



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tennant, 2018 ONCA 264

DATE: 20180316

DOCKET: C63746

Feldman, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcel Tennant

Appellant

Chris Sewrattan, for the appellant

Maria Gaspar, for the respondent

Heard and released orally: March 13, 2017

On appeal from the conviction entered on March 8, 2017
    and the sentence imposed on June 23, 2017  by Justice Ann Watson of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant raises two grounds of
    appeal against conviction.

[2]

The first is that the trial judge made
    a
R. v. Sekhon
, 2014 SCC 15, [2014] 1
    S.C.R. 272 error by failing to indicate that she was not relying on an impugned
    statement that was made by the police expert who gave evidence on aspects of
    drug trafficking versus drug possession.

[3]

We do not agree that the failure of the
    trial judge in this judge alone trial to mention explicitly a
Sekhon

error made by an
    expert witness is, in and of itself, an error by the trial judge.  While the
    expert did improperly state in cross-examination that I havent encountered
    users yet that would have that much heroin, there was no objection made by
    counsel. The trial judge is presumed to know the law. The trial judge is not
    required to explicitly refer to the improper evidence and state that she is not
    relying on it. Where there was no indication that the trial judge relied on the
    improper opinion evidence, this court will defer to the trial judge.

[4]

In this case, the trial judge explained
    her reasons for rejecting the evidence of the appellant that the heroin was for
    his own use: they included his inability to afford the quantities he claimed to
    use, supported by the expert evidence regarding typical amounts that would be
    held by traffickers and by users.

[5]

The second ground of appeal is that the
    trial judge erred in her s. 24(2)
Charter
analysis in admitting the evidence of the drugs and money
    that were found following a s. 10(a) breach by the arresting officer.

[6]

We agree with the Crown that the trial
    judge did not improperly rely on inevitable discoverability in analyzing the second
Grant
factor. Rather the trial
    judges reasoning was that there was no causative link between the s. 10(a) breach
    and the evidence because the evidence was real evidence and not conscriptive
    statements.

[7]

With respect to the third
Grant
factor, the trial judge was entitled to consider the
    serious nature of the offence. While it would have been preferable for the
    trial judge to advert to the fact that the seriousness of the offence can cut
    both ways, it is not an error of law to fail to do so.

[8]

The appeal against conviction is therefore
    dismissed. The appeal against sentence is dismissed as abandoned.

K. Feldman J.A.

David Watt J.A.

David M. Paciocco J.A.


