



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Do, 2019 ONCA 482

DATE: 20190610

DOCKET: C63498

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thao Thi Do

Appellant

Mindy Caterina, for the appellant

Jeremy Streeter, for the respondent

Heard: May 24, 2019

On appeal from the conviction entered by Justice Ramez Khawly
    of the Ontario Court of Justice on June 10, 2015.

REASONS FOR DECISION

[1]

The appellant was convicted under ss. 7(1) and 5(2) of the
Controlled
    Drugs and Substances Act
, S.C. 1996,
    c. 19,

for the offences of producing marihuana and possession
    of marihuana for the purposes of trafficking. We dismissed the appeal orally,
    for the following reasons.

[2]

The police seized a large quantity of marihuana and several items
    linking the appellant to a bungalow where a grow-op was operating, under a
    valid search warrant executed several hours before the appellant arrived on the
    scene. The defence did not challenge the validity of the search warrant.

[3]

The appellant was arrested just after she approached the bungalow. The
    arresting officer seized the key to the front door from her incident to her
    arrest. The appellant immediately requested access to her lawyer. However, the
    officers kept her at the scene while they completed their work and then
    transported her to the police station. Even there, she was required to wait
    before being permitted to contact a lawyer.

[4]

The appellant argues that her right to contact counsel under s. 10(b) of
    the
Canadian Charter of Rights and Freedoms
was breached, and further
    asserts that the s. 10(b) breach taints not only the seizure of the house key,
    but also the drugs and other items seized under the search warrant.

[5]

The Crown rightly concedes a breach of s. 10(b), given the delay of over
    three hours in implementing the appellants right to contact counsel. However,
    the Crown argues that since defence counsel abandoned the s. 10(b) challenge at
    trial, it was not open to her to raise it again on appeal.

[6]

We proceed on the assumption, without agreeing, that the criteria in
R.
    v. Reid
, 2016 ONCA 524, 132 O.R. (3d) 26, leave to appeal refused, [2016]
    S.C.C.A. No. 432, guiding our consideration of a new issue on appeal are met,
    and that
R. v. Pino
, 2016 ONCA 389, 130 O.R. (3d) 561, changed the law
    sufficiently to warrant this court considering an argument previously abandoned
    at trial.

[7]

We therefore consider anew whether the appellants s. 10(b) rights were breached.

[8]

We distinguish between the seizure of the drugs and other items under
    the search warrant, and the seizure of the house key from the appellant when
    she was arrested.

[9]

The earlier seizure of the drugs and other items under a valid search
    warrant properly executed was a transaction largely completed at the time of
    the appellants arrest, and was not precipitated by it, as in
Pino
. It
    was causally, temporally and contextually distinct and separate from the arrest,
    in the sense captured by Doherty J.A. in
R. v. Plaha

(2004), 188
    C.C.C. (3d) 289 (Ont. C.A.), at para. 45:

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:
R. v. Goldhart
(1996), 107
    C.C.C. (3d) 481 (S.C.C.) at 492-97.

[10]

The
    facts in this case are quite unlike those in
Pino
, where Laskin J.A.
    noted, at para. 73:

Here, the two s. 10(b) breaches
    along with the s. 8 breach meet the obtained in a manner requirement. The
    marijuana seized from the trunk of Ms. Pinos car and all three
Charter
breaches are part of the same transaction. That transaction or the common link
    between the evidence and the breaches is Ms. Pinos arrest.

[11]

Because
    the earlier seizure of the drugs and other items under a valid search warrant
    properly executed was a transaction largely completed at the time of the
    appellants arrest, it was causally, temporally and contextually distinct and
    separate from the arrest. Any possible breach of s. 10(b) in the time following
    the appellants arrest does not attach to that evidence.

[12]

We
    now turn to the application of s. 24(2) of the
Charter
to the seizure
    of the house key incident to the appellants arrest. While a causal
    relationship between the breach and the evidence need not exist, as noted in
Pino
, its absence is a factor in the s. 24(2) analysis
    that weighs against the exclusion of evidence resulting from a s. 10(b) breach
:
R. v. Lenhardt
, 2019 ONCA 416, at para. 11.

[13]

As noted, the police
    seized the key to the front door of the residence where the seizure of drugs
    was made from the appellant incident to her arrest. Because of the temporal
    connection to any possible s. 10(b) breach, the key is arguably subject to
    exclusion.

[14]

However, the
Grant
factors (from

R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353)
lead us to
    a different conclusion than in
Pino
. In our view the s. 10(b) breach was not strategic, nor
    was it serious or systemic. There was no deliberate police practice of the sort
    described in
R. v. Rover
,
    2018 ONCA 745, 143 O.R. (3d) 135. The impact of the seizure of the house key
    from the appellant was minimal, because the validly obtained admissible
    evidence already connected her to the bungalow where the grow-op operated. As evidence,
    the key was real and reliable. Society has an interest in the appellants trial
    on the merits, which favours the admission of the key.

[15]

For these reasons, the appeal is dismissed.

David Watt J.A.

P. Lauwers J.A.

C.W. Hourigan J.A.


