



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2019 ONCA 1011

DATE: 20191220

DOCKET: C65228

Watt, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tranh Tran

Appellant

Frank Miller, for the appellant

Brian Puddington, for the respondent

Heard: October 10, 2019

On appeal from the conviction entered on January 24, 2018,
    and the sentence imposed on April 6, 2018, by Justice Kirk W. Munroe of the
    Superior Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice sitting
    without a jury, the appellant was convicted of two counts of each of production
    and possession for the purpose of trafficking in marijuana and of theft of
    electricity. The charges arose out of the operation of two marijuana grow
    operations in otherwise unoccupied residential premises owned by the appellant.
    He received a blended sentence, including a term of imprisonment followed by a
    period of probation. He appeals both conviction and sentence.

[2]

At the conclusion of argument, we dismissed the appeals, except for one
    aspect of the appeal from sentence. At that time we said our reasons would
    follow. These are our reasons.

The Background Facts

[3]

The principal evidence against the appellant consisted of items found
    when warranted searches were conducted at both grow houses and at the
    appellants residence.

[4]

At the outset of the trial, the appellant challenged the validity of the
    search warrants under which the searches were conducted and evidence seized.
    The ITO was common to all three warrants. Leave was given to cross-examine the
    affiant.

[5]

On the application to exclude the evidence gathered as a result of the
    search, the appellant submitted that, stripped of information obtained by
    unconstitutional seizures and other information that was erroneous, false,
    misleading or strategically omitted, and taking into account any information
    obtained by amplification, there remained an insufficient reliable evidentiary
    predicate upon which the warrants could have been issued. It followed, the
    appellant said, that the warrants should fall and the evidence should be
    excluded.

[6]

In the alternative, the appellant argued, the trial judge should
    exercise his discretion to set aside the warrant, even if properly issued,
    because the affiants conduct was subversive of the pre-authorization process.

[7]

The trial judge declined to set aside the enabling warrants. He excised:

i.

the
    information obtained by unconstitutional conduct by the police; and

ii.

other information
    he considered improper, including the appellants unrelated criminal record and
    contact with the police, and false or misleading information about two
    incidents occurring several years earlier.

Despite excision of this
    information, the trial judge concluded that there remained sufficient reliable
    evidence on the basis of which the warrants could have issued.

[8]

The trial judge also considered whether the search warrants should be
    set aside because the affiants conduct in connection with the ITO was so
    subversive of the pre-authorization process that the warrants, grounded on an
    adequate evidentiary foundation, should nonetheless be set aside. He declined
    to do so.

The Appeal from Conviction

[9]

In this court, the appellant re-invigorated the arguments he advanced at
    trial seeking to have the search warrants quashed and evidence obtained on the
    searches excluded. In our view, these arguments fail here as they did at trial.

[10]

On the
Garofoli
hearing with which the trial proceedings began,
    the trial judge correctly stated the test he was to apply and the identified evidentiary
    predicate to which he was to apply it. He fully appreciated that his task
    required him to excise from the ITO information that was obtained by
    constitutional infringement, as well as information which was misleading or
    erroneous, and to determine whether what remained in the ITO, as amplified on
    review, afforded sufficient reliable evidence on the basis of which the warrant
    could have issued.

[11]

The trial judge excised from the ITO, as the product of constitutional
    infringement, information received from Enwin Utilities, the electrical
    services provider at the premises where the two marijuana grow ops were
    located. This information, which disclosed the consumption of electrical energy
    at both places, was provided to the police without a warrant or production
    order. It included consumption data specific to each location and a comparison
    with consumption for similar-sized residences in the same neighbourhood. It was
    relied upon to support an inference that a by-pass was installed at each
    location to mask the electrical consumption necessary for a marijuana grow
    operation.

[12]

The trial judge also excised information in the ITO he considered
    misleading, irrelevant or erroneous. This included:

i.

the
    appellants dated prior convictions of two
Criminal Code
motor vehicle
    offences;

ii.

ten
    contacts of the appellant with the investigating police service over a period
    of nine years, the most recent of which occurred 6 years before the offences
    being investigated and the oldest 15 years before the current investigation;
    and

iii.

information about two
    incidents involving marijuana grow ops more than a decade earlier in one of
    which the appellant was not charged and in the other of which he was acquitted
    of charges of production of marijuana and possession of marijuana for the
    purposes of trafficking.

[13]

After excising from the ITO the information obtained by constitutional
    infringement, as well as information he considered erroneous or misleading, the
    trial judge bent to the task of considering what remained in the ITO, together
    with the amplifying evidence adduced on the
Garofoli
hearing. This
    became the evidentiary predicate he considered in determining whether there was
    reliable evidence, which might reasonably be believed, on the basis of which
    the warrant could have issued: see
R. v. Araujo
, 2000 SCC 65, at para.
    54.

[14]

What remained for the trial judge to consider in applying the standard
    fixed for authorization review by
Araujo
was:

i.

information
    provided over several months by a confidential informer about an alleged grow
    house at a specified address apparently monitored by a man fitting the general
    description of the appellant and driving a motor vehicle of the same make and
    model as that registered to the appellants wife;

ii.

police
    surveillance of the premises shortly before the warrant was obtained and
    executed at two premises on the same street which property records confirmed
    were owned by the appellant, both apparently unoccupied but with windows
    covered, roof vents spinning when vents on adjacent houses remained static, and
    an odour of vegetative marijuana emanating from one of the residences;

iii.

confirmation of the
    appellants brief attendance at both properties by police surveillance on the
    day before the warrant was obtained and executed, driving a vehicle registered
    to his wife identical in make and model to that described by the confidential
    informer; and

iv.

the opinion of an
    experienced drug investigator describing the inferences she drew from the
    confidential informers information and confirmation of it by police
    surveillance property records and vehicle registration.

[15]

The trial judge was satisfied that the evidence, considered as a whole,
    met the
Araujo
standard, that is to say, it constituted sufficient
    reliable evidence on the basis of which the warrant could have issued.

[16]

In our view, the reasons of the trial judge do not reveal any error of
    law or of principle, nor any material misapprehension of the evidence adduced.
    His conclusion was open to him on the evidence and is not plainly unreasonable.
    We are not persuaded that the reasons demonstrate any palpable and overriding
    error of fact.

[17]

We are also not satisfied that the trial judge erred in refusing to
    exercise his residual discretion to set aside the warrants on the basis that
    the affiants conduct in the pre-authorization process amounted to a subversion
    of that process. Once again, we are persuaded that the trial judge stated and
    applied the proper standard. His decision is not cumbered by any error of law
    or of principle, any misapprehension of evidence or any palpable and overriding
    error of fact. Nor is it plainly unreasonable.

[18]

On the other hand, we consider it appropriate to add that the affiants
    conduct in this case should not be repeated. The obligation of full, fair and
    frank disclosure is not a licence to include irrelevant information; invite
    propensity reasoning; contest factual determinations explicit or implicit in
    decisions of courts of competent jurisdiction; or offer opinions unsupported by
    essential factual underpinnings.

[19]

The appeal from conviction is dismissed.

The Appeal from Sentence

[20]

The appellant also challenges the fitness of the sentence imposed upon
    him, a blended sentence of imprisonment for 15 months followed by a period of
    probation of 1 year.

[21]

At trial, the Crown sought a sentence
    of imprisonment of two years, but acknowledged that a range of sentence of
    imprisonment for 15-18 months was perhaps a more accurate sentencing range in
    this case. Defence counsel, who also appears on appeal, put the applicable
    range at 10-18 months and sought a sentence of 12 months.

[22]

The trial judge was obliged to impose a
    fit sentence on a 49-year-old offender with no related or relevant convictions.
    This was a sophisticated two-location marijuana grow operation in a residential
    area powered by electrical by-passes. The predominant sentencing objectives, as
    the trial judge recognized, were denunciation and deterrence. But the trial
    judge was also aware that rehabilitation was in play for the appellant.

[23]

In our view, the sentence imposed was
    fit. It reflects no error of law or of principle. It is not founded on any
    material misapprehension of fact and sits comfortably within the range of
    sentencing dispositions considered appropriate in cases such as this in recent
    decisions of this court.

[24]

Leave to appeal sentence is granted,
    but the appeal from sentence is dismissed except that the victim surcharge
    imposed by the trial judge is set aside.

David Watt
    J.A.

P. Lauwers
    J.A.

David M.
    Paciocco J.A.


