COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2019 ONCA 1011

DATE: 20191220

DOCKET: C65228

Watt, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tranh Tran

Appellant

Frank Miller, for the appellant

Brian Puddington, for the respondent

Heard: October 10, 2019

On appeal from the conviction entered on January 24, 2018,
    and the sentence imposed on April 6, 2018, by Justice Kirk W. Munroe of the
    Superior Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice sitting
    without a jury, the appellant was convicted of two counts of each of production
    and possession for the purpose of trafficking in marijuana and of theft of
    electricity. The charges arose out of the operation of two marijuana grow
    operations in otherwise unoccupied residential premises owned by the appellant.
    He received a blended sentence, including a term of imprisonment followed by a
    period of probation. He appeals both conviction and sentence.

[2]

At the conclusion of argument, we dismissed the appeals, except for one
    aspect of the appeal from sentence. At that time we said our reasons would
    follow. These are our reasons.

The Background Facts

[3]

The principal evidence against the appellant consisted of items found
    when warranted searches were conducted at both grow houses and at the
    appellants residence.

[4]

At the outset of the trial, the appellant challenged the validity of the
    search warrants under which the searches were conducted and evidence seized.
    The ITO was common to all three warrants. Leave was given to cross-examine the
    affiant.

[5]

On the application to exclude the evidence gathered as a result of the
    search, the appellant submitted that, stripped of information obtained by
    unconstitutional seizures and other information that was erroneous, false,
    misleading or strategically omitted, and taking into account any information
    obtained by amplification, there remained an insufficient reliable evidentiary
    predicate upon which the warrants could have been issued. It followed, the
    appellant said, that the warrants should fall and the evidence should be
    excluded.

[6]

In the alternative, the appellant argued, the trial judge should
    exercise his discretion to set aside the warrant, even if properly issued,
    because the affiants conduct was subversive of the pre-authorization process.

[7]

The trial judge declined to set aside the enabling warrants. He excised:

i.

the
    information obtained by unconstitutional conduct by the police; and

ii.

other information
    he considered improper, including the appellants unrelated criminal record and
    contact with the police, and false or misleading information about two
    incidents occurring several years earlier.

Despite excision of this
    information, the trial judge concluded that there remained sufficient reliable
    evidence on the basis of which the warrants could have issued.

[8]

The trial judge also considered whether the search warrants should be
    set aside because the affiants conduct in connection with the ITO was so
    subversive of the pre-authorization process that the warrants, grounded on an
    adequate evidentiary foundation, should nonetheless be set aside. He declined
    to do so.

The Appeal from Conviction

[9]

In this court, the appellant re-invigorated the arguments he advanced at
    trial seeking to have the search warrants quashed and evidence obtained on the
    searches excluded. In our view, these arguments fail here as they did at trial.

[10]

On the
Garofoli
hearing with which the trial proceedings began,
    the trial judge correctly stated the test he was to apply and the identified evidentiary
    predicate to which he was to apply it. He fully appreciated that his task
    required him to excise from the ITO information that was obtained by
    constitutional infringement, as well as information which was misleading or
    erroneous, and to determine whether what remained in the ITO, as amplified on
    review, afforded sufficient reliable evidence on the basis of which the warrant
    could have issued.

[11]

The trial judge excised from the ITO, as the product of constitutional
    infringement, information received from Enwin Utilities, the electrical
    services provider at the premises where the two marijuana grow ops were
    located. This information, which disclosed the consumption of electrical energy
    at both places, was provided to the police without a warrant or production
    order. It included consumption data specific to each location and a comparison
    with consumption for similar-sized residences in the same neighbourhood. It was
    relied upon to support an inference that a by-pass was installed at each
    location to mask the electrical consumption necessary for a marijuana grow
    operation.

[12]

The trial judge also excised information in the ITO he considered
    misleading, irrelevant or erroneous. This included:

i.

the
    appellants dated prior convictions of two
Criminal Code
motor vehicle
    offences;

ii.

ten
    contacts of the appellant with the investigating police service over a period
    of nine years, the most recent of which occurred 6 years before the offences
    being investigated and the oldest 15 years before the current investigation;
    and

iii.

information about two
    incidents involving marijuana grow ops more than a decade earlier in one of
    which the appellant was not charged and in the other of which he was acquitted
    of charges of production of marijuana and possession of marijuana for the
    purposes of trafficking.

[13]

After excising from the ITO the information obtained by constitutional
    infringement, as well as information he considered erroneous or misleading, the
    trial judge bent to the task of considering what remained in the ITO, together
    with the amplifying evidence adduced on the
Garofoli
hearing. This
    became the evidentiary predicate he considered in determining whether there was
    reliable evidence, which might reasonably be believed, on the basis of which
    the warrant could have issued: see
R. v. Araujo
, 2000 SCC 65, at para.
    54.

[14]

What remained for the trial judge to consider in applying the standard
    fixed for authorization review by
Araujo
was:

i.

information
    provided over several months by a confidential informer about an alleged grow
    house at a specified address apparently monitored by a man fitting the general
    description of the appellant and driving a motor vehicle of the same make and
    model as that registered to the appellants wife;

ii.

police
    surveillance of the premises shortly before the warrant was obtained and
    executed at two premises on the same street which property records confirmed
    were owned by the appellant, both apparently unoccupied but with windows
    covered, roof vents spinning when vents on adjacent houses remained static, and
    an odour of vegetative marijuana emanating from one of the residences;

iii.

confirmation of the
    appellants brief attendance at both properties by police surveillance on the
    day before the warrant was obtained and executed, driving a vehicle registered
    to his wife identical in make and model to that described by the confidential
    informer; and

iv.

the opinion of an
    experienced drug investigator describing the inferences she drew from the
    confidential informers information and confirmation of it by police
    surveillance property records and vehicle registration.

[15]

The trial judge was satisfied that the evidence, considered as a whole,
    met the
Araujo
standard, that is to say, it constituted sufficient
    reliable evidence on the basis of which the warrant could have issued.

[16]

In our view, the reasons of the trial judge do not reveal any error of
    law or of principle, nor any material misapprehension of the evidence adduced.
    His conclusion was open to him on the evidence and is not plainly unreasonable.
    We are not persuaded that the reasons demonstrate any palpable and overriding
    error of fact.

[17]

We are also not satisfied that the trial judge erred in refusing to
    exercise his residual discretion to set aside the warrants on the basis that
    the affiants conduct in the pre-authorization process amounted to a subversion
    of that process. Once again, we are persuaded that the trial judge stated and
    applied the proper standard. His decision is not cumbered by any error of law
    or of principle, any misapprehension of evidence or any palpable and overriding
    error of fact. Nor is it plainly unreasonable.

[18]

On the other hand, we consider it appropriate to add that the affiants
    conduct in this case should not be repeated. The obligation of full, fair and
    frank disclosure is not a licence to include irrelevant information; invite
    propensity reasoning; contest factual determinations explicit or implicit in
    decisions of courts of competent jurisdiction; or offer opinions unsupported by
    essential factual underpinnings.

[19]

The appeal from conviction is dismissed.

The Appeal from Sentence

[20]

The appellant also challenges the fitness of the sentence imposed upon
    him, a blended sentence of imprisonment for 15 months followed by a period of
    probation of 1 year.

[21]

At trial, the Crown sought a sentence
    of imprisonment of two years, but acknowledged that a range of sentence of
    imprisonment for 15-18 months was perhaps a more accurate sentencing range in
    this case. Defence counsel, who also appears on appeal, put the applicable
    range at 10-18 months and sought a sentence of 12 months.

[22]

The trial judge was obliged to impose a
    fit sentence on a 49-year-old offender with no related or relevant convictions.
    This was a sophisticated two-location marijuana grow operation in a residential
    area powered by electrical by-passes. The predominant sentencing objectives, as
    the trial judge recognized, were denunciation and deterrence. But the trial
    judge was also aware that rehabilitation was in play for the appellant.

[23]

In our view, the sentence imposed was
    fit. It reflects no error of law or of principle. It is not founded on any
    material misapprehension of fact and sits comfortably within the range of
    sentencing dispositions considered appropriate in cases such as this in recent
    decisions of this court.

[24]

Leave to appeal sentence is granted,
    but the appeal from sentence is dismissed except that the victim surcharge
    imposed by the trial judge is set aside.

David Watt
    J.A.

P. Lauwers
    J.A.

David M.
    Paciocco J.A.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in any
    way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. U. A., 2019 ONCA 946

DATE: 20191203

DOCKET: C64015

Strathy C.J.O., Harvison Young
    and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

U. A.

Appellant

Nicholas St-Pierre, for the appellant

E. Nicole Rivers, for the respondent

Heard: November 25, 2019

On appeal from the conviction entered on
    January 27, 2017 and the sentence imposed on June 20, 2017 by Justice Julie Bourgeois
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexually assaulting the
    complainant, his cellmate, at the Ottawa Carleton Regional Detention Centre, by
    forcing him to engage in oral sex on three occasions on November 5, 2015. The
    appellant was sentenced to four years imprisonment
, together
    with certain ancillary orders. He now appeals his conviction and sentence.

The Trial

[2]

The only live question at trial was consent, which turned on
    credibility.

[3]

The trial judge disbelieved the appellant
    and found that his evidence did not raise a reasonable doubt. She concluded
    that the appellants evidence varies, changes or is imprecise and at times
    clearly contradicts itself, precisely on the issue of consent. She also
    accepted the complainants evidence that he did not consent. She therefore
    concluded that the Crown had proved its case beyond a reasonable doubt and
    found the appellant guilty of sexual assault.

The Appeal from Conviction

[4]

On appeal from conviction, the appellant seeks to challenge the trial
    judges credibility assessments on several grounds. He argues that the trial
    judge applied uneven scrutiny, failed to articulate sufficiently how
    credibility concerns were resolved, and misapprehended the evidence relevant to
    credibility. In essence, the appellant invites this court to reevaluate the
    witnesses credibility based on the transcripts and to reach conclusions
    contrary to those of the trial judge.

[5]

We decline to do so. Credibility assessments are the domain of the trial
    judge, who has the benefit of seeing and hearing the witnesses in the context
    of all the other evidence adduced at trial. A trial judges credibility
    assessments are therefore afforded substantial deference on appeal:
R. v. Aird
, 2013 ONCA 447, 307 O.A.C. 183, at para. 39.

[6]

Here, the trial judge recognized that the main question at trial was
    credibility. She gave detailed and cogent reasons for rejecting the appellants
    evidence and accepting the complainants evidence on the issue of consent,
    reasons which amply permit meaningful appellate review. The trial judge also
    understood from the complainants own testimony that the complainant suffered
    from conditions affecting his attention span, mental development, and memory,
    and therefore carefully considered his evidence in that light. Far from
    applying uneven scrutiny to the evidence, the trial judge properly assessed the
    complainants credibility and evidence by reference to criteria appropriate to
    [his] mental development, understanding and ability to communicate:
R. v. R.W.
, [1992] 2 S.C.R. 122, at p. 134. We see
    no basis for this court to intervene.

[7]

The appeal from conviction is therefore dismissed.

The Appeal from Sentence

[8]

The trial judge sentenced the appellant to four years imprisonment,
    less 267 days credit for pre-sentence custody (178 days credited at 1.5:1),
    resulting in 39 months to be served.

[9]

The appellant seeks leave to appeal his sentence on three grounds.

[10]

First,
    the appellant asserts that the trial judges decision involves a significantly
    higher sentence than prior cases for similar offences.

[11]

We
    disagree. Although the circumstances of each case are different, numerous
    offenders have been sentenced in the three- to five-year range for sexual
    assault involving forced oral sex in analogous circumstances: see, for example,
R. v. S.A.
, 2014 ONCA 266, affirming
R. v. Ajimotokan
, 2013 ONSC 1961, at paras. 3-6, 39;
R. v. Allen
, 2017 ONCJ 405, at paras. 5-11, 43-44;
R. v. Allard
, 2011 BCSC 915, at paras. 4, 9, 24-25;
R. v. Dyck
, [1986] B.C.J. No. 3278 (S.C.), at paras. 3,
    6;
R. v. W.N.C.
, [2005] B.C.J. No. 1389
    (C.A.), at paras. 2, 4, 19; and
R. v. Nadeau
,
    2017 BCPC 158, at paras. 6-11, 24-28, 80.

[12]

Second,
    the appellant asserts that the trial judge inappropriately applied the step
    principle (which provides that a subsequent sentence for the same type of
    offence should generally be higher than the previous sentence), as the
    appellant was still awaiting sentence for an unrelated sexual assault on
    another person.

[13]

Again,
    we disagree. The trial judge concluded that the sentence imposed was fit with
    or without the step principle  she therefore did not rely on the step
    principle. The trial judge also noted that the appellant had recently been
    convicted of another sexual offence for which he was later sentenced to three years
    imprisonment. Although the appellant did not know his sentence at the time he
    committed the sexual assault at issue in this appeal, the trial judge stated
    that [o]ne would think that his detention ought to have triggered some sense
    of behavioural acknowledgement and nexus or a link between his status and his
    sexualized behaviour. She thus properly treated this prior conviction as an
    aggravating factor. We see no basis to impugn this conclusion.

[14]

Finally,
    relying on
R. v. Duncan
, 2016 ONCA 754, at
    para. 6, the appellant asserts that this court has held that in the
    appropriate circumstances, particularly harsh presentence incarceration
    conditions can provide mitigation apart from and beyond the 1.5 credit referred
    to in s. 719(3.1) of the
Criminal

Code
, R.S.C. 1985, c.
    C-46, and that sentencing courts should consider both the conditions of the
    presentence incarceration and the impact of those conditions on the accused.
    The appellant asserts that he should have received enhanced credit here because
    he was in segregation for his entire pre-sentence custody.

[15]

Once
    again, we disagree. The decision as to whether to award enhanced credit for
    harsh pre-sentence incarceration conditions is a highly discretionary
    determination to which considerable deference is owed:
R.
    v. Deaico
, 2019 ONCA 12, at para. 4;
Duncan
,
    at paras. 6-7; and
R. v. Ledinek
, 2018 ONCA
    1017, at para. 13.

[16]

Here,
    the trial judge exercised her discretion to reject the appellants claim for
    enhanced credit because: (1) the appellant was placed in segregation as a result
    of his own behaviour in sexually assaulting his cellmate; (2) she concluded
    that the appellants evidence about his time in segregation, the conditions
    and how it impacted him to be exaggerated, and he had declined each and every
    offer of yard time and fresh air; and (3) most importantly, the appellant had
    refused several alternatives to segregation that were offered to him. We see no
    basis to intervene with these reasons for refusing enhanced credit.

[17]

In
    the final analysis, we see no error in principle, failure to consider a
    relevant sentencing factor, or erroneous consideration of an aggravating or
    mitigating factor that might justify appellate intervention:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    para. 44. The sentence imposed was not demonstrably unfit, but rather properly
    reflected the principle of proportionality, namely, that
a
sentence
must be proportionate to the gravity of the
    offence and the degree of responsibility of the offender.

Disposition

[18]

The
    appeal from conviction is dismissed. Leave to appeal sentence is granted, but
    the appeal from sentence is dismissed, except that the victim surcharge imposed
    at trial is set aside.

G.R. Strathy C.J.O.

A. Harvison Young J.A.

M. Jamal J.A.