COURT OF APPEAL FOR ONTARIO
Rosenberg, Gillese and Hoy JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Anthony Fitzgerald Beckles
Appellant
Mark C. Halfyard, for the appellant
Andreea Baiasu, for the respondent
Heard and released orally: April 18, 2012
On appeal from the conviction entered on March 18, 2008 and the sentence imposed on May 20, 2008 by Justice Horkins of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1Assuming that the trial judge was right to find that there was a violation of s. 8 when the second question was asked, we are satisfied that the trial judge did not err in refusing to exclude the statement. Even though R. v. Grant, [2009] 2 S.C.R. 32, has substantially changed the s. 24(2) test, the trial judge’s findings of fact and characterization of the nature of the violation are entitled to deference.
2Applying the Grant framework, the appellant has not shown that the evidence should be excluded. On the state of the law in 2006, when this stop occurred, it was open to find that the officer was not acting in bad faith. As the law then stood, the appellant was not entitled to be given his right to counsel. The officer’s second question naturally flowed out of the appellant’s odd response to the first, proper, question. As in Grant, the questioning was not abusive and the officer’s mistake as to what questions he was entitled to ask was understandable. The seriousness of the breach favours admission of the evidence.
3As to the impact on the Charter protected interest, we agree that this favours exclusion. While the expectation of privacy in a vehicle is reduced, this was an intrusion into the appellant’s right against self-incrimination.
4As to the third inquiry, this favours admission. This statement was shown to be reliable and was essential to prove the case. The societal interest in adjudication on the merits favours admission.
5Balancing the three factors, the evidence should be admitted. This is a case much like Grant. The state of the law was uncertain at the time. The police conduct was not egregious and the evidence was reliable and of considerable value.
6Accordingly, the appeal is dismissed.
Signed: “M. Rosenberg J.A.”
“E.E. Gillese J.A.”
“Alexandra Hoy”
