, the police corroborated some of the information provided to the officer. The officer conducted surveillance and observed four interactions believed to be drug transactions. On each occasion, the appellant had very short meetings with one other person, conducted from his car. On two occasions, the other individual entered the vehicle from the passenger’s side and left after approximately two minutes. On a third occasion, the other individual entered the vehicle and the appellant drove him to an ATM machine and then back to the starting point. On a fourth occasion, the appellant interacted with another individual through the driver’s side window.

[5] The police officer’s training and experience in investigating drug transactions led her to conclude that this pattern of quick and clandestine meetings with different people was consistent with drug trafficking, where the buyer and seller wish to conduct a quick transaction without being observed. The appellant argues that the trial judge erred in finding reasonable and probable grounds, as the police officer did not observe anything pass between the hands of the appellant and those with whom he met. It is not necessary, however, for a police officer to actually witness an exchange of drugs and cash in order to form the requisite grounds to believe that a transaction has taken place. The trial judge made no error.

The s. 8 argument

[6] The appellant argued that the Information to Obtain filed in support of the CDSA warrant was misleading, in that the affiant did not disclose that the appellant’s arrests in 2007 and again in 2008 for drug-related offences did not result in convictions. Neither did the affiant expressly state that no drugs or drug paraphernalia were found on the appellant at the time of arrest. The appellant argued that the trial judge therefore erred in finding that the ITO met the standard required by s. 11 of the CDSA.

[7] There is significant overlap between this argument and the s. 9 argument. Given that we found that the trial judge made no error in concluding that the arrest was not arbitrary, this disposes of much of the argument against the validity of the search warrant. Furthermore, the trial judge’s finding that the putative non-disclosures would not have misled the issuing justice is entitled to deference. We do not agree that the trial judge erred.

S. 10(b) – right to counsel

[8] The appellant initially spoke with duty counsel after being booked into the station. After the execution of the search warrant, the appellant faced new charges and was once again provided his rights to counsel. This time he requested to speak to counsel of choice. After phoning the appellant’s family to obtain contact details, the police officer left voicemails with the appellant’s counsel of choice at 1:08 a.m. and 1:31 a.m., and emailed him at 1:14 a.m. Immediately prior to placing the second phone call, the police officer asked the appellant if he would like to speak with duty counsel if she was unable to make contact with counsel of choice. The appellant replied, “you know I’m fucked so whatever I can get, yeah.” The appellant then spoke with duty counsel for a few minutes shortly after 2:00 a.m., said he was satisfied with the advice he had received, and thereafter refused to speak to police.

[9] Counsel for the appellant argues that the trial judge erred in not finding that the appellant’s s. 10(b) rights were infringed as a result of not being able to speak with counsel of choice. Counsel argues that the trial judge must have implicitly found that the appellant had waived his s. 10(b) rights, and did so without requiring the Crown to establish waiver (thereby reversing the onus) and without inviting submissions from the appellant.

[10] A difficulty with this submission is that this court has never held that the circumstances described above constitute waiver of s. 10(b) rights, rather than a valid exercise of them by choosing to speak with duty counsel. The trial judge made no error in concluding that, consistent with R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, the appellant had been provided with a reasonable opportunity to contact counsel of choice before being questioned by police. An additional difficulty for the appellant is that the issue of waiver was not argued at trial, and accordingly there is no evidence from the appellant and no findings as to whether the appellant believed that he had no option other than to speak with duty counsel. Accordingly, this ground of appeal has not been established.

Section 24(2)

[11] Given that we have concluded that the trial judge did not err in concluding there were no Charter breaches, it is not necessary to conduct a s. 24(2) analysis.

Sentence appeal

[12] The appellant submits that the trial judge imposed a higher custodial sentence for the drug offence than what the Crown was seeking without providing the appellant with an opportunity to make submissions, contrary to R. v. Blake-Samuels, 2021 ONCA 77, 69 C.R. (7th) 274. There is no merit to this submission. In considering whether the trial judge jumped the Crown submission, it is necessary to consider the global sentence imposed, not the sentences allocated to each discrete offence. As the net global sentence imposed for both the firearm and drug offence was 4.5 years while the Crown sought a net global sentence of 6 years, there is no basis for this appeal.

Disposition

[13] The appeals against convictions and sentence are dismissed.

“M.L. Benotto J.A.”

“B.W. Miller J.A.”

“S. Coroza J.A.”