



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lam, 2017 ONCA 329

DATE: 20170424

DOCKET: C61282, C62117, C62144, C62147, C62156

MacPherson, Simmons and Brown JJ.A.

C61282

BETWEEN

Her Majesty the Queen

Respondent

and

Bryan Quoc Ton Lam

Appellant

C62117

AND BETWEEN

Her Majesty the Queen

Respondent

and

Thanh Hien Tran

Appellant

C62144

AND BETWEEN

Her Majesty the Queen

Respondent

and

Wali Seddiqi

Appellant

C62147

AND BETWEEN

Her Majesty the Queen

Respondent

and

Ba Tuan Tran

Appellant

C62156

AND BETWEEN

Her Majesty the Queen

Respondent

and

David Hoc Truong

Appellant

Jill R. Presser and Jeff A. Marshman, for the appellant,
    Bryan Quoc Ton Lam

Daisy E. McCabe-Lokos, for the appellant, Thanh Hien
    Tran

Maija C. Martin, for the appellant, Wali Seddiqi

Melina Macchia, for the appellant, Ba Tuan Tran

Brian C. Eberdt, for the appellant, David Hoc Truong

Kevin Robert Wilson, for the respondent

Heard: April 19, 2017

On appeal from the conviction entered on September 18,
    2015 by Justice John B. McMahon of the Superior Court of Justice, and on appeal
    from the convictions entered on September 3, 2015 and the sentence imposed on
    May 17, 2016 by Justice Gary T. Trotter of the Superior Court of Justice.

A.

Overview

[1]

Bryan Quoc Ton Lam ran a Toronto-based marijuana distribution business
    that moved over 100 pounds per week at $2,500 to $3,000 per pound. Wali Seddiqi
    supplied Lam with marijuana from British Columbia. David Truong stored,
    packaged and distributed that marijuana. Ba Tuan Tran (Ba Tran) distributed
    marijuana from Lam in the London area. Thanh Hien Tran (Thanh Tran), an associate
    of Lam, distributed marijuana in Toronto, including from a separate supplier in
    Montreal.

[2]

All five appellants were convicted of drug related offences. All five
    appellants now appeal their convictions, challenging the application judges admission
    of evidence against them pursuant to s. 24(2) of the
Canadian Charter of
    Rights and Freedoms
. Ba Tran alone appeals his sentence.

[3]

For the reasons that follow, we would dismiss the conviction appeals and
    Ba Trans sentence appeal.

B.

Background

[4]

During the Asian Organized Crime Task Force (AOCTF) investigation of
    Lam and his associates in 2012, the police obtained several warrants, including
    wiretap authorizations. The affidavits sworn in support of these warrants
    included evidence of drug charges laid against Lam in 2010 by Peel police. In
    2014, Hill J. excluded the evidence relating to the 2010 charges because of
    police misconduct and Lam was acquitted:
R. v. Lam
, 2014 ONSC 3538.

[5]

At the second trial, Lam challenged the admissibility of the evidence
    obtained as a result of the warrants from the second investigation. Justice
    MacDonnell acted as the Case Management Judge pursuant to s. 551.1 of the
Criminal
    Code
. Lam brought an application to exclude the evidence obtained pursuant
    to the 2012 authorizations. The other four appellants agreed to be bound by its
    result.

[6]

On Lams application, MacDonnell J. excised the 2010 evidence from the
    affidavits behind all of the 2012 orders:
R. v. Lam
, 2015 ONSC 2131, 343
    C.R.R. (2d) 281. He found that, as a result, none of the 2012 orders could
    stand and that, therefore, the evidence gathered under them had been obtained
    in violation of s. 8 of the
Charter
. He concluded, at para. 64:

I reject the Crowns submission that the warrants that were
    issued after April 30th could have issued notwithstanding the excision of the
    facts concerning the 2010 Peel Region investigation. Accordingly, all of the
    evidence gathered pursuant to the warrants was obtained in violation of s. 8.

[7]

Turning to s. 24(2) of the
Charter
, the application judge
    applied the tripartite test in
R. v. Grant
, 2009 SCC 32, [2009] 2
    S.C.R. 353. He concluded, at para. 101:

On balance, I am satisfied that the repute of the
    administration of justice would suffer more from exclusion of the evidence than
    by its admission.

Accordingly, the application judge dismissed the
Charter
application to exclude the evidence.

[8]

After this ruling, the appellants resolved their trials in a way that
    preserved their rights of appeal on the
Charter
s. 8 ruling.

[9]

Lam entered pleas of not guilty before McMahon J. to conspiracy to traffic
    in marijuana and possession of the proceeds of crime over $5,000. The Crown
    read in facts supporting findings of guilt and later filed a more comprehensive
    written summary of facts. Lam called no evidence in response and made no
    submissions on guilt or innocence. Justice McMahon found Lam guilty on both
    counts.

[10]

Seddiqi, Truong, Thanh Tran and Ba Tran entered pleas of not guilty
    before Trotter J. to various drug related charges. The Crown filed and
    summarized facts supporting findings of guilt. All four called no evidence and
    agreed that the Crown could establish the facts it relied on. Justice Trotter
    found the four accused guilty.

[11]

Of relevance to this appeal, Trotter J. imposed a sentence on Ba Tran of
    15 months custody after credit for eight days of pre-trial custody and
    restrictive bail conditions.

[12]

All five appellants appeal their convictions. Ba Tran appeals his
    sentence.

C.

Analysis

(1)

Conviction appeal (all appellants)

[13]

All of the appellants, led by Lam, contend that the application judge
    erred in two respects in his s. 24(2) analysis: first, he did not adequately
    recognize the impact of the misconduct of Peel Police in 2010 in conducting the
    s. 24(2) admissibility inquiry relating to the warrants obtained by the AOCTF
    police in 2012; and second, he did not give appropriate effect to his own
    finding that, in one respect, the content of Corporal Plumes affidavits in the
    2012 investigation amounted to serious carelessness.

[14]

We do not accept these submissions. The application judge dealt
    explicitly with both of these issues. Where a trial judge has applied the
    relevant
Grant
factors, his or her decision is entitled to
    considerable deference:
Grant
, at para. 86. The application judge
    engaged in a comprehensive review of the
Grant
factors. In our view,
    his analysis was fair and balanced. His conclusion is, easily, reasonable.
    Indeed, we would go farther  the application judges decision is, in our view,
    correct.

(2)

Conviction appeal (all appellants except Lam)

[15]

All of the appellants, except Lam, submit that the application judge
    failed to provide adequate reasons for his decision as it related to them.

[16]

We do not accept this submission. The four appellants raising this
    ground of appeal agreed to be bound by the application judges decision on
    Lams
Charter
s. 8 application. The application judge gave
    comprehensive reasons that applied to all the appellants. It is telling that
    the four appellants who now advance this argument on appeal were all represented
    at trial by senior criminal counsel who did not raise this issue before either
    McMahon J. or Trotter J.

(3)

Sentence appeal (Ba Tran)

[17]

The appellant Ba Tran appeals his custodial sentence of 15 months
    imprisonment on the basis that it is too harsh for a first-time, youthful
    offender with tremendous potential for rehabilitation.

[18]

In our view, the sentence imposed by Trotter J. was a fit sentence. The
    sentencing judge was entitled to reject a conditional sentence for this
    appellant on the basis of the scope of the drug trafficking enterprise and the
    appellants role in it, namely his role in distributing drugs from Lam in the
    London area.

D.

Disposition

[19]

The conviction appeals are dismissed. We grant leave to Ba Tran to
    appeal sentence, but his sentence appeal is dismissed.

J.C.
    MacPherson J.A.

Janet
    Simmons J.A.

David Brown J.A.


