R. v. Chan

R. v. Chan Collection Decisions of the Court of Appeal Date 1998-11-16 Docket numbers C21059, C26385 Judges Krever, Horace; Labrosse, Jean-Marc; Weiler, Karen Merle Magnuson Subject Criminal Decision Content DATE: 1998116 DOCKET: C26385 and C21059 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. KA L. CHAN also known as MATTHEW CHAN (Appellant) AND RE: HER MAJESTY THE QUEEN (Respondent) v. CHI WAI LAM (Appellant) BEFORE: KREVER, LABROSSE and WEILER JJ.A COUNSEL: Anil Kapoor, for the appellant Ka L. Chan a.k.a. Matthew Chan Morris Manning, Q.C., for the appellant Chi Wai Lam Fergus O'Donnell, for the respondent HEARD: October 30, 1998 ENDORSEMENT [1] The appellants Chan and Lam were convicted of conspiracy to import and traffic in heroin, and importing, trafficking and possession of heroin for the purpose of trafficking. They were respectively sentenced to fifteen and seventeen years' imprisonment. They appeal their convictions. [2] The appellants were alleged to be members of an international heroin-smuggling organization. They were allegedly operating under a scheme aimed at avoiding detection and introduced into Canada a substantial quantity of heroin. The combination of surveillance, telephone records, hotel records, controlled deliveries, seizures and expert evidence made up an overwhelming case against the appellants. They were convicted after a lengthy trial, at the end of which counsel for the appellant Chan conceded that Chan was in possession of the heroin found in his hotel room for the purpose of trafficking. Neither appellant testified at the pre-trial motions or at trial. [3] The sole issue raised in the Chan appeal deals with the correctness of the trial judge's ruling not to exclude the evidence of 1.3 kilograms of heroin seized as a result of a warrantless search of the appellant Chan's hotel room. The appellant Lam also relies on this ground and on other grounds of appeal relating to the trial judge's charge to the jury, Crown counsel's closing address to the jury and the trial judge's treatment of the Crown's closing address. We did not call on the Crown with respect to these other grounds because, in our opinion, they are without merit. [4] In the factum of each appellant and during oral argument, numerous statements questioning the sufficiency of the material presented to obtain the search warrants were made. There was overwhelming evidence at the time of the applications for the search warrants that a serious crime or crimes had been committed and that the appellants were involved. The affidavits in support of the various search warrants must be reviewed as a whole in a common-sense manner. In the language of the trial judge "a line- by-line word-by-word dissection of the document in an effort to show that some of the grounds standing alone do not support the existence of reasonable grounds is not the correct approach and the determination must be made with regard to the totality of the circumstances." There was no error in the conclusion of the trial judge that the totality of the material constituted reasonable and probable grounds to support the applications. [5] The trial judge gave detailed reasons in her ruling on the search and seizure of the heroin found in the hotel room. She made a detailed review of the evidence and considered the relevant authorities. She had the opportunity to assess the evidence of the witnesses and observe them under prolonged and vigorous cross-examinations by numerous counsel. She made findings of fact with respect to issues of credibility, and the alleged improper conduct and bad faith of the police officers with respect to "shopping for a Justice of the Peace" and considered whether the evidence should be excluded under s. 24(2) of the Charter. In exercising her discretion not to exclude the evidence under s. 24(2) she considered and balanced the appropriate factors in detail. [6] Essentially, the appellants seek to retry the issue. In light of the considerable degree of deference which must be accorded to the trial judge's findings, which are supported by the evidence, and her application of the proper principles under s. 24(2) of the Charter, we cannot interfere with her ruling. Moreover, in our view, in the circumstances of this case, the exclusion of the heroin found in the hotel room would tarnish the image of the administration of justice to a much greater extent than would its admission. [7] Accordingly, the appeal is dismissed.