R. v. Bonsu, 2025 ONCJ 727

ONTARIO COURT OF JUSTICE

CITATION: R. v. Bonsu, 2025 ONCJ 727

DATE: May 8, 2025

COURT FILE No.: Brampton 998 23 31111153

BETWEEN:

HIS MAJESTY THE KING

— AND —

GIDEON BONSU

Before Justice G.P. Renwick

Heard on 01 and 02 May 2025

Reasons for Judgment released on 08 May 2025

K. Holmes................................................................................... counsel for the prosecution

C. Levien........................................................... counsel for the Defendant Gideon Bonsu

RULING ON APPLICATION UNDER SS. 9 and 10(b) OF THE CHARTER

RENWICK J.:

INTRODUCTION

1The Defendant is charged with six firearms offences in relation to a loaded, prohibited firearm found in his pants pocket during a traffic stop on 09 October 2023. The prosecution proceeded by indictment and the Defendant chose to have a trial in the Ontario Court of Justice.

2Prior to trial, the Defendant brought a written Charter Application alleging violations of his ss. 9 and 10(b) rights.¹ The parties agreed that the evidence on the Charter Application could run concurrent to the trial proper, during the prosecution’s case.

3The parties also agreed that the outcome of the Charter Application would be determinative of the trial result: If the Defendant succeeds under s. 24(2) of the Charter, the evidence obtained from the search of the Defendant will be excluded and he will be acquitted. Conversely, if the firearm found by police is admissible, the Defendant may be found guilty.

THE EVIDENCE

General Considerations

4In this part, I will outline some of the evidence with references to specific portions of the testimony and other evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, I have reviewed the exhibits, I have had access to the digital record of the proceedings, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

5I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to consider the testimony heard, to review the exhibits, and to re-play parts of the video evidence or the digital audio recording of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, despite any exchanges with counsel during submissions, I came to no conclusions about any of the evidence received until all of the arguments were made and my review of the evidence was complete.

The Police Testimony and other Evidence

6Police Constables (“P.C.”) Alex Ahn, Chris Bazinet, and Brendon Rodriquez testified for the prosecution. The body-worn camera footage of officers Ahn, Deng, Bazinet, and Rodriguez became exhibits 1A, 1B, 1C, and 1D, respectively.

7P.C. Ahn was the main prosecution witness. Given the significance of P.C. Ahn’s testimony in determining the s. 9 Charter Application, I will concentrate on this evidence, almost exclusively in this part.

8This officer testified about his interactions with the Defendant. This witness testified about his first observations of the Defendant and why he chose to conduct a traffic stop of the Defendant’s vehicle² minutes later. The traffic stop and the officer’s reason for detaining the Defendant is squarely in issue.

9P.C. Ahn testified that at the time of this incident, he was a police officer for approximately two years. This case was the officer’s first time testifying in criminal court.

10On the morning in question, P.C. Ahn was on general patrol. He was responding to radio calls for service and patrolling for “deterrence” of offences under the Highway Traffic Act or “possible” impaired drivers. For this reason, he was equipped with an approved screening device (“ASD”) in his police cruiser.

11P.C. Ahn testified that he was in the area of the Midway Invader strip club, a liquor licensed establishment, around closing time, to deter patrons from driving while impaired by alcohol. He first encountered the Defendant upon entering the parking lot for the club. The Defendant was standing outside next to a female who was seated in the driver’s seat of a Mercedes vehicle. P.C. Ahn had never met the Defendant prior.

12The officer testified that as he drove past, he interacted with the unknown male and female. He asked what they were doing and if they had come from the strip club. P.C. Ahn testified that the Defendant answered, “I am here to pick up my girlfriend,” who the officer assumed was the female in the driver’s seat of the Mercedes. The officer then asked if the female had anything to drink. He testified that he asked the question to “both” the male and female and the male answered, “no,” while the female shook her head from side to side. P.C. Ahn told them to have a good night and continued into the parking lot.

13P.C. Ahn told the court that this brief interaction was cordial and momentary. Once he was satisfied that the driver had not been drinking, he let two proceed on their way. This interaction was not recorded on the officer’s body-worn camera (“BWC”). It was a very brief encounter and the officer never left his cruiser, so he did not activate his BWC.

14As he drove away, P.C. Ahn saw in his rear-view and side mirrors that the Defendant walked away from the Mercedes and entered another vehicle. The officer then saw the Mercedes and the other car drive out of the parking lot. P.C. Ahn found this odd. He wondered whether the male had misrepresented the nature of the relationship between the parties. He turned his cruiser around and like he had done with the female driver, he decided to stop the male driver for a sobriety check.

15The officer was candid that once he saw the license plate for the Hyundai driven by the male, he queried the plate on his police computer and learned that the vehicle was a rental car. When asked if he had queried the license plate of the Mercedes, P.C. Ahn testified that he had.

16Approximately 50m from the driveway to the strip club, P.C. Ahn and two other police vehicles performed a “tandem stop” of the Defendant in the Hyundai. Officers Deng and Bazinet were the other officers involved in the traffic stop. P.C. Ahn had not called for the other officers to assist in the traffic stop, he just did it, “and they followed [him].”

17P.C. Ahn explained that a tandem stop is a common practice used to pull over vehicles for sobriety checks, given that some motorists may try to flee from police when they have been drinking alcohol. With one or two other police vehicles, the police can position their cruisers so that the target vehicle has no choice but to pull over.

18Once he approached the driver (the Defendant), P.C. Ahn indicated the reason for the traffic stop and he asked for the usual documents (license, ownership, and insurance). The officer found it odd that the driver asked to get his jacket from the back seat, which he then draped over his right leg, but none of the requested documents were located in the jacket. At first, P.C. Ahn thought that the driver may be impaired [by alcohol]. Also strange to the officer, the Defendant was on his hands-free phone in the car, speaking to his “lawyer.” He knew this because the contact for the person on the other end of the phone call said, “lawyer” on the vehicle’s display monitor, and the Defendant advised him that his lawyer was on the phone. P.C. Ahn did not believe that it was the Defendant’s lawyer given the time of day (after 2:00 a.m.), so, he advised the Defendant to end the call. This request was ignored, but the officer did not insist.

19The officer took the driver’s license and requested the rental agreement and other documents as he left to query the license in his cruiser. Once there, he observed that P.C. Deng moved into the spot he had been, closest to the driver. He called P.C. Deng over, because he was a newer officer, and told him to be cautious, to watch P.C. Bazinet, and to observe that P.C. Bazinet had his hand near his firearm, to be ready in case things went “bad.”

20At his computer, P.C. Ahn learned that there was a caution for the Defendant as “armed and dangerous.” At this point his senses were heightened and he wanted to alert his partners about the caution he had seen for the driver. P.C. Ahn also testified about his conversation with the Defendant and why he had not left with the female in the parking lot. When that female called the Defendant, P.C. Ahn testified that he permitted the Defendant to speak to her because “she was waiting for him” and he believed that she had a reasonable right to know what was happening with the Defendant.

21During this encounter, P.C. Ahn eventually saw P.C. Bazinet make a gesture that he took to mean the other officer could not see the Defendant’s right leg or the centre console area. At this time, the Defendant’s jacket was still covering his right leg. P.C. Ahn asked the Defendant to move his jacket to the rear several times before the Defendant complied. The officer testified that when the Defendant reached back to put the jacket into the rear seat, he observed the bulge in the Defendant’s right front pant pocket and what he believed was the “butt” of a gun. He was 100% certain of this.

22P.C. Ahn next moved to the passenger side of the Hyundai to advise P.C. Bazinet of his observation. He whispered, “firearm right pocket” to P.C. Bazinet.

23At this point, P.C. Ahn testified that the sobriety check had become an investigation into an unauthorized possession of a firearm. When asked if he had alerted his dispatcher of his belief that the driver had a firearm, P.C. Ahn testified, no. When asked if he had advised the Defendant what he had seen, he said, “no, especially not [him].” His rationale was that he did not want to alert the Defendant to the fact that he knew that the Defendant was armed. He felt this would “jeopardize officer safety.” P.C. Ahn explained, if the Defendant became aware that the police knew he was armed, it may “escalate” the situation to where multiple firearms would be drawn.

24P.C. Ahn then testified that he decided to use “trickery” to lure the Defendant out of his vehicle safely. He decided to tell the Defendant that he smelled alcohol and he would be administering a roadside breath screening with an ASD. This way, once the Defendant stepped out of his car he could be safely apprehended without an escalation of the situation. Unfortunately, around this time, P.C. Rodriguez returned from another traffic stop and while looking inside the car on the passenger side, he saw the Defendant’s firearm and yelled, “gun, gun, gun,” pursuant to his training, and drew his own firearm. P.C. Ahn then dove into the car to hold onto the Defendant’s right arm and quickly remove the Defendant from his car. The officers tussled with the Defendant on the ground and even tasered him twice until he was subdued and handcuffed and the loaded, sub-compact firearm³ was safely retrieved.

25P.C. Ahn arrested the Defendant at 2:43 a.m. and provided him with his rights to counsel at 2:49 a.m. In between those times, P.C. Ahn testified that he continued to restrain the Defendant and he “paused” the whole situation as other officers were arriving on scene. At 3:08 a.m., P.C. Ahn called the Defendant’s counsel of choice and from 3:09 a.m. until 3:49 a.m. the Defendant spoke in private with Mr. Levien while in the back of the police car. The Defendant was re-read his rights to counsel at 4:36 a.m. at the police station and again spoke with Mr. Levien from 4:43 a.m. until 4:49 a.m.

26Cross examination focused on several areas, including:

i. Whether the officer was certain which side of the Mercedes the Defendant stood while speaking with the female driver;

ii. What was discussed during the initial interaction with the Defendant and the female driver;

iii. Whether the officer was telling the truth about this being a sobriety check versus an investigation into some other type of criminal activity;

iv. Whether the officer held conscious or unconscious bias against young black men and his awareness of whether they are stopped by police disproportionately because of their race;

v. Whether the officer could have asked for the name of the “lawyer” to research if he was actually a lawyer;

vi. Whether the officer was “entitled” to tell a motorist to discontinue a call with counsel during a traffic stop;

vii. How many officers can be involved in a tandem stop;

viii. Whether the officer thought the Defendant and the female may be discussing sexual services for money, or he was her pimp;

ix. How he wrote his notes and who he spoke with before adding to his notes; and

x. Whether the officer became suspicious of the Defendant before seeing him get into the Hyundai.

27Much of the other police testimony confirmed the evidence given by P.C. Ahn. For instance, P.C. Bazinet was clear that they were in the area to deter patrons leaving a licensed establishment from driving after they had been drinking. P.C. Bazinet also confirmed that he simply followed P.C. Ahn and activated his emergency lights and became involved in the traffic stop once he observed P.C. Ahn pulling over the Defendant. To a lesser extent, P.C. Rodriguez also corroborated the reason for police presence in the area and the rule that officers assist each other for purposes related to officer safety.

28As well, the BWC footage of all four officers tended to support the testimony of the prime prosecution witness. P.C. Ahn is seen on P.C. Deng’s BWC footage communicating his belief that the driver was armed: at 4:45 of exhibit 1B, P.C. Ahn tries to get P.C. Bazinet’s attention and he is seen tapping his firearm several times. Also, P.C. Ahn is heard telling P.C. Bazinet, “firearm right pocket.” Lastly, at 1:34 of P.C. Rodriguez’ BWC video, a black object is visible inside the Defendant’s right pant pocket.

29Although I was initially skeptical of the testimony of both officers Ahn and Rodriguez respecting their claims to have seen the handgun inside the Defendant’s pocket, exhibit 1A clearly shows the bulge of the object from P.C. Ahn’s vantage point and exhibit 1D confirms that a black object can be seen by P.C. Rodriguez. Moreover, P.C. Deng’s BWC footage clearly shows P.C. Ahn moving around and getting a view of the Defendant from different angles. The Defendant was also moving around as he placed his jacket into the backseat. I have no doubt that P.C. Ahn may have been influenced by having learned of the police caution in respect of the Defendant, but his observations were not challenged or proven inaccurate during his testimony, and I accept this evidence as truthful.

ANALYSIS

30The Defendant applied for Charter relief. The Applicant has the onus to establish his allegations on a balance of probabilities. If the Defendant’s Charter rights have been violated, the exclusion of evidence is not automatic. In order to have the seized contraband excluded from his trial, the Defendant must establish that it is more likely the case than not that the admission of this evidence in the circumstances of one or more Charter violations would tend to bring the administration of justice into disrepute.

Credibility and Reliability Generally

31This case involves various first-hand accounts and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of a witness’ testimony.

32A valuable means of assessing the credibility of any witness is to examine what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

33Triers of fact must consider both credibility and reliability in determining the facts in a given case. Credibility is shorthand for truthfulness and believability. Reliability is the lens through which one evaluates the accuracy of evidence. Trial judges must be careful not to conflate credibility with reliability otherwise the fact-finding net might entangle even the least reliable piece of evidence.

34It is important to remember that in some cases credibility takes a back-seat to reliability. For example, there are prosecutions where the suspect is unknown to the complainant and the latter may be honestly mistaken about the identity of the perpetrator. In such a case, reliability concerns govern the analysis because credibility does not guarantee accuracy. Credible witnesses can be mistaken or otherwise inaccurate. Thus, credibility is not a proxy for reliability.⁴

35Where witness testimony is highly credible, consistent, plausible, not inconsistent with other evidence, not found to be the product of bias or motive, largely undisturbed upon a vigorous cross-examination, and not found to be otherwise unreliable, truth and accuracy are likely established.

36Assessments of credibility and reliability can be the most important and challenging judicial determinations in a criminal trial. Our highest court has reminded us:

Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’.” With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’ testimony.⁵

37Judicial fact-finding is often based on inductive reasoning and evaluations of “probable interpretations of the evidence.”⁶ It necessarily depends on common-sense inference-drawing.⁷ To again quote the Supreme Court:

Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.⁸

There Was No Violation of S. 9 of the Charter

38Initially, through his factum, the Defendant argued that his s. 9 Charter right was violated when the police detained him and prolonged his detention by asking him questions. During submissions, the s. 9 Application morphed into an allegation of racial bias or unconscious bias and arbitrary detention. No issue was taken by the prosecution with the revised focus of the inquiry and there was no suggestion that the prosecution was unable to respond to the actual thrust of the s. 9 Application.

39A s. 9 claim has two parts: was there a detention, and was it arbitrary. As with other constitutional freedoms, the Supreme Court has adopted a purposive approach that seeks to balance individual autonomy and freedom from unjustified restrictions on liberty with effective law enforcement.⁹

40During submissions, the Defendant also raised, for the first time, that he had been detained when P.C. Ahn conversed with the Defendant and Ms. Moradi in the parking lot.

41Despite the Defendant’s submissions, I am not satisfied that it is proven that the initial interaction in the parking lot created a detention. Police are entitled to interact with motorists for a variety of reasons (check sobriety, vehicle registration, insurance, roadworthiness, and license status). Not every interaction with the police is a detention. In R. v. Suberu, the Supreme Court made this clear:

…not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual's right to counsel under s. 10(b). As Iacobucci J. aptly observed, "[t]he person who is stopped will in all cases be 'detained' in the sense of 'delayed', or 'kept waiting'. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint" (para. 19).¹⁰

42I cannot agree that the Defendant was detained at all during this brief encounter with police. First, I accept P.C. Ahn’s testimony that he was not investigating the Defendant. He stopped to inquire into the female motorist’s sobriety. This was not unreasonable and it was exactly what happened. Second, there was no suggestion that the officer’s questions required the Defendant to answer. Third, there is no evidence that the Defendant felt detained. Although psychological detention can arise in brief police encounters, there is no evidence to suggest that this brief, friendly encounter was at all intimidating, or uncomfortable for the Defendant. I have no idea of his age or familiarity with police interactions, however, the Defendant is observed on the BWC footage to be confident, knowledgeable of his rights (when told to exit his car for the ASD sampling he says, “don’t I have to blow something”), and comfortable asking questions or making requests (for his jacket, for instance). In these circumstances, there is not even a scintilla of evidence to suggest that he was psychologically detained when P.C. Ahn first arrived.

43In respect of the traffic stop, the parties agreed that once the Defendant pulled his vehicle over, he was detained. The larger question is whether it is proven on a balance of probabilities that P.C. Ahn detained the Defendant for an improper (arbitrary) purpose.

44I am not satisfied on a balance of probabilities that the traffic stop of the Defendant was motivated by conscious or unconscious bias or anti-black sentiment for the following reasons:

i. P.C. Ahn left the female driver and the Defendant shortly¹¹ after a cordial, professional interaction about the female’s sobriety. If he were truly suspicious of some undefined criminal activity, it would have been counter-intuitive to leave the couple to proceed on their way. It also defies credulity that the detention of someone suspected to be a pimp, or someone possibly soliciting sexual services, would yield any evidence of this criminality;

ii. P.C. Ahn immediately turned his vehicle around and began to follow the Defendant once he observed the Defendant get into a different vehicle. I find as a fact that the Defendant’s vehicle was stopped within a short distance (50m) of the driveway of the strip club. This evidence supports the officer’s testimony respecting the reason for the traffic stop, close in time with the officer’s concerns for the male driver’s sobriety;

iii. P.C. Ahn was candid that he had discovered that the Defendant was in a rental vehicle before he approached the Hyundai. The fact that the officer knew that the vehicle was rented, could found a suspicion that the officer was concerned with unspecified criminal activity, however, the officer was candid about this knowledge. Furthermore, he had already made the decision to stop the Hyundai before he learned that it was a rental;

iv. P.C. Ahn was quick to advise the Defendant of the reason for the traffic stop and it was consistent with his testimony – he had observed the Defendant leaving the strip club [property], which is a licensed establishment, and he was unaware whether the Defendant had been drinking;

v. At the five minute mark of his BWC footage, after confirming the Defendant’s identity on his police computer, P.C. Ahn asked the Defendant whether he had “nothing to drink in there [the strip club].” In response to the claim that the Defendant had gone there to pick up his girlfriend, he followed up by asking “how come you’re not leaving with her.” This evidence is consistent with his earlier indication of a sobriety check and it aligns with the officer’s notes and his testimony about his suspicions from his prior contact with and observations of the Defendant (leaving separately from the female);

vi. The BWC footage proves that P.C. Ahn was respectful of the Defendant at all times when dealing with him. Though the officer asked Mr. Levien to end their phone call, he did not insist on this. Also, when the Defendant’s girlfriend called, and the Defendant asked the officer if he could answer the phone, P.C. Ahn said, “yeah, ya;” and

vii. The police testimony was consistent that the purpose for their presence in the area of the strip club, a liquor licensed establishment, at that time of night, was the deterrence and investigation of driver insobriety. This is also plausible in light of the juniority of P.C. Ahn and his partners and consistent with their role as patrol officers; these were not drug or gang or morality investigators.

45I have also taken into account that P.C. Ahn was relatively inexperienced as a police officer that night. He was not a grizzled veteran who may have been trained at a time before racial profiling was deemed unacceptable. As a racialized individual, he may even have lived experience with anti-Asian sentiment. None of this means that he could not harbour unconscious bias or racist views, however, the likelihood of mala fides is reduced where there are no outward signs of disrespect, inarticulable concerns, prejudicial thinking, or subtle intolerance. The rationale offered for stopping the Defendant was entirely reasonable in the circumstances.

46I find that the traffic stop of the Defendant was not arbitrary. I accept as truthful and reliable the testimony of P.C. Ahn that once he saw the Defendant driving, he wondered whether the Defendant had misled him about picking up his girlfriend, possibly to obscure the fact that he had been drinking inside the club. I accept as truthful and reliable the reason offered by P.C. Ahn for the traffic stop of the Hyundai: to investigate the sobriety of the driver. This is an appropriate reason to detain motorists leaving licensed venues.

There was a Violation of s. 10(b) of the Charter

47In all, there are three periods of time where the Defendant alleged that his s. 10(b) rights were violated:

i. During the police interaction in the parking lot;

ii. While he was stopped in his car and speaking with his counsel; and

iii. After his arrest and prior to receiving both components of the right to counsel.

48In respect of the first concern, as indicated above, there was no detention when P.C. Ahn first spoke with the Defendant in the strip club parking lot. Thus, there was no necessity to provide the Defendant with his s. 10(b) rights.

49In respect of the second concern, the Defendant’s written Application asserted that his s. 10(b) right was violated when the police attempted to end his phone call with his counsel during the traffic stop. This complaint included the failure to provide the Defendant an opportunity to speak privately with his counsel while he was detained in his car. Counsel produced no jurisprudence to support the view that there is a right to speak to a lawyer during a traffic stop. To the contrary, it is well recognized that the police may suspend s. 10(b) rights during drink-driving investigations, which are supposed to be brief in duration.

50The third concern was meritorious. The Defendant was arrested at 2:43 a.m. and received the informational component of his rights to counsel at 2:49 a.m. His lawyer was called at 3:08 a.m. and they spoke from 3:09 a.m. until 3:49 a.m. In addition, the Defendant was also put in touch with his lawyer while he was at the police station.

51After his arrest, P.C. Bazinet testified toward the end of his evidence in chief that the Defendant had to be seen by the paramedics to safely remove taser barbs from him. Once that was completed, the Defendant was walked to P.C. Ahn’s cruiser, where he was patted down for any other contraband (“we double check, triple check to make sure there was nothing else”), before P.C. Ahn provided the rights to counsel. I do not find that there was any unacceptable delay in providing the informational component of the rights to counsel during the six minutes following the Defendant’s arrest.

52However, there was a further delay of 19 minutes before the police facilitated the exercise of the right to counsel (2:49 a.m. to 3:08 a.m.). There was no real explanation for this delay. I find that this 19 minute delay was not justified and as a result, I am satisfied on a balance of probabilities that this constituted a violation of s. 10(b) of the Charter.

Section 24(2) of the Charter ¹²

53Section 24(2) recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct by requiring a qualitative analysis of the long-term effect that tainted evidence could have upon public confidence in the justice system.

54To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach(es) on the Charter-protected interests of the Applicant; and

iii. Society’s interest in the adjudication of the case on its merits.

55The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is significant. The third factor “pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.”¹³

56It is also the case that the third factor can also pull in the opposite direction, requiring evidential exclusion, when the state conduct is so subversive of protected freedoms that the only way to protect public confidence in the administration of justice is to have the evidence excluded from the trial process.

The Seriousness of the Charter-Infringing State Conduct

57As our Court of Appeal has remarked:

…the evaluation of the seriousness or gravity of the offending state conduct focuses upon the level of fault of the breaching officers in the circumstances…The more serious the offending conduct, the more pressing the need for the court to dissociate itself from the fruits of that conduct.¹⁴

58Further, the seriousness of any breach is aggravated where the evidence establishes a systemic problem or a pattern of Charter non-compliance.¹⁵

Courts must view the matter holistically to determine if there circumstances that mitigate or exacerbate the offending state conduct and the level of state culpability.¹⁶

59Here, the violation was not explained. It is difficult on the evidentiary record to establish how avoidable was the 19 minute delay to facilitate the Defendant’s exercise of the right to counsel.

60The seriousness of this violation was somewhat attenuated by the quick decision to provide a cell phone and to permit the Defendant to speak again with Mr. Levien while in the back of the police car. He was certainly given an adequate period of time (40 minutes) to fully exhaust his s. 10(b) rights once police put him in contact with his lawyer. Moreover, the right was also exercised, briefly, at the police station.

61These extensions of assistance modulate the seriousness of the violation because they demonstrate the officer’s interest in complying with his obligation to facilitate contact with counsel. There is no suggestion that the police made any attempts to have the Defendant implicate himself during the pause before he was given an opportunity to exercise his s. 10(b) right.

62This mitigates the police misconduct and reduces the seriousness of the Charter breach to “low.”

The Impact of the Charter-Infringing State Conduct

63There are a number of factors that bear upon the impact of the Charter violation upon the Defendant’s fair trial rights: evidence discoverability, the absence of a causal link between the Charter breach and the evidence to be excluded, and the nature of the evidence itself. These considerations do not move the needle even incrementally toward excluding evidence in this case.

64Nonetheless, the decision not to facilitate the right to counsel in a timely way had a modest impact upon the Defendant. Though he would have been helpless, handcuffed in the back of a police car, waiting for the police to help him to exercise his right to counsel, the police did not elicit any incriminating statements or otherwise interfere with his bodily integrity during this delay.

Balancing Whether a Remedy is Required

65Our Court of Appeal has confirmed, “[t]he more important the evidence is to the Crown’s case, the greater the risk of disrepute from it’s exclusion.”¹⁷

66It must be remembered, however, that the third line of inquiry can cut both ways:

While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach.¹⁸

67There is no doubt that the firearm and ammunition are real pieces of evidence that existed independently of the Charter violation. This evidence is critical to proving the alleged offences. If the firearm and ammunition are excluded from the trial, the prosecution will disintegrate.

68The Charter violation is technical: the police provided the Defendant with the right to counsel, but they did not facilitate the exercise of this right in a timely way. The violation was mitigated by the good faith of the police, which was demonstrated by the efforts to facilitate contact with counsel in the back of a police car, and the provision of a second chance to speak to counsel back at the station.

69In the end, I do not believe that this factor requires exclusion in order to protect the integrity of the justice system and public confidence. All three of the Grant factors provide weak (if any) justification for the exclusion of real evidence. The interest in admitting the firearm and ammunition into evidence outweighs the requirement to exclude the evidence to maintain public confidence.

CONCLUSION

70Though I have found a minor Charter violation, I rule that the firearm and ammunition remain admissible in the trial.

71For these reasons, the Charter Applications are dismissed.

Footnotes

1. 1Interestingly, the first page of the Application (the table of contents) lists both Charter rights allegedly violated, while page 2 (Applicant’s Factum) did not refer to s. 9 of the Charter in the heading. This is consistent with para. 2, which only referenced s. 10(b). Paragraph 9, however, alleges that the “prolonged questioning” of the Defendant was problematic. Unfortunately, the factum does not disclose any actual s. 9 concerns beyond the questioning mentioned.
2. 2The Defendant was operating a white Hyundai rental car that night. I have used the phrase “Defendant’s vehicle” merely for simplicity sake, and not to denote ownership or association.
3. 3The parties never referred to the firearm as a “sub-compact.” However, given its diminutive size, and its designation as a prohibited firearm (by definition, a handgun with a barrel length less than 105mm is prohibited: see s. 84 of the Criminal Code), this is an appropriate description.
4. 4R. v. H.C., 2009 ONCA 56 at para. 41.
5. 5R. v. Kruk, 2024 SCC 7 at para. 81.
6. 6Kruk, supra, at paras. 71 and 75.
7. 7Ibid.
8. 8Kruk, supra, at para. 72.
9. 9R. v. Thompson, 2020 ONCA 264 at para. 29.
10. 10R. v. Suberu, 2009 SCC 33 at para. 3.
11. 11According to the female, Sarah Moradi, who also testified on the Charter voir dire, the interaction lasted “maybe a minute or less.”
12. 12For the origins of this analysis, see R. v. Grant, 2009 SCC 32.
13. 13R. v. McGuffie, 2016 ONCA 365 at para. 62.
14. 14R. v. O’Brien, 2023 ONCA 197 at para. 24.
15. 15O’Brien, supra, at para. 25.
16. 16R. v. McColman, 2023 SCC 8 at paras. 57, 58, and 64.
17. 17O’Brien, supra, at para. 53.
18. 18McColman, supra, at para. 70.