![]() |
John Hill |
The police had been on the lookout for a stolen licence plate. The plate was spotted on a BMW but not from the BMW from which the licence had been taken. Two men were spotted coming from a house near the parked car. One of the men opened the trunk to retrieve a wrench to remove the plate. The police moved in. One of the two men ran off, leaving Thombs alone to undergo interrogation.
Thombs was searched incident to arrest. A cell phone and the key to the trunk were removed. The key unlocked the trunk to find the stolen licence plate. However, police also found a camera bag that, when opened, contained a notebook appearing to be a drug list. A more aggressive search of the car led to the discovery of a box of baking soda, two cell phones, a digital scale and cash. On the floor behind the driver’s seat were several baggies containing the drugs.
A judicial pretrial was held on Oct. 7, 2020, and no Charter issues were raised. It was not until the third day of a scheduled four-day trial that the defence filed a Notice of Application of a Charter motion. The defence application opposed the entry of the drugs into evidence since the Crown disclosure made no reference to the grounds for the search that led to the discovery of the drugs. Defence counsel cited R. v. Vukelich [1996] B.C.J. No 1535 for bringing the late motion, saying that the British Columbia judgment specified that all the authorities that would seemingly block such a late application assume full Crown disclosure as required by R. v. Stinchcombe [1991] 3 S.C.R. 326.
The trial judge disagreed (R. v. Thombs 2021 ONCJ 310). Although there had been little in the disclosure regarding grounds for the vehicle search, the defence ought to have known from the fact of the arrest that a search had been conducted. There had been plenty of time to adopt a strategy to explore possible Charter violations. There is no obligation requiring police to detail every event and issue. Incomplete or inconsistent notes can be used to challenge credibility and reliability, not admissibility.
The trial judge denied Vukelich's authority for the proposition that a mid-trial Charter application was appropriate to challenge the search. The trial judge explained that she was entitled to consider the merits of the defence application on the material before the court (R. v. Megill 2021 ONCA 253). When there is an adequate basis, as stated in Megill, “Evidentiary exclusion was not in the cards.” Here, there was a concession that an arrest was proper based on the stolen plate. A search incidental to arrest was conducted, and the items seized were in plain view. The mid-trial application was dismissed.
Justin Thombs was sentenced to a global sentence of nine years, reduced by enhanced credit for pretrial custody to six years and seven and a half months (R. v. Thombs 2022 ONCJ 165). The sentencing judge cited numerous authorities where fentanyl was one of the significant drugs of concern and seemed particularly impressed with the comments of Justice Michael Moldaver on the “real and deadly impact of fentanyl, even though the case in which the comment was made was distinguishable (R. v. Parranto, [2021] SCC 46).
Thombs appealed. The appeal court decision was handed down on Dec. 20, 2023 (R. v. Thombs 2023 ONCA 850). The court held that considerable discretion must be afforded to a trial judge hearing a mid-trial Charter application (R. v. Haevischer 2023 SCC 11, R. v. Greer 2020 ONCA 795 and the Megill case). The trial judge provided clear and cogent reasons for finding the application was untimely and had no reasonable prospect of success.
Defence counsel tried to convince the appeal court that the trial judge’s reasoning that the reason the second man fled was his knowledge of the drugs. Thombs’ staying on was attributed by the trial judge not as the action of a man unaware of the drugs in the vehicle but as one unwilling to forfeit a large cache of drugs and loss of his grandfather’s new car. The Court of Appeal agreed that Thombs’ actions at the scene did not give rise to an inference of innocence.
A sentence appeal was also dismissed, except for the proceeds charge. There was no evidence linking the drugs with the $110. An acquittal was entered on that count.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.