



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2019 ONCA 178

DATE: 20190305

DOCKET: C62472

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Huy Hoang Nguyen

Appellant

Jeff Marshman, for the appellant

Kathleen Healey, for the respondent

Heard: March 1, 2019

On appeal from the conviction entered on July 7, 2015, and
    the sentence imposed on August 2, 2016, by Justice Gregory A. Pockele of the
    Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant does not press the alleged breach of ss. 8 and 9.  We
    think that was wise.  We accept the trial judges finding that the police had
    grounds to arrest the appellant after he entered the garage.  It is uncontested
    that if the arrest was lawful, the search of the vehicle as an incident of the
    arrest was lawful.

[2]

We agree with the appellant that his s. 10(b) rights were violated.  The
    appellant indicated that he wished to speak with counsel when he was arrested. 
    The appellant was not afforded an opportunity to contact counsel until about 80
    minutes later after he was taken to the station.  While it may have been
    appropriate to wait until the appellant was at the station before allowing him
    to speak to counsel, there was no reason for delaying his transportation to the
    station by some 50 minutes.  At the station, the police further failed to
    advise the appellant that the lawyer he had asked for could not be reached when
    called by the police.  Instead, the police simply left the appellant in the
    cell until he was released about 30 to 35 minutes later.  The police should
    have told the appellant that his named lawyer was not available and advised him
    of his right to speak to duty counsel if he wished to do so.

[3]

The outcome of the s. 24(2) analysis turns on a proper characterization
    of the police conduct.  We do not see this conduct as demonstrating a systemic
    indifference to s. 10(b) rights, or the existence of a police policy or
    practice that undermined the rights protected by s. 10(b).  The officers at the
    residence did not expect to encounter anyone at the scene.  When they did, they
    failed to adjust their pre-set plan to execute the search warrant to take into
    account the appellants s. 10(b) rights.  While this is not acceptable, we do
    not see this as more than a situation-specific failure to comply with s. 10(b).

[4]

The failure to give the appellant the opportunity to speak to duty
    counsel at the station is explained by one officers mistaken belief as to which
    officer was obliged to ensure the appellant had a full opportunity to exercise
    his s. 10(b) rights.  Once again, this is unacceptable, but we do not see it as
    indicative of an institutional or systemic problem.

[5]

The police conduct still points towards the exclusion of the evidence to
    some extent.  However, as counsel acknowledges, the negative impact on the
    appellants rights is only moderate.  The third factor in
Grant
strongly favours admission.  Considering the three factors together, we would
    admit the evidence of the material seized from the appellants car.

[6]

The conviction appeal is dismissed.

[7]

The parties agree that the sentence appeal should be allowed and the
    sentence varied to 12 months.  So ordered.


