Police misconduct

The appellant was convicted of firearms offences and possessing proceeds of crime after a trial judge admitted evidence despite a s. 10(b) Charter breach.

The police delayed the appellant's access to counsel for nearly ten hours, based on an operational plan to secure search warrants first.

The Court of Appeal found the trial judge erred in the s. 24(2) Charter analysis by underestimating the impact of the breach on the appellant's security of the person.

The Court concluded that the breach was serious and deliberate, outweighing society's interest in admitting the evidence, and ordered the exclusion of the gun and cash, leading to acquittals.

Boris Borissov, a Toronto Police Service officer, was sentenced for multiple offences including theft, fraudulent use of bank cards, trafficking stolen property, attempt to obstruct justice, unauthorized use of police computer systems, and possession of a motor vehicle obtained by crime.

The offences involved abusing his position to steal from vulnerable victims (a missing person and a deceased woman) and to assist criminal associates by providing internal police information and obstructing investigations.

The court emphasized denunciation and deterrence as primary sentencing objectives for police officers who breach public trust.

Despite mitigating factors such as good character, PTSD, and rehabilitation efforts, the court imposed a global sentence of 7 years' incarceration, finding the offences to be profound and repeated abuses of police power.

The accused, Mark Thompson, faced charges for possession of Schedule 1 and 3 substances for trafficking and possession of proceeds of crime.

He challenged his warrantless arrest and subsequent search, arguing violations of his s. 8 and s. 9 Charter rights.

The court found that the police lacked reasonable and probable grounds for the arrest, as the confidential informant's tip was vague and insufficiently corroborated by surveillance.

The police notes were found to be misleading, exacerbating the seriousness of the Charter breach.

Applying the Grant factors, the court determined that the seriousness of the police misconduct and the significant impact on the accused's liberty outweighed society's interest in the admission of the evidence, leading to its exclusion under s. 24(2) of the Charter.

Police executed a search warrant using a "hard entry" at the defendant's home, seizing cocaine, phenacetin, and cash.

The defendant applied to exclude the evidence under s. 24(2) of the Charter, arguing violations of s. 8 (unreasonable search and seizure due to hard entry) and s. 10(b) (right to counsel).

The court found a serious s. 8 breach due to the officer's lack of understanding of the knock-and-announce rule and arbitrary decision-making.

The s. 10(b) breach was not found.

Balancing the Grant factors, the court excluded the evidence, leading to the defendant's acquittal on charges of possession for the purpose of trafficking and possession of proceeds of crime.

The offender, Alan Kumar, sought to reopen his application to stay his conviction or reduce his sentence, alleging excessive force by the arresting officer and a subsequent police cover-up during a 2018 home invasion arrest.

The original application was dismissed by Barnes J. in 2020.

Kumar based his request on newly disclosed McNeil Reports concerning Constable Osborne, the officer in charge, revealing disciplinary actions including a guilty plea to assault and resignation.

The court, Trimble J., dismissed the application to reopen, finding that the new evidence regarding Officer Osborne's misconduct would not have reasonably affected Barnes J.'s original conclusions regarding the use of excessive force or the alleged police collusion, as there was no evidence Osborne was present during the arrest or influenced the arresting officer's actions.

The accused, Grace Vieira, was charged with impaired driving and over 80 mg% blood alcohol after a rear-end collision.

She challenged the lawfulness of breath demands and her arrest, alleging breaches of her Charter rights under ss. 8 and 9.

The court found that the arresting officer lacked reasonable grounds for both the Approved Screening Device (ASD) demand and the subsequent arrest and breathalyzer demand, largely due to inconsistencies between the officer's testimony and body-worn camera footage, and the officer acting on a hunch rather than objective facts.

The court also found that the accused's statement identifying herself as the driver was compelled.

Applying the Grant factors under s. 24(2) of the Charter, the court determined that the serious nature of the Charter breaches and their significant impact on the accused's liberty outweighed society's interest in the admission of the reliable breath sample evidence.

Consequently, the breath samples were excluded, leading to an acquittal on both charges.

The accused, Gabriel Bogdanov, faced charges of possessing crack cocaine and powder cocaine for the purpose of trafficking, and possession of proceeds of crime.

He brought a Charter application alleging breaches of his s. 8 (unreasonable search), s. 9 (arbitrary detention), and s. 10(b) (right to counsel) rights.

The court found that the police search of his vehicle, purportedly based on the smell of cannabis, was unlawful due to contradictory and illogical police testimony regarding the odour and the presence of cannabis residue.

The detention and subsequent arrest were deemed arbitrary, and there was a significant delay in informing the accused of his right to counsel.

Applying the R. v. Grant s. 24(2) Charter exclusion analysis, the court determined that the police conduct constituted a flagrant disregard of Charter rights.

Consequently, all evidence obtained as a result of these breaches was excluded, leading to the dismissal of all charges against the accused.

The accused, Vahid Pashazahiri, brought an application to exclude evidence (fentanyl, morphine, and cash) seized during his arrest, alleging violations of his Charter rights under sections 8 (unreasonable search), 9 (arbitrary detention), and 10(b) (right to counsel).

The court found that the arresting officer lacked reasonable and probable grounds for the arrest, rendering the subsequent search unlawful.

Additionally, the officer delayed advising the accused of his right to counsel, demonstrating a fundamental misunderstanding of the "without delay" standard.

Applying the Grant framework, the court determined that the seriousness of the state's Charter-infringing conduct and its significant impact on the accused's liberty and privacy interests outweighed society's interest in the adjudication of the case on its merits, despite the reliability and importance of the evidence.

Consequently, the application to exclude the evidence was granted.

Mohammad Jahfari was arrested and charged with sexual interference and sexual assault but was not brought to bail court within 24 hours, violating s. 503(1) of the Criminal Code and his Charter rights under ss. 7, 9, and 11(e).

He sought a stay of proceedings or, alternatively, exclusion of his statement and a sentence reduction.

The Crown conceded the Charter violations but opposed a stay.

The court found the police conduct to be an isolated incident, not warranting a stay or sentence reduction.

As a remedy for the Charter breaches, the court ordered the exclusion of the accused's statement to the police, finding a sufficient nexus between the breach and the evidence obtained.

The applicant, Sheldon Baylis, brought a sub-facial challenge to the validity of a search warrant, arguing that the Information to Obtain (ITO) contained omissions and misleading information.

The court reviewed the ITO, making several amplifications (additions of material facts) and excisions (removal of erroneous or misleading information).

Despite finding serious improprieties in the police officer's disclosure, including deliberate non-disclosure and misleading statements, the court determined that the amplified and excised ITO still provided reasonable and probable grounds for the warrant's issuance.

The court also considered its residual discretion to quash the warrant due to police misconduct but declined to do so, emphasizing the high threshold required for such an action, noting that some omissions actually benefited the applicant by weakening the grounds.

The application to quash the warrant was dismissed, and the warrant's validity was confirmed.

The Applicant, Parteek Ghuman, faced charges of possession of fentanyl for trafficking and obstruction of justice.

He brought a Charter application (voir dire) to exclude evidence obtained during a warrantless vehicle search and alleged violations of his s. 8 (unreasonable search/seizure) and s. 10(b) (right to counsel) rights.

The court found that the police officer lacked reasonable grounds for the search under the Cannabis Control Act, using it as a pretext for a criminal investigation.

The officer also failed to promptly inform Ghuman of his right to counsel upon detention and delayed implementing that right after arrest.

Concluding that the cumulative breaches were serious and impacted Ghuman's Charter interests significantly, the court excluded the evidence (fentanyl, cash, digital scale, cell phones, and false name) under s. 24(2) of the Charter, leading to Ghuman's acquittal.

The defendants, Frank Lee and Jason Cooney, brought a Charter application to exclude two kilograms of crystal methamphetamine found in their car, arguing violations of their s. 9 (unreasonable arrest) and s. 10(b) (right to counsel) Charter rights.

The court found that the police had reasonable and probable grounds for arrest, thus no s. 9 violation.

However, it found s. 10(b) violations for both defendants due to delays in advising and facilitating access to counsel.

Applying the s. 24(2) Grant test, the court determined that the seriousness of the police misconduct (carelessness, not systemic) and the impact on the accused's Charter interests (no evidence flowed from the breach) were outweighed by society's strong interest in adjudicating the case on its merits, given the reliable and significant evidence.

The application to exclude evidence was dismissed.

The defendants, jointly charged with firearms offences, brought a Garofoli application to quash a search warrant and exclude seized firearms.

The court found that the Information to Obtain (ITO) lacked reasonable grounds to search the specific condominium unit where the firearms were found, thus quashing the warrant and finding a Section 8 Charter breach.

However, applying the Grant test, the court determined that admitting the evidence would not bring the administration of justice into disrepute, considering the seriousness of the offences, the police's good faith, and the reliability of the evidence.

The application to exclude the evidence was dismissed.

Ashton Gray was charged with mischief and assault police.

She admitted to the offences but sought a stay of proceedings, alleging a breach of her section 7 Charter rights due to excessive police force during her arrest and subsequent detention at the hospital.

The court found that while the initial arrest force was reasonable, Officer Paulini used unnecessary and excessive force at the hospital, motivated by anger, while Ms. Gray was handcuffed, strapped to a stretcher, and suffering from a mental health crisis.

This conduct constituted a breach of Ms. Gray's section 7 Charter rights.

Applying the R. v. Babos test, the court determined that a stay of proceedings was the appropriate and only adequate remedy to dissociate the justice system from the egregious police misconduct, outweighing society's interest in a trial on the merits.

The accused, Di’on Jahil Wong, brought an application alleging breaches of his Charter rights under sections 8 (unreasonable search) and 10(b) (right to counsel).

The court found that police delayed facilitating access to counsel without justification and conducted an unreasonable strip search without sufficient grounds, relying solely on the nature of the drug trafficking charge.

The court dismissed the s. 10(a) breach claim and found the pat-down search reasonable.

As a remedy for the s. 8 and s. 10(b) breaches, the court ordered a stay of all charges against the accused, emphasizing the need to denounce police misconduct and preserve the integrity of the justice system, particularly given the invasive and humiliating nature of the unjustified strip search.

The appellant, convicted of drug trafficking, firearm, and weapons offences, appealed his convictions, arguing that seized evidence should be excluded due to Charter violations (ss. 7, 8, 9, 10(a), 10(b)).

The trial judge found violations but erred by not conducting a s. 24(2) analysis, believing no causal link existed between the breach and evidence discovery.

The Court of Appeal conducted the s. 24(2) analysis, balancing the severity of breaches, their impact on the appellant's Charter interests, and society's interest in adjudication on the merits.

Despite serious breaches, the evidence was admitted due to the minimal impact on the appellant's rights and the significant public interest in adjudicating serious firearm and drug offences.

The conviction appeal was dismissed.

Jake Grant, a Niagara Regional Police Service sergeant, pleaded guilty to threatening Bruce Love, a mentally ill individual, in a Subway restaurant.

The incident occurred in 2017, and the case had a protracted procedural history, including an overturned stay of proceedings.

The Crown sought a conviction and fine, while the defence requested an absolute discharge, citing Mr. Grant's exemplary service record and collateral consequences related to travel.

The court found Mr. Grant's conduct inexcusable, particularly given his position and the victim's vulnerability.

The judge rejected an absolute discharge as contrary to public interest and found the collateral consequences argument speculative.

A conditional discharge with two years probation and 120 hours of community service focused on services for mentally challenged individuals was imposed, balancing denunciation and deterrence with Mr. Grant's otherwise exceptional character.

This decision concerns a s. 24(2) Charter application to exclude evidence (a firearm) obtained following an invalid search warrant and unconstitutional police entry.

The court applied the three-factor test from R. v. Grant, finding the police conduct (gross negligence in preparing the Information to Obtain, misleading statements, lack of investigation, and warrantless entry) to be extremely serious.

While the impact on the accused's privacy interest was moderate (as he was not a resident), the seriousness of the police misconduct outweighed society's interest in adjudicating the case on its merits.

The court concluded that admitting the evidence would bring the administration of justice into disrepute, and therefore excluded the firearm against all accused.

The defendant, Youssef Messoudi, brought an application to exclude evidence in a criminal prosecution for drug and firearm offences, alleging infringements of his Charter rights under sections 10(a) (right to be promptly informed of reasons for detention) and 10(b) (right to counsel).

The court found a serious breach of section 10(a) because police officers initially detained and handcuffed Messoudi for 15-20 minutes without informing him of the reasons for his detention.

However, the court found no breach of section 10(b), accepting that a subsequent officer informed Messoudi of his right to counsel immediately upon taking custody, and Messoudi chose to wait to speak to his lawyer at the police station.

Applying the section 24(2) Grant analysis, the court determined that the police conduct, while serious, was not deliberate misconduct, and the evidence sought to be excluded (gun, controlled delivery observations) was not directly linked to the section 10(a) breach.

The application to exclude evidence was dismissed, as its admission would not bring the administration of justice into disrepute.

The applicants, Jahmyle Johnson and Kyle Bancroft, sought to exclude evidence obtained from Johnson's cellphone through two police searches, arguing violations of their s. 8 Charter rights against unreasonable search and seizure.

The court found that the initial search by Officer Down, conducted under a CDSA warrant, unlawfully extended to browser history unrelated to the drug investigation, and his testimony regarding inadvertent discovery was not credible.

The subsequent search by Officer Fahey, based on the unlawfully obtained information and flawed legal advice, was also deemed unlawful.

Applying the R. v. Grant test, the court concluded that the seriousness of the Charter-infringing conduct, including police misconduct and reckless legal advice, outweighed society's interest in admitting the reliable evidence, as its admission would bring the administration of justice into disrepute.

The application to exclude the evidence was granted.