R. v. Wong (C.), 2015 ONCA 657

• Judge: Strathy, C.J.O., Doherty and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 30, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 657;(2015), 340 O.A.C. 113 (CA)

R. v. Wong (C.) (2015), 340 O.A.C. 113 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. SE.026

Her Majesty the Queen (respondent) v. Connie Wong (appellant)

(C56007; 2015 ONCA 657)

Indexed As: R. v. Wong (C.)

Ontario Court of Appeal

Strathy, C.J.O., Doherty and Gillese, JJ.A.

September 30, 2015.

Summary:

The accused called police to her apartment to report the theft of her vehicle. The officer, after being invited in, noticed the smell of marijuana and some drug paraphernalia. The officer told the accused he was seeing stuff pertaining to drug use and asked her "So, what's going on here?". The accused was told she need not say anything, but not advised of her right to counsel. The accused responded that anything drug-related belonged to her boyfriend, not her. The officer asked what else was in the apartment that was not hers, but belonged to her boyfriend. The accused opened a drawer containing bags of marijuana, identity cards and passports. The officer cautioned the accused again that this was a drug investigation and she need not say anything, but also told her that she could be charged but he chose to proceed on the basis that she was not involved and her cooperation was appreciated. The accused then pointed out a duffle bag belonging to her boyfriend. The officer opened the bag and saw 15 packages containing a powder which he believed to be narcotics. Detectives arrived shortly thereafter and, for the first time, the accused was advised of her right to counsel. The accused was charged with offences involving drugs, stolen credit cards and a restricted handgun found in the subsequent search. The accused applied under s. 24(2) of the Charter to exclude evidence on the ground that her rights under ss. 8, 9 and 10(b) were violated. The central issue was when the accused was first detained. The trial judge ruled that the accused was not detained prior to opening the drawer and disclosing the duffle bag. Accordingly, there was no infringement of her Charter rights. Alternatively, the trial judge held that the evidence would not have been excluded under s. 24(2). The accused was subsequently convicted and sentenced to four years and eight months' imprisonment. The accused appealed.

The Ontario Court of Appeal allowed the appeal and substituted acquittals for the convictions. The accused was psychologically detained prior to opening the drawer and disclosing the duffle bag. Her s. 10(b) right to counsel was infringed where she was not "immediately" advised of her right to counsel upon detention. Applying the Grant factors, all evidence obtained that derived from that Charter breach should have been excluded under s. 24(2).

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused called police to her apartment to report the theft of her vehicle - The officer, after being invited in, noticed the smell of marijuana and some drug paraphernalia - The officer told the accused he was seeing stuff pertaining to drug use and asked her "So, what's going on here?" - The accused was told she need not say anything, but not advised of her right to counsel - The accused responded that anything drug-related belonged to her boyfriend, not her - The officer asked what else was in the apartment that was not hers, but belonged to her boyfriend - The accused opened a drawer containing bags of marijuana, identity cards and passports - The officer cautioned the accused again that this was a drug investigation and she need not say anything, but also told her that she could be charged but he chose to proceed on the basis that she was not involved and her cooperation was appreciated - The accused then pointed out a duffle bag belonging to her boyfriend - The officer opened the bag and saw 15 packages containing a powder which he believed to be narcotics - Detectives arrived shortly thereafter and, for the first time, the accused was advised of her right to counsel - The accused was charged with offences involving drugs, stolen credit cards and a restricted handgun found in the subsequent search - The trial judge dismissed an application under s. 24(2) of the Charter to exclude evidence on the ground that her rights under ss. 8, 9 and 10(b) were violated - The trial judge held that the accused's Charter rights were not infringed where she was not detained prior to opening the drawer and disclosing the duffle bag - Alternatively, the trial judge would not have excluded the evidence under s. 24(2) - The Ontario Court of Appeal allowed the accused's appeal - The accused was psychologically detained prior to opening the drawer and disclosing the duffle bag - A reasonable person in the accused's situation would conclude that she no longer had the freedom to choose whether or not to cooperate, as she was told that she could be arrested and an explanation for what the officer was seeing was required - Her s. 10(b) right to counsel was infringed where she was not "immediately" advised of her right to counsel upon detention - The officer encouraged the accused to incriminate herself - Applying the Grant factors, all evidence obtained that derived from that Charter breach should have been excluded under s. 24(2) - See paragraphs 32 to 92.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3604 ].

Cases Noticed:

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. 24].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 31].

R. v. Peterson (D.C.) (2013), 299 Man.R.(2d) 236; 590 W.A.C. 236; 2013 MBCA 104, refd to. [para. 37].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 38].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 39].

R. v. Harris (M.) (2007), 228 O.A.C. 241; 225 C.C.C.(3d) 193; 2007 ONCA 574, refd to. [para. 52].

R. v. MacDonald (A.) (2012), 294 O.A.C. 232; 2012 ONCA 495, refd to. [para. 52].

R. v. Koczab (A.), [2014] 1 S.C.R. 138; 453 N.R. 113; 303 Man.R.(2d) 121; 600 W.A.C. 121; 2014 SCC 9, reving. (2013), 294 Man.R.(2d) 24; 581 W.A.C. 24; 309 C.C.C.(3d) 183; 2013 MBCA 43, refd to. [para. 52].

R. v. Manchulenko (M.) (2013), 310 O.A.C. 103; 301 C.C.C.(3d) 182; 2013 ONCA 543, refd to. [para. 55].

R. v. Bergauer-Free (T.) (2009), 255 O.A.C. 233; 2009 ONCA 610, refd to. [para. 55].

R. v. Fearon (K.), [2014] 3 S.C.R. 621; 465 N.R. 205; 326 O.A.C. 1; 2014 SCC 77, refd to. [para. 55].

R. v. Kelsy (M.) (2011), 283 O.A.C. 201; 2011 ONCA 605, refd to. [para. 55].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 68].

R. v. Taylor (J.K.), [2014] 2 S.C.R. 495; 460 N.R. 101; 572 A.R. 81; 609 W.A.C. 81; 2014 SCC 50, refd to. [para. 77].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 77].

R. v. Plant (R.S.), [1993] 2 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 83].

R. v. Kesselring (A.C.) (2000), 132 O.A.C. 41; 145 C.C.C.(3d) 119 (C.A.), refd to. [para. 83].

Counsel:

Marck C. Halfyard and Breana Vandebeek, for the appellant;

Jason Wakely, for the respondent.

This appeal was heard on April 16, 2015, before Strathy, C.J.O., Doherty and Gillese, JJ.A., of the Ontario Court of Appeal.

On September 30, 2015, Strathy, C.J.O., released the following judgment for the Court.