COURT OF APPEAL FOR ONTARIO
DATE: 20240313 DOCKET: C70939
Simmons, van Rensburg and George JJ.A.
BETWEEN
His Majesty the King Respondent
and
Dwight Dudley Whittaker Appellant
Counsel: Lance Beechener and Simon Kim, for the appellant Katie Doherty, for the respondent
Heard: November 9, 2023
On appeal from the convictions entered by Justice Kelly P. Byrne of the Superior Court of Justice, sitting with a jury, on December 6, 2018.
George J.A.:
[1] The appellant was convicted of robbery with a firearm, pointing a firearm, carrying a concealed weapon, possessing a loaded restricted firearm, possessing a firearm with an altered serial number, and unauthorized possession of a firearm.
[2] On April 19, 2021, the appellant was designated a long-term offender and sentenced to four years’ imprisonment, in addition to four years and eight months of pre-sentence custody, to be followed by a 10-year supervision order.
[3] The appellant appeals his convictions. He argues that, after concluding that his s. 10(b) Charter rights were breached, the trial judge erred in her s. 24(2) analysis and by refusing to exclude as evidence the firearm and ammunition seized upon his arrest: 2018 ONSC 7535. He also argues that the trial judge erred in: 1) finding that his arrest, and two searches conducted incident to his arrest, were lawful; and 2) admitting into evidence certain LCBO surveillance footage without ensuring it was properly authenticated. The appellant asks that we set aside the convictions and enter acquittals. In the alternative, he seeks a new trial.
[4] For the reasons that follow, I would allow the appeal. The trial judge erred in her s. 24(2) analysis relating to the s. 10(b) Charter breach and by admitting the evidence of the firearms and ammunition. After conducting the s. 24(2) analysis relating to the s. 10(b) Charter breach afresh, I would exclude that evidence and substitute acquittals on all counts. Given this conclusion, there is no need to address the remaining grounds of appeal. I will therefore focus my review of the facts on those relevant to the s. 10(b) breach.
A. FACTS RELEVANT TO THE S. 10(B) CHARTER BREACH
The Robbery
[5] At approximately 9:48 p.m. on July 22, 2016, the police responded to a call about a robbery that had occurred outside the LCBO near the intersection of Queen Street West and Dunn Avenue in Toronto. The complainant, Kunga Chonyi, told the police that two men had confronted him outside the store. Mr. Chonyi said that one of the men pressed a shoulder bag against his side (he could feel a hard object inside the bag), told him that there was a gun inside the bag, and repeatedly said “I will blast you”. One of the men struck Mr. Chonyi in the face. The two men then took Mr. Chonyi’s wallet and necklace and told Mr. Chonyi to run away or he would be shot. Mr. Chonyi ran away. He suffered minor injuries, including a bloody lip.
[6] During his interview with Detective Constable Balet of the Toronto Police Service, Mr. Chonyi said that the person who pressed the bag against his side was a black male, 25 to 28 years old, short, around 5’2” to 5’4”, and wearing black jeans and a dark hoodie. He further advised that the bag was made of black fabric, had a shoulder strap, and that it was hanging from the perpetrator’s right side. LCBO staff reported that an individual matching the victim’s description of the second male had entered and exited the store three times on the night of the robbery. Officer Balet attended the LCBO the following day and viewed the store’s surveillance footage, which showed an individual generally fitting the perpetrator’s description entering and exiting the store just minutes before the robbery outside. Officer Balet formed the belief that the individual he observed in the video was involved in the robbery.
The Arrest and Searches Incident to Arrest
[7] Later that evening, at approximately 9:40 p.m., Officer Balet attended a briefing regarding an unrelated investigation involving an undercover surveillance operation being conducted in the same area as the LCBO. Officer Balet told the officers involved in that investigation about the robbery that had occurred the night before, provided a verbal description of the perpetrator based on the person he had seen in the LCBO video, and directed that, if seen, he was to be arrested for robbery with a firearm.
[8] At about 10:53 p.m., while the officers were conducting surveillance, Detective Constable Hurtado observed the appellant, who he believed matched Officer Balet’s description. As the appellant walked on Dunn Avenue towards King Street, Officer Hurtado tackled him to the ground and arrested him. The appellant was carrying a shoulder bag.
[9] Officer Hurtado conducted two searches at the scene. The first was a pat-down search immediately after arrest. The second was a search of the appellant’s bag, which led to the discovery and seizure of a 12-gauge pump-action shotgun (with the serial number removed) loaded with 3 rounds of ammunition. While the appellant was sitting on a nearby bench, Detective Constable Alias advised the appellant of his right to counsel. When asked if he wished to speak to a lawyer, the appellant responded, “I do”. After the firearm was discovered, Officer Alias advised the appellant of his right to counsel a second time, however he could not remember the appellant’s response.
Events at the Police Station
[10] The appellant was then transported to the police station. Once there, he was paraded before Sergeant Powis, who again advised the appellant of his right to speak with counsel. The trial judge found that, in response, the appellant said something about calling sureties [1]. While at the police station, officers conducted a level-three strip search. The appellant resisted during the search and was taken to the floor. The police located a baggy containing what they believed was cocaine between his buttocks. Once the search was completed, the appellant was lodged in cells where he was held overnight. At no point did the police attempt to facilitate the appellant’s communication with counsel.
[11] The appellant was taken to court for a show cause hearing the following morning, still without having had the opportunity to speak with counsel.
B. THE CHARTER APPLICATION
[12] The appellant, who was unrepresented at trial but assisted by amicus, sought to exclude the firearm and ammunition as evidence. The appellant alleged that the police breached his rights under ss. 7, 8, 9, and 10 of the Charter. He argued that 1) s. 7 was breached by the excessively forceful manner in which his arrest and the level-three strip search were conducted and by the police failing to provide him with medical attention following his arrest; 2) ss. 8 and 9 were violated when the police arrested and searched him without having reasonable grounds to do so; and 3) his ss. 10(a) and (b) rights were violated by the police failing to provide him with the reason for his arrest and right to counsel, and failing to comply with their obligation to facilitate his request to call a lawyer.
[13] The trial judge rejected the appellant’s arguments under ss. 7, 8, 9, and 10(a) but found that his s. 10(b) rights had been violated. In her s. 24(2) analysis, the trial judge considered the three factors set out by the Supreme Court in R. v. Grant, 2009 SCC 32, 2 S.C.R. 353 and concluded that “[o]n balance, after a consideration of all three [Grant] factors, I find that the admission of the firearm and ammunition would not bring the administration of justice into disrepute”.
[14] The trial judge, at para. 102 of her reasons, described the s. 10(b) breach as follows:
Constable Alias testified that after giving the applicant his rights to counsel, the applicant responded that he wanted to call a lawyer. Constable Alias testified that he did not facilitate that call to counsel nor did he know of any officer who did. Constable Alias testified that it was his responsibility and he offered no explanation as to why he did not fulfill that obligation. He did testify that it was a high adrenaline situation. The applicant testified that after he was arrested, he did tell the officer he wanted to call a lawyer but he was never given the opportunity to do so. [Emphasis added.]
[15] She went on to state, at paras. 103 and 104:
While I am mindful that Constable Alias was unable to provide a verbal explanation for not facilitating the applicant’s phone call to counsel, I do think the circumstances shed some light on the issue. This was a high-risk takedown where a loaded restricted weapon was recovered. This was not just any weapon, it was [a] sawed-off shotgun. The weapon by its very appearance is menacing. It is common sense the Officers would only start to appreciate the real danger they were in after they located the firearm – adding to an already high adrenaline situation. Although not excusable – it is understandable how this circumstance resulted in Detective Constable Alias’ oversight in facilitating the applicant’s call to counsel.
On the booking video, the applicant in the presence of Constable Alias was asked by Sgt. Powis if he wanted to call counsel. The applicant responded by saying something about calling sureties. In my view, this response added a layer of confusion to the situation.
[16] With respect to the first Grant factor, the seriousness of the breach, the trial judge wrote, at para. 108:
In my view the Officers did not wilfully or recklessly disregard the applicant’s s. 10(b) Charter rights. The breach was not intentional nor was it part of [a] larger systemic problem within the law enforcement agency. I find that this was an honest mistake made in a difficult and high adrenaline circumstance.
[17] She concluded that, given the unique facts of this case, the first Grant factor favoured admission.
[18] With respect to the second Grant factor, the impact of the violation on the accused’s Charter-protected interests, the trial judge noted that the task is twofold, requiring the judge to both identify the interest at stake and measure the significance of the intrusion. She found that the requirements of s. 10(b) safeguard against involuntary self-incrimination. Concerning the significance of the intrusion, she wrote this, at para. 114:
In this case the firearm and ammunition were seized during a lawful search incident to arrest prior to the applicant receiving or implementing his s. 10(b) rights. I find that the police were justified in delaying the providing and facilitation of the applicant’s call to counsel until after both searches were complete. To do otherwise would have [compromised] the safety and security of the public and the officers involved [citation omitted]. The police did not attempt to interview the applicant after either of the searches, nor was there any other evidence obtained. Given that there is no causal connection between the applicant’s s. 10(b) interest and the obtaining of the evidence, the intrusion in my view is at the lower end of the scale.
[19] She found that the second Grant factor also favoured admission.
[20] Finally, the trial judge concluded that the third Grant factor favoured admission. She stated at para. 116:
The physical evidence of the firearm itself is highly relevant evidence and serves the truth seeking function of the trial. It was discovered in the side-bag worn by the applicant at the time of arrest. It is consistent with the robbery victim’s description. Without it, society’s interest in adjudication of this matter would not be served and the admission of it would not bring the administration of justice into disrepute.
C. POSITIONS OF THE PARTIES
[21] As mentioned, the appellant’s primary ground of appeal is that the trial judge erred in her s. 24(2) analysis in relation to the s. 10(b) breach. The appellant argues that, while the trial judge accepted that the police officers did not fulfill their constitutional obligations, she downplayed the seriousness of the police conduct and its impact on his Charter-protected interests. The appellant argues that the trial judge’s unsupported characterization of the police conduct as an “oversight” as a result of a “high adrenaline situation” was speculative and tainted her s. 24(2) analysis, and that her analysis of the second Grant factor was flawed. Should we find that the trial judge erred, the appellant asks that we conduct the Grant analysis afresh, exclude the evidence, and substitute acquittals.
[22] While the appellant’s primary position is that the trial judge’s flawed s. 24(2) analysis relating to the s. 10(b) breach is sufficient to dispose of the appeal, he also argues that the trial judge erred in failing to find that his arrest and the searches conducted by police were unlawful. Had the trial judge not erred by failing to find ss. 8 and 9 Charter breaches, the case for exclusion of evidence would have been even stronger.
[23] The Crown highlights the fact that 1) the appellant understood Officer Alias when he was advised of his right to counsel; 2) the appellant, despite indicating to Officer Alias that he wished to speak to a lawyer, neither named a particular lawyer nor stated that he wished to speak with duty counsel; and 3) at the police station, when he was again advised of his right to counsel, the appellant only said something about sureties and was provided with information about how he could make contact.
[24] The Crown submits that, in assessing the seriousness of the breach, the trial judge properly considered the police conduct in the context of their entire interaction with the appellant. Overall, the interaction involved a dynamic and dangerous situation and the appellant’s response to inquiries at the police station about exercising his rights to counsel related only to sureties. In the specific circumstances, the trial judge accepted that the police conduct was the result of an “honest mistake” and did not wilfully or recklessly disregard the appellant’s s. 10(b) Charter rights. Nor was their conduct part of a systemic problem.
[25] As for the impact of the breach on the appellant’s rights, the Crown argues that the trial judge properly focused on concerns about self-incrimination where the appellant knew he was under arrest for serious offences and expressed an understanding of the process by inquiring about sureties. In these circumstances, the fact that the firearm and ammunition were seized during a lawful search and that no incriminatory evidence was obtained concerning the charged offences following that search attenuated the seriousness of the breach.
[26] The Crown argues that since the ultimate determination of whether evidence will be excluded pursuant to s. 24(2) turns on a trial judge’s findings of fact and their subsequent weighing of all the Grant factors, which cannot be done with “mathematical precision”, deference is owed to the trial judge’s decision to admit the evidence: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 117. The Crown acknowledges that where the first two lines of inquiry “make a strong case for exclusion”, the third line “will seldom tip the scale in favour of admissibility”: Beaver, at para. 134. Nevertheless, the Crown argues that there was a compelling public interest in admitting the evidence in this case.
D. ANALYSIS
Section 10(b)
[27] Section 10(b) of the Charter guarantees that everyone arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right. When, after being informed of this right, a detained person seeks to exercise it, subject to few exceptions, such as concerns for officer or public safety, the police must immediately provide them with a reasonable opportunity to speak with counsel: See R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42. In this case, although the appellant asked to speak with counsel, he was never given the opportunity to do so. The police therefore breached the appellant’s rights under s. 10(b). This is not in dispute.
Section 24(2)
[28] Section 24(2) is not an automatic exclusionary rule that mandates the exclusion of evidence whenever it is collected in an unconstitutional manner. The question is whether the admission of the evidence would bring the administration of justice into disrepute. The answer to this question turns on the seriousness of the Charter-infringing state conduct, its impact on the Charter-protected interests of the accused, and on society’s interest in the adjudication of the case on its merits: Grant, at paras. 71, 102-103.
[29] The objective is not to assign blame, punish the police, or deter future Charter breaches, but to “preserve public confidence in the rule of law and its processes”. A s. 24(2) analysis must focus on the “broad impact [the] admission of the evidence [would have] on the long-term repute of the justice system”: Grant, at paras. 70-73.
[30] Charter violations in the collection of evidence vary on the spectrum of seriousness. On the one end are inadvertent, technical, and minor Charter breaches. On the other end is the reckless disregard of Charter rights as well as systemic patterns of Charter-infringing conduct. The more serious the breach, the more it will pull towards exclusion of the evidence: Beaver, at para. 120; Grant, at para. 74.
[31] On the question of impact, the “extent to which the Charter breach actually undermined the interests protected by the right” must be carefully evaluated: Beaver, at para. 123; Grant, at para. 76. The potential impact also falls along a spectrum. The greater the impact, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. The presence, or absence, of a causal connection between the violation and the evidence sought to be excluded, while not determinative, is a factor to consider at this stage. Like the first factor, the more serious the breach, the more it will pull towards exclusion of the evidence: Beaver, at para. 123.
[32] The third factor, society’s interest in the adjudication of a case on its merits, asks whether the truth-seeking function of the criminal trial process would be better served through the admission or exclusion of the evidence. The more reliable and important the evidence to the Crown’s case, and the more serious the offence, the stronger the societal interest in an adjudication on the merits will be. This factor will almost always pull in favour of admission of the evidence: Beaver, at para. 129; Grant, at paras. 79-83, 115.
[33] All of these factors must be weighed together to assess whether the admission of the evidence would bring the administration of justice into disrepute. Where the first two factors make a “strong case for exclusion”, the third will rarely, on its own, justify admission. That said, “where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission”: Beaver, at paras. 117, 133-34. As Doherty J.A. put it in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62 and 63:
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interest in an adjudication on the merits, pulls in the opposite direction toward the inclusion of the evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted.]
[34] Even in circumstances where the second factor does not pull strongly towards exclusion, admission may still bring the administration of justice into disrepute. As the Supreme Court held in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para 141:
[It is] possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion. [Emphasis in original.]
The Trial Judge’s s. 24(2) Analysis
[35] For the reasons set out below, I conclude that the trial judge made reversible errors in her assessment of the first two Grant factors, and in her conclusion that both favoured the admission of the evidence sought to be excluded.
(i) First Grant Factor – Seriousness of the Charter Violation
[36] Although the officers involved offered no explanation for their complete failure to facilitate the appellant’s communication with counsel, the trial judge concluded that this occurred as the result of an understandable oversight in a high adrenaline situation that was compounded by the appellant’s confusing response to a second inquiry about whether he wished to exercise his right to counsel at the police station. For ease of reference, I repeat her comments, at paras. 103 and 104:
While I am mindful that Constable Alias was unable to provide a verbal explanation for not facilitating the applicant’s phone call to counsel, I do think the circumstances shed some light on the issue. This was a high-risk takedown where a loaded restricted weapon was recovered. This was not just any weapon, it was a sawed-off shotgun. The weapon by its very appearance is menacing. It is common sense that the officers would only start to appreciate the real danger they were in after they located the firearm – adding to an already high adrenaline situation. Although not excusable – it is understandable how this circumstance resulted in Detective Constable Alias’ oversight in facilitating the applicant’s call to counsel.
On the booking video, the applicant in the presence of Constable Alias was asked by Sgt. Powis if he wanted to call counsel. The applicant responded by saying something about calling sureties. In my view, this response added a layer of confusion to the situation. [Emphasis added.]
[37] There are several related problems with this. Most significantly, despite the circumstances of the arrest, Officer Alias was able to restrain the appellant, handcuff him, and read him his rights to counsel. Any immediate danger the officers were in subsided when the arrest was made. Officer Alias testified that he told the appellant why he was under arrest “once everything [was] calm”, referring to the period where the appellant was sitting handcuffed on the bench under officer supervision. He acknowledged that the appellant was compliant with police at this point. Officer Alias was able to advise the appellant of his right to counsel on two occasions, both before and after the firearm was recovered, and then stood by waiting for transport.
[38] The trial judge’s conclusion that the “high adrenaline situation” associated with this “high-risk takedown” somehow contributed to Officer Alias’ failure to subsequently implement the appellant’s s. 10(b) rights following their arrival at the police station amounted to speculation on her part. As she noted, Officer Alias did not give evidence to that effect. Her finding that it was only “common sense” that the officers would start to appreciate the danger they had been in after they recovered the firearm – and that that somehow contributed to Officer Alias’s failure to implement the appellant’s s. 10(b) rights – was not supported by any evidence.
[39] Further, Officer Alias did not claim to have been confused by the appellant’s comments about sureties at the police station. He was clear that when asked whether he wished to speak to a lawyer, the appellant’s response was an unequivocal “I do”. The appellant’s desire to access legal counsel could hardly have been any clearer. Once again, the trial judge’s conclusion that the appellant’s comments about sureties at the police station added a layer of confusion to the situation was unsupported by the evidence.
[40] The trial judge’s characterization of the police conduct that gave rise to the breach clearly tainted her s. 24(2) analysis. That is, by characterizing the breach as an “honest mistake” and “oversight”, and thereby placing it at the lower end of the spectrum of seriousness, the trial judge had little choice but to find that the first Grant factor pulled towards admission. In reality, given the complete and unexplained denial of the appellant’s right to speak with counsel over a prolonged period of time – from his arrest around 11:00 p.m., overnight until at least his show cause hearing – the first Grant factor could not have favoured admission. While it was open to the trial judge to find that the breach was unintentional – because it clearly was not deliberate – it was unquestionably the result of extreme carelessness. There is no doubt that it would be reasonable for the police, in some circumstances, to hold off on implementing the right to counsel – for example, to complete a strip search for safety purposes. However, the police had a duty to provide the appellant with a reasonable opportunity to speak with counsel without unreasonable delay, but never provided him with an opportunity to do so. Rather than favouring inclusion, the first Grant factor pulled toward exclusion.
[41] Recent decisions from this court support the argument that the breach here could not have been viewed as anything other than serious. In fairness to the trial judge, it is unlikely that she had the benefit of any of these decisions. [2]
[42] In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, this court allowed an appeal and substituted acquittals for drug offences on the basis that the evidence should have been excluded under s. 24(2). Upon arrest Mr. Rover advised the police that he wanted to speak to a lawyer, but was not afforded that opportunity until almost six hours later. In that case, a police policy prevented Mr. Rover from contacting counsel until after the police obtained a warrant and commenced their search. Doherty J.A. found that, given the police policy and the six-hour delay, the s. 10(b) breach was serious and the first Grant factor therefore favoured exclusion. I appreciate that the breach in Mr. Rover’s instance was serious, at least in part, because it arose from a systemic practice, but the breach in the present case is arguably more serious given the appellant was never afforded the opportunity to speak with counsel.
[43] In R. v. Noel, 2019 ONCA 860, the appellant was arrested during the execution of a search warrant at his home, where drugs were found in his bedroom. A police officer left a message for duty counsel to call back and speak with Mr. Noel, but never followed up to ensure contact. While the trial judge found a s. 10(b) violation, she admitted the evidence. On appeal this court concluded that the breach was serious and warranted exclusion, writing, at paras. 20, 29, 31, and 32, that:
[T]here is no evidence that Mr. Noel ever succeeded in speaking to counsel. The evidence was that at 1:25 a.m., approximately three hours after his arrest, Officer Westcott left a message with duty counsel on Mr. Noel’s behalf, but there was no evidence that anyone followed up to ensure contact occurred. It is true that the onus is on Mr. Noel to establish the s. 10(b) breach, and that he did not lead affirmative evidence that he never managed to speak to counsel. That does not change the fact, though, that there is no affirmative proof that he did.
The s. 10(b) violation found by the trial judge was serious. Three hours passed between the time of the arrest and the first confirmed attempt by the police to secure counsel for Mr. Noel. When Mr. Noel arrived at the station at 11:10 p.m., entirely under the control of the police, no one took charge of ensuring that he could speak to counsel as he had requested. Instead, he was placed in a cell and left there.
It was not until 1:25 a.m., now about two and a half hours after Mr. Noel’s arrival at the station, that Officer Westcott left a message with duty counsel, specifically on Mr. Noel’s behalf. There is then no confirmation that counsel actually spoke to Mr. Noel.
From the beginning, the police appear to have had a somewhat cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay. Indeed, the trial judge characterized the police conduct in this regard as demonstrating “carelessness” – a characterization with which the Crown does not take issue.
[44] It is difficult to see how the appellant’s situation is any different than Mr. Noel’s. In fact, because no attempt was made to facilitate contact with counsel, the facts in the appellant’s case are arguably more problematic.
[45] While the trial judge did not have the benefit of this court’s decision in R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, it closely resembles the facts in the appellant’s case. The police, who arrested Mr. Jarrett for a bail violation, located and seized a fanny pack which contained drugs and money. The trial judge, while finding that the police violated s. 10(b) by leaving only a single message for counsel of choice (and then failing to follow up for 30 hours after arrest), admitted the evidence. Zarnett J.A., writing for the court, held that a proper s. 24(2) analysis would have resulted in exclusion. In addressing the seriousness of the breach, Zarnett J.A. wrote, at paras. 47-48, that:
First, the breach ought not to have been viewed as anything other than serious, given the extent the police conduct departed from the content of the appellant’s constitutional right. The duty of the police was to immediately provide the appellant with a reasonable opportunity to speak to counsel. Viewed from that perspective, the breach was very substantial – the delay in providing the opportunity to speak to counsel was about 30 hours.
Second, although the breach was arguably inadvertent – that is, not intentional and there was no evidence the delay was caused by a systemic practice – the circumstances did not take the case out of the serious breach category. The single, unsuccessful attempt to contact counsel referenced by the trial judge pales in comparison to the length of time over which the police failed to take any further steps to fulfill their duty. Indeed, immediately after describing the breach as “arguably inadvertent”, the trial judge noted that after their initial attempt to contact counsel, “[n]o officer made any further attempt to either contact counsel, to ascertain whether counsel had contacted [the appellant], or to assist [the appellant] with contact from the hospital.” The police are expected to comply with the Charter. The absence of evidence that the police’s failure to comply with the Charter was systemic is not a mitigating factor when assessing the seriousness of the breach. [Emphasis in original; citations omitted.]
[46] In my view, Zarnett J.A.’s reasoning applies with equal force to this case. The trial judge erred by minimizing the Charter-infringing police conduct because it was not “part of a larger systemic problem”. As in Jarrett, the absence of a systemic problem is not a mitigating factor. Nor does the fact that the breach was the result of an “honest mistake” render it less serious. Such inadvertence “[does] not take the case out of the serious breach category”. In any event, the breach in this case is arguably more serious – while in Jarrett there was one attempt to place the accused in touch with counsel, here there were none.
[47] The trial judge improperly downplayed the seriousness of the failure by the police to fulfill their constitutional obligations. She specifically fell into error by speculating about why the police did not facilitate contact with counsel, by treating the absence of a systemic problem as a mitigating factor, and by effectively equating inadvertence with good faith.
[48] Again, while the breach here may not have been deliberate or part of a broader systemic problem, the officers’ complete failure to fulfill their constitutional duties over a prolonged period of time was serious and inexcusable. The trial judge erred by concluding that the first Grant factor favoured admission.
(ii) Second Grant Factor – Impact of the Breach on the Appellant’s Charter-Protected Rights
[49] The trial judge found that, on the facts of this case, the second Grant factor pulled towards admission. In arriving at this conclusion, she focused on the importance of s. 10(b) rights in safeguarding against involuntary self-incrimination and relied on the lack of a causal connection between the appellant’s s. 10(b) interests and the obtaining of the evidence. In other words, because the Charter violation did not lead to the appellant incriminating himself, its impact was less serious, which in turn weighed in favour of admission.
[50] In my view, the trial judge erred by focusing on the fact that there was no self-incrimination to the exclusion of other factors that were relevant. Undoubtedly, the lack of a causal connection can attenuate the seriousness of a s. 10(b) breach: Grant, at para. 122; Rover, at para. 43. However, in this case, the trial judge erred by failing to acknowledge that there are other interests protected by s. 10(b) beyond the principle against self-incrimination.
[51] In addition to providing a safeguard against self-incrimination, contact with counsel also provides a detained person with information about the procedures they will be subjected to, advice on questions about how long their detention is likely to be, and guidance on what can or should be done to regain liberty: Noel, at para. 26; Rover, at para. 45; and Suberu, at para. 41. These interests were surely at play in this case. The appellant was detained overnight and brought to a show cause hearing the following morning. As a result, he was deprived of the potential benefit of having information from counsel on what was going to happen, and what could be done to obtain release.
[52] Here, even though upon arrest the appellant asked to speak with counsel, the police never afforded him that opportunity prior to him being taken to court the next day. The appellant’s access to counsel was not merely delayed – it was, whatever the reason, completely denied. It is difficult to imagine when, if ever, the complete denial of a Charter-protected right for such a prolonged period would lead to a finding that the second Grant factor favours admission. As this court directed in Jarrett, “[t]he impact must be considered given the nature of the interests protected by the right to counsel, and the length of delay in providing it”: at para. 53. Again, the appellant was not delayed in speaking with counsel; he was entirely denied the right to do so. In deciding as she did, the trial judge “placed undue emphasis on the lack of a causal connection between the [search and seizure] and the s. 10(b) breach”: Jarrett, at para. 55.
[53] In sum, as it relates to the second Grant factor, the trial judge erred by placing undue emphasis on the absence of a causal connection, and by not considering other interests protected by s. 10(b), aside from self-incrimination. A breach can have a significant impact on a person’s s. 10(b) interests even where there is no causal connection: see Rover, at para. 47; Noel, at para. 33; and Jarrett, at para. 53. The trial judge erred by failing to consider all of the interests protected by s. 10(b), in particular the psychological value of having access to counsel.
E. THE S. 24(2) ANALYSIS AFRESH
[54] Where, as here, a trial judge’s s. 24(2) ruling is unreasonable or impaired by errors in principle, this court is entitled to intervene and conduct the s. 24(2) analysis afresh: R. v. Campbell, 2019 ONCA 258, 145 O.R. (3d) 357, at para. 23; Grant, at para. 129.
[55] As I have explained, the breach of the appellant’s s. 10(b) rights cannot be viewed as anything other than serious. His access to counsel upon arrest was not merely delayed – it was denied altogether for a prolonged period due to carelessness. The only available conclusion is that the first Grant factor pulls towards exclusion of the firearm and ammunition.
[56] Similarly, the impact of the breach on the appellant’s Charter-protected interests was significant. The police completely denied him a constitutional right which has been termed a “lifeline for detained persons”: Rover, at para. 45. The appellant was not only unable to obtain legal advice, but also did not have the psychological benefit of speaking to counsel to understand his rights, or the opportunity to get information from counsel on how he could go about regaining his liberty. The second Grant factor thus also pulls towards exclusion of the evidence.
[57] As for the third Grant factor, it is undisputed that society’s interest in an adjudication on the merits almost always favours admission of the evidence: McGuffie, at paras. 62-63. That is also the case here given the relatively serious nature of the offences. The real question is whether the pull towards inclusion by the third factor outweighs the pull towards exclusion by the first and second factors. In my view, it does not.
[58] As I noted above, the Supreme Court held at para. 134 of Beaver that where the first two Grant factors “make a strong case for exclusion” of the evidence, the third factor “will seldom tip the scale in favour of admissibility”. This is not one of those rare cases.
[59] In so concluding, I am mindful of the Supreme Court’s decision in R. v. Omar, 2019 SCC 32, [2019] 2 S.C.R. 576, which expressed substantial agreement with the dissenting reasons of Brown J.A. in R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1 (“Omar (ONCA)”). Of particular relevance are Brown J.A.’s conclusions that 1) the third Grant factor should not be subordinated to a position where it plays no practical role in the balancing exercise, and 2) firearms should not be treated as fungible with any other piece of evidence given their “distinctive nature”, namely their “lethal threat” to public safety: Omar (ONCA), at paras. 119, 135.
[60] Yet Brown J.A. also recognized that these principles are not absolute and, practically speaking, “there is no ‘firearms exception’ requiring that guns obtained in breach of Charter rights be admitted into evidence”: Omar (ONCA), at paras. 122-23. Indeed, the overriding consideration in any s. 24(2) analysis is whether admitting the evidence would bring the administration of justice into disrepute.
[61] In the circumstances of this case, it would. The breach of the appellant’s s. 10(b) rights was so serious and injurious of his Charter-protected interests that no amount of public clamour for a conviction could tip the scales towards inclusion. The integrity of the justice system would be compromised if, in these circumstances, this court were to effectively vindicate the inexcusable Charter breach by the police. Simply put, the administration of justice is better served by excluding the evidence than by admitting it.
[62] As stated earlier, it is unnecessary to consider the rest of the grounds of appeal, which were argued in the alternative had I not found that the trial judge erred in her s. 24(2) analysis.
F. Conclusion
[63] The firearm and ammunition ought to have been excluded. As all charges were firearms related, the Crown had no case without this evidence and acquittals were inevitable. I would accordingly allow the appeal, set aside the convictions, and substitute acquittals on all counts.
Released: March 13, 2024 “J.S” “J. George J.A.” “I agree. Janet Simmons J.A.” “I agree. K. van Rensburg J.A.”
[1] The booking video was played as part of the Charter voir dire. Sergeant Powis had no note of this response and could not discern it from the video, but the trial judge and defence counsel at trial both apparently heard this response.
[2] Although R. v. Rover was released prior to the trial judge’s ruling, in oral argument on the appeal, counsel accepted that it is unlikely this decision was brought to her attention.
