COURT FILE No. 4211-998-24-21700071-01
O N T A R I O C O U R T O F J U S T I C E
B E T W E E N :
HIS MAJESTY THE KING
-AND-
FRANCESCO COMMISSO and JENNA KUSHNIERYK
Before Justice Michael G. March
Heard on January 22, 2026
Written Submissions filed by Crown Counsel and Defence Counsel for Francesco Commisso on Feb. 16 and 20, 2026 respectively
Reasons for Decision released on April 13, 2026
Roman Dzioba ...…………………………….…………………………..Counsel for the Crown
Ryan Amy ……………………………………Counsel for the Accused, Francesco Commisso
Kevin Matthews ………………………………………………..Counsel for Jenna Kushnieryk
Overview
1Francesco Commisso (“Commisso”) and Jenna Kushnieryk (“Kushnieryk”) stand charged with, amongst other things, possession for the purpose of trafficking in cocaine on Dec. 20, 2024 contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”). Following arraignment on all charges on Jan. 22, 2026, Commisso and Kushnieryk, through her counsel, Mr. Matthews, entered pleas of not guilty to all charges they are facing.
2Defence counsel for Commisso, Mr. Amy, then indicated his intention to argue a Charter Application for alleged violations of his client’s s. 8, 9 and 10(b) Charter rights. Consequently, the Court embarked upon a discrete voir dire to hear evidence called on the Application.
3Commisso’s counsel challenged the lawfulness of this accused’s arrest, the search of his motor vehicle incident to arrest, the validity of the subsequent warrant authorizing searches of his home located at 106 Ethel St., Schreiber, ON, the attached garage and the camper trailer parked in the driveway, as well as Commisso’s participation in the opening of two safes found within his home.
4As a result of the alleged breaches of Commisso’s Charter rights, his counsel, Mr. Amy, sought the exclusion of evidence, cocaine and cash, under s. 24(2) of the Charter, contending that the admission of such evidence would bring the administration of justice into disrepute.
5Defence counsel for Kushnieryk, Mr. Matthews, did not participate in the voir dire, presumably because Kushnieryk had no reasonable expectation of privacy in the motor vehicle, camper trailer, or home in question.
6By prior agreement between counsel, the Crown called three witnesses on the voir dire: Detective Constable Tremblay, retired Constable Grieve, and Constable Grigio. All three police officers were serving members of the Ontario Provincial Police (“OPP”) at the material time.
Relevant Evidence
7When Detective Constable Tremblay testified on Jan. 22, 2026, he had been a member of the OPP stationed in Nipigon for 7 years. On the day in question, Dec. 20, 2024, he was assigned to the area’s Street Crime Unit. Accordingly, the officer indicated he was familiar with the accused, Commisso.
8Detective Constable Tremblay stated that he was aware of a suspected violation of Commisso’s bail conditions because fellow officers, Constables Osborne and Constable Campbell, had told Detective Constable Tremblay that Commisso had been seen roughly a week earlier on his own at a local store without his surety, his mother. Based on this knowledge in part, Detective Constable Tremblay intended to arrest Commisso on Dec. 20, 2024.
9Further, Detective Constable Tremblay made observations through his own investigation that day regarding what he believed would support laying a further charge for a breach of Commisso’s bail conditions. Detective Constable Tremblay learned from Constable Grieve that Commisso had been seen a short while earlier leaving a restaurant in his pickup truck, a Ford F150, pulling a trailer. Detective Constable Tremblay went to the Commisso family restaurant and spoke to staff. The personnel there told Detective Constable Tremblay that Commisso was not working that day. However, the officer did not speak to Commisso’s supervisor, his sister, Victoria.
10At the same time Detective Constable Tremblay was at the restaurant, Constable Grigio, who was assisting in the investigation, spoke to Commisso’s mother at the home the accused shared with her -106 Ethel St. in Schreiber, ON. Constable Grigio was told by Commisso’s mother that he was at the restaurant. Detective Constable Tremblay knew this could not be true.
11Detective Constable Tremblay then began driving to Commisso’s home. The officer saw Commisso’s F150 Ford pickup truck turn onto Ethel Street ahead of him. It was no longer pulling a trailer. The officer activated the roof lights of his police vehicle intending to arrest Commisso for breaching his conditions of release. Commisso did not immediately stop his truck. The F150 pulled into the driveway of his home.
12Detective Constable Tremblay exited his police vehicle and told Commisso to show him his hands. The officer approached Commisso at approximately 12:21 pm. The accused was “tensing his arms”. Detective Constable Tremblay brought Commisso to the ground and handcuffed him behind his back. The officer told the accused why he was being arrested, namely for bail violations, and provided him with his rights to counsel. Immediately, Commisso asked to speak to his then lawyer, George Joseph.
13Prior to the arrest, Detective Constable Tremblay had been told over the police radio by Constable Grigio that he had seen Commisso reach toward his sun visor as he was driving the F150 in the opposite direction on Ethel St. headed toward his home.
14Taking into account that information, Detective Constable Tremblay searched the F150 incident to Commisso’s arrest. Within the compartment of the sunroof of the truck, the officer found a large quantity of cocaine. He was careful to point out that he only searched what would have been within reach of Commisso as he was driving his truck.
15He also located Kushnieryk, whom he knew from previous dealings with her, hiding under a blanket in the backseat of the vehicle. He placed her under arrest for possession of cocaine and advised Commisso of his arrest shortly thereafter for the same offence, as both had been joint occupants of the truck with illegal drugs in it.
16Detective Constable Tremblay soon after attempted to contact Commisso’s requested lawyer, Mr. Joseph, while the accused was in his police vehicle; however, his call went straight to voicemail. The officer left a message for Mr. Joseph to call him, so that he could facilitate communication between Commisso and his lawyer.
17The officer then transported Commisso to the Nipigon detachment of the OPP. Again, he attempted to call Mr. Joseph on his cell phone at 1:51 pm to no avail. Detective Constable Tremblay made no further calls to Mr. Joseph thereafter, nor did he receive a call back from Mr. Joseph seeking to speak to Mr. Commisso.
18Detective Constable Tremblay weighed the contraband and learned that the clear plastic bag and lip balm container located within the sunroof compartment of Commisso’s vehicle had what the officer believed to be 45.1g of cocaine in the bag, and 4.3g of crack cocaine in the container.
19Based on the discovery of the suspected cocaine, Detective Constable Tremblay applied for a search warrant under section 11 of the CDSA seeking authority to search Commisso’s home, attached garage and the camper trailer parked in the driveway of the residence. The officer was seeking authority to seize:
a) cocaine, or any controlled substance or precursor,
b) scales, baggies and other indicia of trafficking drugs,
c) money and other proceeds of crime,
d) electronic communication devices, and
e) debt lists.
20The warrant was initially denied because the Information to Obtain a Search Warrant (“ITO”) disclosed no nexus between the offence for which Commisso was arrested and the items to be searched for in his home. Detective Constable Tremblay thus added paragraph 23 to the ITO setting out his reasons for believing the items would be found within the accused’s home. That paragraph spoke of what the officer found by way of contraband upon searching Commisso’s vehicle, and how that discovery served as a basis for his belief that more cocaine and indicia of trafficking would be found in his home.
21Ultimately, the search warrant was granted for the accused’s home, garage and camper trailer at 7:43 PM on Dec. 20, 2024, by Justice of the Peace, Jenn Martin.
22Detective Constable Tremblay agreed under cross-examination that without the fruits of the search of Commisso’s vehicle, there was no basis for issuance of the warrant to enter and seize the items sought from the accused’s home.
23With the warrant in hand, Detective Constable Tremblay reattended at Commisso’s home. He was assisted in its execution by Commisso’s sister, Victoria, who showed the officer where the accused’s bedroom was located. From the bedroom, Detective Constable Tremblay seized two safes, the first, a large dial type, and the second, a digital type. Commisso’s mother claimed the dial type was hers. Victoria could not help with opening either safe. Detective Constable Tremblay thus returned with both to the Nipigon detachment of the OPP.
24Around midnight, the officer attended at Commisso’s cell and asked hm if he had spoken in the interim with Mr. Joseph. The accused confirmed he had not. Detective Constable Tremblay then offered to contact duty counsel for Commisso. The accused declined. Commisso, by this point, had been in police custody at the Nipigon detachment of the OPP since 2:15 pm. on Dec. 20, 2024.
25Apparently, another officer, Constable Smith, provided a list of lawyers to Commisso while he was in the cell; however, the accused had no access to a phone.
26Detective Constable Tremblay told Commisso about the execution of the search warrant and the seizure of the safes. The officer did not ask the accused about the list of lawyers and whether he wished to contact one. Detective Constable Tremblay next requested Commisso’s assistance in opening the safes at 12:19 a.m. on Dec. 21, 2024, so that the officer would not be obliged to damage them. Commisso reluctantly agreed.
27He asked Detective Constable Tremblay, “If there’s money in the safe and it’s not mine, would you take it?” The officer did not directly answer the question, but he did confirm that he would seize the money. Again, Commisso asked to speak with Mr. Joseph. The accused was not given an immediate opportunity to do so.
28The officer did not warn Commisso that his assistance in opening the safes could lead to further criminal charges being laid against him.
29Once opened by Commisso, the officer recalled that the larger safe contained over $15,00.00 cash. The smaller one contained only Commisso’s passport. Upon discovery of the money, Detective Constable Tremblay re-arrested Commisso for possessing proceeds of crime.
30The officer conceded under cross-examination that Commisso could possibly be away from his residence without his surety if he was engaged in activity related to the business of the family restaurant where he was employed. The store where he was seen by other officers, Constables Osborne and Campbell, without his surety, sold groceries, which of course, the restaurant may need.
31Detective Constable Tremblay did not know whether Commisso’s mother remained in his truck while the accused went into the store. Further, this information Detective Constable Tremblay obtained from his fellow officers was at least a week old and no effort had been made to obtain a warrant for Commisso’s arrest in the interim.
32Detective Constable Tremblay also admitted that, based on his bail conditions, Commisso could drive to Thunder Bay on his own if he wished, assuming it was for a restaurant related purpose, if he had his mother’s approval to do so.
33The officer equally agreed that on Dec. 20, 2024, prior to Commisso’s arrest, he was seen transporting a four-wheeler ATV, which could be used to plow snow at the restaurant to keep the customers’ parking space clear. The ATV may also require repair from time to time. This would also be a work-related purpose for which Commisso could be away from his home.
34Additionally, equipment could break down at the restaurant. A blender in need of repair, for example, which Mr. Commisso was carrying as he exited his vehicle immediately prior to his arrest on Dec. 20, 2024, would be something the accused could attend to. It would be another work-related purpose for which he could be away from his home with his mother’s approval. Detective Constable Tremblay confirmed as well that he did not speak to Commisso’s supervisor, his sister Victoria, about any work her brother may have been doing for the restaurant prior to his arrest.
35Detective Constable Tremblay acknowledged as well that he was assisted in effecting Commisso’s arrest in bringing him to the ground in his driveway by Constable Grigio.
36Detective Constable Tremblay maintained that he searched Commisso’s vehicle primarily out of a concern that the accused may have a weapon. The officer was aware that Commisso was released on bail for drugs and weapons related offences. However, the officer conceded that on Dec. 20, 2024, at the time of his arrest, Commisso was not seen to be in possession of a weapon. The arrest had nothing to do with a weapon; it was for a bail violation. The accused was not asked nor cautioned about being in possession of a weapon. Furthermore, the search of Commisso’s truck was conducted after the accused had been handcuffed and placed in the police vehicle.
37Detective Constable Tremblay maintained nevertheless that he was not searching for drugs when he looked in the sunroof compartment of Commisso’s truck. He searched there because it was where Constable Grigio saw the accused reach.
38When retired Constable Grieve testified after a 30-year policing career on Jan. 22, 2026, he explained that he was on general duty as an OPP officer on Dec. 20, 2024. He knew Commisso because he had lived in the Schreiber area since 2007. He was also aware of an ongoing investigation into the accused’s drug usage and suspected trafficking.
39Constable Grieve overheard on the police radio that Detective Constable Tremblay was about to arrest Commisso.
40Constable Grieve informed Detective Constable Tremblay that he had seen the accused driving nearby his family restaurant some fifteen minutes earlier. Constable Grieve then attended at Commisso’s home to assist with the arrest at 106 Ethel Street. It was his first and only interaction with the accused that day.
41Upon arrival at Commisso’s home at 12:15 pm, Constable Grieve saw that the accused was on the ground in the process of being arrested by Detective Constable Tremblay. Constable Grigio was also present and assisting with handcuffing the accused. Constable Grieve then held Commisso against Detective Constable Tremblay’s police vehicle while his person was being searched.
42Constable Grieve understood that Commisso was subject to bail conditions requiring him to be under house arrest. The officer was aware of an exception permitting him to be at the family restaurant and attending medical appointments. The officer was very clear that he was not investigating that day whether the accused was complying with his conditions of release, nor did he arrest, nor caution the accused as to his rights to counsel, nor participate in a search of Commisso’s F150. Those tasks would have been handled by Detective Constable Tremblay
43Regarding Constable Grieve’s earlier observations of Commisso driving in that vehicle, he noticed that the accused was towing a galvanized steel trailer with what he believed was a red ATV in it. The officer commented that he knew Commisso to travel frequently from his home to the restaurant.
44Constable Grieve conceded under cross-examination that he was aware that Commisso could be away from his residence for a work-related purpose. Indeed, the officer confirmed that he had seen Commisso earlier in the day at the restaurant, but he could not say whether the accused was using the ATV to plow its parking area. If he was, the officer did not believe that it would constitute a breach of his bail conditions.
45Constable Grieve also was familiar with an individual named Paul Tilley in Schreiber. The officer had seen Commisso’s truck and trailer at Mr. Tilley’s place earlier on Dec. 20, 2024 as well. The officer knew Mr. Tilly to do mechanical work on vehicles on the side.
46When Constable Grigio testified on Jan. 22, 2026, he had only been a member of the OPP for roughly 21 months. He recalled that on Dec. 20, 2024, he was stationed at the Nipigon detachment conducting general law enforcement duties. He was sent to work in Schreiber due to a shift shortage there.
47Upon arrival, he was asked by Detective Constable Tremblay around noon for his help in conducting a compliance check into Commisso’s observance of his bail conditions.
48After speaking with Detective Constable Tremblay, Constable Grigio understood that the accused was to be under house arrest. His exceptions were that:
a) he could be out with his mother, his surety,
b) while attending medical appointments, or
c) while working at the family restaurant.
49Cst. Grigio added that he was not aware “verbatim” of Commisso’s conditions of bail, nor did he review the actual release order.
50To assist Detective Constable Tremblay, Constable Grigio attended at 106 Ethel St. in Schreiber where he believed the accused to reside. He knocked on the door and spoke with Commisso’s mother, who told the officer that Commisso was supposed to be at the restaurant. Constable Grigio could see that the accused’s vehicle was not at the residence. However, if Commisso were at the restaurant, the officer believed the accused would not be in breach of his bail.
51Constable Grigio radioed to Detective Constable Tremblay the information he received from the accused’s mother. Constable Grigio left the residence and began driving away when he received word from Detective Constable Tremblay that he was following Commisso. Constable Grigio then noticed that the accused was approaching him in his truck on Ethel Street coming in the opposite direction. The truck was not towing a trailer at this point.
52Constable Grigio observed Commisso to make a “swift motion” above his head with his right hand. The officer could not say whether Commisso had anything in his hand. Constable Grigio commented that Commisso’s hand went up a lot quicker than it came down. Constable Grigio relayed this information to Detective Constable Tremblay.
53Constable Grigio believed the accused to be the sole occupant in his vehicle.
54The officer then turned his police vehicle around and placed himself behind Detective Constable Tremblay’s vehicle, which was continuing to follow Commisso’s truck. Constable Grigio activated the emergency lights of his police vehicle as well.
55By the time Constable Grigio caught up to Commisso, he had turned into his driveway at 106 Ethel St. Detective Constable Tremblay was already outside his police vehicle and talking to the accused. Detective Constable Tremblay was informing Commisso that he was “under arrest”.
56Constable Grigio believed that the accused had a food processor in his left hand. Commisso stated that he ought not be arrested, and that the officers were “going to be sorry”. Constable Grigio then took the processor out of Commisso’s hand.
57Next Detective Constable Tremblay put his hand on the accused, who began to actively resist the officer. Detective Constable Tremblay then pushed Commisso against the quarter panel of his F150 near the opening for its gas tank.
58Constable Grigio described one of Detective Constable Tremblay’s hand as being up by the accused shoulder. The other hand was holding up Commisso’s left leg. Constable Grigio kicked Commisso’s right leg out from under him to take him to the ground. The officer then handcuffed the accused and told him to “stop resisting”. Constable Grigio could not recall whether he told Commisso what he was being arrested for.
59The officer assisted Detective Constable Tremblay with placing Commisso in his police vehicle. Detective Constable Tremblay then read to the accused his rights to counsel and cautioned him.
60Constable Grigio did not participate in a search of Commisso’s truck, but he witnessed Detective Constable Tremblay do so. Constable Grigio also saw Detective Constable Tremblay discover Kushnieryk in the rear seat of the truck. She was also arrested by Detective Constable Tremblay. Constable Grigio took responsibility for transporting her to the Nipigon detachment of the OPP.
61Constable Grigio did not believe he interacted in any way with Commisso at the detachment. The officer did not process the contraband found in the truck. He did not contact a lawyer for Commisso. He did not participate in the search and seizure of the safes. Nor did the officer conduct any further investigation into the accused’s conditions of bail.
62Constable Grigio explained under cross-examination that he was called into work unexpectedly in Schreiber. Upon arrival there, Detective Constable Tremblay gave him an address to check to determine whether Commisso was at home. Constable Grigio did not attend at the family restaurant, nor did he ever see the accused towing a trailer. The officer understood from his discussions with Commisso’s mother that he went to the restaurant to help and he would be back soon.
63Constable Grigio was clear that he did not ask Commisso’s mother whether the accused was in the restaurant or was in the parking lot. The officer did not provide any further details to Detective Constable Tremblay about what Commisso was supposed to be doing.
64Essentially, Constable Grigio explained that he was acting on the direction provided by a senior officer, Detective Constable Tremblay.
65Regarding the quick motion he saw Commisso make with his right hand while driving his truck, Constable Grigio could not say whether the accused’s hand went above where the rearview mirror would be located.
66While arresting Commisso, Constable Grigio did not recall Commisso crashing to the ground. The officer himself did not fall. However, Constable Grigio could not recall whether he ended up on top of Commisso while he was on the ground.
67The officer was able to confirm that he assisted in removing the handcuffs from behind the accused’s back and placing them on him in the front prior to his transport to the Nipigon detachment of the OPP.
68Once Commisso was placed in custody at the detachment, Constable Grigio had no further dealings with the accused, nor did the officer check in on Commisso while he was in police custody in the holding cell.
Issues
69The Charter Application brought by counsel for Commisso raises the following issues:
a) Whether the accused’s arrest was lawful or whether it amounted to an arbitrary detention?
b) Assuming the arrest was lawful, whether the search of the accused’s truck was truly incidental to his arrest?
c) Whether the ITO for the search warrant authorizing police to enter the home of the accused and seize items is subject to excision, if the search of the truck and the seizure of the illegal drugs within it is determined to be unreasonable and in violation of the Charter?
d) Whether there was a breach of the accused’s right to counsel of choice?
e) Assuming there were violations of the accused’s rights under sections 8, 9 and 10(b) of the Charter, how serious were they?
f) Assuming there were violations, how did they impact the accused’s Charter protected interests?
g) How would society’s interest in an adjudication on the merits be affected by the exclusion of evidence?
h) What is the appropriate balance to be struck in assessing the factors set out in e) to g) above?
70I shall deal with each in the order I have set out.
Analysis
The Arrest of the Accused
71At the hearing of the Charter Application, no issue was taken with the specific wording of the employment exception to the ‘house arrest’ term of Commisso’s bail conditions. It read that he could be away from his residence while “conducting any work-related activities in the employ of Rosie and Josie’s restaurant, with the approval of [his] surety”.
72On a fulsome assessment of the evidence called on the Application, I find that Detective Constable Tremblay completely ignored the broad exception permitting the accused to engage in activities related to the business of the family restaurant in question. Constable Grieve saw Commisso some 15 minutes prior to his arrest pulling a trailer with an ATV on it. Quite correctly, this officer was of the view that the accused would not be in breach of his bail conditions in doing so. Restaurant parking lots need snow clearing during the winter months in northwestern Ontario. Indeed, the officer commented that he knew Paul Tilley to be an individual who worked on the repair of machinery.
73On the other hand, Detective Constable Tremblay and Constable Grigio turned a blind eye to a legitimate work purposes the accused may have had for not being at either his home or his restaurant on the day in question, Dec. 20, 2024. Both officers erroneously concluded that if Commisso was not at his home or at the family restaurant, he was in breach of his release conditions.
74The investigation by Detective Constable Tremblay into why Commisso was driving around in Schreiber prior to being stopped by police was woefully inadequate. The arrest was therefore precipitous and unlawful. It led to an arbitrary detention of Commisso in his driveway in breach of this section 9 Charter right.
75In R. v. Asante, 2025 ONCA 387, Paciocco J.A. provided an extensive review of the law surrounding police powers under section 495(1) of the Criminal Code permitting the arrest of an individual without a warrant. A court must determine whether the arresting officer had subjective reasonable and probable grounds on which to base the arrest, and then whether those grounds were justifiable from an objective point of view.
76In order to fulfil the objective component, the officer’s belief must be objectively reasonable in the circumstances known to the officer at the time of the arrest. When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer.
77Most importantly, Paciocco J.A. emphasized that reasonable officers do not “shut their eyes to relevant circumstances, ignore appropriate inquiries or fail to take into consideration exculpatory, neutral or equivocal information.” Detective Constable Tremblay did exactly that in arresting Commisso on Dec. 20, 2024. The officer ignored any possible explanation or legitimate reason as to why the accused was away from his residence, even though Commisso exited his truck immediately prior to his arrest with a blender in his hand, and just after being at Paul Tilley’s place after transporting an ATV there.
The Search of the Accused’s Truck
78Having found that Commisso was arbitrarily detained and unlawfully arrested, Detective Constable Tremblay was without the necessary legal means to engage in a search of the accused’s vehicle. A search incident to arrest can only be valid if the original arrest was lawful.
79I find, in any event, that the search was unreasonable and constituted a violation of Commisso’s s. 8 Charter right to be free from unreasonable search and seizure. Supposedly, the accused was arrested for breach of his bail conditions. Detective Constable Tremblay maintained that the search was conducted for officer safety reasons. That contention was plainly false.
80The accused was already detained in the police vehicle and handcuffed behind his back. There was no officer safety concern immediately following Commisso’s arrest.
81Although Detective Constable Tremblay was aware that the accused had been arrested some eight months prior to Dec. 20, 2024 with a weapons-related offence, the officer had no subjective or objective basis for believing that the accused was in possession of a weapon on the day in question.
82Constable Grigio could only have relayed information to Detective Constable Tremblay that he saw Commisso reach upward with his hand. Constable Grigio was clear that he did not see it go past the rearview mirror. Indeed, that officer could not say that he saw anything in Commisso’s hand.
83Detective Constable Tremblay denied that the search was conducted for the purpose of discovering drugs. I find that it was. It must be remembered that Commisso was supposedly arrested for breach of a bail condition. To my mind, the search of the sunroof compartment of his truck could not have afforded any evidence of a breach of bail.
ITO Excisions
84It is trite law to say that any information obtained in violation of the Charter must be excised from an ITO. (see R. v. Perkins, 2013 ONSC 1807 at paras. 76-77)
85The search warrant Detective Constable Tremblay was seeking to authorize his entry into Commisso’s home to seize the sought after items were originally declined because there was no nexus between the offence and the reason the officer provided for wishing to search the accused’s residence. Detective Constable Tremblay was clear that he therefore added paragraph 23 to his ITO and resubmitted it to the issuing justice of the peace to satisfy her earlier concern. Of course, paragraph 23 contained the information regarding what the officer found in the sunroof compartment of Commisso’s truck, namely 45.1 g of cocaine and 4.3 g of crack cocaine.
86Clearly, without the inclusion of this information obtained in consequence of Commisso’s arbitrary detention and the unreasonable search of his vehicle, the search warrant would not have issued, and the two safes in his bedroom could not have been seized.
The Accused Right to Counsel of Choice
87Commisso was unequivocal that he wished to speak to his then lawyer, Mr. Joseph, immediately upon his arrest by Detective Constable Tremblay. Only two attempts were made to reach Mr. Joseph by Detective Constable Tremblay. The first was a call the officer made from his police vehicle. The second was upon arrival at the Nipigon detachment of the OPP. Those calls were never returned. Over the course of several hours, Commisso was without the assistance of legal advice from his chosen lawyer.
88Although the accused was given a list of lawyers, no police officer turned his mind to whether Commisso wished to speak to an alternative lawyer, or whether he was a validly waving his right to speak to Mr. Joseph. It was obvious Commisso did not wish to speak to duty counsel.
89It was after midnight on Dec. 21, 2024, that Detective Constable Tremblay sought Commisso’s assistance in opening the safes. The accused had been in police custody for almost 12 hours at that point. The accused was not warned about the potential for additional charges being laid against him once the contents of the safes were revealed. Indeed, Commisso was ultimately charged with possession of proceeds of crime upon discovery of a large amount of cash in one of the safes.
90I find that there was no urgency in soliciting the accused’s help to open the safes. Detective Constable Tremblay’s assertion that he did not wish to destroy the safes may be true, but it did not excuse his obligation to put Commisso in touch with his lawyer. The police were still under a duty to ‘hold off’ (see R. v. Grewal, 2024 ONSC 4748 at paras 37-38 and R. v. Singer, 2012 NSSC 238 at para. 62).
91Detective Constable Tremblay made just two attempts at calling Mr. Joseph, the accused’s counsel of choice, the first - shortly after 12:21 pm on Dec. 20, 2024, and the second - roughly an hour and a half later at 1:51 pm. I find that the officer could have made another attempt to call Mr. Joseph past midnight on December 21, 2024, given the circumstances of what he was asking Commisso to do in that very moment of the investigation. I venture Mr. Joseph would not be the first defence counsel in northwestern Ontario to answer a call in the wee hours of the morning.
92Accordingly, in my view, there was no valid waiver by the accused of his right to speak to Mr. Joseph. Commisso was as diligent as he could be in his attempts to make known his desire to speak to Mr. Joseph and no other lawyer. The police could have reasonably done more to put him in touch with Mr. Joseph. As a result, Commisso’s section 10(b) Charter right to counsel was violated.
The Seriousness of the Charter Breaches
93I find that the violations of Commisso’s Charter rights in this case were far from technical or trivial in nature. Detective Constable Tremblay and Constable Grigio were not acting in good faith when they arrested the accused on Dec. 20, 2024. They completely disregarded what could have been a legitimate reason for the accused being away from both his residence and his family restaurant on the day in question.
94The search of Commisso’s truck was a direct consequence of his illegal arrest. Detective Constable Tremblay was disingenuous in his testimony about the purpose for the search. Police were not in any danger of harm. The accused was handcuffed behind his back and seated in a cruiser at the time the search was conducted.
95I find that Detective Constable Tremblay was on a mission the day in question to arrest Commisso. He solicited an inexperienced officer, Constable Grigio, to assist him in effecting his goal. Detective Constable Tremblay set into motion his plan to arrest the accused in his truck and to search it for drugs, even though the arrest was premised upon dubious breaches of a bail condition by Commisso.
96Detective Constable Tremblay then used illegally obtained information in the ITO to search the accused’s home and to seize the safes therefrom. Next, he enlisted the aid of Commisso himself to open the safes, where no urgency existed, and where the accused was clear in expressing his wish to speak to his counsel of choice, Mr. Joseph.
97The breaches of Commisso’s Charter rights were multiple and flagrant. They led to his arbitrary detention for several hours, an unreasonable search and seizure of his vehicles and safes, all the while when he was without the ability to contact and obtain advice from his lawyer.
The Impact on the Accused’s Charter Protected Interests
98As a result of Commisso’s arbitrary detention and illegal arrest, he was taken to the ground and handcuffed behind his back. He was then held in a cell at a police detachment for 12 or more hours without the ability to seek legal advice on how to regain his freedom and to protect himself from self-crimination.
99Additionally, his truck was unreasonably searched and thereafter his home as well. The privacy he ought to have enjoyed in his vehicle and residence were significantly violated.
Society’s Interest in an Adjudication of the Merits
100To state the obvious, the drugs and cash found by Detective Constable Tremblay are real evidence. The nature of the evidence is thus highly reliable. To admit it would assist the truth finding function of the court and allow for a determination of this case on its merits.
Balancing the Factors
101As stated, the Charter violations committed by police against Commisso were serious, cascading and wilful on the part of Detective Constable Tremblay. They had a severe impact on the accused.
102Pitted against society’s interest in an adjudication on the merits, the seriousness of the breaches and the impact they had on the accused’s Charter-protected interests compels me to exclude the real evidence – the drugs and the cash.
103As observed by Charron J. and McLachlin C.J., as she then was, in R. v. Grant, 2009 SCC 32 at para. 72:
“The more severe or deliberate the state conduct that led to the violation, the greater the need for the courts to disassociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.”
Conclusion
104The reality of what must occur in this case is not lost upon me. A very factually guilty man, Commisso, must be exonerated.
105On a proper section 24(2) Charter analysis, I bear in mind the long-term repute of the administration of justice. To excuse the police conduct as it unfolded here would undermine the public’s confidence in the administration of justice. The reasonable minded person would rightly conclude that the ends justify the means, were I to admit the evidence. This can never be permitted in Canadian courts where individual liberties are enshrined in part of our constitution, the Charter, the supreme law of our land.
April 13, 2026
The Honourable Mr. Justice M. G. March