Court of Appeal for Ontario

Date: 2026-03-18 Docket: COA-23-CR-0589

Coroza, George and Monahan JJ.A.

Between

His Majesty the King — Respondent

and

Vivian Hamilton — Appellant

Counsel:

Etai Hilzenrat, for the appellant

Chris Kalantzis, for the respondent

Heard: March 17, 2026

On appeal from the convictions entered by Justice Michael D. McArthur of the Superior Court of Justice on March 3, 2023, and from the sentence imposed on June 9, 2023.

Reasons for Decision

[1] The appellant was convicted of five counts of possession of a controlled substance for the purposes of trafficking, namely fentanyl, morphine, oxycodone, hydromorphone and methylphenidate, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA"). The appellant was also convicted of one count of possession of a controlled substance, namely buprenorphine, contrary to s. 4(1) of the CDSA. The appellant was sentenced to an aggregate sentence of three years. The appellant appeals from her convictions and seeks leave to appeal her sentence.

[2] The appellant raises five grounds of appeal.

[3] First, the appellant submits the trial judge's findings about the purpose of possession of the fentanyl in his directed verdict ruling contradicted his ultimate findings in his reasons for judgment, resulting in unfairness amounting to a miscarriage of justice.

[4] Second, the appellant submits the trial judge erred in finding that the appellant possessed the fentanyl for the purpose of trafficking because this was not the only available inference on the evidence, resulting in an unreasonable verdict.

[5] Third, the appellant submits the trial judge erred by refusing to entertain the submission that her co-accused maintained sole possession of the pills.

[6] Fourth, the appellant submits the trial judge erred in dismissing the appellant's Charter application due to a misapprehension of the evidence, and that, on a fresh assessment under s. 24(2), the substances should have been excluded.

[7] Lastly, the appellant seeks leave to appeal her sentence. The appellant submits that, should this court quash the appellant's conviction on the possession of fentanyl for the purpose of trafficking and reduce it to simple possession, the appellant's sentence should be varied to a conditional sentence.

[8] After hearing the appellant's submissions, we did not call on the Crown and dismissed the appeal with reasons to follow. These are our reasons.

The *Charter* Ground of Appeal

[9] We begin by addressing the appellant's fourth ground of appeal, which alleges errors in the trial judge's ruling on the appellant's Charter application.

[10] The trial judge found that the sole breach of the appellant's s. 10(b) right to counsel occurred when officers delayed informing the appellant about additional charges brought against her after she was detained. The trial judge concluded, pursuant to s. 24(2), this singular breach did not justify excluding the key evidence in this case: the illicit substances found on the appellant's person and property.

[11] On appeal, the appellant submits the trial judge misapprehended the evidence and erred in not finding additional breaches of the appellant's right to counsel. According to the appellant, her right to counsel was further breached by the officers' failure to hold off questioning after she invoked her right to counsel, and the officers' failure to implement her right to counsel after the additional charges were brought against her.

[12] For the purposes of this appeal, we assume, without deciding, that there were additional breaches of the appellant's right to counsel. However, we do not accept the appellant's submission that, assuming such additional breaches, the administration of justice would be brought into disrepute by admitting the evidence seized from the appellant and on the property.

[13] In our view, the s. 24(2) balancing does not support excluding the evidence seized, applying the analysis from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[14] We agree with the trial judge's observations that there was no systemic or deliberate disregard for the appellant's right to counsel. This mitigates the seriousness of the alleged Charter-infringing conduct: Grant, at para. 74.

[15] We also observe that, while there is a temporal and contextual connection between the breaches and the discovery of the evidence, there is a lack of causal connection. This mitigates the impact of the infringement on the appellant: R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 71. The appellant acknowledges that this is a factor to take into consideration

[16] Considering these factors together, admitting the evidence seized by the police would not bring the administration of justice into disrepute.

The Remaining Grounds of Appeal

[17] The remaining grounds of appeal all relate to the trial judge's reasons for judgment and ruling on the appellant's directed verdict application. In our view, these grounds of appeal have no merit. They are an attempt to parse certain lines of the trial judge's reasons in search of error. This is not the function of an appellate court: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69. Nor is it the function of this court to retry the case. Accordingly, we dismiss the remaining grounds of appeal from conviction.

The Sentence Appeal

[18] As we find that the conviction of possession of fentanyl for the purpose of trafficking stands, it is not necessary to consider the appellant's argument that the sentence should be varied.

Disposition

[19] For these reasons, the conviction appeal is dismissed. Leave to appeal the sentence is granted, however the sentence appeal is also dismissed.

"S. Coroza J.A."

"J. George J.A."

"P.J. Monahan J.A."