Sidney Thompson

The appellant pleaded guilty to conspiracy to traffic cocaine and was sentenced to two years' imprisonment, less credit for pre-sentence custody.

He appealed the sentence, arguing it was demonstrably unfit and that the sentencing judge failed to give full credit for time spent in immigration detention.

The Court of Appeal dismissed the appeal, finding the sentence was within the established range and the sentencing judge properly exercised his discretion in allocating credit for the immigration detention, which was largely triggered by unrelated factors.

The accused brought a Garofoli application alleging a s. 8 Charter breach and seeking to exclude evidence obtained through a search warrant.

As a preliminary step, they sought leave to cross-examine the affiant and several sub-affiant police officers regarding the Information to Obtain supporting the warrant.

The court reviewed the governing test from Garofoli and Pires and emphasized that cross-examination is permitted only where it is reasonably likely to assist in determining whether the issuing justice had sufficient grounds.

Most proposed areas of questioning were rejected as speculative, irrelevant, or risking disclosure of confidential informant identities.

Limited cross-examination was permitted on specific issues relating to informant independence, the meaning of “successful result” in relation to informant compensation, certain TPS disclosure materials, and errors in the ITO.

The Crown sought admission of statements made by the accused to Canada Border Services Agency officers during a secondary customs examination following arrival at Toronto airport.

The defence argued the statements were involuntary and obtained in breach of the accused’s rights under ss. 7 and 10 of the Charter, and should be excluded under s. 24(2).

The court held that the questioning at customs secondary constituted a routine border examination and that the accused’s statements prior to arrest were voluntary and admissible.

However, after the accused was arrested, officers failed to properly advise him of his right to counsel of choice and delayed facilitating access to counsel.

Applying the framework in R. v. Grant, the court excluded all statements made after the arrest due to the Charter breach.