Court File and Parties
Court of Appeal for Ontario Date: 2024-07-08 Docket: COA-23-CR-0120
Before: Benotto, Favreau and Madsen JJ.A.
Between: His Majesty the King, Respondent and Rajindra Becessar, Appellant
Counsel: Jack Gemmell, for the appellant Luke Schwalm, for the respondent
Heard: June 4, 2024
On appeal from the conviction entered on November 2, 2022 by Justice Rita-Jean Maxwell of the Superior Court of Justice, sitting without a jury.
Reasons for Decision
1The appellant, Rajindra Becessar, appeals his conviction for possession of an unauthorized firearm and possession of a loaded firearm. On appeal, Mr. Becessar challenges a pre-trial ruling regarding the admission of a statement he made to the police (the “Statement”).
2Based on information from one of Mr. Becessar’s friends, the police obtained a warrant to search a number of properties associated with Mr. Becessar, including his residence. During the search, the police found a loaded handgun, 500 rounds of ammunition and approximately $1,880 in Canadian currency. The police arrested Mr. Becessar.
3Upon his arrest, Mr. Becessar was immediately cautioned of his right to counsel. He stated that he wished to exercise that right but was not given the opportunity to do so until approximately four hours later. Mr. Becessar was not questioned before he spoke with his counsel. After consulting with counsel, Mr. Becessar gave the Statement to the police in which he admitted to possession of the firearm and ammunition.
4Prior to trial, Mr. Becessar brought an application pursuant to s. 24(2) of the Charter, before Nishikawa J. (the application judge), to exclude the admission of the items found at his residence during the execution of the search warrant and to exclude the Statement. The application judge found that 1) the search breached Mr. Becessar’s s. 8 Charter rights, 2) Mr. Becessar’s arrest did not breach his s. 9 Charter rights, and 3) the delay in giving Mr. Becessar access to counsel after his arrest breached his s. 10(b) Charter rights.
5The application judge proceeded to consider whether the evidence obtained from the search and the Statement should be excluded based on s. 24(2) of the Charter. In doing so, she conducted separate analyses of the Grant lines of inquiry in relation to the evidence found at Mr. Becessar’s residence and the Statement: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. She excluded the items found at his home but not the Statement. In assessing the third line of inquiry of the Grant analysis, the application judge noted that she did not have any evidence regarding the contents of the Statement. She concluded her analysis of the Grant factors as follows:
My balancing of the Grant factors leads me to a different result in respect of Mr. Becessar’s statement. While the breach of Mr. Becessar’s s. 8 rights was serious and the impact significant, the delay in implementing his s. 10(b) right to counsel was not lengthy and the impact of the breach was moderate. The impact on Mr. Becessar’s Charter protected rights is mitigated because he spoke to counsel before giving the statement. In my view, public confidence in the administration of justice would not be undermined by the inclusion of the statement in evidence.
6Following this ruling, the Crown brought an application before Maxwell J. (the trial judge) to admit the Statement on the basis that it was given voluntarily. The trial judge admitted the Statement. The trial then proceeded based on an agreed statement of facts, and Mr. Becessar was convicted of the two possession offences.
7On appeal, Mr. Becessar submits that the application judge erred in failing to exclude the Statement based on the cumulative effects of the ss. 8 and 10(b) breaches. He submits that the application judge erred in failing to consider that the Statement was “obtained in a manner” that infringed his s. 8 rights, and that, if she had done so, she should have concluded that the cumulative effects of the breaches were serious enough to warrant the exclusion of the Statement.
8In response, the Crown points out that this is not how Mr. Becessar’s counsel argued the application before the application judge. The Crown submits that Mr. Becessar’s notice of application, factum and submissions did not seek to rely on the cumulative impact of the breaches to exclude the Statement. The Crown further points out that the application judge did not have the benefit of the contents of the Statement for the purpose of assessing whether the Statement was “obtained in a manner” that breached his s. 8 Charter rights.
9Mr. Becessar counters that the application judge did indeed have the contents of the Statement available to her in the form of the notes from DC Mark Tan, who was one of several officers who testified on the voir dire. Mr. Becessar argues that the application judge could have reviewed these notes, which would have allowed her to understand the contents of the Statement.
10We agree with the Crown that the appeal should be dismissed. The application judge made no error. She decided the application based on the issues and evidence that were before her.
11The exclusionary rule in s. 24(2) of the Charter has two elements. The first — the threshold requirement — asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right. Once the threshold requirement is met, the second component of the s. 24(2) analysis — the evaluative component — asks whether, in all the circumstances, admitting the evidence would bring the administration of justice into disrepute: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 94.
12The party seeking the exclusion of evidence under s. 24(2) based on a Charter breach has the onus of proving that the evidence should be excluded: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 89; R. v. Griffith, 2021 ONCA 302, 406 C.C.C. (3d) 244, at para. 51; R. v. Lenhardt, 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11.
13The threshold requirement "insists” there be a sufficient nexus between the Charter breach and the evidence: R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 71. Determining whether such a nexus is present “involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained”: Beaver, at para. 95. The required connection between the breach and the subsequent statement may be temporal, contextual, causal, or a combination of the three: R. v. Wittwer, 2008 SCC 33, at para. 21, as long as the connection is not “too tenuous or remote”: Beaver, at para. 96, citing R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38.
14In this case, during the voir dire before the application judge, Mr. Becessar made submissions regarding, among other things, (i) whether the violation of his s. 8 rights should lead to the exclusion of the evidence found during the search; and (ii) whether the violation of his s. 10(b) rights should lead to the exclusion of the Statement; these two arguments were separate and distinct from one another. The s. 10(b) submission regarding the Statement was left to the end of his oral argument, and the content of the Statement was not put before the application judge as evidence.
15Mr. Becessar did not argue that the Statement was obtained “in a manner” that violated his s. 8 rights nor that it should be excluded because of the violation of his s. 8 rights. The lack of such an explicit argument was not a mere technical issue. It means that the Crown did not have proper notice of this issue on the application and that the application judge did not have the evidence necessary to make a proper determination.
16Based on the arguments and evidence before her, the application judge’s analysis was appropriate. In this case, the Statement was not made readily available to the application judge nor did Mr. Becessar make reference to its content to support a link between the search and the Statement. The onus was on him to make that case. Instead, in the absence of the Statement itself, there was a factual vacuum. The application judge could therefore not have made findings as to the causal and contextual connections between the search and the Statement. As such, she could not have determined whether the Statement was “obtained in a manner” that violated Mr. Becessar’s s. 8 rights.
17We reject Mr. Becessar’s suggestion that DC Tan’s notes were available as evidence of the content of the Statement. His notes were not evidence, nor were they tendered as evidence of the content of the Statement. We also reject the argument that it would have been self-evident that the Statement was obtained in a manner that violated the appellant’s s. 8 rights given the temporal proximity between the search and the statement. This ignores the fact that the application judge found that the appellant’s arrest did not violate his s. 9 rights because there were reasonable and probable grounds for the arrest. Without the content of the Statement available to her, it was not possible for the application judge to determine whether the Statement was obtained in a manner that violated Mr. Becessar’s s. 8 Charter rights.
18There is no doubt that, in appropriate circumstances and based on a proper record, the cumulative negative impact on the Charter-protected interests of an accused can amplify the need to exclude evidence to preserve the repute of the administration of justice: R. v. O’Brien, 2023 ONCA 197, 166 O.R. (3d) 114, at para. 31. Given that Mr. Becessar did not argue that the Statement was obtained in a manner that violated his s. 8 Charter rights and that he did not tender evidence of his Statement in support of such an argument, it was not an error for the application judge to only consider whether the Statement should be excluded based on the s. 10(b) breach. 1
19We note that, on appeal, Mr. Becessar did not seek leave to raise a new issue in accordance with: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 37-44. Instead, the main focus of his argument was that the application judge erred in failing to find that the Statement was obtained in a manner that violated his s. 8 Charter rights. As we have found above, based on the record and arguments before her, the application judge made no such error.
20Accordingly, the appeal is dismissed.
“M.L. Benotto J.A.”
“L. Favreau J.A.”
“L. Madsen J.A.”
Footnotes
Footnotes
- The Crown argued that, even if the application judge had proper notice of Mr. Becessar’s argument that the statement should be excluded based on the cumulative effect of the breaches, the statement should nevertheless be admitted because, relying on Beaver, there was a “fresh start” after he was able to speak to counsel. We do not need to decide this issue and should not be taken as accepting this argument.
