CITATION: R. v. Johnson, 2026 ONCJ 462
DATE: August 4, 2026
ONTARIO COURT OF JUSTICE
Toronto
BETWEEN:
HIS MAJESTY THE KING
— AND —
DAINEOL JOHNSON
For the Crown
B. Janzen
For the Defendant
K. Schofield
Heard:
February 17-18; April 29; 2026
REASONS for JUDGMENT
A. INTRODUCTION
[1] Mr. Johnson (the defendant) is charged with several indictable criminal offences as well as several Highway Traffic Act offences. On the consent of the parties all the charges were heard in a single trial.
[2] The defendant was arraigned and pleaded not guilty to the following six criminal charges:
(1) on or about the 13th day of April in the year 2024 at the City of Toronto in the Toronto Region did, being at large on a undertaking, fail without lawful excuse to comply with a condition of that undertaking, namely "CURFEW 2200 HOURS-0700 HOURS", contrary to Section 145, subsection (4), clause (a) of the Criminal Code of Canada.
(2) on or about the 13th day of April in the year 2024 at the City of Toronto in the Toronto Region did, being at large on a undertaking, fail without lawful excuse to comply with a condition of that undertaking, namely "NOT POSSESS OR USE ANY CELL PHONE, SMART PHONE, POLICE SCANNER, OR OTHER MOBILE COMMUNICATIONS DEVICE", contrary to Section 145, subsection (4), clause (a) of the Criminal Code of Canada.
(3) on or about the 13th day of April in the year 2024 at the City of Toronto in the Toronto Region did, without lawful excuse, possess a loaded prohibited firearm, namely a SPRINGFIELD HELLCAT HANDGUN, at KING ST W. AND STANLEY TERR, TORONTO, without being the holder of an authorization or licence permitting such possession at that place and the holder of a registration certificate for the said firearm, contrary to Section 95, subsection (2) of the Criminal Code of Canada.
(4) on or about the 13th day of April in the year 2024 at the City of Toronto in the Toronto Region did, without lawful excuse, possess a prohibited device which was not a replica firearm, namely a COMPACT SIZED MAGAZINE while knowingly not being the holder of a licence permitting such possession, contrary to Section 92, subsection (3) of the Criminal Code of Canada.
(5) on or about the 13th day of April in the year 2024 at the City of Toronto in the Toronto Region did, without lawful excuse, possess a firearm namely A SPRINGFIELD HELLCAT HANDGUN, while prohibited from doing so by reason of an order made under SECTION 109, OF THE CRIMINAL CODE, contrary to Section 117.01, subsection (1) of the Criminal Code of Canada.
(6) on or about the 13th day of April in the year 2024 at the City of Toronto in the Toronto Region did, without lawful excuse, possess a firearm namely A SPRINGFIELD HELLCAT HANDGUN, while prohibited from doing so by reason of an order made under SECTION 109, OF THE CRIMINAL CODE, contrary to Section 117.01, subsection (1) of the Criminal Code of Canada.
[3] The defendant pleaded not guilty to the following charges under the Highway Traffic Act:
(1) on or about the 13th day of April in the year 2024 at the City of Toronto in the Toronto Region drive a motor vehicle on King St W., Toronto and disobey a sign at the intersection of King St W. and Portland St, Toronto forbidding proceeding straight through the intersection, contrary to Section 144, subsection (9) of the Highway Traffic Act.
(2) on or about the 13th day of April in the year 2024 at the City of Toronto in the Toronto Region drive a motor vehicle on King St W., Toronto and disobey a sign at the intersection of King St W. and Bathurst St, Toronto forbidding proceeding straight through the intersection, contrary to Section 144, subsection (9) of the Highway Traffic Act.
(3) on or about the 13th day of April in the year 2024 at the City of Toronto in the Toronto Region drive a motor vehicle on KING ST W near STANLEY TERR, TORONTO while HIS driver's licence was suspended, contrary to Section 53, subsection (1) of the Highway Traffic Act.
[4] The charges arise out of a traffic stop on King Street in Toronto on April 13, 2024. The defendant, a black man, was driving a rented Audi with another black man named Dickson in the passenger seat. Officers Vukovic and Carter were stationed in their police cruiser and observed the Audi drive through the intersection of King and Portland. They pursued the vehicle and eventually stopped it. As a result of the ensuing interaction with the defendant and Mr. Dickson the police discovered a loaded handgun in the possession of the defendant and further discovered that he was in breach of the conditions of a Saskatchewan release order.
[5] Ms. Schofield, on behalf of the defendant, has brought a Charter application alleging that:
(1) The investigating officers engaged in racial profiling when they decided to pursue and detain the defendant, thus breaching his s.9 Charter rights.
(2) The officers’ subsequent search of the Audi was a breach of the defendant’s s. 8 Charter rights.
(3) The police unduly delayed putting the defendant in touch with duty counsel in breach of his s. 10(b) Charter rights.
(4) The police continued to question the defendant after his detention and before reading him his rights to counsel, then again after he had told them he wanted to speak to counsel and before he had had that opportunity in further breach of his s. 10(b) Charter rights.
[6] Ms. Schofield further argues that the numerous Charter violations support the imposition of a stay of proceedings or, alternatively, the exclusion of the police gathered evidence pursuant to s. 24(2) of the Charter.
[7] Mr. Janzen argues that the defendant’s Charter rights were not violated, but if they were, the violations do not support the imposition of a stay, nor exclusion of any evidence.
B. THE EVIDENCE
(a) Introduction
[8] The trial proceeded in a blended fashion. The evidence consists of a copy of an undertaking from the province of Saskatchewan, an agreed statement of fact, police video and audio of their interaction with the defendant, the testimony of P.C. Vukovic, and the testimony of P.C. Carter. The defendant did not testify nor call any evidence on the Charter application or the trial proper.
[9] Ms. Schofield, in her written submissions, has provided a concise and accurate summary of the defendant’s interaction with police which I set out next, with appropriate modifications.
[10] On April 13, 2024, around midnight, Officer Vukovic (the driver) and Officer Carter (the passenger) were stopped facing east in their scout car on the south side of King Street West, just east of Portland Street. They were conducting routine observations of the entertainment district, paying particular attention to the traffic restrictions in the area. These restrictions included a prohibition of travelling through the intersection of King and Portland without turning. The two officers had their attention drawn to an Audi being driven through the intersection by the defendant. The officers pursued the Audi and eventually boxed the vehicle in for alleged HTA infractions. The defendant is a Black male as was his passenger, Mr. Dickson. Following a brief investigation into the vehicle and its two occupants, police arrested the defendant for alleged breaches of an undertaking and then conducted a search of the vehicle related to that arrest. After discovering alleged marihuana, a Cannabis Control Act search of the vehicle and occupants was conducted, following which firearms were found on both parties.
[11] The timing of the administration of s. 10(b) Charter rights to the defendant was as follows: At 12:29 A.M., the defendant was arrested for failing to comply with his curfew and placed in a police cruiser. The defendant was provided informational rights to counsel at 12:33 A.M. The defendant’s counsel of choice, George Coombs, was called at 12:37 A.M., but it was quickly learned that this counsel was no longer in practice. The defendant told the police shortly after 12:33 that he wanted to speak to duty counsel if Mr. Coombs could not be reached, but no call was made to duty counsel until 3:30 A.M. at the police station.
[12] Further investigation revealed that the defendant was also breaching a no cell phone condition. At 12:53 A.M., the defendant was questioned about which cell phone was his in the vehicle.
[13] At 1:17 A.M., the defendant was searched again and found to be in possession of a firearm. He was re-read his rights to counsel.
[14] The defendant was transported to the station, and arrived at 14 Division at 1:39 A.M. The defendant’s parade began at 2:21 A.M., and he was lodged in his cell at 2:35 A.M. The first call made to duty counsel for the defendant was at 3:30 A.M. A voicemail was left and duty counsel called back at 4:03 A.M. The first time the defendant spoke to counsel was 3 hours and 42 minutes after his initial detention.
[15] What follows is a summary of the salient aspects of the testimony and other evidence not captured in the above introduction. A full transcript of the proceedings is readily available.
(b) The testimony of Officer Vukovic
[16] Officer Carter first alerted Officer Vukovic to the defendant’s vehicle after seeing it travel east through the Portland/King St. intersection. Vukovic first saw the Audi after it had turned around and was heading back westbound towards the police. Vukovic made a U-turn to follow the Audi which proceeded westbound through the intersection, once again in breach of the HTA restriction.
[17] As they pursued the Audi the officers learned who the registered owner of the Audi was and that there was a criminal query associated with the registered owner regarding false V.I.N.’s and weapons possession. The officers thus decided to call for back up.
[18] Vukovic and Carter had been patrolling the area since 10 pm and had seen at least a dozen vehicles violate the HTA provision that night but only the defendant’s vehicle was stopped. According to Vukovic this was because unlike those other drivers, the defendant had breached the HTA provision twice.
[19] Vukovic did not see that the occupants of the Audi were black as it drove by because he was preoccupied with public safety concerns arising out of the great number of cyclists and pedestrians in the vicinity. At the preliminary inquiry of the Audi passenger (Mr. Dickson), Officer Vukovic testified that he didn’t notice that the Audi occupants were black only because he was busy eating a chocolate bar. He said nothing at that preliminary inquiry about public safety. When asked why he did not mention public safety at the preliminary inquiry he said: “I can’t answer that”.
[20] Vukovic admitted to questioning the defendant at the roadside concerning his undertaking after his detention and before he had had an opportunity to speak to counsel. He believed that this was not a violation of his duty to hold off since the questions were asked with a view to assisting the defendant.
(c) The testimony of Officer Carter
[21] Officer Carter generally confirmed most of Officer Vukovic’s testimony as to where they were located when the incident began as well as the eventual vehicle stop and subsequent dealings with the defendant and his passenger. The following details are worth noting, however.
[22] According to Carter he noticed in the police car’s mirror that the Audi had traveled east through the intersection. He began the computer search of the Audi immediately after it passed through the intersection for the first time (heading east). In his mind the decision was made to pursue and investigate the Audi because of the HTA infraction and the fact that it was a “high-end” vehicle with heavily tinted windows. Carter had no idea that the occupants of the Audi were black before the decision to pursue it was made. This was because it was dark, the windows were heavily tinted, and it was raining. He was also distracted by the computer search he was conducting as the car drove by.
[23] As concerns the rights to counsel, Officer Carter administered them to the defendant quite quickly after his arrest. The defendant said he wanted to speak to a Saskatchewan lawyer named George Coombs, or duty counsel if he could not be reached. The defendant did not know Mr. Coomb’s phone number.
[24] Carter searched the internet and found a number that was out of service. Had he managed to find Mr. Coombs he would have let the defendant speak to him from the back of the police car.
[25] Carter admitted that he should have called duty counsel immediately upon learning that Mr. Coombs could not be reached. He also admitted to questioning the defendant after he had asserted his wish to speak to counsel. He shared Vukovic’s belief that because these questions were asked with a view to helping the defendant he was not in breach of his duty to hold off.
(d) The police audio-visual recordings
[26] In-car camera footage as well as body-worn camera footage demonstrate the following:
That the defendant and Mr. Dickson are black is not apparent on the in-car camera footage that captures the Audi driving west past the police car.
Vukovic approached the driver’s side of the Audi after the stop and immediately made it clear to the defendant that the reason for the stop was the HTA infractions committed on King Street east of Bathurst.
Vukovic was extremely polite and unaggressive in his dealings with the defendant, even offering to help him find the club the defendant was searching for, and intimating that he might not even issue a ticket depending on the defendant’s driving record.
Upon the police discovering that the defendant had outstanding charges and was bound by, and seemingly breaching an undertaking in Saskatchewan, the defendant told Vukovic that the conditions of the undertaking had been varied by his lawyer. Vukovic calmly explained to the defendant that he was going to be arrested, and the police would make inquiries to see if indeed the conditions of the undertaking were no longer in force. The defendant was told he would be released if the conditions were no longer in place.
Vukovic and Carter contacted Saskatchewan authorities while the defendant sat in the back of the police car. They eventually learned that the conditions were indeed still in effect.
The police began searching the Audi incident to the defendant’s arrest for failing to comply by possessing a cell phone. This search revealed some marijuana and the search of the vehicle and Mr. Dickson continued pursuant to the Cannabis Control Act of Ontario.
The search of Mr. Dickson revealed that he was in possession of a loaded handgun. This precipitated a further search of the defendant that revealed that he too was in possession of a loaded handgun.
C. THE ALLEGED S. 9 VIOLATION
(a) Introduction
[27] Ms. Schofield alleges that one or both officers involved knew before pursuing the defendant’s car that the defendant was black and that that knowledge contributed to the decision to stop and investigate him.
[28] Mr. Janzen argues that the evidence does not support the defendant’s assertion that either officer knew that the defendant or his passenger was black when they decided to pursue and stop the Audi. He further argues that the evidence does not support a conclusion that either officer engaged in racial profiling.
[29] Mr. Janzen concedes, however, that if the defendant succeeds in establishing that racial profiling played a role in the investigation, all charges against the defendant should be stayed.
[30] As our Court of Appeal has explained in Peart v. Peel Police Services Board, 2006 CanLII 37566 (ON CA), [2006] O.J. No. 4457, and more recently in R. v. Sitladeen, 2021 ONCA 303, racial profiling occurs when race or racialized stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or suspect treatment.
[31] Ms. Schofield is clearly alleging conscious racial profiling in this case. As set out in her written submissions, she alleges that the defendant’s vehicle was explicitly chosen by the police for investigation: “The officers wanted to investigate the Black males driving [a high-end vehicle]”.
[32] She thus properly concedes in her oral submissions that for her s. 9 application to succeed she must prove on a balance of probability that one or both investigating officers lied when they testified that they did not know the defendant was black when they decided to pursue and stop him.
[33] It appears to me that if she were to succeed in meeting that burden, her s. 9 application would succeed. The only reason why either officer would lie about this is if their investigation was indeed a conscious exercise in racial profiling.
(b) Did either investigating officer lie when they testified that they did not know the defendant was black before deciding to pull him over.
[34] Ms. Schofield points to the inconsistencies in the officers’ testimony and argues that these inconsistencies prove that one or both officers is lying when they say they did not know the defendant or his passenger were black before the decision was made to pull them over.
[35] She also points to the fact that numerous other vehicles were observed breaching the HTA rules over the course of hours and none of them was stopped.
[36] She further argues that Officer Carter’s body-worn camera at run time 09:53 shows that one can readily discern through the Audi windshield that Mr. Dickson is black. She says this proves that the police could have ascertained that the occupants of the Audi were black as it drove past them near King and Portland.
[37] She further alleges that the police treatment of the defendant and Mr. Dickson suggests racial prejudice on the part of the police.
[38] As concerns the inconsistencies between the two officers’ description of the genesis of the investigation, I do not consider those inconsistencies to be significant. While it is true that the two officers gave somewhat different accounts as to when they first noticed the Audi, those differences can be explained by their separate and distinct points of view.
[39] The inconsistencies between Officer Vukovic’s preliminary inquiry testimony and his trial testimony as concerns what was distracting him from seeing inside the Audi as it passed by are somewhat troubling, but they do not go so far as to support a finding that he lied to the court when denying that he knew the defendant was black before pursuing him.
[40] As pointed out by Mr. Janzen, the purported reason for the vehicle stop is objectively verified by the video evidence which, though not determinative, supports his argument that no racial profiling occurred. R. v. Dudhi, 2019 ONCA 665 at para. 85.
[41] The police officers treated the defendant with respect while conducting their investigation. They went out of their way to try to confirm the defendant’s explanation about his release conditions. The police treatment of the defendant shows no hint of racial prejudice and thus lends some support to the proposition that the investigation was not based on racial profiling.
[42] I do not agree with Ms. Schofield’s suggestion that Officer Carter’s body-worn camera at run time 09:53 makes it clear that the police could have ascertained that the occupants of the Audi were black as it drove past them near King and Portland. At 09:53 of that video, the interior of the Audi is illuminated by the lights of the police vehicles. The interior of the Audi was not illuminated as it passed the officers at King and Portland.
[43] The police officers’ denial that they could see that the defendant was black as the Audi passed by is supported by the dark rainy conditions and the Audi’s tinted windscreen. It appears that there was no light on inside the Audi that would have illuminated either occupant’s face. The lights of the police car were not shining into the Audi as it passed by.
[44] Taking all the evidence into consideration, I do not find that either officer lied when they testified that they did not know the defendant or his passenger were black before stopping the Audi.
[45] As conceded by Ms. Schofield, her failure to prove this on a balance of probability dooms her s. 9 application.
[46] I find no racial profiling and hence no s. 9 breach.
D. THE ALLEGED S. 8 VIOLATION
(a) Introduction
[47] Ms. Schofield argues that even in the absence of racial profiling, the search of the Audi after the defendant’s arrest was unlawful. While conceding that, if the arrest was lawful, the police had the right to search the defendant’s vehicle for evidence of the fail to comply for which he had been arrested (being in possession of a cell phone), she argues that since the police had already seized the defendant’s cell phone, they no longer were entitled to search the car.
[48] The leading authority regarding the police power to search a suspect’s car incident to arrest is R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 at para.17. Such a search “is only justifiable if the purpose of the search is related to the purpose of the arrest”. “The three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial.” Ibid at para. 19.
[49] In Caslake, Lamer C. J. made it clear that the police would have been within their rights to search the appellant’s car for evidence in connection with a charge of possession for the purpose of trafficking even though they had already, prior to the search of the vehicle, seized a large bag of marijuana in the possession of the appellant. Ibid at para. 26.
[50] I find nothing in Caslake that supports Ms. Schofield’s assertion that the fact that the police already had one cell phone in hand rendered unreasonable a further search of the Audi. No other jurisprudence was presented, nor have I found any that supports the proposition that the police were not empowered to search the Audi for any other cell phones that might have belonged to the defendant.
[51] As the search of the Audi incident to arrest continued, marijuana was found which justified the continued search of the vehicle pursuant to the Cannabis Control Act of Ontario.
E. THE ALLEGED SECTION 10(B) VIOLATIONS
(a) Introduction
[52] To reiterate, Ms. Schofield alleges two s. 10(b) Charter violations. She argues that:
The police took far too long to put the defendant in touch with duty counsel.
The police continued to question the defendant after his detention and before the reading of his rights to counsel and again after he had asked to speak to counsel and before he had been given that opportunity.
(b) The delay in putting the defendant in touch with duty counsel
[53] The defendant was immediately informed of his right to counsel after his arrest. He told P.C. Carter that he wanted to speak to his own lawyer, or duty counsel, if his own lawyer could not be reached.
[54] The duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to counsel. Where the police delay access to counsel the Crown bears the burden of demonstrating that the delay was reasonable in the circumstances. R. v. Taylor, 2014 SCC 50, at para. 24; R. v. Desilva, 2022 ONCA 879.
[55] In R. v. Rover, 2018 ONCA 745 at paras. 26-28 Doherty J.A. summarizes the law on this issue as follows:
The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.
These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.
Wu, at para. 78, provides a helpful summary of the law. That summary includes the following:
The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:
a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety.
e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.
See too R. v. La, 2018 ONCA 830; R. v. Mitchell, 2018 ONCJ 121; R. v. Campoli, [2020] O.J. No. 167.
[56] In the circumstances of this case, as admitted by Officer Carter, a phone call to duty counsel could have been made from the roadside. Because it could have been made at that time, it should have been made then.
[57] Moreover, having failed to provide the defendant with a call to duty counsel at the roadside, arrangements should have immediately been made at the station. Instead, almost two hours went by between the defendant’s arrival at the station and the police call to duty counsel. Over three hours had elapsed since the defendant’s request to speak to duty counsel.
[58] Officers Vukovic and Carter gave various explanations for the delay such as the vagaries of the telephone’s location at 14 Division, the booking protocols at 14 Division, the fact that 14 Division is a busy police station, and the fact that Mr. Dickson, two handguns and a large amount of cash also had to be processed. These are not valid reasons for this delay. R. v. Fareed, 2023 ONSC 1581; R. v. Nguyen, 2022 ONSC 4994; R. v. Taylor, supra. As Goldstein J. put it in Nguyen, supra at para. 98:
Police efficiency is not a reason to delay implementation of the right to counsel. Neither is lack of resources -- to a point. The considerations would undoubtedly be different in a rural or isolated community involving long distances and small numbers of officers, but that is not the case here -- we are dealing with the largest municipal police service in Canada. It is, of course, not up to the courts to tell the police how to allocate resources. That is always their job. The court's job is limited to evaluating the consequences of those choices in individual cases.
[59] There was a clear breach of the implementation duties imposed on the police by s. 10(b) of the Charter.
(c) The failure of the police to hold off questioning the defendant until he had consulted counsel
[60] Shortly after the vehicle stop, a computer check of the defendant revealed that he was bound by a Saskatchewan undertaking and that there were grounds to believe that he was in breach of several of its conditions. A decision was made to arrest the defendant for failing to comply with that undertaking.
[61] Before and after reading the defendant his rights to counsel, police asked him several questions pertinent to the possible breach of undertaking.
[62] Even though these questions were not aimed at eliciting inculpatory answers they were nonetheless in breach of the s. 10(b) duty to hold off. R. v. Yaghoubi-Araghi 2025 ONCA 314.
F. SECTION 24(2)
[63] Section 24(2) of the Charter reads as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[64] The first issue to be addressed is whether the firearm seized from the defendant was obtained in a manner that infringed the defendant’s Charter rights. R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12
[65] I adopt Molloy. J.’s approach to this issue as expressed in Fareed, supra, at paras. 57 and 58 and I come to the same conclusion:
The phrase "obtained in a manner that violated" the Charter does not require a "cause and effect" relationship between the breach and the obtaining of the evidence. Some connection beyond what is too tenuous or too remote is required, but the connection may be temporal or contextual or causal, or some combination of the three. A direct causal connection will lean more heavily to exclusion of the evidence. In other circumstances, the degree of connection will be a factor to be taken into account in the weighing exercise involved under s. 24(2).
In this case, there is no causal connection between the seizure of the gun and any of the Charter breaches. There was no breach of Mr. Fareed's rights prior to P.C. O'Toole seizing the firearm. However, everything else that happened flowed from that seizure and was contextually related to it. All of the subsequent breaches can be said to be part of the same "chain of events" between the accused and the police or the same "transaction or course of conduct", as those terms are used by the Ontario Court of Appeal in Pino. This preliminary requirement of s. 24(2) is therefore met.
See too R. v. Pino, 2016 ONCA 389.
The firearm seized from the defendant was obtained in a manner that infringed the defendant’s s. 10(b) Charter rights. Section 24(2) is thus applicable.
[66] Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court’s decision in R. v. Grant, 2009 SCC 32 at para. 71:
[W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
See too R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12
(a) The seriousness of the breaches
[67] I have found two s.10(b) Charter breaches.
[68] A delay in access to counsel’s advice is always serious, as is questioning the defendant before he has had access to counsel’s advice.
[69] There are characteristics of the 10(b) breaches that exacerbate their seriousness.
The delay in putting the defendant in touch with counsel was quite long.
The delay arose in part because of persistent systemic problems at 14 Division – problems that have been the subject of prior judicial criticism. See the 2022 judgment in Nguyen, supra.
[70] There are some characteristics of the breach that mitigate its seriousness:
The questioning of the defendant was, I find, driven by a sincere effort by the police to clarify the status of the conditions of the defendant’s Saskatchewan undertaking.
All the officers who dealt with the defendant that night were kind to him. He was treated with dignity and respect.
Once back at the station there was no further attempt by the police to elicit evidence from the defendant.
[71] I find that the breaches, although serious, lie at the less serious end of the spectrum. The breaches only mildly favour exclusion.
(b) The impact of the breach on the defendant’s Charter protected interests
[72] The defendant was forced to be without access to and advice from counsel when he clearly felt the need for such. Even though he did not testify, I can infer that this deprivation must have caused some distress.
[73] The gun was seized from the defendant before the bulk of the section 10(b) breach. Further, its discovery was not causally related to the breach, and its discovery was inevitable in the wake of the defendant’s lawful arrest for failing to comply. As Goldstein J. explained in Nguyen, supra at paras. 108-110:
… [T]here was no causal connection between the breaches and the discovery of the evidence. As in Keshavarz, the discovery of the evidence occurred before the breach. As Fairburn J.A. commented at para. 115:
This lessened the impact of the breach on the appellant's Charter-protected interests, making "admission ... more likely": see Grant, at paras. 122-25... it is entirely 'appropriate' to consider the lack of a causal connection in calibrating seriousness under the second stage of the Grant analysis."
While a causal connection is not required to engage in a s. 24(2) analysis, it is a relevant factor when assessing the impact on the Charter-protected rights of the accused: Rover at para. 43.
See too R. v. Keshavarz, 2022 ONCA 312: R. v. Rover, supra
[74] This second Grant factor neither favours admission nor exclusion.
(c) Society’s interest in the adjudication of the case on its merits
[75] The Supreme Court in Tim, supra at para. 96 said this:
The third line of inquiry considers factors such as the reliability of the impugned evidence and its importance to the Crown's case. It asks "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion" (Grant, at para. 79). Reliable evidence critical to the Crown's case will generally pull toward inclusion (see Grant, at paras. 80-81; Harrison, at paras. 33-34)
[76] The Supreme Court in Harrison, 2009 SCC 34, at paras. 33 and 34, deals with this factor as follows:
At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case.
The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.
[77] The evidence (the handgun) is crucial to the Crown’s case and is highly reliable.
[78] Society has an interest in seeing trials of this nature dealt with on their merits given the terrible toll gun violence takes every year in the City of Toronto.
[79] I find that the third Grant factor favours admission of the evidence.
(d) Balancing the three Grant factors
[80] The Supreme Court in Harrison, supra, at para. 36 explains the proper approach to balancing the three Grant factors:
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[81] The breaches of Mr. Johnson’s Charter rights were moderately serious and together this mildly favours exclusion of the evidence. The impact of the breaches neither favours inclusion nor exclusion. The reliability of the evidence, its importance to the Crown’s case, and the public interest in an adjudication of this case on its merits favour admission of the evidence.
[82] Balancing these factors, I find that the admission of the evidence would not bring the administration of justice into disrepute.
[83] The stay application is denied, and all the evidence gathered, including the firearm is admitted.
[84] Considering this ruling, I believe it is conceded by the defence that the evidence supports findings of guilt on all charges.
Justice Russell Silverstein
August 5, 2026