Catching the Wolf of Bay Street: R v Shin

The Ontario Court of Appeal’s (“ONCA”) decision in R v Shin, 2015 ONCA 189, upheld a drug trafficking conviction that followed from an extensive police investigation in the Greater Toronto Area (“GTA”). Brian Shin was arrested after he entered a stash house where police were waiting for him. Although the arrest violated Shin’s Charter rights, the ONCA affirmed that the violation did not suffice to exclude key evidence. Shin nevertheless gave candid testimony about his criminal past in order to avoid conviction on some of the more serious charges against him.

The Court of Appeal’s decision clarifies the extent to which such past criminal conduct can be used by defendants for tactical advantage, while leaving the extent of some police investigatory powers unclear.

Facts

Brian Shin began trafficking marijuana in grade 9, and continued to do so throughout university. After completing a Masters of Taxation degree, Shin worked at a Toronto corporate headhunting firm, earning an annual salary of approximately $120,000. At the same time, Shin nevertheless continued to work as part of a network of GTA drug traffickers.

As part of their Project Isis investigation, Durham Regional Police learned of a potential drug warehouse at an apartment that was used by Shin. After receiving a warrant to search for and seize drugs and related items, police entered the apartment and discovered cocaine, methamphetamine, heroin, marijuana, trafficking paraphernalia and approximately $200,000 in cash.

Police remained on site after seizing the drugs and other evidence, believing that their warrant permitted them wait and see whether anyone arrived at the apartment. Approximately thirty minutes later, Brian Shin entered the apartment with a key. He was arrested on the spot, and approximately 5,000 grams of marijuana were found in his car.

The Pre-Trial Charter Motion

Shin applied to have evidence excluded on the basis of two separate Charter violations: (1) He alleged that police had executed an illegal search and seizure, contrary to Section 8, by remaining in the apartment without legal authority to do so; and (2) He alleged that his Section 10(b) rights were violated when he asked to speak with his lawyer and was denied before being questioned by police.

Applying the test from R v Grant, [2009] 2 SCR 353 [Grant], the application judge agreed that police had committed both Charter breaches, but found that only the 10(b) breach merited the exclusion of evidence. Evidence relating to Shin’s entry into the apartment using a set of keys therefore remained admissible. However, evidence arising from the questioning of Shin without counsel present, including evidence collected from his cell phone, was excluded.

The Decision at Trial

At trial, Shin was charged with possessing marijuana for the purpose of trafficking, possessing proceeds of crime over $5,000, and trafficking of other drugs that were seized by police.

Shin testified, drawing particular attention to his suburban upbringing and good family background. He admitted that he had trafficked in drugs, but claimed that his trafficking was always limited to marijuana. To him, selling other substances involved too great a risk.

Shin was convicted on only those charges related to marijuana, but the trial judge rejected sentencing recommendations from both the Crown and Defence.  Instead, the trial judge applied section 725(1)(c) of the Criminal Code, RSC 1985, c C-46 [the Code], to consider Shin’s admitted 14-year marijuana trafficking history as an aggravating factor in sentencing. Rather than the four-year sentence recommended by the Crown, it was determined that a 6-year sentence would be appropriate in light of such aggravating factors.

Additionally, the trial judge applied section 734 of the Code to impose a fine of $500,000 to be paid within three years of Shin’s release from prison.

The Decision on Appeal

The ONCA upheld the application judge’s findings on the admissibility of evidence, but partially allowed an appeal of the trial judge’s sentence.

With respect to the illegal search and seizure at the apartment, the ONCA affirmed the application judge’s findings on all three branches of the admissibility test from Grant. While police did violate section 8 by remaining in the apartment and thereby “overreaching” their warrant, evidence arising from this violation was nevertheless admissible because:

1. the overreach was “short in duration,” placing the breach at the “less serious end of the spectrum” (paras 66-67);
2. the breach had a low impact on Charter rights as it was a “minimal intrusion” and because there is “diminished expectation of privacy at a stash house” (paras 68-69); and
3. society’s interest in adjudicating the case on the merits favoured including evidence arising from Shin’s entry into the apartment.

As to sentencing, the ONCA upheld Shin’s six-year term but altered the fine against him. Citing the decision in R v Larche, [2006] 2 SCR 762 [Larche], the ONCA affirmed that uncharged offences (i.e., Shin’s admitted 14-year history of trafficking marijuana) could be considered as an aggravating factor in sentencing because: (1) Shin had admitted the offences, rendering them proven beyond a reasonable doubt; (2) there was a nexus between the uncharged acts and the acts that Shin had been convicted of; and (3) considering the uncharged offences would not be unfair to Shin, as he also received a tactical advantage from admitting these offences to distance himself from charges of trafficking other drugs.

At the same time, the ONCA found that Shin’s long drug trafficking career did not suffice to prove his ability to pay a substantial fine of $500,000. Accordingly, Shin’s fine was reduced to $75,000.

Commentary

The Court of Appeal’s decision draws a line on the extent to which an accused person may benefit from testifying on past uncharged offences in the course of a defence, but leaves the line unclear on the extent of permissible police “overreaching” in the execution of warrants.

Although Shin effectively used admissions of his past patterns of drug trafficking to distance himself from trafficking charges related to other drugs, this admission came at the cost of a longer sentence for the conviction that he did receive. While the test set out in Larche will prevent this from always being the case, accused persons and their representatives should take note. The ONCA decision demonstrates courts’ unwillingness to allow individuals to benefit from crimes even where the benefit is tactical and the crimes remain uncharged.

Less certainty is found in the decision on the “minimal” violation of Shin’s section 8 rights by police. Much of the Court of Appeal’s Grant analysis focused on the fact that police officers had remained at the apartment for a mere 30 additional minutes after the authority in their warrant had effectively expired. What remains unclear is when such overreaching of police authority becomes something more than a minimal violation. Would the evidence still have been admitted if police had remained for an hour? What if they had stayed for an entire day? For the time being, this lack of clarity leaves police uncertain about the extent of their authority to seek the best possible evidence, while leaving accused persons uncertain about their rights in the face of such investigations.