R. v. Li (Z.S.), (2013) 302 O.A.C. 7 (CA)

• Judge: Doherty, Watt and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 02, 2012
• Jurisdiction: Ontario
• Citations: (2013), 302 O.A.C. 7 (CA);2013 ONCA 81

R. v. Li (Z.S.) (2013), 302 O.A.C. 7 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. FE.007

Her Majesty the Queen (respondent) v. Zhu Shi Li (appellant)

(C53382; 2013 ONCA 81)

Indexed As: R. v. Li (Z.S.)

Ontario Court of Appeal

Doherty, Watt and Pepall, JJ.A.

February 8, 2013.

Summary:

The accused appealed his convictions for production of marijuana, conspiracy to produce marijuana and possession of marijuana for the purpose of trafficking.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - The accused was convicted of production of marijuana, conspiracy to produce marijuana and possession of marijuana for the purpose of trafficking - The conviction related to two marijuana grow operations, one of which was on Mackenzie Lake Road (MLR) property - The accused appealed, asserting that the trial judge erred in admitting and relying upon evidence of real estate documents that were subject to solicitor-client privilege - The documents had been found during a search of Ng's residence - Prior to the search, the police had been unaware of the MLR property - The accused asserted that all of the documents relating to the purchase of the MLR property, including the reporting letter and enclosures, were privileged and should not have been seized or used as a basis to obtain a search warrant for the MLR property - The accused asserted that the seizure was unreasonable, breached the Charter and was an invasion of solicitor-client privilege that warranted a stay of proceedings - The Ontario Court of Appeal dismissed the appeal for several reasons - First, the purpose behind introducing the documents was to link the accused to the MLR property - The accused conceded that neither the agreement of purchase and sale between Ng and a numbered company nor the transfer/deed of land identifying someone with the same name as the accused as the owner were privileged - On their own, and independently of any issue of privilege, those documents tended to link the accused to the MLR property - Second, other documents found during the search of Ng's residence also tended to establish the accused's connection to the MLR property - Those documents included a hydro bill and tax bill - No privilege attached to those documents - Third, solicitor-client privilege did not reach any of the evidence relied upon to establish the accused's ownership of the MLR property as an item of circumstantial evidence that tended to prove his participation in the offences arising out of the grow operation found there - Therefore, it was unnecessary to determine whether the reporting letter of the solicitor was privileged or whether, if privileged, the privilege was impliedly waived when the letter ended up in the hands of a third party, a stranger to the solicitor-client relationship - Fourth, to the extent that the accused advanced a claim that privileged information was improperly included in the Information to Obtain (ITO) for the MLR property, the argument failed - The only references in the ITO were to the agreement of purchase and sale in Ng's name which the accused conceded was not privileged, and information obtained from records maintained in the Township's office to which no privilege attached - Finally, even if the judge erred in concluding that the reporting letter and enclosures fell outside solicitor-client privilege, he would have reached the same conclusion on the MLR count - The non-privileged documents amply demonstrated the accused's ownership of the MLR property, as well as his connection with Ng - See paragraphs 64 to 70.

Civil Rights - Topic 1525

Property - Personal property - Personal papers - [See Civil Rights - Topic 1524 ].

Civil Rights - Topic 1641.5

Property - Search and seizure - Personal information - [See Civil Rights - Topic 1524 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was convicted of production of marijuana, conspiracy to produce marijuana and possession of marijuana for the purpose of trafficking - The convictions related to two marijuana grow operations - The accused appealed - He asserted that the trial judge correctly concluded that general warrants to search were invalid because the Provincial Court judge who had issued them had lacked authority to issue general warrants that permitted video surveillance - Further, he correctly concluded that the searches that they authorized were conducted without authority and contravened s. 8 of the Charter - However, according to the accused, the judge erred in admitting the resulting evidence - The Ontario Court of Appeal dismissed the appeal - The court noted that the Crown had not challenged the determination that the Provincial Court judge had lacked authority to issue the general warrants because they authorized video surveillance and the court's decision was not to be taken as affirmation of the correctness of that determination - The Charter-infringing state conduct was not part of a pattern of unconstitutional conduct, nor did it display a wilful or reckless disregard for the accused's constitutionally-protected right to be free from unreasonable search or seizure - The infringement tended towards the inadvertent or minor end of the spectrum of unconstitutional conduct - Similarly, the impact of the unconstitutional conduct on the accused's Charter-protected interests was not significant, despite the fact that one of the searches involved a residence - The initial conduct consisted of observations of activities on property - Some of these activities could be seen from a public road - The residential search involved a home of which the accused was neither the owner nor an occupant, thus he had, if any, a reduced expectation of privacy - The police conduct had no impact on the accused's bodily integrity or personal dignity - The resulting evidence was reliable evidence essential to the Crown's proof of the accused's participation in the offences charged - Its reliability was not attenuated by any constitutional missteps that might have occurred - See paragraphs 103 to 112.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Civil Rights - Topic 1524 ].

Criminal Law - Topic 5252

Evidence and witnesses - Identification - From photographs - Use of photos by police - The accused was convicted of production of marijuana, conspiracy to produce marijuana and possession of marijuana for the purpose of trafficking - The convictions related to two marijuana grow operations, one on Jessup Road property and one on Mackenzie Lake Road property - The accused appealed, asserting that, inter alia, the investigating officer's identification of him as a person leaving the Jessup Road property was flawed in that it was based on a single photograph that was not produced for comparison purposes and reiterated as an in-dock identification four years later without any intervening refresher - Further, the officer relied on a fleeting glimpse of the driver of a vehicle as they passed each other proceeding in opposite directions at highway speed - The Ontario Court of Appeal dismissed the appeal - The controversial ground at trial involved the adequacy of the Crown's proof that the accused had participated in the offences that were otherwise plainly proven - To prove the accused's participation, the Crown did not have to, but was entitled to, rely on evidence of ownership of the property or vehicles associated with the property and activities carried on there - The accused and his vehicle were observed at the Jessup Road property, an otherwise unoccupied property - His vehicle was parked near an outbuilding that, it was reasonable to infer, was being equipped for use in the grow operation - He and Ng used the accused's vehicle to transport things from Jessup Road to Ng's residence - A warranted search of the garage at Ng's residence yielded several items frequently associated with marijuana grow operations - Documents found in the house recorded the near contemporaneous purchase of the four properties on which grow operations, and little else, were found - The documents also established a link among the persons seen at or near Jessup Road and the purchase of things found at the Jessup Road property - The accused acquired the Mackenzie Lake Road property from Ng - That property housed a grow operation remarkably similar to that found at Jessup Road - The cumulative effect of the evidence on the single controversial issue of participation was such that a properly instructed trier of fact, acting judicially, could reasonably have found culpable participation on the accused's part - See paragraphs 124 to 129.

Evidence - Topic 1500

Hearsay rule - General principles and definitions - Definition and general rule - The Ontario Court of Appeal stated that "The hearsay rule has four essential elements: i. a declarant; ii. a recipient; iii. a statement; and iv. a purpose. The defining characteristics of hearsay are the purpose for which the evidence is introduced - to prove the truth of the contents of the statement - and the absence of a contemporaneous opportunity to cross-examine the declarant to test the reliability of the out-of-court statement ... Where the hearsay rule is engaged, the evidence is prima facie inadmissible. The hearsay rule, like other rules of admissibility, is by nature exclusionary, but not unqualifiedly so. Hearsay evidence may be admitted under an established categorical exception or under the principled approach that had its genesis in R. v. Khan [S.C.C.] over two decades ago." - See paragraphs 31 and 32.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The accused appealed his convictions for production of marijuana, conspiracy to produce marijuana and possession of marijuana for the purpose of trafficking, challenging the admissibility of the investigating officer's evidence that tended to link the accused to a grow operation: the accused's ownership of a pickup truck and his operation of the truck during a trip from the grow operation to a residence owned by Ng - The accused's complaint involved the officer's use of the Ministry of Transportation database to access a photograph of the accused as a basis for his identification and motor vehicle registration information to prove his ownership of the truck - The accused asserted that the officer's testimony that he owned the truck was based upon the Ministry's database entries which, when repeated to prove their truth, were inadmissible hearsay - The Ontario Court of Appeal dismissed the appeal for several reasons, including that the photograph on the Ministry's database was not rendered inadmissible by the hearsay rule where it was not a "statement", an essential feature of the exclusionary rule and it was not tendered to prove the truth of its contents - The officer was entitled to examine the photograph and compare the appearance of the person depicted there with the person he saw driving the truck and then unloading the truck at Ng's residence - In essence, he was refreshing his memory - Also, the Crown did not tender any Ministry documents, driver's licence, or ownership permit, as part of its case-in-chief or rely upon those documents to prove the truth of their contents - Ownership of the truck was not an essential element of the case - What the Crown had to prove was the accused's participation in the grow operations - It sought to do so by circumstantial evidence - See paragraphs 36 to 39.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused appealed his convictions for production of marijuana, conspiracy to produce marijuana and possession of marijuana for the purpose of trafficking, challenging the admissibility of the investigating officer's evidence that tended to link the accused to a grow operation: the accused's ownership of a pickup truck and his operation of the truck during a trip from the grow operation to a residence owned by Ng - The accused's complaint involved the officer's use of the Ministry of Transportation database to access a photograph of the accused as a basis for his identification and motor vehicle registration information to prove his ownership of the truck - The accused asserted that the officer's testimony that he owned the truck was based upon the Ministry's database entries which, when repeated to prove their truth, were inadmissible hearsay - The Ontario Court of Appeal dismissed the appeal - Assuming that the accused's objections properly invoked the hearsay rule, it was open to the judge to conclude that the records relied upon satisfied the reliability and necessity requirements of the principled exception to the rule - The reliability requirement was satisfied because of the way in which the records came into existence - Common sense dictated that the court could put sufficient trust in the truth and accuracy of the statements that appear on the face of the driver's licence and permit - The necessity requirement was also met - Relevant direct evidence of vehicle ownership or that the accused was the holder of the driver's licence viewed by the officer was not available - Its source, the accused, was not a competent witness for the Crown - See paragraphs 40 to 45.

Evidence - Topic 1580

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - General - [See Evidence - Topic 1504 ].

Evidence - Topic 1580

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - General - The Ontario Court of Appeal stated that "The common law made exceptions [to the hearsay rule] for public and business records. These exceptions retain their vitality today despite the enactment of statutory provisions that govern the same subject matter. The special trustworthiness of public records rests in the duty to maintain the records and the high probability that the duty to make an accurate report has been performed. It is all the more so where a party is required to provide accurate information to the record-keeper, and subject to penalty for failing to do so or lying about it. The common law exceptions contain no notice requirements. ... Government and business records may also be admissible under the Canada Evidence Act ('CEA'). Government records may be received under s. 24(a), provided notice is given under s. 28. Business records are governed by s. 30 and are also subject to a notice requirement in s. 30(7) unless the court orders otherwise. Section 40 of the CEA incorporates provincial rules of evidence subject to the provisions of the CEA and other federal legislation. ... It is also permissible for any witness to refresh his memory about a subject, such as the ownership of a motor vehicle, by any means that would rekindle the witness' recollection of the subject. The stimulus used by the witness to refresh his or her recollection need not itself constitute admissible evidence ..." - See paragraphs 33 to 35.

Evidence - Topic 1592

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Driving records - [See Evidence - Topic 1527 ].

Evidence - Topic 1598.2

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Government records - [See Evidence - Topic 1527 and Evidence - Topic 1580 ].

Evidence - Topic 4236

Witnesses - Privilege - Lawyer-client communications - When privilege may be invoked - [See Civil Rights - Topic 1524 ].

Evidence - Topic 4241

Witnesses - Privilege - Lawyer-client communications - Privilege - General - The Ontario Court of Appeal reviewed the legal principles governing the solicitor-client communication privilege - See paragraphs 58 to 63.

Evidence - Topic 4681

Witnesses - Examination - Testimonial recollection or refreshing witness's memory - Refreshing memory in court - [See Evidence - Topic 1504 and Evidence - Topic 1580 ].

Narcotic Control - Topic 604

Offences - Evidence - Proof of possession - [See Criminal Law - Topic 5252 ].

Narcotic Control - Topic 606

Offences - Evidence - Circumstantial evidence - [See Criminal Law - Topic 5252 ].

Narcotic Control - Topic 703

Offences - Trafficking - Possession for purposes of trafficking - [See Criminal Law - Topic 5252 ].

Narcotic Control - Topic 720

Offences - Trafficking - Evidence and proof - [See Criminal Law - Topic 5252 ].

Narcotic Control - Topic 835

Offences - Cultivation or production - Conspiracy to unlawfully produce controlled substance - [See Criminal Law - Topic 5252 ].

Narcotic Control - Topic 850

Offences - Cultivation or production - Evidence and proof - [See Criminal Law - Topic 5252 ].

Narcotic Control - Topic 2028

Search and seizure - Search warrants - Issuance of - [See Civil Rights - Topic 1524 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See Civil Rights - Topic 1524 ].

Cases Noticed:

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 31].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 32].

R. v. Fliss (P.W.), [2002] 1 S.C.R. 535; 283 N.R. 120; 163 B.C.A.C. 1; 267 W.A.C. 1; 2002 SCC 16, refd to. [para. 35].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 44].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 105 D.L.R.(3d) 745, refd to. [para. 58].

Maranda v. Leblanc, [2003] 3 S.C.R. 193; 311 N.R. 357; 2003 SCC 67, refd to. [para. 60].

R. v. Tompkins (1978), 67 Cr. App. R. 181 (C.A.), refd to. [para. 63].

Kuruma v. R., [1955] A.C. 197 (P.C.), refd to. [para. 63].

Calcraft v. Guest, [1989] 1 Q.B. 759 (C.A.), refd to. [para. 63].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 63].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 63].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250, refd to. [para. 91].

R. v. Ha (M.T.) (2009), 249 O.A.C. 43; 245 C.C.C.(3d) 546; 2009 ONCA 340, refd to. [para. 96].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 97].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 98].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 102].

R. v. Sinclair (T.) (2009), 240 Man.R.(2d) 135; 456 W.A.C. 135; 2009 MBCA 71, refd to. [para. 123].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 123].

R. v. Jackson (M.A.), [2007] 3 S.C.R. 514; 369 N.R. 375; 2007 SCC 52, refd to. [para. 123].

Authors and Works Noticed:

Wigmore on Evidence (3rd Ed. McNaughton Rev. 1961), para. 2292 [para. 58].

Counsel:

Peter Thorning and Ilana Raynai, for the appellant;

Kevin Wilson, for the respondent.

This appeal was heard on August 2, 2012, by Doherty, Watt and Pepall, JJ.A., of the Ontario Court of Appeal. Watt, J.A., released the following decision for the court on February 8, 2013.