



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shin, 2015 ONCA 189

DATE: 20150319

DOCKET: C55565

Gillese, Watt and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Stephen Shin

Appellant

Peter Thorning and Richard Diniz, for the appellant

Nicholas Devlin and Carolyn Otter, for the respondent

Heard: February 17, 2015

On appeal from the convictions entered on February 29,
    2012 and the sentence imposed on October 30, 2012 by Justice John R. McIsaac of
    the Superior Court of Justice, sitting with a jury, with reasons reported at
    2012 ONSC 6293, 272 C.R.R. (2d) 120.

Gillese J.A.
:

[1]

Following a jury trial, Brian Shin (the appellant) was convicted of
    possession of marijuana for the purpose of trafficking and possession of the
    proceeds of crime over $5,000.

[2]

He was sentenced to six years imprisonment, with an order restricting
    parole eligibility until he had served half of his sentence. The appellant was
    also ordered to pay, within three years of the date of sentence, a fine of
    $500,000 and a victim surcharge of $75,000.

[3]

The appellant appeals from both conviction and sentence.

[4]

For the reasons that follow, I would dismiss the conviction appeal,
    grant leave to appeal from sentence and allow the sentence appeal in part.

BACKGROUND IN BRIEF

The Appellant

[5]

The appellant testified at his trial.  Much of the following information
    comes from that testimony.

[6]

The appellant is a young man with no criminal record prior to the
    offences under appeal.  He comes from a supportive, hard-working family.  He attended
    a gifted program in high school and went on to obtain a Bachelor of Commerce degree,
    with distinction, from the University of Toronto, and a Master of Taxation degree
    from the University of Waterloo.

[7]

The appellant began selling marijuana when he was in grade 9.  He continued
    to sell marijuana, in ever-increasing amounts, for the 14 years prior to his
    arrest.  In grade 9, he sold at the dime bag level but by the end of high
    school he was selling 2 to 3 pounds per week at the quarter-pound level.  By 2008,
    he was distributing 30 to 40 pounds of marijuana in two to three week cycles.

[8]

Following graduation from university, the appellant worked at Deloitte
    and Touche, where he made $60,000 per year. He ran a successful clothing
    company from 2006 to 2009.  Most recently, while on bail, he held the position of
    senior associate  client services (a recruiter) at a head-hunting firm,
    where he made an annual salary of $120,000.

Project Isis

[9]

The appellant was investigated as part of Project Isis, a street-level
    undercover cocaine trafficking investigation conducted by the Durham Regional police. 
    The lead investigators were Detective Hudson and Detective Gillis.

[10]

Project
    Isis first targeted Michael Patrick, a cocaine dealer living in the Durham
    region. Through an authorized wiretap, police identified Jimmy Ngo, one of Patricks
    suppliers. The investigation then focussed on Ngo and Khanh Mac, a known
    associate of Ngo. The appellant was initially not known to police but became a
    target of the investigation based on evidence linking him to Mac and Ngo.

[11]

Police
    observed Mac and Ngo entering an apartment building at 9017 Leslie Street
    several times in June and July 2009, where they generally stayed for only a few
    minutes.  As a result of police surveillance and the execution of general
    warrants for covert entries into both Macs and Ngos residences, the police
    suspected that the Leslie Street property was being used as a stash house.

[12]

From
    earlier surveillance, the police had a photo of Mac and an unidentified man. 
    On August 4 and 5, 2009, Detective Constable French went to 9017 Leslie to
    determine whether Mac was connected with the Leslie Street condominium.  He showed
    the picture to a security guard at the apartment building.  The security guard did
    not recognize Mac but identified the other man in the picture as a tenant in
    the building by the name of Gregory Pak.  The security guard said that Pak
    lived in lower penthouse 102 (the Apartment) and had been to the apartment
    building earlier that day and that he drove a BMW.  Tenancy documents
    identified the tenant of that unit as Gregory Pak.

[13]

Mr.
    Pak sublet the Apartment to the appellant beginning in March 2009.  The
    appellant used the Apartment as a stash house.

[14]

Police
    obtained the licence plate number of the BMW driven by the tenant of the
    Apartment and learned that it belonged to the appellant.

[15]

Police
    also had information from a confidential informant indicating that the
    appellant was a cocaine dealer.

[16]

Through
    an authorized wiretap, the police overheard two phone calls in July and August
    2009 between a male with a distinctive voice and Mac and Ngo, respectively.  The
    police believed that the unknown male was the appellant. In the first call, the
    man ordered a kilogram of cocaine from Mac. The second call was to Ngo on
    August 5, 2009.  In it, the man and Ngo agreed to meet at the Peak Top
    restaurant in Richmond Hill approximately thirty minutes later.

[17]

Det.
    Hudson ordered D.C. French to conduct surveillance at the Peak Top restaurant
    and observe the meeting. Det. Hudson received a call from D.C. French in which the
    latter confirmed that he saw the appellant, whom he had previously identified
    from the photograph and licence plate number, seated inside the restaurant with
    Ngo. D.C. French also said that the appellants BMW was parked outside of the
    restaurant.

[18]

Det.
    Hudson ordered D.C. French to prepare a written report of his observations (the
    Report).  The Report was subsequently completed and filed.

[19]

Based
    on the Report and other information, the police believed that the Apartment was
    used to traffic drugs and they sought a warrant to search it.

[20]

On
    August 5 and 6, Det. Gillis, as the affiant, prepared the 76-page ITO. In
    addition to a great deal of other information, Det. Gillis relied on the Report
    regarding the meeting between the appellant and Ngo at the Peak Top restaurant
    on August 5.

[21]

The
    general warrant (the Warrant) was issued on August 6.  It authorized covert
    entry into the Apartment to, among other things, search for and seize drugs and
    other items.

Execution of the Warrant and the Arrest

[22]

On
    the evening of August 6, 2009, at approximately 7:45 pm, Det. Gillis, Det.
    Mason, and the rest of the police team entered the Apartment pursuant to the
    Warrant.  The appellant was away from the Apartment and under surveillance.

[23]

Once
    inside the Apartment, the police opened a locked bedroom door and found:

i.

2369.2 grams of 72% pure powder cocaine;

ii.

81.3 grams of crack cocaine;

iii.

6.1 grams of methamphetamine;

iv.

2.8 grams of heroin;

v.

525.7 grams of hashish;

vi.

7454.3 grams of marijuana;

vii.

$235,335 in Canadian currency; and

viii.

drug trafficking paraphernalia including a money counter, digital
    scales, vacuum sealer and vacuum seal packaging, latex gloves, empty kilogram
    quantity packaging, and 344 grams of a cocaine cutting agent.

[24]

Det.
    Gillis decided to seize all of the substances and remove the evidence from the
    Apartment.  Det. Gillis directed three other officers to remain in the Apartment
    in case the appellant returned.  The time set out in the Warrant had not yet
    expired.

[25]

The
    officers testified that they believed that the Warrant permitted them to remain
    in the Apartment and see if anyone entered it because that observation would
    constitute information about the offence, which the Warrant permitted them to
    gather.  The officers believed they had grounds to arrest the appellant and to
    search his car incident to arrest.

[26]

At
    9:01 p.m., approximately half an hour after the seized items had been removed
    from the Apartment, the appellant entered.  He used keys to enter the
    Apartment.  The keys also opened the locked bedroom door.  Police immediately arrested
    him and seized the keys, which the appellant had dropped on the floor during
    his arrest.

[27]

The
    appellants car was searched incident to arrest and found to contain
    documentation in the appellants name, 4865.3 grams of marijuana, and $5,200 in
    Canadian currency.

[28]

Det.
    Hudson testified that he directed that the appellant not be permitted to
    contact counsel, to ensure officer safety and the protection of evidence during
    the execution of various search warrants as part of Project Isis.

[29]

The
    arresting officer advised the appellant of his right to counsel moments after the
    arrest, and the appellant immediately indicated he wished to consult counsel.
    However, the arresting officer began to question the appellant. The appellant
    told the arresting officer that the Apartment was his and that there was
    marijuana in his car.  He gave the officer the password to his cell phone.

[30]

The
    appellant was taken to a police station and told he could not contact his
    lawyer until the investigation was complete. He was not permitted to contact
    counsel until 3:00 a.m. the following morning, a period of approximately six
    hours.  Three hours of the delay was due to the execution of other warrants for
    Project Isis.  The other three hours of delay arose because of a mistake in one
    of the warrants, which necessitated obtaining a new warrant with the proper
    address.

[31]

The
    appellant was charged with possession of marijuana, cocaine and heroin for the
    purpose of trafficking, and possession of the proceeds of crime over $5,000.

THE PRE-TRIAL
CHARTER
MOTION

[32]

The
    appellant brought an application seeking to exclude from evidence the following:

-

items seized from the Apartment during the execution of the Warrant;

-

items seized from his car;

-

observations made by police during the execution of the Warrant
    at the Apartment;

-

data from his cell phone seized upon his arrest; and

-

statements that he made immediately following his arrest.

[33]

The
    Crown conceded that a violation of the appellants s. 10(b)
Charter
rights
    occurred when the police questioned him at the Apartment following his arrest. The
    Crown advised that it would not attempt to introduce the appellants statements
    as evidence.

[34]

The
    application judge determined that the search of the Apartment violated the
    appellants s. 8 rights because the Warrant did not authorize the police to
    remain in the Apartment and wait for the appellants return after they had
    seized the evidence. The application judge also found that the appellants s.
    10(b) rights were breached when police delayed the exercise of his right to
    counsel.  He further found that the appellants ss. 8 and 10(b) rights had been
    breached when police questioned him after he indicated he wished to exercise
    his right to counsel.

[35]

The
    application judge confirmed that the appellants statements following his
    arrest would be excluded.  He also ruled that the data from the appellants cell
    phone seized at the time of arrest would be excluded, due to the improper
    questioning which led him to reveal the cell phones password.  He ruled that
    the balance of the evidence should be admitted.

[36]

In
    making these determinations, the application judge had to deal with, among
    other things, the appellants contention that the police had engaged in
    deliberate deception when they applied for the Warrant.  One part of the ITO
    that was alleged to be false was the reference to D.C. Frenchs attendance at
    the Peak Top restaurant and his identification of the appellant at that
    meeting.  When he testified on the
Charter
motion, D.C. French said he had
    no independent recollection of the events in question, including the making of
    the Report.  Furthermore, D.C. Frenchs notes indicated that at the relevant
    time, he was driving from Lakeshore Boulevard in Toronto to another location. The
    notes did not mention the Peak Top restaurant.

[37]

The
    application judge declined to quash the Warrant or excise the impugned
    references to the Peak Top restaurant in the ITO.  After reviewing the
    evidence, he found that D.C. Frenchs testimony on this matter was not
    reliable.  He referred to D.C. Frenchs ambivalent answers, absence of
    independent recollection, and very limited notes of his activities during the
    relevant time.

[38]

The
    application judge also referred to the evidence that confirmed D.C. Frenchs
    attendance at the restaurant. Det. Hudson gave detailed evidence about the
    surveillance at the Peak Top restaurant. He said he ordered D.C. French to go
    to the restaurant to see whether the appellant was the person meeting with Ngo.
    Det. Hudson testified that D.C. French confirmed to him, by means of a telephone
    call, that the appellants BMW was in the restaurant parking lot, and that the
    appellant was seated in the restaurant with Ngo. At Det. Hudsons direction,
    D.C. French wrote the Report describing his observations. Det. Gillis relied on
    the Report for the ITO.

[39]

Furthermore,
    the application judge found that it was possible for D.C. French to have driven
    to the restaurant in the time available, if he rejected D.C. Frenchs notes
    about where he was. The application judge also noted and discussed several parts
    of the Report that were not consistent with manufactured evidence.

[40]

The
    application judge concluded that he was not satisfied, on a balance of
    probabilities, that D.C. French was not at the Peak Top restaurant or that the
    references in the ITO to his attendance at the restaurant were false.

[41]

As
    described above, the application judge concluded that the police violated the
    appellants ss. 8 and 10(b)
Charter
rights by:

·

conducting the search of the Apartment in an unreasonable manner
    by reason of remaining in it to arrest the appellant;

·

questioning the appellant after he said he wanted to consult
    counsel; and

·

delaying implementation of his right to counsel.

[42]

The
    application judge then considered whether the evidence obtained through these
Charter
breaches should be excluded under s. 24(2).  His analysis was based on the three
    factors set out in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353.

[43]

Regarding
    the first
Grant
factor, the application judge concluded that there was
    no bad faith on the part of the police but it should have been obvious to them that
    the Warrant did not authorize this investigative procedure  that is, their remaining
    in the Apartment.  In addition, as the Crown conceded, there was no basis for
    the police to question the appellant after he had clearly indicated he wanted
    to speak to his lawyer.

[44]

Regarding
    the second
Grant
factor, the application judge found that there had been
    a minimal impact on the appellants
Charter
-protected interests when the
    police overstayed in the Apartment. The appellant had a minimal expectation of
    privacy in the Apartment, as it was not his residence nor was it a
    dwelling-place. Furthermore, the police had lawfully entered the Apartment to
    seize drugs and other evidence. The police committed only a technical breach of
    s. 8 by remaining in the Apartment after the evidence had been removed.

[45]

The
    application judge found that the third
Grant
factor  societys interest
    in adjudication on the merits  favoured admission of the evidence. Most of the
    evidence at issue was lawfully obtained, highly reliable, and crucial to the
    Crowns case, and its admission would not bring the administration of justice
    into disrepute. Accordingly, only the appellants statements to the police
    following his arrest and the data from his cell phone were excluded pursuant to
    s. 24(2).

THE TRIAL

[46]

At
    trial, the Crowns case consisted of an agreed statement of facts and the testimony
    of Detectives Gillis and Mason.

[47]

The
    appellant also testified.  As indicated above, he told the jury about his
    background, including his long, lucrative career trafficking marijuana.  The
    essence of his testimony was that although he was a career marijuana
    trafficker, he would not have gotten involved in trafficking other drugs
    because he considered it too dangerous. He took responsibility for the
    marijuana and the proceeds found in the Apartment but stated that he had no
    knowledge of any of the other drugs found there.

[48]

Of
    the various charges for possession for the purpose of trafficking, the jury
    convicted the appellant only in respect of marijuana.  It also convicted the
    appellant of possession of the proceeds of crime over $5,000.

THE SENTENCE

[49]

The
    trial judge sentenced the appellant to a total of six years in prison: five
    years for possession of marijuana for the purpose of trafficking and 18 months,
    consecutive, for possession of the proceeds of crime. The latter sentence was
    reduced by six months to reflect 2:1 credit for pre-trial custody and onerous bail
    terms.

[50]

In
    deciding the length of the sentence, the trial judge rejected the defence position
    that a conditional sentence was appropriate.  He also rejected the Crowns
    suggested four-year global sentence as unfit because it did not reflect the appellants
    fourteen year career as a marijuana trafficker.  The trial judge relied on s.
    725(1)(c) of the
Criminal Code
, R.S.C. 1985, c. C-46, as interpreted in
R.
    v. Larche
, 2006 SCC 56, [2006] 2 S.C.R. 762, in treating the appellants
    trafficking history as an aggravating factor forming part of the circumstances
    of the offence that could constitute the basis for a separate charge.

[51]

The
    Crown did not seek a delay in parole eligibility or the imposition of a fine. 
    Nonetheless, both were ordered.

[52]

Pursuant
    to s. 743.6(1) of the
Criminal Code
, the trial judge ordered that the
    appellant serve half of his sentence before being eligible for release on
    parole.

[53]

The
    trial judge imposed a fine of $500,000, to be paid within 3 years, under s. 734
    of the
Criminal Code
.  He further imposed a victim surcharge of $75,000,
    again to be paid within 3 years.

[54]

The
    appellant declined to testify in support of a victim surcharge waiver, from which
    the trial judge inferred that the appellant sought to avoid exposure to cross-examination
    on his net worth.

THE ISSUES

[55]

At
    the oral hearing on the conviction appeal, the appellant confined his
    submissions to two grounds of appeal.  He submitted that the application judge
    erred in:

·

failing to exclude the evidence relating to his entry into the
    Apartment (the keyed entry evidence) under s. 24(2) of the
Charter
;
    and

·

finding that the Warrant had been lawfully obtained.

[56]

On
    the sentence appeal, he argued that the sentence is manifestly unfit and that
    the trial judge erred by:

·

considering the appellants prior marijuana trafficking as an
    aggravating factor under s. 725(1)(c) of the
Criminal Code
;

·

imposing a $500,000 fine without evidence of the appellants
    ability to pay; and

·

imposing a period of delayed parole eligibility without a
    statutory basis for so doing.

THE CONVICTION APPEAL

Did the Application Judge Err in Failing to Exclude the Keyed
    Entry Evidence?

[57]

In
    his pre-trial application, the appellant requested an order excluding certain evidence
    relating to his entry into the Apartment just prior to his arrest, including the
    observations that the police made of the appellant as he came through the front
    door and the keys that he used to enter the Apartment. The keys were important
    evidence about the appellants knowledge and control over the Apartment. The
    appellant contends that the application judge failed to consider excluding the
    keyed entry evidence under s. 24(2) and that a proper consideration of that
    evidence under s. 24(2) would have led to its exclusion.

[58]

I
    would not accept this submission.

[59]

It
    is correct that the application judge did not expressly identify the keyed
    entry evidence in that part of his reasons in which he addresses s. 24(2).  However,
    it is clear that he had that evidence squarely in mind throughout his ruling.

[60]

In
    his reasons, the application judge mentioned three separate times that the
    appellant had the keys to the Apartment when he was arrested. He also
    explicitly noted that the polices purpose in overstaying in the Apartment
    was to get the best evidence by observing the [appellant] entering the
    premises with keys. Furthermore, he began his ruling with a list of the
    evidence that the appellant sought to have excluded.  That list included the [o]bservations
    made by police officers during the execution of the [Warrant].  Significantly,
    in the paragraph that follows the list, the application judge stated that the
    appellant also sought to exclude statements made by the [appellant]
    immediately following his arrest.  Both of these items appear to refer to
    and/or include the keyed entry evidence.

[61]

Moreover,
    the matter of the police overstaying  that is, remaining in the Apartment
    after the drugs and money had been seized for the express purpose of arresting
    anyone who might enter it  was the central focus of the application judges s.
    24(2) analysis.   Indeed, the vast majority of that analysis relates to the
    overstaying.

[62]

While
    it would have been preferable for the application judge to have reiterated that
    he was considering the keyed entry evidence in his s. 24(2) analysis, in these
    circumstances, in my view, it is an inescapable inference that he did so in the
    context of his consideration of the overstaying issue.

[63]

If
    I am wrong, however, and the application judge erred by failing to consider the
    keyed entry evidence as part of his s. 24(2) analysis, it falls to this court
    to do that.  As I explain, that analysis would not change the result which the
    application judge arrived at pursuant to s. 24(2).

[64]

Under
    s. 24(2) of the
Charter
, evidence obtained in a manner that infringed or
    denied
Charter
rights shall be excluded if it is established that,
    having regard to all the circumstances, admission of the evidence would bring
    the administration of justice into disrepute.
Grant
provides the
    analytical framework within which to perform the s. 24(2) analysis.  It
    requires the court to assess three factors.

[65]

First,
    the court must assess the seriousness of the
Charter
-infringing conduct. 
    The Warrant in the present case authorized the officers to

covertly enter [the Apartment][t]o search the premises or
    storage unit for, to photograph, and to alter or seize any firearms,
    ammunition, controlled drugs, proceeds of crime (cash) and any other
    information about, or evidence, of the above-noted offences, including drug
    packaging, cocaine adulterants, debt lists, weigh scales, cellular telephones
    or telephone records, banking documents, documents relating to the occupancy of
    the residence and photographs of the co-conspirators.

[66]

The
    Crown has conceded that the Warrant did not authorize the police to remain in
    the Apartment after the search and seizure.  Assuming that the police conduct was
    overreaching, I do not find it to be a serious breach.  Their conduct in
    remaining in the Apartment to determine who had possession of the drugs and
    cash was logically and reasonably connected to the core of the authorization
    under the Warrant.  Furthermore, on the findings of the application judge, the
    police officers overstaying was not in bad faith and was not a deliberate
    violation of the Warrant.  The overstaying was short in duration, occurred within
    the time that the Warrant authorized the police to be inside the Apartment, was
    done without the intention of breaching the terms of the Warrant, was a technique
    for which ample grounds existed, entailed no breach of privacy beyond that
    authorized by the Warrant, and was intended to end the investigation with an
    arrest in a safe and controlled manner.

[67]

Accordingly,
    I view the breach to be honest, minor and technical in nature, falling at the
    less serious end of the spectrum. The admission of evidence obtained through
    inadvertent or minor violations of the
Charter
may minimally undermine
    public confidence in the rule of law:
Grant
, at para. 74. Furthermore, the
    absence of bad faith reduces the courts need to disassociate itself from the
    police conduct.  I do not find that the overstaying would tend to bring the
    administration of justice into disrepute.

[68]

Second,
    the court must consider the impact of the breach on the appellants
Charter
-protected
    interests.  In this case, there can be no serious challenge to the application
    judges finding that the appellant had a diminished expectation of privacy in
    the stash house.  A dwelling used solely for the commercial trade in drugs attracts
    a diminished privacy interest:
R. v. Nguyen
, 2011 ONCA 465, 273 C.C.C.
    (3d) 37, at para. 61.  The Apartment was a storage and packaging facility for
    drugs and the illicit proceeds of trafficking in drugs.

[69]

The
    Warrant authorized the police to enter the Apartment, conduct an invasive
    search and create property damage.  There is nothing to suggest that the
    officers acted improperly in the short period between the seizure of drugs and
    money, and the appellants arrival at the Apartment.  In these circumstances, staying
    inside the Apartment for a short while longer than was authorized is a minimal
    intrusion.  Furthermore, the police gained no special or private information by
    remaining inside the Apartment.  Had they waited in the corridor outside the
    Apartment or followed the appellant to it, they would have seen the appellant
    use his keys to enter the Apartment.  Thus, in my view, the impact of the
    overstaying on the appellants
Charter
-protected rights was minimal.

[70]

Third,
    the court must consider societys interest in the adjudication of the case on
    its merits.  These were very serious crimes.  The keyed entry evidence was real
    and reliable.  In my view, the third
Grant
factor points squarely to
    admission of the keyed entry evidence.

[71]

After
    considering the overstaying in conjunction with the other breaches as found by the
    application judge, a balancing of the three
Grant
factors leads me to
    conclude that admission of the keyed entry evidence would not bring the
    administration of justice into disrepute.

[72]

Accordingly,
    I would dismiss this ground of appeal.

Did the Application Judge Err in Finding that the Warrant had
    been Lawfully Obtained?

[73]

The
    appellants challenge to the sufficiency of the Warrant is based on D.C. Frenchs
    lack of recollection, at the time of the pre-trial motion, of his attendance
    some two years earlier at the Peak Top restaurant on August 5, 2009, and his
    lack of notes on the same matter (the French issue).

[74]

At
    the oral hearing of the appeal, the court found it unnecessary to call on the
    Crown to respond on this ground of appeal.

[75]

The
    French issue does not assist the appellant because there were sufficient
    grounds for the Warrant to be issued without the evidence of the Peak Top
    restaurant meeting between the appellant and Ngo.  This is well-explained in para.
    25 of the Crowns factum, which reads as follows:

[25]    The I.T.O. contained 68 pages of information,
    summarizing the undercover officer activities, observations and interceptions
    gathered by the investigators up to that point.  It established the following
    facts, which were not disputed on the s.8 challenge:

i.        An undercover officer bought cocaine from a dealer
    named Patrick four times between May and June 2009. Wiretaps showed that
    Patrick was being supplied cocaine by one Ngo. Further interceptions showed
    that Ngo was, in turn, being supplied cocaine at the kilogram level by two
    sources: (1) MAC; and (2) another unidentified individual.

ii.       Police saw both Ngo and Mac go to [the
    Apartment].  They observed Mac go there five times, and Ngo once.

iii.      Crucially, on one of the dates that Mac went to [the
    Apartment], he left carrying a black shoulder bag. He was followed and was seen
    to participate in a bag drop consistent with his observed trafficking pattern.

iv.      A security guard at [the Apartment building]
    identified the Appellant as an occupant of [the Apartment].

v.       Mac [and] the Appellant called one another 132
    times in a 30 day period during the investigation.  The Appellant was Macs
    second most contacted person.

vi.      The Appellant was seen meeting with Mac on June 29,
    [2009].

vii.     A proven-reliable confidential informer with no
    criminal record, told police during the spring of 2009 that the appellant was a
    kilogram level cocaine trafficker who resided in a condominium.

[Emphasis and footnotes
    omitted.]



[76]

Thus,
    regardless of D.C. Frenchs evidence respecting the appellants meeting with
    Ngo at the Peak Top restaurant on August 5, the police had facts providing
    reasonable and probable grounds that the Apartment was a place where evidence of
    trafficking by one or more of their targets would be found.

[77]

In
    any event, I would reject the appellants arguments on the French issue.

[78]

In
    assessing the sufficiency of a warrant application, the critical question is
    whether there was reliable evidence that might reasonably be believed on the
    basis of which the warrant could  not would  have issued:
R. v. Morelli
,
    2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The reviewing court must excise
    erroneous information included in the original ITO:
Morelli
, at para.
    41. The reviewing court may also consider amplification evidence (that is,
    evidence presented at the
voir dire
to correct minor errors in the ITO),
    provided that this additional evidence corrects the polices good faith errors
    in preparing the ITO, rather than deliberate attempts to mislead the
    authorizing justice:
Morelli
, at para. 41.

However, warrants are
    presumed to be valid:
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421,
    at para. 83. Accordingly, the accused bears the burden of demonstrating that
    the ITO was insufficient to justify the warrant:
R. v. Campbell
, 2011
    SCC 32, [2011] 2 S.C.R. 549, at para. 14.

[79]

In
    this case, the appellant failed to discharge that burden.

[80]

At
    the pre-trial motion, Det. Hudson testified that he directed D.C. French to
    attend at the Peak Top restaurant, and that he spoke directly with D.C. French
    afterwards, took contemporaneous notes on that conversation, and directed D.C.
    French to prepare the Report. At its highest, D.C. French could not recall being
    at the Peak Top restaurant and made some statements that conflicted with his
    presence there. He testified that, according to his notes, he travelled from
    Lakeshore Blvd. in Toronto to the Durham police Project Room around the time he
    was supposed to have been at the Peak Top restaurant.  However, the application
    judge rejected D.C. Frenchs evidence on this matter as unreliable.  He gave no
    weight to D.C. Frenchs testimony about his activities on that evening.  Thus,
    the application judge rejected the only evidence supporting the appellants
    submission that the observations of the Peak Top meeting could not have been
    made.

[81]

I
    would conclude on this issue simply by noting that the appellants own evidence
    at trial confirmed that he did meet with Ngo at the Peak Top restaurant on
    August 5 at the relevant time.

Three Final Points on the Conviction Appeal

[82]

In
    his factum, the appellant submitted that the police were trespassers in the
    Apartment at the time that they arrested the appellant and, thus, both his arrest
    and the search of his car incident to arrest were unlawful.

[83]

To
    the extent that the appellant continues to advance this submission, I would
    reject it.

[84]

Once
    the police located the drugs and money in the appellants stash house, he was arrestable. 
    The application judge found as a fact that the Apartment was not the
    appellants residence but, rather, was something between a place of business
    and a storage place in which the appellant had a minimal expectation of
    privacy.  As the stash house was not a dwelling-house within the meaning of s.
    529.1 of the
Criminal Code
, that provision did not apply to his arrest. 
    Moreover, there is nothing to the suggestion that the police officers became
    trespassers in the brief period following seizure of the evidence and the
    appellants entry into the Apartment, a period within that which was authorized
    by the Warrant.

[85]

Given
    that the appellants arrest was lawful, the argument that the search of the car
    incident to arrest was unlawful falls away.

[86]

Finally,
    the appellants argument that the application judges s. 24(2) analysis was
    flawed is based largely on his assertion that the application judge erred in
    relation to the keyed entry evidence and the validity of the Warrant.  As I
    have explained, I see no error in respect of either.  Nor do I see any error in
    the application judges overall s. 24(2) analysis.  On the contrary, he made
    careful factual findings that are fully supportable on the record.  He also
    properly articulated and applied the relevant legal principles and considered the
    appropriate
Grant
factors.  In my view, there is no basis on which this
    court could interfere with his s. 24(2) assessment.

THE SENTENCE APPEAL

Section 725(1)(c) and the Length of Sentence

[87]

In
    my view, the trial judge did not err in his treatment of s. 725(1)(c) of the
Criminal
    Code
nor is the length of the sentence outside the range.

[88]

Section
    725(1)(c) reads as follows:

In determining the sentence, a court

(c) may consider any facts forming part of the circumstances of
    the offence that could constitute the basis for a separate change.

[89]

Section
    725(1)(c) permits the sentencing judge to take into account any fact that forms
    part of the circumstances of the offence, if the fact could form the basis for
    a separate charge. Offences for which the offender has not been charged but
    which are proven under s. 725(1)(c) may be treated as aggravating
    circumstances under s. 718.2(a) of the
Criminal Code
:
Larche
, at
    para. 28.

[90]

In
Larche
, the Supreme Court set out three requirements that determine when
    uncharged offences can constitute an aggravating circumstance under ss.
    725(1)(c) and 718.2(a). In this case, all three are met.

[91]

First,
    if the accused disputes his guilt of the uncharged offence, the presumption of
    innocence applies and the Crown must prove the uncharged offence beyond a
    reasonable doubt:
Larche
, at paras. 43-44. In this case, the appellant did
    not deny that he had been trafficking in marijuana for a lengthy, unbroken
    period of time beginning when he was in high school. He admitted it.

[92]

Second,
    there must be a nexus or connexity between the uncharged criminal conduct and
    the offence for which the offender has been convicted:
Larche
, at para.
    48. The connexity requirement is met when the uncharged offence forms part of
    the same transaction as the offence for which the offender is being sentenced:
Larche
,
    at para. 51.

[93]

In
    addition, however, s. 725(1)(c) encompasses the broader category of related
    facts that inform the court about the circumstances of the offence more
    generally:
Larche
, at para. 54.  Justice Fish explains, at para. 55 of
Larche
:

Facts (or uncharged offences) of this sort that have occurred
    in various locations or at different times cannot properly be said to form part
    of the transaction covered by the charge for which the offender is to be
    sentenced. Recourse to s. 725(1)(c) may nevertheless be had where the facts in
    question bear so close a connection to the offence charged that they form part
    of the circumstances surrounding its commission. In determining whether they
    satisfy this requirement of connexity, the court should give appropriate weight
    to
their proximity in time and to

their probative worth as evidence
    of system or of an unbroken pattern of criminal conduct
. [Emphasis added.]

[94]

In
    the present case, the appellant submits that there was insufficient connexity
    between the offences for which he was convicted and his prior marijuana
    trafficking. I would not accept this submission.

[95]

The
    appellant testified about his unbroken history of selling marijuana throughout his
    high school years, his undergraduate and graduate university programs, and
    afterwards to the time of his arrest. His marijuana trafficking career was at
    its zenith in the period leading to his arrest, when he was selling around ten
    pounds of marijuana per week and twenty pounds in a busy week. The appellants
    testimony about his unbroken pattern of trafficking in marijuana, including in
    the period leading to his arrest, shows a sufficient proximity in time to the
    charged offences and is clear evidence of a system or unbroken pattern of
    criminal conduct, within the meaning of connexity as explained in
Larche
,
    at para. 55.  Indeed, the appellants testimony as to his system and pattern of
    trafficking in marijuana was what he used to distance himself from the cocaine
    and other hard drugs found in his stash house.

[96]

Third,
    the court should decline to consider uncharged offences under s. 725(1)(c) if
    doing so would result in unfairness to the offender:
Larche
, at para.
    46. The trial judge found that the appellant admitted his prior marijuana
    trafficking to avoid being convicted of offences relating to the cocaine and
    heroin found in the stash house. As the appellant gained a tactical benefit
    from admitting his prior trafficking, it is not unfair to take that trafficking
    into account in sentencing. Furthermore, since the appellants prior marijuana trafficking
    has been considered under s. 725(1)(c), the Crown cannot now charge him in
    respect of that trafficking: see s. 725(2), discussed in
Larche
, at
    para. 26. Accordingly, taking the uncharged conduct into consideration did not
    result in unfairness to the appellant.

[97]

Thus,
    in my view, in the circumstances of this case, the trial judge did not err in
    taking the appellants prior trafficking history into account under s.
    725(1)(c).

[98]

Furthermore,
    I see no other basis on which to interfere with the six-year global sentence.

[99]

Contrary
    to the appellants submission, in my view, the sentence for possession for the
    purpose of trafficking was within the range.  In
R. v. Tran
, [2005] O.J.
    No. 5920 (S.C.), affd [2006] O.J. No. 4161 (C.A.), the accused was involved in
    a scheme to ship containers filled with marijuana from B.C. to Toronto for
    distribution.  He pled guilty to possession of marijuana for the purpose of
    trafficking.  The trial judge found that the trafficking involved large
    amounts [of marijuana] being transported across the country and warehouse[d]
    and distributed in a well planned business-like manner and imposed a four-year
    prison sentence.  That sentence was affirmed on appeal to this court.

[100]

The present case
    has many similarities.  Although the appellant did not plead guilty, his own
    evidence amply supported the trial judges conclusion that he was a career
    drug trafficker.  That evidence unequivocally demonstrated that the appellant
    sold hundreds of pounds of marijuana, over a period of fourteen years, in a
    well-planned business-like manner.

[101]

It is of
    interest to note that similar sentences have been imposed elsewhere in Canada
    as well.
R. v. Hickey
, 2000 MBCA 97, 150 Man. R. (2d) 158, is one such
    example.  In
Hickey
, the Manitoba Court of Appeal imposed a five-year
    sentence for a person convicted of trafficking nine pounds of marijuana because
    he was a significant participant in the drug trade.

[102]

To the extent that
    there is any challenge to the fitness of the sentence for possession of the
    proceeds of crime, I see nothing in it, given the appellants willing
    facilitation of the safe storage of the proceeds from large scale cocaine trafficking.

Delayed Parole Ineligibility

[103]

The trial judge
    relied on s. 743.6(1) of the
Criminal Code
to order that the appellant
    serve half of his sentence before being released on full parole.  The Crown
    concedes that s. 743.6(1) does not apply to the possession of the proceeds of
    crime conviction. I agree and, in my view, the appeal must be allowed to that
    extent.

[104]

Section 743.6(1)
    reads as follows:

[W]here an offender receives, on or after November 1, 1992, a
    sentence of imprisonment of two years or moreon conviction for an offence set
    out in Schedule I or II to [the
Corrections and Conditional Release Act
]
    that was prosecuted by way of indictment, the court may, if satisfied, having
    regard to the circumstances of the commission of the offence and the character
    and circumstances of the offender, that the expression of societys
    denunciation of the offence or the objective of specific or general deterrence
    so requires, order that the portion of the sentence that must be served before
    the offender may be released on full parole is one half of the sentence or ten
    years, whichever is less.

[105]

Possession for
    the purpose of trafficking is listed in s. 3(a) of Schedule II to the
Corrections
    and Conditional Release Act
, S.C. 1992, c. 20 (
CCRA
). Therefore, the
    trial judge could order delayed parole eligibility under s. 743.6(1) in respect
    of that conviction.

[106]

However,
    possession of the proceeds of crime is not listed in the Schedules to the
CCRA
.
    Thus, delayed parole eligibility cannot apply to that part of the appellants sentence
    attributable to his conviction for possession of the proceeds of crime (one
    year in prison net of credit for pre-trial custody and onerous bail
    conditions).

[107]

I would make no
    other alteration to the delayed parole component of the sentence.  In light of
    the magnitude of the uncharged criminal acts of trafficking and the extensive
    quantities involved, in my view, the trial judge made no error in imposing a delayed
    parole order.

The Fine

[108]

The trial judge
    inferred that the appellant had the ability to pay a fine from his trafficking
    career that must have profited him hundreds of thousands, if not millions, of
    dollars.  He then imposed a fine of $500,000, to be paid within 3 years.

[109]

The appellant
    notes that the Crown had not sought the imposition of a fine and submits that
    the trial judge erred by imposing one in the absence of evidence of his ability
    to pay.

[110]

There is
    strength to this submission. The trial judge did not make the requisite legal
    findings before imposing the fine, the record does not support the trial
    judges inferences as to the appellants ability to pay, and there is no
    rationale offered to justify setting the fine in the amount of $500,000.

[111]

The courts
    authority to impose a fine is found in s. 734(1) of the
Criminal Code
. 
    That power, however, is circumscribed by s. 734(2), which precludes the
    imposition of a fine unless the court is satisfied that the offender is able to
    pay the fine or discharge it under s. 736.  Section 736 is not in issue in this
    appeal.  Subsections 734(1) and (2) read as follows:

Power of court to impose fine

734.
(1) Subject to subsection (2), a court that
    convicts a person, other than an organization, of an offence may fine the
    offender by making an order under section 734.1

(
a
) if
    the punishment for the offence does not include a minimum term of imprisonment,
    in addition to or in lieu of any other sanction that the court is authorized to
    impose; or

(
b
) if
    the punishment for the offence includes a minimum term of imprisonment, in
    addition to any other sanction that the court is required or authorized to
    impose.

Offenders ability to pay

(2) Except when the punishment
    for an offence includes a minimum fine or a fine is imposed in lieu of a
    forfeiture order, a court may fine an offender under this section only if the
    court is satisfied that the offender is able to pay the fine or discharge it
    under section 736.

[112]

The trial judge
    did not make the finding that he was satisfied that the appellant was able to
    pay the fine.  However, the trial judge inferred that he was.  Thus, the
    question is whether he was entitled to draw that inference.  To answer that
    question, I begin by considering
R. v. Topp
, 2011 SCC 43, [2011] 3
    S.C.R. 119, the leading case on ss. 734(1) and (2).

[113]

In
Topp
,

at para. 18, Fish J., writing for a unanimous court, noted that the
    legislative purpose behind s. 734(2) is to prevent offenders from being fined
    amounts that they are truly unable to pay, and to correspondingly reduce the
    number of offenders who are incarcerated in default of payment.

[114]

He noted that the
    court may impose a fine where none is requested:
Topp
, at para. 17. 
    However, a fine can be imposed only if the court is satisfied on the evidence
    and information properly before it, on a balance of probabilities, that the
    offender is able to pay the fine:
Topp
, at paras. 20-24.  The party
    opposing the fine is entitled to present any evidence or information admissible
    on sentence tending to show the offender is unable to pay but that party does
    not assume a formal burden of proof:
Topp
, at para. 23.

[115]

In the absence
    of a reasonable explanation to the contrary, past receipt of illegally-obtained
    funds will often, but not always, support an inference that the offender still
    possesses sufficient funds to pay a fine:
Topp
, at para. 27.  However,
    the weight reasonably attributable to the past receipt of funds will vary
    according to at least two factors: the amount of funds acquired and the length
    of time that has passed between the acquisition of the funds and the imposition
    of sentence:
Topp
, at para. 30.

[116]

In the present
    case, as I have mentioned, the Crown did not seek the imposition of a fine,
    though it acknowledged that the court had the authority to impose one.  The
    appellant was not cross-examined on his ability to pay a fine or on what had
    become of the profits from his illegal activity.  Consequently, the record is
    virtually non-existent on the matter of the appellants assets and his ability
    to pay a fine.  The pre-sentence report stated that the appellant had advised
    its author that he had frittered away the profits he made on clothes, vacations,
    nights out in clubs, and funding his university education.

[117]

I return to the
    question: does the record support the trial judges inference that the
    appellant had the ability to pay?   That inference flowed from the trial
    judges assumption that the appellant made hundreds of thousands or millions of
    dollars in profits over his 14-year career in marijuana trafficking.  The trial
    judges assumption was based on his finding that from 2008 onwards, the
    appellant made approximately $30,000 in profit per month from the sales of
    marijuana.  On the record, that finding was not available.  Before turning to
    the relevant parts of the appellants trial testimony to show this, some
    factual context is needed.

[118]

Recall that when
    the police entered the stash house pursuant to the Warrant, they found $235,335
    in cash.  Recall also that when they arrested the appellant that night and
    searched his car, they found a further $5,200 in cash.  Of the money found in
    the Apartment, the appellant testified that approximately $150,000 was his:
    $120,000 was money that he owed to his marijuana supplier, and he owned the
    remaining $30,000. The rest of the money found in the Apartment was Macs. (The
    court imposed a forfeiture order over all of the money that was found.)

[119]

The appellant
    testified that, during his undergraduate years, he made approximately $1,000 to
    $2,000 per week in profit from his marijuana sales:

Q:      Okay.
    And when youre in undergrad, can you give the jury any idea how much money per
    week that you were clearing selling marijuana?

A:      Sure.
    Well, I was selling, as I mentioned, probably around five pounds of weed a week
    and making anywhere from, at that point, maybe 250 to $400 a pound.
So, you
    know, lets say, at the high end, Im making $2,000 a week and on the low end,
    Im making about 1,000
. [Emphasis added.]

[120]

The appellant
    later confirmed that in the period leading up to his arrest, he made
    approximately $2,000 per week in profit:

Q:      You
    didnt need Mac to chip in to the rent at Leslie, did you?

A:      Well,
    yes and no.
By that time, so this is March, 2009,
the clothing business
    was  I want to say it was burning up a bit of cash because we had an office,
    we had an employee and it was just not generating a lot of revenue. So,
    although $600 a month is probably not  in hindsight, is not a lot of money, it
    seemed like a bit of money at the time.

Q:
But
    you were  I believe you said yesterday that you were making upwards of $2,000
    a week. That was profit in marijuana sales, correct?

A:
Thats correct.
[Emphasis added.]

[121]

The Crown points
    to the following portion of the appellants testimony to argue that the
    appellant was making a profit of around $30,000 per month from his marijuana
    sales:

Q:      Okay,
    and you told us yesterday that when  that the money that was in the stash
    house, your chunk of the money, was $150,000, correct?

A:      My chunk of the money?

Q:      Yes.

A:      No, my chunk of the money was 30,000.

Q.      Right, but the bag

A:      Oh.

Q.      that was yours was 150,000, right?

A:      Correct.

Q:
So 30,000 of that is yours. Thats your profit?

A:
No, thats  like my profit from one delivery or

Q:      Im
    just asking how are you defining that 30,000 is yours?

A:      Well,
    that was money that I had  I guess you can essentially think of it as capital
    that I had which was
the accumulated profits from however long I was doing
    it
.

Q:      Right,
    and the rest that was in there, that was to pay back suppliers for the next 
    for the last sort of shipment that you received basically on consignment,
    correct?

A:      Thats correct. [Emphasis added.]

[122]

In my view, this
    testimony does not support the factual conclusion that the appellant made
    $30,000 in profit from each monthly delivery of marijuana.  Instead, I
    understand the testimony to be that the $30,000 found in the Apartment was
    accumulated profit from an unspecified period.  When the appellant said No,
    thats  like my profit from one delivery, he was interrupted and asked, in
    effect, what he meant by saying the $30,000 was his.  Thus, the words like my
    profit from one delivery are not a statement that the $30,000 represented his
    profit from one delivery of marijuana. To the contrary, his answer to the very
    next question is that the $30,000 was his accumulated profits for an
    unspecified period of time. Furthermore, it will be recalled, the appellant testified
    that in the period leading up to his arrest, his profit was approximately $2,000
    per week.

[123]

It appears that
    in finding that the appellant had the ability to pay, the trial judge may also
    have relied on the fact that the appellant had three residences over the years he
    was trafficking and that he had started a clothing business. However, the
    appellant testified that the clothing business operated only up until his
    arrest and that, by the time of his arrest, he had sold his residences and was
    living in a rental unit. There is nothing in the record about the sales of the
    residences, and whether the appellant received funds on their sales.  Nor is
    there any relevant information about the appellants ability to pay based on
    the clothing business.  The evidence on the clothing business was essentially
    that it was burning up a bit of cash, not generating a lot of revenue and had
    ceased operation when he was arrested.

[124]

Finally, whatever
    profits the appellant acquired from the marijuana sales had been earned over a
    substantial period of time (14 years).

[125]

While past
    receipt of illegally-obtained funds can support an inference that the offender
    still possesses sufficient funds to pay a fine,
Topp
identified two
    factors weighing against such an inference:  the amount of funds that were
    acquired, and the length of time that passed between the acquisition of the
    funds and the imposition of sentence.  In this case, there is no finding as to
    the amount of funds that the appellant acquired and whatever those funds were,
    they had been acquired over a lengthy period of time.

[126]

It is against
    this backdrop, however, that we must assess what transpired in relation to the
    victim surcharge.  After the trial judge indicated that he was imposing a fine
    of $500,000, he gave the appellant the opportunity to seek a financial hardship
    exemption from the mandatory victim surcharge of $75,000 that would follow the
    imposition of the fine.  The appellant declined that offer.  The trial judge
    inferred from the appellants refusal that the appellant wished to avoid
    exposure to cross-examination on his net worth.  In the circumstances of this
    case, that inference supports the finding that the appellant is able to pay a
    fine of $75,000.  As there is no evidence capable of quantifying an ability to
    pay an amount beyond that, I would reduce the fine from $500,000 to $75,000.

[127]

At the time of
    sentencing, a victim surcharge of 15% of the fine was required to be imposed,
    absent a hardship exemption.  In light of the fine reduction, the victim
    surcharge must be reduced accordingly.

[128]

In my view,
    allowing the appellant three years from the date he is released from prison
    within which to pay the fine and victim surcharge is reasonable and I would so
    order.

DISPOSITION

[129]

Accordingly, I
    would dismiss the conviction appeal.

[130]

I would grant
    leave to appeal sentence and allow the sentence appeal in part.  That part of
    the appellants sentence relating to the possession of the proceeds of crime
    conviction is not subject to delayed parole eligibility under s. 743.6(1) and I
    would vary the sentence accordingly.  Further, I would reduce the fine to $75,000.
     As a result of the reduction in the fine, the victim surcharge must be reduced
    correspondingly to $11,250.  I would give the appellant 3 years from the date
    he is discharged from prison within which to pay both the fine and the
    surcharge.

Released: March 19, 2015 (E.E.G.)

E.E. Gillese
    J.A.

I agree. David Watt J.A.

I agree. P. Lauwers J.A.


