



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wawrykiewicz, 2019 ONCA 21

DATE: 20190115

DOCKET: C63984

MacPherson, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Wawrykiewicz

Appellant

Gregory Lafontaine and Ricardo Golec, for the appellant

Kevin Wilson and Wendy Levant, for the respondent

Heard: January 11, 2019

On appeal from the convictions entered by Justice Robert F.
    Goldstein of the Superior Court of Justice, sitting without a jury, dated
    February 15, 2017, and the sentence imposed on June 12, 2017, with reasons
    reported at 2017 ONSC 3527.

REASONS FOR DECISION

[1]

The appellant appeals against his
    convictions for multiple drug offences and seeks leave to appeal his sentence.

[2]

The charges against the appellant
    stemmed from two indictments.

[3]

The first set of charges arose from the
    December 29, 2013 warrantless entry by the police into a hotel room occupied by
    the appellant. The police went to the hotel room at the request of hotel
    management following complaints about excessive noise and the odour of
    marijuana reported near the appellants hotel room. The officers went to the
    room and, after there was no response when they knocked and identified
    themselves, they opened the lock with a key. They then entered the room after
    the appellant released the safety latch and stepped back. In plain view in the
    hotel bathroom, the police observed evidence of drug possession. They then
    obtained a warrant resulting in the seizure of cocaine and crack cocaine in
    what the appellant concedes were trafficking quantities. The police also
    executed a search warrant for the appellants car resulting in the seizure of
    more crack cocaine. Of particular significance to this appeal, the police also
    seized two cell phones incident to the appellants arrest.

[4]

Subsequently, the police had reason to examine
    the two cell phones and did so pursuant to a valid search warrant. The phone searches
    led the police to two addresses associated with the appellant, 105 The
    Queensway, Apartment 1905, and 83 Humbercrest Blvd., in Toronto, and gave the
    police the grounds to obtain drug related search warrants for those addresses.
    The second set of charges resulted from the execution of the Queensway and
    Humbercrest warrants. During those searches, conducted on February 18, 2014,
    the police seized great quantities of cocaine, heroin, marijuana, drug
    trafficking paraphernalia and drug proceeds.

[5]

The appellant brought an application
    for exclusion of the cell phones and the other evidence seized on both
    occasions. The heart of the application was the claim that the appellants right
    under s. 8 of the
Canadian Charter of Rights and Freedoms
to be secure from unreasonable search or seizure had been violated
    by the unlawful entry into the hotel room. The appellant argued that since the
    information required to support the February 18, 2014 search warrants came from
    the cell phones seized from the hotel room, evidence secured during the
    February 18, 2014 searches should be excluded as well.

[6]

The trial judge agreed that the entry
    into the hotel room by the police was without lawful authority and therefore a
    violation of s. 8, and that the unlawful hotel room search tainted the
    subsequent February 18, 2014 searches.

[7]

Despite finding a s. 8
Charter

breach, the trial
    judge held that all of the evidence on both charges was admissible. He
    determined that the seriousness of the illegal entry into the hotel room was
    tempered by the good faith of the police officers and that the impact of the
    breach was reduced by circumstances that lowered the appellants expectation of
    privacy. Since the reliable evidence seized was crucial to the prosecution of
    trafficking charges involving very serious quantities of drugs, he reasoned
    that exclusion of that evidence would adversely affect the repute of the
    administration of justice far more than would its admission. He therefore dismissed
    the appellants application.

[8]

After this ruling, the appellant did
    not contest the Crowns case against him. He was convicted of all charges. He
    was given a global sentence of 10 years, less 353 days of credit for
    pre-sentence custody and strict house arrest bail conditions. The trial judge
    declined to grant additional credit for the time the appellant spent on curfew.

[9]

The ten year global sentence consists
    of one year of concurrent sentences for the December 29, 2013 offences, with a
    further nine years consecutive for the February 18, 2014 offences. The nine
    years of consecutive sentences for the February 18, 2014 offences includes a
    sentence of four years for possession for the purpose of trafficking of approximately
    1.8 kg of powder cocaine and 8.5 g of crack cocaine, and five further years for
    possession for the purpose of trafficking of approximately 173 g of heroin. The
    other four of the six February 18, 2014 offences were sentenced concurrently to
    each other.

[10]

The appellant pursued appeals before
    this court based on the following alleged errors:

1.

The trial judge committed a palpable and overriding error
    in his decision not to exclude the evidence pursuant to s. 24(2) of the
Charter
because his good faith finding was largely based on
    erroneous factual findings that were against the weight of the evidence at
    trial, and he incorrectly concluded that the absence of bad faith equals good
    faith.

2.

The trial judge identified an erroneous starting point for
    his sentence for possession of cocaine for the purpose of trafficking, and
    failed to give effect to two mitigating factors, namely, the appellants
    self-employment in renovating a home for resale, and the hardship of his bail
    conditions.

[11]

We are not persuaded by the appellants
    submissions.

[12]

The trial judge did not make palpable
    and overriding errors in finding that the entry into the hotel room was made in
    good faith. Despite conflicting evidence about whether the hotel manager asked
    Constable McInerney to evict the occupants, the trial judge was entitled to
    accept Constable McInerneys evidence that this happened. There is no basis for
    concluding that the trial judge misapprehended the evidence on this point. Nor
    was it unreasonable for the trial judge to infer that the hotel manager did not
    remember doing so, given that Constable McInerneys evidence found support in
    the evidence of both Constables Dills and Panayotov.

[13]

The trial judge was also entitled to accept Constable McInerneys
    evidence that he believed that the hotel managers request gave him the lawful authority
    to enter the hotel room. The deference we owe to the trial judges findings of
    fact is not lessened because the
Charter

application was
    based on preliminary inquiry transcripts and documentation rather than oral
    evidence. As this court said in
FL Receivables Trust 2002-A v.
    Cobrand Foods Ltd.
, 2007 ONCA 425, 85 O.R. (3d) 561, at para. 46:

The principle of appellate deference to a trial judges
    fact-finding and inference-drawing applies even when the entire trial record is
    in writing.  That is so because the principle of deference is grounded in
    more than a trial judges ability to see and hear the witnesses. 
    Deference recognizes that even on a written record, the trial judge lives
    through the trial while a court of appeal reviews the record only through the
    lens of appellate review.  Deference also preserves the integrity of the
    trial process, maintains the confidence of litigants in that process, reduces
    the number and length of appeals and therefore, the cost of litigation, and
    appropriately presumes that trial judges are just as competent as appellate
    judges to resolve disputes justly.

[14]

Nor did the trial judge equate the
    absence of bad faith with good faith, or base his good faith findings solely on
    the subjective belief of the officers that they were acting lawfully. It is
    clear that the trial judge considered the reasonableness of the officers beliefs
    before making his good faith findings. He noted that there was a dearth of case
    law regarding the statutory authority to enter a hotel room before finding that
    Constable McInerney believed he was acting under the authority of the
Trespass
    to Property Act
, R.S.O. 1990, c. T.21, and was
    attempting to comply with its requirements. He then assessed the reasonableness
    of the belief by other officers that the appellant had implicitly invited them
    to enter the hotel room. We would not give effect to this ground of appeal.

[15]

We also dismiss the sentencing appeal. The
    trial judge committed no error of principle in identifying the starting point
    sentence for the February 18, 2014 cocaine offence. His decision shows that he
    was well aware of the decision of this court in
R. v. Bryan
,
2011 ONCA 273
,
stating that sentences in
    the five to eight year range are appropriate for first offenders possessing for
    the purpose of trafficking slightly more than a pound of cocaine. We agree with
    the submission of the Crown that it was in the particular circumstances of this
    case that the trial judge concluded that the appropriate sentence for possession
    of approximately 1.8 kg of cocaine should begin at eight years. This was a
    second set of drug offences committed by a large-scale professional commercial
    drug dealer who was still on bail release for drug trafficking, and the
    trafficking count involved both powder and crack cocaine. In any event, after
    consideration of the principle of totality, the trial judge imposed a sentence
    for this offence of four years, far below the starting point he had identified.

[16]

Nor did the trial judge fail to
    consider the appellants self-employment in renovating a home for resale. He
    discussed the appellants enterprise in some detail in his sentencing decision.
    His decision not to give it weight was reasonable. On the evidence, the appellant
    was living well, not on his pro-social earnings from home renovation, but from his
    large scale professional drug dealing, and because, for a 31-year-old man, his
    employment record was sketchy.

[17]

Finally, the trial judge had discretion
    whether to give the appellant credit for the harsh conditions of bail release.
    The trial judge chose to give the appellant 90 days of credit for time he spent
    under strict house arrest, but not to give additional credit for the period he
    was under curfew. This was the trial judges decision to make. We would not
    interfere.

[18]

The conviction appeal is dismissed. Leave
    to appeal the sentence is granted, but the sentence appeal is dismissed.

J.C.
    MacPherson J.A.

L.B.
    Roberts J.A.

David
    M. Paciocco J.A.


