



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moore, 2020 ONCA 662

DATE: 20201020

DOCKET: C65350

Fairburn A.C.J.O., Watt and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Moore

Appellant

Najma Jamaldin, for the appellant

Jeremy Streeter, for the
    respondent

Heard and released orally:
    October 15, 2020 by video conference

On appeal from the conviction entered on
    July 27, 2017 by Justice David S. Rose of the Ontario Court of Justice with
    reasons reported at 2017 ONCJ 513.

REASONS FOR DECISION

[1]

This is an appeal from conviction for
    trafficking in fentanyl. The appellant raises three grounds of appeal.

[2]

First, he argues that the trial judge erred in finding
    that his s. 10(b)
Charter
rights were not breached shortly after his
    arrest.

[3]

The trial judge found that the appellant had
    been properly informed of his right to counsel at the time of his arrest, but chose
    not to exercise that right until many hours later. When the appellant finally
    decided to speak with a lawyer at 1:30 a.m., the police attempted to facilitate
    that contact, but could not reach the appellants counsel of choice. The trial
    judge concluded that a s. 10(b) breach crystallized only at that time because,
    when they could not get in touch with the appellants counsel of choice, the
    police did not follow-up with the appellant to see if he wanted to speak with
    another lawyer. Even so, the trial judge found that the breach was minor in
    nature and no evidence should be excluded from the trial.

[4]

The appellant argues that the trial judge erred
    by failing to conclude that his s. 10(b) rights were breached long before the
    attempt to facilitate contact with his lawyer. We do not agree.

[5]

The appellants objection is rooted in the trial
    judges findings of fact, to which we owe deference. There was ample evidence
    to have enabled the trial judge to conclude that the appellant was informed immediately
    upon arrest and repeatedly of his right to counsel and repeatedly waived that
    right until he requested to speak with his counsel around 1:30 a.m. In these
    circumstances, we do not accept the argument that his right to counsel was
    breached prior to the time when he requested to speak with counsel.

[6]

The s. 24(2) ruling is entitled to deference
    from this Court. There was a factual basis upon which the trial judge could
    conclude as he did, that the
Charter
breach at 1:30 a.m. was an
    isolated incident, and that the impact of the breach was minimal.

[7]

Second, the appellant challenges the search of a
    cellphone carried by David Abbott, another person who was arrested just before
    the appellant. Immediately prior to his arrest, Mr. Abbott was seen attending
    at the appellants apartment building. The police believed Mr. Abbott purchased
    fentanyl from the appellant and, when he was arrested, after emerging from the
    building. Mr. Abbott was in possession of 15 grams of fentanyl. The appellant
    and Mr. Abbott were co-accused at trial.

[8]

Mr. Abbotts cellphone was searched at the time
    of his arrest. Mr. Abbott did not challenge the legality of that search at
    trial. Nor did the appellant. The legality of that search is raised for the
    first time on appeal.

[9]

Among other things, as a prerequisite to
    advancing a new issue on appeal, there must be an adequate evidentiary record:
R.
    v. Reid
,
2016 ONCA 524, 132 O.R. (3d) 26, at para. 43.  In relation
    to the search of Mr. Abbotts cell phone, the evidentiary record is entirely
    lacking. Because the issue was not raised at trial, the record is silent on a
    number of points necessary to the resolution of this issue, including why the
    police looked at Mr. Abbotts phone at the time of arrest and how the
    investigation would have been adversely impacted had the phone not been looked
    at. The lack of an adequate evidentiary record is a bar to resolving this issue
    on appeal.

[10]

In any event, what is available on the record
    points to the lack of a s. 8 breach. Arguably, based upon the evidence available
    for consideration by this Court, the search was brief, tailored and related to only
    one communication that was open on Mr. Abbotts phone at the time of his
    arrest.

[11]

Finally, the appellant argues that the trial
    judge misapplied the burden of proof. The appellant argues that the trial judge
    failed to appreciate that there was a lack of evidence that should have led to
    a reasonable doubt as to his guilt. We do not agree. This was a strong
    circumstantial case for trafficking in fentanyl. The trial judges reasons are
    unassailable.

[12]

The appeal is dismissed.

CORRECTED DECISION:

Correction made on
    December 9, 2020: The on appeal from line at the outset of the judgment
    included a reference to a sentence appeal and a citation to the trial judges
    reasons for sentence. This reference and this citation have been deleted.

Fairburn
    A.C.J.O.

David
    Watt J.A.

J.A.
    Thorburn J.A.


