COURT OF APPEAL FOR ONTARIO
Miller, Paciocco and George JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Jaiden Nicholls
Appellant
Sandra Kimberg and Hedieh Kashani, for the appellant
Diana Lumba, for the respondent
Heard: June 19, 2026
On appeal from the convictions entered by Justice Cathy Mocha of the Ontario Court of Justice, on June 3, 2024.
REASONS FOR DECISION
1The appellant was convicted of possessing fentanyl for the purpose of trafficking, possessing property obtained by crime, and several firearms-related offences arising from his possession of a loaded firearm.1 He appeals his convictions, arguing that the trial judge erred by: (i) failing to address his submission that the police breached the duty to hold off questioning at the time of arrest, both before and after he was advised of his right to counsel; (ii) finding no breach of the duty to hold off questioning during his police station interview; and (iii) failing to exclude the evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms.
2At the conclusion of oral argument we advised the parties that the appeal was dismissed and that our reasons would follow. These are our reasons.
I. BACKGROUND
3On July 7, 2022, police were conducting surveillance near a safe injection site when they observed the appellant, who was wearing a hooded sweater and a black jacket, engaging in what they believed was drug trafficking activity. When officers attempted to arrest him, he fled. During the chase, the appellant’s sweater and jacket came off.
4Following the appellant’s arrest, a firearm magazine was located on the ground. One of the officers initially thought it belonged to him, but soon realized that it belonged to the appellant. Officers then found a loaded firearm in the appellant’s waistband. In addition to the firearm, police seized multiple items, including cellphones, cash, a scale, and drugs. The bulk of the drugs were located in the recovered hooded sweater.
5During his arrest the police asked the appellant several questions. We will return to this later in these reasons.
6The appellant was then advised of his right to counsel and asked if he wished to contact a lawyer. After stating that he does not know a lawyer and that he would like to call his mother, he was told that he would have reasonable access to a phone at the police station. Shortly after, the appellant was told that he could call his mother to get the name of a lawyer or speak to duty counsel to which he responded: “public defenders are not gonna help me”. The officer then reiterated that he could talk to his mother to get another lawyer.
7During the booking at the station, the appellant was again asked if he wanted to speak to a lawyer and he repeated his desire to speak with his mother. Following another discussion about his right to counsel, the appellant was asked if he would like to speak with duty counsel if his mother did not have a lawyer for him. This exchange ended with the appellant indicating that he would like to speak with both duty counsel and his mother. The appellant eventually spoke with duty counsel; however, he did not speak with his mother until after being interviewed by the police later in the evening.
II. DECISION BELOW
8The trial judge found that police breached the implementational component of s. 10(b) of the Charter by failing to provide the appellant with an opportunity to contact his mother to potentially get the name of a lawyer after speaking with duty counsel. Since he had requested to speak with his mother, and was told that he would get that opportunity, the trial judge held that the appellant should at least have been asked whether he was satisfied with his call to duty counsel and whether he still wished to contact his mother.
9After conducting a s. 24(2) Charter analysis, the trial judge found that (i) the seriousness of the breach weighed “slightly in favour of exclusion”; (ii) the impact on the appellant’s rights was minimal; and (iii) the seriousness of the offences and society’s interest in an adjudication on the merits strongly favoured admission.
10On the final balancing, the trial judge admitted the evidence.
III. DISCUSSION
11With respect to both the first and second grounds of appeal, the appellant’s complaint is that the police were required to hold off questioning before he had a reasonable opportunity to consult with counsel. On the first ground specifically, the appellant’s position is that the trial judge erred by not addressing his argument that the police breached his right to counsel upon arrest by asking him questions. This is essentially a sufficiency of reasons argument. The appellant argues further that the trial judge erred by not finding a s. 10(b) Charter violation when the police interviewed him at the police station. The appellant’s third ground of appeal challenges the trial judge’s decision to admit the evidence.
1. The trial judge did not err by failing to give reasons on the duty to hold off questioning
12The appellant submits that the trial judge erred by not addressing four instances in which he submits the police breached the duty to hold off questioning: (i) when the police were handcuffing the appellant on arrest, an officer asked him: “Why are you running, eh? Why are you running, young man?”; (ii) once the officers determined that the magazine on the ground did not belong to one of them, an officer asked the appellant: “Where’s the gun?”, to which the appellant responded, “it’s right here”; (iii) after informing the appellant that he was under arrest for possessing the firearm, an officer asked him: “Are you allowed to have a gun? No, you’re not. I’m pretty sure you know that, right? So possession of a firearm, okay? So possession of a restricted weapon. You understand?” In response, the appellant nodded in the affirmative; and (iv) an officer asked the appellant if he had ever been arrested before, to which the appellant shook his head and said no.
13The appellant had the onus to establish a Charter violation on a balance of probabilities. However, his defence counsel did not cross-examine the officers on the above noted interactions, which is significant as the questions the officers asked would appear, on their face, to be either rhetorical or relate to immediate safety concerns, rather than investigative. Nor did they make meaningful submissions about them during closing submissions, focusing on what counsel described as the “main issues” – the allegation that the officers engaged in racial profiling, and the police failure to facilitate a call to the appellant’s mother at the station.
14In our view, the trial judge was not obliged to address an issue that played only a minor role in the appellant’s case, particularly when his counsel did not cross-examine any witness on that point. Put simply, this was not a live issue at trial. Accordingly, we reject this ground of appeal.
2. There were no additional s. 10(b) breaches
15The trial judge found one breach arising from the officers’ failure to provide the appellant with an opportunity to call his mother to obtain a lawyer after he spoke with duty counsel. The trial judge found that, at the very least, the police should have asked the appellant if he was satisfied with his call to duty counsel and inquired about whether he still wanted to call his mother afterwards.
16The appellant argues that the police further breached their duty to hold off questioning when they spoke to him in an interview room at 11:59 p.m. We are unpersuaded.
17At 11:56 p.m., before the interview, the appellant was informed of the charges he was facing, was readvised of his right to counsel, and was afforded another opportunity to call counsel. He declined. While the appellant did again ask to speak with his mother, at no point did he tell the officer that the purpose of touching base with her was to find counsel. And then immediately after the interview, which was unrelated to the charges the appellant was facing, the police offered the appellant another opportunity to call his mother and he declined.
18In light of what transpired after the events giving rise to the lone s. 10(b) Charter breach, and because the appellant was again advised of his right to counsel before being interviewed – which the appellant expressly declined – the police did not violate their duty to hold off questioning.
3. The trial judge did not err in admitting the evidence
19A trial judge’s s. 24(2) Charter analysis is owed considerable deference on appeal. The question is whether the trial judge erred in principle, failed to consider a relevant factor, made a palpable and overriding factual error, or reached an unreasonable determination.
20The trial judge did not commit any of these errors. She turned her mind to each Grant factor,2 referred to the evidence that was relevant to each factor, and concluded that the scales tipped in favour of admitting the evidence. This decision was available to her.
IV. CONCLUSION
21For these reasons, the appeal is dismissed.
“B.W. Miller J.A.”
“David M. Paciocco J.A.”
“J. George J.A.”
Footnotes
- Several of the firearms-related convictions were stayed pursuant to Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
- R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.