Court File and Parties

Court of Appeal for Ontario

Date: 2024-07-04 Docket: COA-22-CR-0175

Before: MacPherson, Dawe and Madsen JJ.A.

Between:

His Majesty the King Respondent

and

Tan Tran Appellant

Counsel: Sandra Kimberg, for the appellant Christopher Walsh, for the respondent

Heard: July 2, 2024

On appeal from the convictions entered by Justice Kelly C. Tranquilli of the Superior Court of Justice on February 10, 2022.

Reasons for Decision

[1] The appellant was found guilty of drug and proceeds of crime charges based on evidence that the police obtained by executing a search warrant on his home. The principal focus of his appeal is on allegations that he received ineffective assistance from his trial counsel relating to counsel’s conduct of the appellant’s s. 8 Charter application challenging the validity of the search warrant.

[2] The first allegation relates to trial counsel’s decision not to challenge the affiant’s assertions about the accuracy of the vehicle GPS tracking data that was relied on by the police to link the appellant and his residence to the person who was the main target of the investigation. The second allegation relates to trial counsel’s agreement to let the Crown introduce amplification evidence by the affiant at the Charter hearing by examining the affiant in-chief before he was then cross-examined by defence counsel.

[3] The appellant also challenges the trial judge’s decision to uphold the search warrant and find no breach of the appellant’s s. 8 Charter rights. [1]

[4] At the hearing, we dismissed the appeal with reasons to follow. These are those reasons.

A. Factual background

[5] In 2017, the London Police Service (“LPS”) received information from a confidential informant that Robert Cao was selling cocaine in London. Mr. Cao was believed to be driving a 2012 Toyota RAV 4 SUV.

[6] On May 1, 2017, the LPS obtained a warrant allowing them to track Mr. Cao’s cellphone. Two weeks later, the police began conducting physical surveillance of Mr. Cao, which confirmed that he regularly drove the 2012 Toyota. On May 18, 2017, the police obtained a tracking warrant for the 2012 Toyota. However, they did not install a GPS tracking device on the vehicle until a month later, on June 16, 2017.

[7] Data obtained from the cell phone tracker allowed the LPS to determine the approximate geographical location of Mr. Cao’s phone. The Information to Obtain the search warrant (“the ITO”), sworn by DC Youman, stated that the cell phone tracker data showed that Mr. Cao “would make constant trips to Thorndale, Ontario in the area of Purple Hill Road and Wyton Drive”, but that this data was too imprecise to permit the police to determine “which residence in that area Cao was frequenting”. The appellant lived at 17533 Wyton Drive, which is a few hundred metres away from the Purple Hill Road intersection.

[8] In his testimony in chief on the Charter application, DC Youman testified that the cell phone tracking data showed Mr. Cao’s phone going to this area six times between May 2 and 22, 2017. These specific details were not included in the ITO.

[9] The ITO stated further that Robert Cao would make trips to this location in Thorndale, Ontario before and after attending the Greater Toronto Area for short periods of time”, which the affiant viewed as “indicative of a trafficker re-stocking his supply of drug”. DC Youman testified on the Charter application that the police observed the phone doing this three of the six times that the cell phone tracking data showed it going to Thorndale. This specific detail was also not included in the ITO.

[10] After the LPS installed the vehicle GPS tracker on Mr. Cao’s 2012 Toyota on June 16, 2017, tracking data showed the vehicle making additional trips to Thorndale. The affiant stated in the ITO:

For the first time, I was able to verify for certain what address Robert Cao’s vehicle attended in Thorndale, Ontario. That address was discovered to be 17533 Wyton Drive, Thorndale, Ontario. After this initial attendance, Cao returned on nine separate occasions. When Robert Cao would attend this address he would often leave and immediately conduct a suspected drug transaction.

[11] DC Youman gave evidence on the Charter application about the specific dates that the tracking data showed the vehicle attending at this location, but the specific details of only three of these trips, on July 4, 7 and 12, 2017, were set out in the ITO.

[12] The ITO states further that on June 21, 2017 the police observed a vehicle registered to the appellant parked in the driveway of 17533 Wyton Drive. Police databases revealed that six years earlier, in 2011, the appellant and Mr. Cao had been stopped by the police while driving together.

[13] As a result of its investigation, the LPS obtained warrants for four locations associated with Mr. Cao. One of those locations was the appellant’s home at 17533 Wyton Dr. A search warrant for this address was executed on July 18, 2017 and the police located 1 kilogram of crystal methamphetamine, 1792 grams of marijuana bud, smaller quantities of other drugs, and approximately $100,000 in cash.

B. History of the proceedings

[14] The appellant brought a pre-trial application in which he contended that the police did not have reasonable grounds to obtain the warrant to search his house, and that the search accordingly violated his s. 8 Charter rights. After his Charter application was dismissed, he was arraigned on charges of possession of crystal methamphetamine for the purpose of trafficking, and possession of proceeds of crime over $5,000. The Crown tendered an agreed Statement of Facts which made out the essential elements of the offences. The appellant made no submissions on proof of guilt, and convictions were entered on those two counts. The Crown then withdrew the other charges in the indictment.

C. Analysis

[15] The appellant asserts that trial counsel provided ineffective assistance in two respects: (1) by failing to test the veracity of the affiant’s assertion that the GPS tracker installed on Mr. Cao’s vehicle on June 16, 2017 was sufficiently accurate to allow the police to “verify for certain” that Mr. Cao was attending the appellant’s residence in Thorndale; and (2) by agreeing to an arrangement on the Charter application in which defence counsel cross-examined the affiant only after Crown counsel had conducted an extensive examination in chief of the officer.

[16] In the alternative, the appellant argues that the application judge erred by concluding that the ITO, as amplified on review, disclosed sufficient grounds to support the issuance of the warrant to search his house.

(1) The ineffective assistance of counsel grounds

[17] As Paciocco J.A. explained in R. v. Fiorilli, 2021 ONCA 461, at para. 48:

A three-part test is used to determine ineffective assistance of counsel appeals, with the appellant bearing the onus of proof and persuasion with respect to each part. The structure of the test was neatly summarized by Watt J.A. in R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91:

An appellant must establish:

i. the facts on which the claim is grounded (the factual component);

ii. the incompetence of the representation provided by trial counsel (the performance component); and

iii. a miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component).

The standard of proof is the balance of probabilities: Fiorilli, at para. 51; R. v. K.K.M., 2020 ONCA 736, at para. 55. Since “if the prejudice component cannot be met, there is no reason to subject the performance of counsel to judicial inquiry … it will usually be the case that the proper analytical order of the three-part test is (i), (iii), and then (ii)”: Fiorilli, at para. 49; R. v. G.D.B., 2000 SCC 22, at para. 29.

(1) Trial counsel’s decision not to challenge the affiant’s assertions about the accuracy of the GPS vehicle tracking data

[18] It is undisputed that the appellant’s trial counsel did not seek to challenge the affiant’s assertion in the ITO that the GPS vehicle tracking data enabled the police to “verify for certain” that Mr. Cao had been going to the appellant’s residence during his trips to Thorndale. However, in the circumstances here, we are not persuaded that this tactical decision by counsel caused any prejudice to the appellant.

[19] Stripped to its essentials, the appellant’s argument is that the GPS vehicle tracking data may have been insufficiently precise to establish that Mr. Cao was necessarily visiting the appellant’s residence, rather than one of the neighbouring properties. In support of this argument, he seeks to introduce fresh evidence from an “expert in digital forensics”, Matthew Musters, who has prepared a report explaining how a number of factors can affect the accuracy of GPS readings. According to Mr. Musters, the precision of GPS data can vary, and in certain conditions GPS trackers can only identify locations within a radius that can be as great as 60 metres.

[20] In our view, Mr. Musters’s evidence, even if admissible, would not assist the appellant. We reach this conclusion for three main reasons.

[21] First, the appellant’s residence was located in the countryside outside Thorndale. As the affiant explained in his testimony on the Charter application:

[T]his is country roads, the properties are pretty far apart, and the vehicle tracking data was very specific to the metre that the vehicle, Mr. Cao's vehicle, was pulling into the driveway of 17533 Wyton Drive on all 10 of those occasions.

Even if the appellant could establish that the GPS vehicle tracking data had error rates as high as 60 metres, the most this would have done is raise the possibility that Mr. Cao could perhaps have been visiting one of the appellant’s immediate neighbours.

[22] However, the GPS tracking data did not stand alone. Rather, the police also had information that Mr. Cao and the appellant knew one another, having been stopped by the police while driving together six years earlier. This supported the inference that Mr. Cao had in fact been attending the appellant’s residence when he travelled to the countryside outside Thorndale, rather than visiting one of the appellant’s next-door neighbours.

[23] Second, Mr. Musters’s own evidence is that error rates of as high as 60 metres are atypical. His report and testimony cite several factors that can affect GPS accuracy, but nothing in the proposed fresh evidence suggests that any of the factors except tree coverage apply to this case. Indeed the evidence cited in Mr. Musters’s report and in his testimony repeatedly suggests inaccuracies of only within 10 meters in outdoor settings, even with heavy tree coverage. Accordingly, it is doubtful that a challenge to the accuracy of the GPS evidence would have undermined the correctness of the police conclusion that Mr. Cao had in fact been visiting the appellant’s residence.

[24] Third, the issue the application judge had to consider was not whether the conclusion drawn by the affiant about the location that Mr. Cao was visiting was correct, but whether it was one that he honestly and reasonably held at the time that he applied for the search warrant. Even if the GPS vehicle tracking data could now be shown to be less precise than DC Youman believed it was at the time, this would not undermine his grounds for believing that searching the appellant’s residence would afford evidence of Mr. Cao’s drug-trafficking activities.

[25] In summary, in the circumstances here we are not persuaded that the appellant has met his burden of establishing that there is “a reasonable probability that the result would have been different” if his trial counsel had challenged the accuracy of the GPS vehicle tracking data: Fiorilli, at para. 59.

[26] This makes it unnecessary for us to consider the performance component of the test, or address the Crown’s arguments that Mr. Musters’s proposed fresh evidence is not properly admissible either under R. v. Palmer, [1980] 1 SCR 759, or under the somewhat relaxed standard that applies when ineffective assistance of counsel is raised as a ground of appeal: see e.g., R. v. Widdifield (1995), 25 O.R. (3d) 161 (C.A.).

(2) Trial counsel’s agreement that the Crown could examine the affiant in chief on the Charter application

[27] The appellant’s second argument alleging ineffective assistance of counsel is that his trial counsel’s decision to agree to permit the Crown to tender evidence in-chief from the affiant, DC Youman, in exchange for the defence not having to seek leave to cross-examine him, was a decision that “was taken haphazardly without consideration for the legal framework, the consequences of the in-chief evidence, or the benefits to be gained from cross-examination”.

[28] Essentially, the appellant contends that trial counsel was wrong to conclude that the benefits of being able to cross-examine DC Youman outweighed the advantage the Crown would gain from having the opportunity to “amplify” the officer’s statements in the ITO through direct examination.

[29] We do not accept this submission, for several reasons. First, the agreement between trial counsel and the Crown was a reasonable quid pro quo that offered trial counsel an opportunity to cross-examine the affiant without having to seek leave: see R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1465. We are not persuaded that trial counsel’s choice fell outside the bounds of “reasonable professional judgment”: R. v. G.D.B., at para. 27. As the Crown put it in its factum, “Even if it was a mistake, it was not an incompetent mistake.”

[30] Second, the affiant’s testimony in chief was not automatically admissible as amplification evidence merely because it was given on the Charter voir dire. Rather, it remained the Crown’s burden to establish that the incomplete statements in the ITO where amplification was sought were “minor, technical errors” that had been made by the affiant “in good faith”: see R. v. Araujo, 2000 SCC 65, at para. 59; R. v. Morelli, 2010 SCC 8, at para. 41; R. v. Booth, 2019 ONCA 970, at para. 59. The application judge could not make this assessment without first hearing the specifics of the proposed amplification evidence.

[31] Third, we are not persuaded that evidence elicited from the affiant in chief by the Crown exceeded the bounds of permissible amplification. Essentially, the affiant expanded on certain imprecise statements he had made in the ITO by giving further details of the dates, times and circumstances of the movements of Mr. Cao’s cell phone and vehicle, as they had revealed both by the GPS tracking data and by police visual observations. His testimony did not suggest that any of his statements in the ITO about Mr. Cao’s trips to the appellant’s residence had been either entirely false or deliberately misleading, as opposed to merely being incomplete and less detailed than they might, and arguably ought, to have been. To the extent that certain assertions in the ITO were capable of being misunderstood as having overstated the information the police actually had, it was appropriate that these statements be corrected for the purposes of reviewing the adequacy of the police grounds, absent a finding of deliberate misconduct by the trial judge.

[32] In summary, we are not persuaded that trial counsel’s choices about how best to litigate the s. 8 Charter application fell outside the boundaries of reasonable professional judgment, nor are we satisfied that his decisions caused any prejudice to the appellant.

(2) The adequacy of the grounds for the search warrant

[33] The appellant’s third argument is that although “the law on search warrant review was correctly put to the trial judge in the Crown and defence Charter materials … the court erred in its application”.

[34] There is no merit in this submission. The trial judge engaged in a comprehensive and careful review of all the relevant evidence relating to the search warrant. We agree with his ultimate conclusion that:

The totality of the circumstances went well beyond suspicion. There was, indeed, a credibly based probability that a search of the Thorndale premises would yield evidence of the commission of an offence under the CDSA. Based on the record that was before the issuing justice as amplified on the review, I am satisfied there was a sufficient evidentiary basis for the issuance of the search warrant in question on this application: R. v. Sadikov, supra at para. 88. The applicants' s. 8 Charter rights were not violated.

D. Disposition

[35] The appeal is accordingly dismissed.

“J.C. MacPherson J.A.”

“J. Dawe J.A.”

“L. Madsen J.A.”

[1] The appellant’s Charter challenge was heard by Justice A. Duncan Grace: see R. v. Tran and Vo, 2021 ONSC 1805. The parties refer to him as the “trial judge” and we do the same in these reasons.