Ontario Court of Justice

Date: 2020-01-07

Court File No.: Toronto, College Park 4817-998-19-75000496

Between:

Her Majesty the Queen

— AND —

Dat Tang

Before: Justice J. W. Bovard

Heard on: September 9, 10, 11, 2019

Reasons for Judgment released on: November 22, 2019

Addendum released on: January 7, 2020

Counsel:

• Mr. M. Friedman — counsel for the Crown
• Mr. A. Burgess — counsel for the defendant Dat Tang

Judgment

Bovard J.:

Introduction

[1] This is an addendum to my judgment released on November 22, 2019, after a trial on the following charges:

1. Impaired driving
2. Refuse to provide a breath sample
3. Obstruct police
4. Fail to comply with a recognizance X 2
5. Simple possession of cocaine
6. Possession of cocaine for the purpose of trafficking
7. Possession of fentanyl for the purpose of trafficking
8. Possession of proceeds of crime under $5,000

[2] In my judgment I summarized my dispositions as follows.

[3] The defence concedes that the Crown proved beyond a reasonable doubt that Mr. Tang is guilty of:

1. Simple possession of cocaine found in Mr. Tang's coin pants pocket
2. Fail to comply with a condition of his recognizance that he not possess illegal drugs
3. Fail to comply with a condition of his recognizance that he observe a curfew
4. Refuse to provide a breath sample
5. Obstruct police

[4] Therefore, I find Mr. Tang guilty of these charges and register convictions on all the charges.

[5] The charges that remain are:

1. Impaired driving
2. Possession of cocaine for the purpose of trafficking
3. Possession of fentanyl for the purpose of trafficking
4. Possession of proceeds of crime under $5,000

[6] In addition to raising defences on the merits on the remaining charges, the defence alleges that the police breached Mr. Tang's rights under s. 10(b) of the Charter. The defence asks that all incriminating evidence be excluded under s. 24(2) of the Charter.

[7] Based on the reasons in my judgment I made the following dispositions:

1. I find Mr. Tang guilty of impaired driving.
2. I grant the defence application under s. 10(b) and s. 24(2) of the Charter. I exclude all the evidence that pertains to the charges of possession for the purpose of trafficking and the proceeds charge.
3. I find Mr. Tang not guilty of:
   1. Possession of cocaine for the purpose of trafficking
   2. Possession of fentanyl for the purpose of trafficking
   3. Possession of proceeds of crime under $5,000

Reopening the Conviction

[8] During the sentencing hearing I realized that I had misunderstood defence counsel's submission regarding the five charges which he conceded that the Crown proved beyond a reasonable doubt and of which I found Mr. Tang guilty.

[9] I had thought that the defence's Charter application did not apply to these charges, but just to the remaining four charges. This was an error on my part. The defence's Charter application applied to all the charges.

[10] I brought this to the attention of counsel. They made submissions on how I could remedy my error. They jointly submitted that I was not yet functus and that I could write an addendum to my judgment in which I apply the defence's Charter application to the five charges.

[11] Their submission follows the holdings in R. v. Lessard and R. v. Griffith.

[12] In paragraph 12 of Griffith, Mr. Justice Rosenberg held that based on the court's decision in Lessard, a trial judge is not functus until he or she imposes sentence.

[13] However, Rosenberg J.A. noted that Martin J.A. stressed in Lessard that "the power to vacate the adjudication of guilt after a trial should only be exercised in exceptional circumstances and where its exercise is clearly called for".

[14] In paragraph 23, Rosenberg J.A. added that:

the phrase "exceptional circumstances" already captures the essential point that it will only be in very rare cases that a judge would reopen a conviction. Indeed, in Lessard, at para. 12, this court said that the exercise of vacating an adjudication of guilt must be "clearly called for". Such a principle will recognize the strong interest in finality, as well as other institutional concerns that are so deeply ingrained in our common law system.

[15] Based on this jurisprudence and the circumstances of the case at bar, I agree with counsels' submission that I am not functus, and that exceptional circumstances exist which allow me to reopen my adjudication of the five charges solely in order to apply the defence's Charter application to these charges.

[16] In doing this I will not alter any findings of fact that I made in my original judgment. I will simply apply my findings on the facts as I found them in my original judgment and make a determination on the defence's Charter application regarding the five charges.

[17] To recap the defence's Charter application, it is the defence's position that the police breached Mr. Tang's rights under s. 10(b) of the Charter and that the evidence on the five charges should be excluded under s. 24(2) of the Charter.

Charter Findings in Judgment

[18] I found that the police did not breach Mr. Tang's s. 10(b) rights at the roadside.

[19] However, I found that they breached his rights under s. 10(b) while at the police station. In paragraph 213, I stated:

In summation, I find that the police complied with the informational component of Mr. Tang's rights to counsel regarding all the offences. But while they were at Traffic Services, they failed to comply with the implementational aspect of the right to counsel regarding all the offences.

Section 24(2) of the Charter

[20] I will now determine whether the evidence regarding the five charges mentioned above should be excluded under s. 24(2) of the Charter. This is what I failed to do in my judgment because I mistakenly thought that the Charter application did not apply to these charges.

[21] I adopt the same framework for analysis, pursuant to R. v. Grant for this issue as I did in my judgment.

Seriousness of the Breach

[22] In discussing this factor, I found that there was more than one breach of Mr. Tang's s. 10(b) rights. The police breached his rights by ignoring that he asked to speak to a friend who had a lawyer, and by not giving him the opportunity to contact counsel at Traffic Services immediately upon arresting him for possession for the purpose of trafficking in the drugs that Officer Toms found under the back seat of the cruiser.

[23] After Officer Toms found the drugs under the seat of the cruiser, the police continued to ignore Mr. Tang's request to call his friend who had the name of a lawyer. I found that after Officer Toms found the drugs, he and Officer McMurray decided without good reason to delay the implementation of Mr. Tang's s. 10(b) rights until they got to 51 Division. This affects the seriousness of the breach on the charge pertaining to the cocaine in the coin pocket.

[24] Had they taken Mr. Tang directly back into Traffic Services to call a lawyer when they found the drugs under the back seat of the cruiser, they could have tried to contact his friend who had the name of a lawyer, or some other lawyer, such as duty counsel, to whom Mr. Tang may have now wanted to speak considering his heightened jeopardy due to being charged with more serious drug offences. He therefore, could have also sought advice concerning the charge regarding the cocaine in his coin pants pocket.

[25] My findings regarding the seriousness of the breaches in which I discussed the danger in which Mr. Tang was of providing incriminating evidence on the way to 51 Division and during the booking-in process at 51 Division also pertain to the charge of possession of the cocaine in his pants pocket. He could have easily said something incriminating regarding this charge at these junctures.

[26] I found that "the police did not provide any reason for not having tried to contact Mr. Tang's friend to get the name of a lawyer".

[27] I found further that the police treated the implementation of Mr. Tang's s. 10(b) rights "carelessly by deciding to postpone it until they got to 51 Division for no apparent reason other than convenience to them". This is a serious breach.

[28] Regarding the charge of refusal to provide a breath sample, I find that the police ignored the information that Mr. Tang gave them that he had a friend who had the name of a lawyer. This could have provided an opportunity for Mr. Tang to speak to counsel before he entered the breath room and subsequently refused to provide a breath sample. For these reasons I find that this was a serious breach.

Impact on the Charter-Protected Interests of the Accused

[29] Concerning the charges of possession of the cocaine found in Mr. Tang's coin pants pocket and the refusal to provide a breath sample, I find that the impact on Mr. Tang's Charter-protected interests was serious. The breaches deprived him of the opportunity to speak to a lawyer and seek advice regarding these charges.

[30] Regarding the charge of obstructing a peace officer, the charge is that Mr. Tang gave a false name at the roadside when Officer Toms asked him for his licence, ownership and insurance documents. He continued this ruse until he got to 51 Division when he was being finger printed.

[31] I find that the breaches of his rights under s. 10(b) do not impact in a serious way concerning the obstruct police charge because he committed this offence before the police had an opportunity to provide him with his rights under s. 10(b).

[32] I grant that he continued the offence throughout until he got to 51 Division, during which time the police breached his rights under s. 10(b), but the offence was committed once he gave a false name to Officer Toms at the roadside. Consequently, I find that the impact on his Charter-protected interests is low regarding the obstruct police charge.

[33] Regarding the breach of recognizance charge concerning the breach of his curfew, similarly to the charge of obstruct police, the evidence for this charge was in existence as soon as the police pulled him over at the roadside. Therefore, I find that the impact on his Charter-protected interests is negligible.

[34] I will deal with the breach of recognizance charge concerning possession of drugs below.

Society's Interest in an Adjudication on the Merits

[35] I rely on the analysis in my judgment of what Grant held regarding this factor, which is the following.

[36] This factor requires the court to balance and decide the interests of the accused and society's interest in seeing cases tried on their merits. The court must ask itself "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law".

[37] The court held that "the concern for truth-seeking is only one of the considerations under a s. 24(2) application … s. 24(2) … mandates a broad inquiry into all the circumstances, not just the reliability of the evidence".

[38] The court must balance the "public interest in truth-finding", which is a relevant concern. The evidence of the drugs and of impaired driving is relevant and reliable. I am mindful of the court's holding that "exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute".

[39] Grant directs trial judges to "balance the interests of truth with the integrity of the justice system." I must ask myself "whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial".

[40] I must also consider the importance of the evidence for the prosecution's case. The exclusion of the evidence of the drugs will "gut" the prosecution. In this situation, Grant pointed out that "the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice".

[41] In discharging my duty under s. 24(2) I must, after having addressed and weighed the three factors, consider all the circumstances of the case and "determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute". Grant held that "No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible".

Disposition

[42] After considering all the relevant factors and performing the balancing of the various interests that I must consider, for the reasons stated above, I find that to admit the evidence of the drugs found in Mr. Tang's coin pants pocket would bring the administration into disrepute. There being no other evidence to support this charge, I find him not guilty.

[43] The charge of breach of recognizance for possession of the drugs, which includes the drugs in the pants coin pocket, is sufficiently tied to the breaches of Mr. Tang's rights under s. 10(b) that the evidence that supports the charge should be excluded, too. There being no other evidence on this charge, I find him not guilty.

[44] Regarding the evidence of the refuse breath sample, I find that to admit the evidence of Mr. Tang's refusal to provide a breath sample would bring the administration into disrepute. I exclude the evidence and I find him not guilty.

[45] Next, I will deal with the evidence of the obstruct justice and of breaching the curfew condition of his recognizance.

[46] Mr. Justice Doherty held in R. v. Plaha that:

A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous.

[47] Based on my comments above regarding these charges, I find that the obtaining of the evidence of the obstruct charge and of the breach of the curfew condition of his recognizance cannot be said to "be part of the same transaction or course of conduct", neither temporally, contextually, causally or a combination of the three.

[48] Therefore, I find that the defence did not discharge its onus to show on a balance of probabilities that the evidence of these charges should be excluded under s. 24(2) of the Charter.

[49] Mr. Tang is found guilty of obstruct justice and of breaching the curfew condition of his recognizance.

Released: January 7, 2020

"Signed": Justice J.W. Bovard