R v Do, 2018 MBCA 50

Citation: R v Do, 2018 MBCA 50 Date: 20180508 Docket: AR17-30-08843 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) A. K. Gowenlock HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) J. A. Hyman ) for the Respondent - and - ) ) Chambers motion heard: ANDY PHAN DO ) April 19, 2018 ) (Accused) Appellant ) Decision pronounced: ) May 8, 2018 HAMILTON JA [ 1 ] The accused seeks an extension of time to file the factum for the appeal of his conviction for possession of ecstasy for the purpose of trafficking. The factum was initially due on November 10, 2017, being 45 days after the filing of transcripts with the Court (see r 20(1)(

a) of the Manitoba Criminal Appeal Rules , SI/92-106 (the Rules )). The registrar granted two extensions, both with the consent of the Crown. The first extension was to November 14, 2017 and the second to November 21, 2017. [ 2 ] On January 9, 2018, the registrar contacted the accused’s counsel about his anticipated motion to extend the time for filing the factum.

On February 22, 2018, the registrar wrote to the accused’s counsel to advise that a “30-day letter” would be issued on March 2, 2018 that would state if the appeal was not perfected within 30 days, it would be deemed abandoned (see r 25 of the Rules ). [ 3 ] The accused filed his motion seeking an extension of time to file the factum on April 3, 2018. [ 4 ] The only issue at trial was the accused’s challenge to the search warrant for his residence, where the drugs, and other evidence, were found. The trial judge ruled that there was no breach to his rights under

section 8 of the Canadian Charter of Rights and Freedoms (the Charter ) and that the search warrant was properly issued. [ 5 ] Along with his notice of appeal of conviction, the accused filed an application for leave to appeal and notice of appeal of his sentence. He recently abandoned his sentence appeal. [ 6 ] At his sentencing, the accused raised a constitutional challenge to the lack of availability of a conditional sentence. The trial judge sentenced him to two years less a day in jail. The trial judge acknowledged that the sentence was likely below the appropriate range for the accused.

As a result, she did not rule on the constitutional challenge. One of his grounds of appeal of the sentence was that the trial judge erred in failing to decide the constitutional question. [ 7 ] The criteria to be considered for granting an extension of time to file a factum are well known: 1. The accused must have had a continuous intention to appeal; 2. The accused has reasonable grounds for the delay; and 3. The grounds of appeal are arguable.

The overarching principle of the interests of justice may also be relevant (see Dunford v Dunford , 2017 MBCA 35 ). [ 8 ] The accused did not file his own affidavit to address any of these criteria, which is normally done in motions like this. He relies on the affidavit of his counsel’s administrative assistant (the supporting affidavit) to demonstrate that he had a continuous intention to appeal and that there is a reasonable explanation for the delay.

[9] The supporting affidavit refers to complexities arising from the constitutional challenge ground of the sentenceappeal and why the accused abandoned the sentence appeal. It reads, in part, as follows: 3. THAT I have been advised by Karl Gowenlock, counsel for the [accused], that when this appeal was filed it was an appeal ofsentence and conviction, and that the sentence appeal involved a complicated constitutional challenge to sentencing legislation, whichthe sentencing judge had found she did not have to consider. 4.

THAT, because the sentencing judge did not consider or rule on the merits of the constitutional challenge, in order for the Court ofAppeal to have adequate information to consider the Constitutional issue, extensive written argument would need to be filed which wouldhave far exceeded the maximum length of a Factum under the rules, and a motion would have to be made to file same. 5. THAT prior to that motion being made, Mr.

Gowenlock was informed that the [accused] had applied for and was beingrecommended for early parole, and that if granted parole, the [accused] would wish to withdraw his sentence appeal and only proceedwith the conviction appeal. 6. THAT Mr.

Gowenlock, in the interests of not unnecessarily burdening the Court or the Respondent with considering/makingargument on the complex constitutional issue, decided to hold off making the motion (either for extension of time for the Factum, with orwithout a motion to extend the length, as the case may be) until after a decision on parole had been made. [10] The Crown filed a supporting affidavit that chronicles, in more detail, the communications between counsel and theregistrar with respect to the failure to file the factum on time.

The Crown’s position is that the accused has not demonstrated areasonable explanation for the delay or an arguable ground of appeal. [11] The Crown does not specifically dispute that the accused had a continuous intention to appeal his conviction and I amsatisfied with that criterion. As for his reasonable explanation for the delay, his evidence is, at best, weak. He filed his notice of appealwithin the time required and provided transcripts to the Court.

The supporting affidavit reveals that his counsel had difficulties indetermining how to proceed with the sentence appeal, which is not a reasonable explanation for the delay. However, it would not be inthe interests of justice to attribute that reason for the delay to the accused. [12] The fundamental difficulty with the accused’s motion is that I see no arguable ground of appeal. The stated ground ofappeal in his notice of appeal of conviction is that the trial judge erred in finding that the warrant to search the accused’s residence andvehicle was valid and that his

section 8 Charter rights were not violated. [13] The accused did not file the usual motion brief to assist the Court in assessing the merit of the ground of appeal. Asargued orally before me, his counsel explained that the ground of appeal is a very narrow point arising from the trial judge’s rejection ofthe accused’s submission that the confidential informant did not have first-hand information to justify the affiant police officer’sconclusory assertions in the information to obtain a search warrant (ITO).

He argued that the trial judge inappropriately relied upon“boilerplate” wording in the ITO to buttress these assertions. He also argued that the trial judge erred when she distinguished thecircumstances here from R v Rocha, 2012 ONCA 707.

In Rocha, the Ontario Court of Appeal held that a search warrant should not haveissued for a residence because the source of the informer’s information about the house was unknown. [14] The trial judge addressed all of these arguments in her oral reasons: [T]he issue I must decide is whether the justice who issued the warrants could have found that there were reasonable grounds to believethat a controlled substance was present at [the accused’s] residence and in his car. In deciding this issue, I must ask myself the followingquestions. Was the tip compelling?

Two important considerations in this assessment are the degree of detail of the information and the informer’s source of knowledge(Garofoli) [R v Garofoli, (SCC), [1990] 2 SCR 1421]. It is in this area that defence counsel focuses his submissions. He says that the information X provided regarding [the accused], hisresidence and his car was not specific, firsthand or recent.

. . . As for the information X provided about seeing [the accused] in possession of drugs (paragraph 17 of the ITO), defence counsel submitsthat X did not specifically indicate the amount of drugs he had seen or when he saw them. Nor did he report in the central paragraphsregarding [the accused’s] house and car (paragraphs 10 and 11 of the ITO) that he had ever personally seen any drugs in either location,and certainly did not report that he had done so recently.

Furthermore, defence counsel argues that much of what X said generally about the involvement of [the accused] in drug trafficking wassimply his opinion and not based on sufficiently specific observations and information. In all, he contends that much of the informationX provided regarding [the accused] was conclusory. Defence counsel relies on R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (QL) to demonstrate the level of detailed, firsthandinformation that is required to justify a search warrant, and to show that [the accused’s] residence and car must be considered separately.

In Rocha, the Ontario Court of Appeal upheld a search warrant issued for a restaurant operated by the accused and his brother but foundthat the information provided in connection with their residence was lacking. Although the informant had provided several detailsregarding the restaurant, the information regarding the house was simply that most of the cocaine was kept at the home; the informantalso gave a description of the exterior of the house. I am not persuaded that the information X provided regarding [the accused] was as defence counsel has characterized.

First, at the outsetof the ITO, [the affiant police officer] stated: 1.c.) The information provided by Source “X” is firsthand information, obtained either from personal observations or throughconversations with the prime suspects, [the co-accused] and [the accused]. While defence counsel argues that this is “boilerplate” and ought to be given no weight, [the affiant police officer] was not cross-examined on his assertion. Therefore, I have no basis upon which to find that it does not inform the balance of the ITO, at least to someextent.

As well, X did in fact indicate that he had specific firsthand information about [the accused]. Paragraph 17 of the ITO states that X hasseen [the accused] on several occasions with bulk amounts of ecstasy, cannabis marijuana and cash (proceeds of crime). X specified theamount of cash he had seen. Furthermore, X’s information about [the accused] having drugs in his house and car contained some detailin that he described the location in which they were kept at the house, and mentioned the reason that [the accused] kept the drugs in thatlocation at the house and in his car – to avoid detection by his parents.

As well, X’s information about the location of the drugs wasamplified by [the accused’s] comment to X, likely made within the prior 48 hours, that they had just reloaded with more bulk ecstasy. X also provided other information about [the accused] such as his physical description and cell phone number, and that he lived with hisparents. In all, I am satisfied that the information provided by X regarding [the accused] was quite compelling.

As I have said, it was based onpersonal observation and [the accused’s] comment to X, and contained a meaningful degree of detail. [15] The threshold for establishing an arguable ground of appeal is a low one. Nonetheless, I see no arguable error in howthe trial judge analysed the ITO or in her conclusion. [16] The standard of review of a trial judge conducting a Garofoli review (see R v Garofoli, (SCC), [1990]2 SCR 1421) of a warrant and an appellate court’s role on appeal of such a decision is important to keep in mind. When a warrant ischallenged at trial, the review of it is deferential.

The reviewing judge “only inquires into whether there was any basis upon which theauthorizing judge could be satisfied that the relevant statutory preconditions existed” (R v Pires; R v Lising, 2005 SCC 66 at para 30). Appeals of such decisions are limited. As Watt JA explained in R v Nero, 2016 ONCA 160 (at para 84): An appeal from that finding is not Garofoli nouveau or Garofoli redux. Absent an error in the statement of the test, a misapprehension ofrelevant evidence or a misapplication of principle, an appellate court is disentitled to intervene.

[ 17 ] The trial judge’s careful and detailed reasons demonstrate that she understood and applied the applicable law. She specifically addressed the accused’s “boilerplate” argument and explained that the informant’s information was firsthand, based on personal observation and the accused’s recent comment to the informant. She did not err when she distinguished the circumstances in this case from those in Rocha . I agree with the Crown that the trial judge correctly concluded that the source of the informant’s knowledge here was from first-hand observations or from the mouth of the accused. [ 18 ] For this reason, I dismiss the motion to extend the time to file the factum. JA