R. v. Cassells-Watson, 2025 ONCJ 221

ONTARIO COURT OF JUSTICE

DATE: April 22, 2025
COURT FILE No.: Toronto 23 48117806

BETWEEN:

HIS MAJESTY THE KING
— AND —
CONNOR-JAY CASSELLS-WATSON

Before Justice P.F. Band
Reasons for Judgment released on April 22, 2025

Ms. C. Josic ......................................................................................... counsel for the Crown
Mr. N. Fitzmaurice .................................. counsel for the accused Mr. Cassells-Watson

BAND J.:

I. INTRODUCTION

The investigation and arrests

[1] Mr. Cassells-Watson was arrested along with his co-accused Shagghary Scott on September 20, 2023. Each of them was in possession of a firearm and both were charged accordingly.

[2] Prior to the arrests, Mr. Scott had been the target of a Guns and Gangs Task Force (GGTF) investigation. Members of that task force had obtained warrants to search a car and two addresses that were associated with him. One of those addresses was 110 Mornelle Court in Scarborough. On September 20, the officers planned to locate, surveil and arrest Mr. Scott so that they could then execute the searches.

[3] They set up at 110 Mornelle Court to try to locate Mr. Scott. While there, they saw him interacting with Mr. Cassells-Watson in the parking lot. This included a transaction in which he appeared to hand something to Mr. Cassells-Watson, who then put the item in his hoody pocket. After that, the two walked to a nearby gas station and entered the kiosk. At that point, the officers were directed to arrest Mr. Scott and place Mr. Cassells-Watson under investigative detention. They entered the kiosk and quickly took physical control of both men and grounded them. While searching Mr. Scott incident to arrest, they found a handgun in his satchel. Once Mr. Cassells-Watson was on the ground, an officer patted him down and found a handgun tucked in the waistband of his pants. As a result, he too was arrested. His arrival at the police station was delayed by the late arrival of uniformed transport officers and a further wait for entry into the station at the sally port. This delayed his ability to speak to counsel privately.

The Charter applications

[4] The ITO in support of the warrants relied heavily on information provided by a confidential source (“CS”). Accordingly, it was substantially redacted. Mr. Scott brought a pre-trial “Garofoli” application pursuant to s. 8 of the Charter. He sought the exclusion of the firearm and drugs that were found on his person, as well as other evidence found at one of the addresses. I dismissed his application with written reasons dated January 6, 2025: R. v. Scott, 2025 ONCJ 220. My publicly available reasons contained redacted passages. An unredacted version exists under seal in the court record.

[5] In those reasons, I found that the CS’s information was credible and compelling and that the warrants disclosed reasonable and probable grounds to believe that Mr. Scott was in current possession of a firearm, either on his person or at one of the locations listed in the warrants. This was despite the fact that the police had not been able to corroborate much of what the CS had told them, other than information about Mr. Scott’s satchel.

[6] After receiving my judgment dismissing his Garofoli application, Mr. Scott decided to change his plea to guilty and has since been sentenced.

[7] At trial, Mr. Cassells-Watson brought an application to have the firearm excluded because of alleged violations of his s. 8, 9 and 10(b) Charter rights. The trial proceeded in blended fashion. Mr. Cassells-Watson did not testify on the application or the trial proper.

[8] Mr. Cassells-Watson’s application is dismissed for the following reasons, which should be read in conjunction with my reasons dismissing Mr. Scott’s Garofoli application.[1]

II. THE ISSUES

[9] On behalf of Mr. Cassells-Watson, Mr. Fitzmaurice takes issue with the credibility of some of the officers’ testimony but argues that even if I take them at their word, Mr. Cassells-Watson’s s. 8 and 9 rights were violated, and the evidence ought to be excluded. He argues that the police violated Mr. Cassells-Watson’s right to be free from arbitrary detention and unreasonable search by:

1. detaining him without reasonable grounds to suspect that he was involved in criminality;
2. using an excessive amount of force amounting to a de facto arrest in the context of an investigative detention or, put another way, effectively arresting Mr. Cassells-Watson for an offence without reasonable and probable grounds; and
3. conducting a pat-down or safety search of his person without reasonable grounds to believe that there was an imminent risk to their safety or the public’s.

[10] With respect to s. 10(b), Mr. Fitzmaurice argues that the officers did not implement Mr. Cassells-Watson’s right to counsel in a timely fashion and that the Crown has failed to justify the delays.

[11] On behalf of the Crown, Ms. Josic argues that the detention of Mr. Cassells-Watson was based on reasonable suspicion and carried out with reasonable force. The pat-down search was permitted in the circumstances. While the implementation of Mr. Cassells-Watson’s right to counsel was delayed, the delay was reasonable and accounted for. What is more, he indicated no desire to speak to counsel during the delay.

III. APPLICABLE LEGAL PRINCIPLES

Section 8 – reasonable and probable grounds to believe

[12] As the Supreme Court of Canada explained in R. v. Storrey, [1990] 1 SCR 241 at pp. 250-1,

the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.

[13] The law does not demand the same of a police officer in an arrest situation as that which is expected of a justice considering a search warrant. The police officer must make his or her decision in a volatile environment with incomplete information: see R. v. Bush, 2010 ONCA 554 at para. 43.

Section 9 – investigative detention

[14] Section 9 protects against arbitrary arrest or detention. In R. v. Mann, 2004 SCC 22 at para. 34, the Supreme Court of Canada explained that investigative detentions must be premised on reasonable grounds to suspect. Unlike the reasonable and probable grounds standard, which is about probability, reasonable suspicion is about possibility: see R. v. Chehil, 2013 SCC 49 at para. 27. However, like reasonable and probable grounds, this standard has subjective and objective components. The Court explained as follows:

The detention must be viewed as reasonably necessary on an objective view of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstance, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of the interference….

[15] At para. 52, the Court added that an officer may place an individual under investigative detention “if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such detention is necessary.” Such detentions are expected to be brief: at para. 45.

Section 9 – search incident to investigative detention

[16] In Mann, supra, at para. 40, the Court wrote that during an investigative detention a search power does not exist as a matter of course. Rather, “the officer must believe on reasonable grounds that his or her safety, or the safety of others, is at risk.” This question is to be viewed “in light of the totality of circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or intuition.”

[17] Importantly, unlike searches incident to arrest, investigative detentions do not authorize police officers to search a person or their property for evidence.

While the police have common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest: ibid, at para. 35.

[18] At para. 43, the Court wrote that a frisk search is a “relatively non-intrusive procedure,” that lasts “only a few seconds.” As such, “[w]here an officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of the detained individual.” However, the search “must be grounded in objectively discernible facts to prevent ‘fishing expeditions’ on the basis of irrelevant or discriminatory factors.”

[19] Mann led to some confusion about the scope of police search powers and the Court sought to address it in R. v. MacDonald, 2014 SCC 3. At para. 40 the majority held that

the duty of police officers to protect life and safety may justify the power to conduct a safety search in certain circumstances. At the very least, where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police should have the power to conduct the search.

[20] However, the Court cautioned that

the power to carry one out is not unbridled …. the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search…. The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter…. As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on "reasonable and specific inferences drawn from the known facts of the situation….”: ibid, at para. 41 (internal citations omitted).

[21] To conduct this analysis,

…the actions of the police in conducting the search must be scrutinized to determine whether the search was carried out reasonably…. If the extent of the infringement is greater than what is required to search for weapons, the search will not be authorized by law. At this point, however, the overall reasonableness of the search must be assessed in light of the totality of the circumstances…. It is necessary to consider not only the extent of the interference, but how it was carried out. This inquiry turns on whether the search was minimally intrusive on the privacy interest at stake. In other words, the manner in which the search was carried out must have been reasonably necessary to eliminate any threat: ibid, at para. 42 (internal citations omitted).

[22] While concurring in the result, Justices Moldaver and Wagner (as he then was) registered a strongly worded disagreement with the majority’s approach to safety searches associated with investigative detention. At para. 91, they summarized the effect of the majority’s decision:

As of today, officers are empowered to detain individuals they suspect are armed and dangerous for investigatory purposes, but they have no power to conduct pat-down searches to ensure their safety or the safety of the public as they conduct these investigations.

They described this result as anomalous, redundant and defying common sense: at paras. 79-81. In their view, “a police officer in the field, faced with a realistic risk of imminent harm, should be able to act immediately and take reasonable steps, in the form of a minimally intrusive safety search, to alleviate the risk”: at para. 91.

[23] As it turns out, the MacDonald decision has led to confusion regarding the basis on which safety searches are permitted in the context of investigative detention, and their scope. In R. v. Buakaska, 2023 ONCA 383 at paras. 31-45, the Ontario Court of Appeal recently discussed the existence of an “ongoing debate.” Did the concurring justices in MacDonald interpret the majority’s ruling correctly? Did MacDonald recalibrate the Mann standard? Is there more than one standard? How pivotal is the imminence of the risk to safety? See also: R. v. Aim, 2023 ONSC 5305 at paras. 86-94.

[24] In R. v. McGuffie, 2016 ONCA 365 at para. 52, Justice Doherty noted the possibility for confusion stemming from MacDonald, and found that a “reasonable belief of an imminent threat could … be based on the reasonable suspicion that the appellant had a handgun.” Citing Mann, the Court made a similar ruling in R. v. Buffong, 2024 ONCA 660 at paras. 7-9.

Section 10(b) – implementational delays

[25] Section 10(b) of the Charter guarantees that upon arrest or detention every person shall have the right to retain and instruct counsel without delay. The rationale for the right was discussed by the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33 at para. 42:

[T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

[26] As Doherty J.A. observed in R. v. Rover, 2018 ONCA 745 at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[27] As the Court of Appeal recently explained in R. v. Samuels, 2024 ONCA 786 at para. 24, when access to counsel is delayed, the burden is on the Crown to show that a given delay was reasonable in the circumstances. In R. v. Keshavarz, 2022 ONCA 312 at para. 71, Fairburn A.C.J.O. explained:

[I]n specific circumstances the implementational component of the right to counsel may be suspended. Those specific circumstances often involve concerns over police or public safety or the preservation of evidence. [Internal citations omitted.][2]

IV. THE FACTS

[28] A summary of the facts will put my analysis into context. For the most part, they are not controversial. Where they are, I make findings accordingly.

The officers

[29] At trial, the Crown called six officers whose combined experience exceeds 100 years of policing. Det. Stolf has been a police officer for 29 years. He has been a member of the GGTF since 2012. He supervised the team of officers who investigated Mr. Scott and Mr. Cassells-Watson in this case and called for the arrest of Mr. Scott and detention of Mr. Cassells-Watson. Sgt. Blake has been a police officer for 21 years. He has been with the GGTF for three. He has conducted hundreds of firearm investigations, some of which involved surveillance, and has received training relating to such cases. He also grew up in 110 Mornelle Court. In this case, he was in a position to make direct observations of Mr. Cassells-Watson’s interactions with Mr. Scott in the parking lot, which he relayed to the rest of the team on the radio. DC Danson has been a police officer for 16 years. He has been a member of the GGTF for five years. In this case, he entered the kiosk first, and quickly arrested Mr. Scott. DC Da Silva has been a police officer for over 17 years. Prior to that, he was an officer in Scarborough for six years. He has made hundreds of firearm and drug arrests. He entered the kiosk moments after DC Danson and took physical control of Mr. Cassells-Watson. DC Prodeus has been a police officer for 15 years. He has been with the GGTF since 2022. He was at the gas station when Mr. Scott and Mr. Cassells-Watson arrived. He entered the kiosk and helped DC Da Silva in detaining Mr. Cassells-Watson. He conducted the pat-down search that led to the discovery of the handgun in his waistband. He also informed Mr. Cassells-Watson of his right to counsel upon detention, arrest and a third time before Mr. Cassells-Watson was transported to the division. PC Tanya Cross has been a police officer for 10 years. She attended the gas station with her partner to transport Mr. Cassells-Watson to the nearest police division.

The investigation

[30] Based on the ITO, the officers had reasonable and probable grounds to believe that Mr. Scott was in current possession of a firearm on his person or at one of the locations to be searched. They also knew that he was on a release for offences involving a firearm and drugs. That said, there was no indication that he was a gun trafficker.

[31] On September 20 at their briefing, they set the goals of locating and arresting Mr. Scott when safe to do so, and then to execute the search warrants. No one was assigned the task of performing the arrest, nor were they directed as to how to do so. They are an experienced team and they make these decisions as they arise.

[32] Shortly before 1PM, the team went to 110 Mornelle Court to look for Mr. Scott. By all accounts, it is a high crime area that is plagued with drug traffic, gun violence and, in recent years, a number of homicides. They set themselves up in various locations and communicated by radio. I heard a lot of evidence about how those communications are expected to proceed. All of them agreed that the purpose is to give the supervisor (Det. Stolf in this case) the information required to make operational decisions, such as calling for an arrest. They do this by giving concise and timely information about what they are observing. It should be detailed but to the point. It should be brief, so as to not tie up the line. It also involves police jargon. Questions are not common as they can lead to observations being missed. A “central note taker” is assigned to keep notes of the communications so that the others can focus on making and relaying their observations. Later, at a debrief, they discuss and ensure that the central notes are accurate and then, each can continue to make his or her own notes.

[33] For a period, Mr. Scott was seen interacting with a woman and child in the parking lot of 110 Mornelle Court, near a gray Honda. He was wearing a t-shirt at the time. He then went to the building. At 1:43PM, Mr. Cassells-Watson arrived at the parking lot on foot and went directly to the gray Honda where Mr. Scott had been earlier. He was standing behind it, looking down at his phone. Mr. Cassells-Watson, who was a young man standing approximately six feet tall, was unknown to the officers at this time. Less than a minute later, Mr. Scott exited the building and went directly to Mr. Cassells-Watson. This time, he was wearing a black sweater and satchel. The two shook hands and had a conversation. At 1:46PM, Mr. Scott returned to the building. At 1:48PM, Sgt. Blake saw Mr. Cassells-Watson with his “head on a swivel and watching every single motor vehicle that comes in and out.” Having one’s head on a swivel is a piece of police jargon that the team uses regularly. To Sgt. Blake, it means someone who is constantly scanning the area. It did not require definition over the radio. Based on his experience, people who are on the look out for police or opposing gang members can behave this way. Det. Stolf had the same understanding of the term, and the same concerns about the behaviour it describes. He has seen it done when one individual is waiting for another to retrieve something for an illicit exchange.

[34] At 1:50PM, Mr. Scott exited the building and returned directly to Mr. Cassells-Watson. They had more conversation, and Mr. Scott showed Mr. Cassells-Watson something on his phone for a couple minutes. At 1:52PM, Mr. Scott handed something to Mr. Cassells-Watson, which he took with his right hand and immediately placed in his right hoody pocket. Sgt. Blake did not see the item and could only say that it was small enough to fit in the palm of one’s hand. To him, in the circumstances, the behaviour was like a drug transaction. While he could not rule out a firearm, he believed that what had been exchanged was drugs. He communicated over the radio that “something” had been transferred and that it was small. He did not communicate his belief as to what it was because he had not seen it. Like Sgt. Blake, Det. Stolf believed that it could be drugs, but he could not rule out a firearm. At 1:52PM, the two men then walked over to the gas station and Sgt. Blake lost sight of them by 1:54PM.

[35] At 1:56PM, Det. Prodeus saw them arriving. Based on his experience and knowledge, he came to believe that a firearm could have been transferred. He did not notice a bulge or sway in Mr. Cassells-Watson’s hoodie, and agreed that whatever it was, Mr. Cassells-Watson had placed it in his hoodie pocket at 1:52PM. However, he noted that there had been ample time for Mr. Cassells-Watson to move the object between 1:54PM and 1:56PM, when Sgt. Blake had ceased reporting any observations of the men. Also, he has discovered firearms in the absence of a bulge or other tell-tale sign in the past.

[36] Based on his experience and what he heard and observed, DC Da Silva also believed that the item could have been drugs, a firearm or something benign.

Det. Stolf’s stated grounds to detain Mr. Cassells-Watson

[37] Det. Stolf summarized his grounds to detain Mr. Cassells-Watson as follows:

• They had reasonable grounds to believe Mr. Scott was in possession of a firearm, either on his person or at one of the locations to be searched;
• He was aware of the grounds to support the warrants related to Mr. Scott;
• Mr. Cassells-Watson interacted with Mr. Scott very close to 110 Mornelle, where they had reasonable grounds to believe that there would be a firearm or other evidence;
• After Mr. Cassells-Watson and Mr. Scott first interacted, Mr. Scott went into the building and returned to where he was, and handed him something – this looked like a hand-to-hand drug transaction;
• Before Mr. Scott returned, Mr. Cassells-Watson had his head on a swivel and was looking at every car that came in or out; and
• This was not a transitory encounter and they also left together.

[38] On this basis, Det. Stolf believed that Mr. Cassells-Watson was in possession of contraband – probably drugs, but a firearm could not be ruled out. He and other officers testified that drug dealers often possess weapons or firearms. So do drug purchasers, some of whom are sub-dealers. In addition to his grounds to suspect that Mr. Cassells-Watson was engaged in criminality, Det. Stolf listed a number of safety concerns that added to his decision to detain Mr. Cassells-Watson. First, if Mr. Cassells-Watson had a weapon, he could pose a danger during the arrest of Mr. Scott. Second, there was a potential risk to public safety, given the location and time of day. Third, Mr. Cassells-Watson could interfere with the execution of the warrants by alerting someone of police presence.

[39] Det. Stolf felt that the kiosk was a safe and contained place and gave his team the order to arrest Mr. Scott and detain Mr. Cassells-Watson at 1:57PM.

The detention and pat-down of Mr. Cassells-Watson

[40] Given the time of day, the gas station was busy. Customers were entering the kiosk to shop or pay. During the arrest and detention of the two men, customers continued to enter and approach the counter to pay.

[41] DC Danson entered the kiosk first. Mr. Scott and Mr. Cassells-Watson were at the counter with their backs to him – Mr. Scott to the left and Mr. Cassells-Watson to the right. He quickly took physical control of Mr. Scott while announcing that he was a police officer. He did so by bearhugging him around his body and arms and pulling him to the ground. The goal was to eliminate the possibility that he might have access to a firearm.

[42] DC Da Silva entered a very short time after DC Danson and decided that he would detain Mr. Cassells-Watson. He explained that his plan was to bearhug him and pin him against the counter. The purpose of the bearhug was to prevent him from accessing a firearm if he had one. However, because he had entered a second or so after DC Danson, he had lost the element of surprise. Mr. Cassells-Watson had looked over toward Mr. Scott, and then as DC Da Silva approached him with his arms spread out, it appeared to him that Mr. Cassells-Watson was attempting to flee because he had taken a step back and was ducking or making himself smaller. The attempted bearhug was unsuccessful. Had Mr. Cassells-Watson remained upright, at six feet tall, it would have been easy for DC Da Silva to hug him around his torso. Instead, his right arm ended up around the back of Mr. Cassells-Watson’s neck and his left arm around his right shoulder. He ended up grabbing hold of Mr. Cassells-Watson’s hoodie and pulling him to the ground with DC Prodeus’s help, in order to maintain control of him. As he was trying to get his handcuffs, Mr. Cassells-Watson was showing his hands and saying, “ok ok ok.” He had gone from being non-compliant to being compliant.

[43] Then, DC Da Silva heard DC Danson telling Mr. Scott to show him his hands. He looked over and saw that Mr. Scott was trying to raise his upper body. So, he jumped over to help DC Danson place him in handcuffs. Then, he found a handgun in his satchel.

[44] Meanwhile, DC Prodeus did a pat-down search of Mr. Cassells-Watson’s waist and noticed that he had a firearm. When asked why he conducted the pat-down search, he testified that he believed that Mr. Scott had a firearm and wholeheartedly believed that Mr. Cassells-Watson was connected to that crime. His understanding is that a detainee’s connection to a crime, which authorizes an investigative detention, also vests him with the authority to conduct a pat-down search for weapons or means of escape (but not for evidence, which is limited to arrests). None of the officers involved in this case testified that they require reasonable and probable grounds to conduct a pat-down search of a suspect who is being detained for investigative purposes. Those who testified about this, including Det. Stolf, appeared to understand that they were simply entitled to search such a detainee for weapons.

[45] Less than 10 seconds elapsed between the moment DC Da Silva entered the kiosk and the moment that Mr. Cassells-Watson showed him his hands and said, “ok ok ok.” The process of taking physical control of Mr. Cassells-Watson and bringing him to the ground took DC Da Silva three-to-four seconds. The firearm was located and removed from his waistband within one minute.

[46] In cross-examination, Mr. Fitzmaurice took DC Da Silva through the take down process frame-by-frame, in what is believed to have been tenths of a second,[3] using the security video from the gas station and a booklet of stills he had prepared. His purpose was to try to establish that Mr. Cassells-Watson had not tried to flee and that it had been DC Da Silva’s plan to ground him from the get-go. He relied on Det. Stolf’s testimony that the take down happened as he had expected that it would and DC Prodeus’s testimony that he would have taken Mr. Cassells-Watson to the ground, given the nature of the investigation, his size and age, and the concerns he had about a firearm. DC Da Silva stood firm. He indicated that the whole event took place very quickly and that he had had to adapt and make snap decisions. He added that the video confirmed his testimony. I agree. It looks to me like Mr. Cassells-Watson did in fact move and hunch over. DC Prodeus gave a similar description of Mr. Cassells-Watson’s position when he arrived. I bear in mind that the camera angle is from behind and above the counter, facing downward, which is not ideal. But based on my careful review of the footage, I find that DC Da Silva’s interpretation – which had to be made in a split-second – was reasonable. What happened after looked like someone slipping a tackle as DC Da Silva’s right arm deflected off his shoulder or back, and upward toward the back of his neck. I accept DC Da Silva’s testimony that his initial intention was to bearhug Mr. Cassells-Watson and pin him against the counter. If he had been compliant, that would have sufficed. He explained that when he has approached suspects from behind and bearhugged them as intended, they experience a “moment of defeat” and give up. Also, it is worth noting that Det. Stolf and DC Da Silva testified that every situation is different.

[47] Mr. Fitzmaurice also cross-examined DCs Da Silva and Prodeus about their stated belief that Mr. Cassells-Watson might be armed. He put to them, and later argued, that at no time did they believe Mr. Cassells-Watson might be armed; rather, they made this up after the fact to justify an excessive use of force and an illegal search. For this, he relied a great deal on the fact that they had left Mr. Cassells-Watson’s hands free for a spell and that DC Da Silva went to help DC Danson before Mr. Cassells-Watson was handcuffed. DC Da Silva explained that once Mr. Cassells-Watson was on the ground, he became compliant by showing his hands and saying, “ok ok ok.” What is more, he and DC Prodeus had control of him and could have responded if Mr. Cassells-Watson had made any moves with his hands. He also pointed out that the whole thing had taken place very quickly and then he had to go help DC Danson.

[48] DC Prodeus agreed that Mr. Cassells-Watson’s hands were free for a couple of seconds as they were taking control of him, however, he disagreed with the suggestion that he did not believe that Mr. Cassells-Watson was armed. Rather, he explained that with his palms up, Mr. Cassells-Watson was indicating that he was not a threat. Once DC Da Silva went to help DC Danson, DC Prodeus took control of Mr. Cassells-Watson’s hands. His explanation was reasonable and consistent with the security footage.

[49] Mr. Fitzmaurice also put to DC Prodeus that it did not make sense that he went straight to Mr. Cassells-Watson’s waist and patted it down, when, given what Sgt. Blake had put over the radio, the most obvious place to search for a firearm was his hoody pocket. DC Prodeus repeated his testimony concerning the two-minute gap between Sgt. Blake’s last observations and when he saw the two men arrive at the gas station. His testimony was reasonable.

[50] I accept both officers’ explanations for why they did not grab Mr. Cassells-Watson’s hands once he was on the ground. As the security footage confirms, he was showing them his hands and indicating that he was compliant. Mr. Scott’s factum refers to this gesture as conveying submission at para. 45. In addition, for the seconds that followed, together, they had control of him. I also accept that both officers believed that Mr. Cassells-Watson might have a gun. I further accept DC Prodeus’s explanation for why he patted down Mr. Cassells-Watson at the waist.

The delay in transporting Mr. Cassells-Watson to the division to speak to counsel

[51] DC Prodeus informed Mr. Cassells-Watson of his right to counsel immediately upon detention and again upon arrest. He did so in summary fashion, without reading it formally from the back of a police notebook. His understanding is that police have a duty to implement the right to counsel as soon as practicable; to him, that means as soon as privacy can be afforded, absent any safety risks. While he was satisfied that Mr. Cassells-Watson understood what he was told, Mr. Cassells-Watson did not respond verbally. They took Mr. Cassells-Watson out of the kiosk at approximately 2:05PM. DC Prodeus asked him to identify himself and also asked him if he had a lawyer. He asked him this more than once. Mr. Cassells-Watson did not respond to either question. After five to 10 minutes, Mr. Cassells-Watson identified himself and gave the name of a lawyer. The parties have agreed that in doing so, Mr. Cassells-Watson asserted his right to counsel. At some point, Mr. Scott was allowed to call counsel using his own mobile phone, which an officer held for him. After the call, while handcuffed to the rear, he tried to snatch the phone from the officer and almost succeeded. As a result, an officer removed the SIM card from his phone and Mr. Cassells-Watson’s.

[52] The officers all indicated that a call for transport had been made quickly and that it was on its way; however, none of them knew who had placed the call or when. DC Prodeus expected transport to arrive quickly, within 10-35 minutes, since the division was nearby. At 2:27PM, he told Mr. Cassells-Watson that transport was on its way and that he would be able to contact counsel at the station, where his privacy could be ensured. At 2:43PM, transport arrived to take Mr. Scott to the division. At 2:56PM officers Stolf, Oliver, Da Silva and Blake left to go execute the warrants, leaving DCs Prodeus and Danson at the gas station. PC Cross and her partner arrived at 3:28PM. At 3:31PM, Mr. Cassells-Watson was placed in their vehicle and DC Prodeus read him his right to counsel from a police notebook on camera. At that time, Mr. Cassells-Watson’s girlfriend had arrived. DC Prodeus allowed Mr. Cassells-Watson to let her know that he was OK. A few minutes later, DC Prodeus returned to 110 Mornelle Court to help with the search.

[53] From approximately 2:10PM, when Mr. Cassells-Watson invoked his right to counsel, to 3:28PM, when the transport officers arrived, none of the officers contacted the station to inquire about the delay in transport or to see if anything could be done to expedite it. They had not received an explanation as to the delay. DC Prodeus felt that the delay was longer than expected, but “not incredibly unusual”; he has waited hours before. Det. Stolf explained that typically, they are told if there is going to be a delay. These days, it is difficult to get a uniform car even for the GGTF. As he put it, “cars have to come from somewhere.”

[54] PC Cross began her shift at 3:00PM. It is at that time that her sergeant told her partner and her to go pick up Mr. Cassells-Watson at 110 Mornelle Court. They arrived at 3:28PM. The drive took less than 10 minutes. The rest of the time was spent checking the car, preparing the in-car camera and dealing with their firearms. The direction to go to 110 Mornelle Court was an error. When they arrived, they were immediately told by one of the officers (Det. Stolf) to go to the gas station. The gas station is visible from the parking lot and the deviation added less than a minute.

[55] She had not yet been told when Mr. Cassells-Watson had been arrested. Usually, she asks when she arrives. In this case, she did not make a note of it. By 3:35PM, Mr. Cassells-Watson had been transferred to her custody and given his rights comprehensively. They left the gas station at 3:43PM because she decided to type in the information that the booking sergeant would require before leaving. This is because it is difficult to type properly when the car is in motion.

[56] They arrived at the sally port at 3:50PM and called in, as usual. They were next in line. The door did not open until 4:30PM. PC Cross did not make any inquiries about the delay. There must have been someone ahead of them that was taking time and there was nothing she could do about it. She would wait maybe 1.5 hours before calling in to inquire about such a delay.

[57] The booking was complete at 4:36PM and calls to Mr. Cassells-Watson’s counsel were made at 4:46 and 4:48PM.[4] Counsel called back and spoke to Mr. Cassells-Watson at 4:50PM.

[58] At no time, at the gas station or while waiting at the sally port, did Mr. Cassells-Watson ask any officer to let him speak to counsel.

V. ANALYSIS

Sections 8 and 9 – grounds for detention and use of force

[59] In cross-examination, Det. Stolf and others agreed that in a high crime area like Mornelle Court, an innocent young man could very well have his head on a swivel out of concern for his safety, and that what was transferred in a one-way exchange like the one that took place between Mr. Cassells-Watson and Mr. Scott could have been something benign, like a pack of cigarettes. All of this is true, but it ignores the totality of the circumstances known to Det. Stolf and the relatively low standard required for reasonable suspicion. I have no trouble finding that, based on the totality of the circumstances, Det. Stolf had a reasonable suspicion that Mr. Cassells-Watson was implicated in or connected to a criminal activity that was under investigation. Mr. Fitzmaurice is understandably concerned that someone who is seen having a brief interaction with a legitimate police target will be suspected by association and deprived of their liberty. But that is not what happened in this case. Mr. Scott was on a release on firearm and drug charges and reasonably believed to be in possession of a firearm on his person. When he left Mr. Cassells-Watson to return to the building, Mr. Cassells-Watson engaged in excessively vigilant behaviour that was consistent with counter-surveillance. Then, Mr. Cassells-Watson returned and transferred something to him, which he immediately pocketed. Those factors go well beyond suspicion by association. Seen in context, the exchange looked like an illicit hand-to-hand transaction. What is more, it was pivotal. As Det. Stolf explained, without it, he may not have called for Mr. Cassells-Watson’s detention at all. I accept that he saw things that way, and in my view, his decision was entirely reasonable.

[60] As I indicated above, I accepted DC Da Silva’s testimony that his initial intention had been to bearhug and pin Mr. Cassells-Watson against the counter. Mr. Cassells-Watson’s reaction, which DC Da Silva reasonably believed was the beginning of an attempt to evade him, led to an increase in the use of force to the point that Mr. Cassells-Watson was taken to the ground. Mr. Fitzmaurice argued that even had DC Da Silva’s original intention been carried out, it amounted to an excessive use of force akin to an arrest and was, therefore, a violation of Mr. Cassells-Watson’s s. 8 and 9 rights.

[61] It is not at all clear that the detention that DC Da Silva envisaged would have amounted to a de facto arrest. On the facts of this case, the detention lasted one minute. At that time, Mr. Cassells-Watson was not yet in handcuffs.

[62] Be that as it may, the real question here is whether the use of force that DC Da Silva intended to use was reasonable. The parties approached this question, and the issue of the pat-down, as though both were premised only on Det. Stolf’s stated grounds. Mr. Fitzmaurice focused on the fact that Det. Stolf testified that although he could not rule out a firearm, he felt that what had been transferred was “probably drugs.” Moreover, no officer testified that a pat-down search required reasonable and probable grounds.

[63] Articulating reasonable and probable grounds can be difficult and officers, who are not lawyers, are not required to pronounce magic words when they do so: see R. v. Clarke, [2000] O.J. No. 804 at para. 13 (S.C.J.). Trial judges can infer that an officer had the requisite subjective grounds to arrest based on a fair reading of their evidence: ibid; see also R. v. Hall (1995), 22 O.R. (3d) 289, at para. 36 (C.A.). What is more, in relation to the requisite objective grounds, the reviewing court is not limited to what the officer articulated in court; what must be considered is the totality of the circumstances: see R. v. Censoni, [2001] O.J. No. 5189 at paras. 55-56 (SCJ). This includes all facts and circumstances reasonably known to the officer at the time they formed their grounds: see R. v. Yi, [2006] O.J. No. 1315 at para. 20; R. v. Singh, [2006] O.J. No. 5133 at para. 43 (S.C.J.) and R. v. Fyfe, 2023 ONCA 715 at paras. 54-63.

[64] In a dynamic investigation like this one, involving several officers, it is expected that each of them may be forming their own grounds as the circumstances evolve. As the Court of Appeal recently wrote in Fyfe, supra, at para. 53:

… the evidence of subjective grounds for an arrest does not necessarily come from a single officer. An arrest may involve multiple officers, and occur in a dynamic situation as new information rapidly comes to light. The evidence of various officers may, as in this case, be contradictory in certain respects. As such, evidence about the subjective grounds for arrest may come from one or more officers and other sources, including the surrounding circumstances. [Internal citations omitted.]

In my view, the same must be true where the question is the existence of a reasonable suspicion.

[65] On a fair reading of the evidence, one could easily come to the conclusion that Det. Stolf and DCs Da Silva and Prodeus subjectively suspected that Mr. Cassells-Watson was in possession of a firearm, some of which can fit in the palm of one’s hand. The real question is whether, based on all the circumstances, such a suspicion was reasonably founded. On this record, a judge may very well find that it was.

[66] However, given how the parties approached the issue, I will limit my analysis to Det. Stolf’s stated basis for ordering Mr. Cassells-Watson’s detention. This requires consideration of all the circumstances. Those must include the intended arrest of Mr. Scott on the reasonable belief that he was in possession of a firearm when, minutes earlier, he had transferred something to Mr. Cassells-Watson in what looked like an illicit hand-to-hand transaction after returning from a place in which the police had reasonable and probable grounds to believe there was a firearm. Det. Stolf suspected that that “something” was “probably drugs.” Based on his experience, he knew that both sides of a drug transaction can be armed. The circumstances also must include the fact that the arrest of Mr. Scott took place a few feet from Mr. Cassells-Watson, in a gas station kiosk with customers milling about. Lastly, the circumstances include 50 years of combined and extensive on-the-job experience of Det. Stolf and Sgt. Blake.

[67] Viewed in context, Mr. Cassells-Watson’s intended detention would have been executed with a reasonably necessary amount of force. The additional force that was in fact applied was reasonably necessary because of the concern that he was going to flee. As such, the detention did not violate his s. 9 Charter rights.

DC Prodeus’s pat-down search of Mr. Cassells-Watson

[68] Mr. Fitzmaurice submitted that MacDonald cleared up the law and embedded into the criminal law a requirement that a search incident to investigative detention can only be performed based on reasonable and probable grounds to believe in the existence of an imminent risk to officer or public safety. He added that this has been “indisputably the law for 10 years.” For her part, Ms. Josic simply submitted that a pat-down search incident to investigative detention is permitted.

[69] With respect, there is nothing indisputable about what the MacDonald majority said in this regard. McGuffie, Buakaska, Aim and Buffong, supra, are evidence of an ongoing debate about that very issue. At the same time, this much is clear: an investigative detention does not import a right to conduct a safety search in each and every case.

[70] If one steps back for a moment and looks at the big picture, the situation in that gas station kiosk was clearly fraught with danger at the time of Mr. Scott’s arrest. Danger to the officers, to the customers and to Messrs. Scott and Cassells-Watson. Based on the state of the law, it would be open to find that the pat-down search, which was conducted quickly and no more invasively than required, was warranted in the circumstances.

[71] Basing my analysis of DC Prodeus’s pat-down search on Det. Stolf’s stated grounds is proving to be more artificial as DC Prodeus was clear that he suspected that Mr. Cassells-Watson was in possession of a firearm and that the situation was rife with safety concerns. What is more, Det. Stolf could not have known that DC Da Silva felt that Mr. Cassells-Watson had tried to evade him. This could only have reasonably added to DC Da Silva’s concerns.

[72] However, if I confine my analysis to Det. Stolf’s stated grounds, his testimony that a legitimate investigative detention entails permission to search for weapons, his suspicion that the object that had been transferred was “probably drugs,” and assume that his inability to “rule out” a firearm does not rise to the level of a reasonable suspicion, then I must come to the conclusion that the pat-down was not based on the appropriate subjective legal standard, whether it is the one attributed to the ruling in Mann or to the majority’s in MacDonald. It would therefore constitute a violation of Mr. Cassells-Watson’s s. 8 rights to be free from unreasonable search and seizure.

Section 10(b) – delayed implementation

[73] Mr. Fitzmaurice does not argue that the officers should have let Mr. Cassells-Watson speak to counsel from the scene or that they should have transported him in their unmarked van,[5] and there is no plausible argument that they should have had a uniform car accompany them all day in the event of an arrest. His position is that, knowing that they could not transport Mr. Cassells-Watson themselves and that this would inevitably lead to some delay, the officers were all under an obligation to ensure that it was done as quickly as possible. Here, the delay was both lengthy and unaccounted for.

[74] Ms. Josic argues that the officers at the gas station acted reasonably by quickly calling for transport. Their inaction during the delay was reasonable given that they expected that transport would arrive relatively quickly. As for the sally port, there was nothing that PC Cross could have done but wait. As a result, the total delay was accounted for and reasonable.

[75] No one was able to say who called for transport or exactly when. What is known is that it must have been by 2:35PM, because transport arrived for Mr. Scott at 2:43PM. If the officers waited until 2:35PM, the 30 minutes or so that they waited is not accounted for and is unreasonable. On the other hand, if they called earlier (as I am inclined to believe), then the delay between that time and 3:00PM, when the station sergeant told PC Cross to go pick up Mr. Cassells-Watson, is not accounted for. If someone at the station had been dispatched closer to 2:10PM, then it is reasonable to expect that they would have arrived at the scene between 2:45 and 3:00PM. That delay would have been reasonable and accounted for. The additional period until 3:28PM has not been accounted for and cannot be said to have been reasonably necessary.

[76] While the arrival of Mr. Scott’s transport certainly indicated that the wheels were in motion, neither DC Prodeus nor DC Danson took it upon himself to inquire about the delay, which exceeded an hour. Based on the evidence of the officers, it is a fair conclusion that they had become resigned to such delays. This resignation, in turn, led DCs Danson and Prodeus to adopt a lackadaisical attitude in which they would not act unless the delay became much lengthier.

[77] While the same could be said about PC Cross’s attitude, I reach a different conclusion about the delay at the sally port. The GTA is a very busy jurisdiction. I am satisfied that I can infer that the booking hall or the sally port were occupied and that, as a result, Mr. Cassells-Watson had to wait his turn. What is more, there are good reasons for prisoners to be admitted and booked into police stations in this way; these include safety: see R. v. Lee, 2023 ONSC 1332 at para. 19, citing R. v. Desilva, 2022 ONCA 879 at paras. 77 and 79. This part of the delay was accounted for and was reasonable.

[78] I make little of the eight minutes that PC Cross spent on the front end entering the information into the computer before leaving the gas station. It was required for the booking process one way or the other.

[79] As a result, I find that the Crown has failed to account for 30-45 minutes of the time it took to implement Mr. Cassells-Watson’s right to counsel. This constituted a breach of Mr. Cassells-Watson’s s. 10(b) rights.

Section 24(2) – whether the evidence should be admitted

[80] It is clear that the firearm was discovered “in a manner” that breached Mr. Cassells-Watson’s s. 8 rights. It is less clear that it was discovered in a manner that breached his s. 10(b) rights. This aspect of the case was not argued by the parties. However, for the sake of this analysis, I will assume that it was.

[81] Section 24(2) of the Charter allows a court to exclude evidence where admitting it would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32 at paras. 68-70, the Supreme Court explained this concept.

The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[82] I must consider three factors: (1) the seriousness of the violations; (2) the impact of the violations on the accused's Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits: ibid, at para. 71. The focus must be on the long-term and prospective effect of a remedy or lack of remedy. The Supreme Court of Canada’s decision in R. v. Le, 2019 SCC 34 also provides important guidance. At para. 141, the majority provided the following explanation of the interplay between the Grant factors:

While the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion. More particularly, it is not necessary that both of these first two lines of inquiry support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. Of course, the more serious the infringing conduct and the greater the impact on the Charter-protected interests, the stronger the case for exclusion (R. v. McGuffie, 2016 ONCA 36, at para. 62). But it is also possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion.

Seriousness of the Charter-infringing conduct

[83] This stage is focused on whether the Court must dissociate itself from the police conduct in order to “preserve public confidence in the rule of law and its processes”: Grant, supra, at para. 73. To determine this, I must locate the police conduct on a spectrum of seriousness. In doing so, I must not compartmentalize the breaches. Rather, I must consider them together to ensure that the view I take of their seriousness is not distorted: see R. v. James, 2015 ONCA 213 at paras. 36-40. In that case, the Ontario Court of Appeal explained that, while the judges of the Supreme Court of Canada in R. v. Zacharias, 2023 SCC 30 were divided on the impact of consequential breaches on the first Grant factor, the majority agreed that a pattern of Charter breaches can increase the seriousness of the Charter-infringing conduct.

[84] The officers were wrong in their apparent belief that investigative detentions entail safety searches. This is concerning, given their level of experience. However, I do not see this as rising to a systemic concern. Also, in the context of this case, the pat-down was either objectively justified based on the totality of the circumstances or, if it was not, the circumstances came extremely close to justifying one. What is more, it cannot be said that the law is settled when one tries to apply it to the circumstances of this case. The pat-down was momentary and went no further than what would have been necessary to satisfy safety concerns. If the pat-down pulls in favour of exclusion, it does so with minimal force.

[85] I do not see a problem in DC Prodeus’s testimony that the right to counsel must be implemented “as soon as practicable” instead of “immediately”; he explained that it means as soon as privacy can be afforded, absent any safety risks. His language and understanding are consistent with the authorities: see Keshavarz, supra, and R. v. Samuels, 2024 ONCA 786 at para. 37. However, DCs Danson and Prodeus’s lackadaisical approach to the delayed arrival of the uniform car is a real concern. Their initial expectation that things would go quickly may have been reasonable for a period, particularly when transport arrived for Mr. Scott within a reasonable time. But at some point, officers are under an obligation to confront the reality of the situation and they failed to do so. When seen in combination with the 30-minute delay, this conduct is moderately serious and would pull towards exclusion with commensurate force.

[86] In considering the seriousness of the breaches in the aggregate, no pattern can plausibly be said to emerge. The cumulative effect of the Charter-infringing conduct favours exclusion to a moderate degree at most.

Impact of the breach on Mr. Cassells-Watson’s Charter-protected interests

[87] In R. v. Tim, 2022 SCC 12 at para. 90, the Supreme Court of Canada wrote that this line of inquiry considers the impact of the breach(es) on the accused's Charter-protected interests and asks whether the breach “actually undermined the interests protected by the right infringed.” I must identify “the interests protected by the relevant Charter rights” and evaluate “how seriously the breaches affected those interests.” As with the first line of inquiry, I must then “situate the impact on the accused’s Charter-protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed.” As the Court explained,

[t]he greater the impact on Charter-protected interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. This is because “admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.”

[88] The interests protected by s. 8 in this case were Mr. Cassells-Watson’s privacy and to some degree, physical integrity. The interests protected by s. 10(b) were his interests in being able to consult counsel in private as soon as reasonably practicable, in ensuring that he had a lifeline to the outside world and in knowing that he was not entirely at the mercy of police while detained.

[89] Pat-down searches are relatively non-invasive procedures. In this case, it was conducted very quickly and went no further than necessary. On its own, its impact on Mr. Cassells-Watson’s Charter-protected interests was on the low end of the spectrum. Of course, it led to the discovery of a firearm and his subsequent arrest. This increases the seriousness of the impact on his Charter-protected interests.

[90] The same cannot be said about the s. 10(b) breach. At no time did Mr. Cassells-Watson so much as ask to speak to counsel during his detention. His rights were explained to him three times, and he was told that he would have access to counsel once he was brought to the station where he could speak privately. He knew that his girlfriend understood that he was in police custody. The officers did not try to obtain evidence from him during the delay, and he did not inadvertently self-incriminate. The impact on Mr. Cassells-Watson’s s. 10(b) rights occasioned by delayed implementation was minimal.

[91] In sum, I would describe the impact on Mr. Cassells-Watson’s Charter-protected interests as falling somewhere between moderate to serious. As such, this factor pulls toward exclusion of the evidence with a degree of force that is somewhere between moderate and strong.

Society’s interest in adjudication on the merits

[92] This line of inquiry is concerned with the reliability of the evidence and its importance to the Crown’s case. The question is “whether the truth-seeking function of the criminal process would be better served by admission of the evidence, or by its exclusion”: see Grant, supra, at para. 79. Reliable and critical evidence generally pulls toward inclusion. That said, this factor cuts both ways and ought not be permitted to overwhelm the analysis: see R. v. Harrison, 2009 SCC 34 at para. 34; Grant, supra, at para. 84; and R. v. Paterson, 2017 SCC 2 at para. 55. As the Court stated in Grant, “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious … it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”: ibid.

[93] Here, the firearm is reliable evidence. Without it, the Crown’s entire case against Mr. Cassells-Watson would be gutted. Firearms offences are among the most serious, and they are a plague in the GTA. The public has an extremely strong interest in the prosecution of such cases on their merits. All the more so when they involve persons who are carrying concealed and loaded handguns in public. Such persons “pose a real and immediate danger to the public”: see R. v. Morris, 2021 ONCA 680 at para. 68.

[94] This factor clearly and strongly favours admission of the evidence.

Balancing

[95] The balancing exercise does not lend itself to mathematical precision. The question is whether, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute in the long term. I find that the admission of the evidence in this case would not have a significant or lasting impact on the repute of, and the public’s confidence in, the administration of justice.

[96] With respect to the Charter-infringing conduct, the s. 8 issue was a very close call. The s. 10(b) breach was more serious, but it was not deliberate, and no evidence was sought or obtained in relation to it. Together, the breaches did not disclose a pattern or systemic concerns. I do not believe that the conduct, seen as a whole, calls upon the Court to dissociate itself from it to maintain the public’s confidence in the rule of law.

[97] As I have explained, the second line of inquiry pulls more strongly in favour of exclusion. However, I find that, on balance, the sum of the first and second factors is outweighed by society's interest in the truth-seeking function of a trial on the merits.

VI. CONCLUSION

[98] For these reasons, the application is dismissed, and the evidence is admissible against Mr. Cassells-Watson.

Released: April 22, 2025
Justice P.F. Band

[1] Particularly paras. 15-18 of the Garofoli reasons.
[2] See also Rover, supra, at paras. 26-28.
[3] This was not entirely clear based on the software he had used and the way it was presented.
[4] The voicemail box of the first number was full and a second number was found on the internet.
[5] Such vans are not equipped with cameras or dividers and are unsuitable for transporting detainees.