Court of Appeal for Ontario

Date: 2025-03-20
Docket: C70242
Coram: van Rensburg, Miller and Gomery JJ.A.

Between:
His Majesty the King (Respondent)
and
Wesley James (Appellant)

Appearances:
Lance Beechener, for the appellant
Sarah Egan, for the respondent

Heard: October 10, 2024

On appeal from the convictions entered by Justice Todd Ducharme of the Superior Court of Justice on June 18, 2021.

Reasons for Judgment

van Rensburg J.A.:

Introduction

[1] The appellant was charged with trafficking crack cocaine and possessing fentanyl and crack cocaine for the purpose of trafficking following his arrest at a convenience store in downtown Toronto. At trial, he brought a Charter application alleging breaches of ss. 8, 9 and 10(b), and seeking under s. 24(2) to exclude evidence: crack cocaine that was seized at the store when he was arrested, scales and money found in the search of his vehicle, and fentanyl and crack cocaine that were removed from his pants when he arrived at the police station.

[2] The trial judge found that the police had breached certain of the appellant’s Charter rights. He concluded that the appellant’s arrest and search incident to the arrest did not contravene the Charter, but that the search of his motor vehicle contravened s. 8, and that the police violated s. 10(b) when they spoke with him and searched him after he had indicated he wanted to speak with counsel but before he was afforded the opportunity to do so. Only the fruits of the motor vehicle search were excluded from evidence at trial. While the trial judge was very critical of the police officers’ conduct, and he held that the first Grant factor pulled heavily in favour of exclusion, he ultimately admitted in evidence the drugs found in the appellant’s pants.

[3] With the admission of this evidence and the trial judge’s acceptance of the testimony of the arresting officers that they had seen the appellant transfer a small amount of crack cocaine by placing it on a shelf in the convenience store, the appellant was convicted of all three offences. He received a global sentence of 3.5 years’ imprisonment after receiving six months’ credit for pre-trial detention and a further one-year deduction to account for the police misconduct.

[4] The appellant appeals his convictions, submitting that the trial judge erred in failing to exclude from his trial the evidence of the drugs that were seized in violation of his s. 10(b) rights. He also contends that his conviction for the offence of trafficking crack cocaine was unreasonable because the substance seized at the store was never tested. He asks this court to quash his convictions and enter acquittals. In the alternative, he seeks a new trial.

[5] For the reasons that follow, I would allow the appeal from the appellant’s convictions for possession for the purpose of trafficking fentanyl and crack cocaine, and, recognizing that the evidence of the drugs seized from the appellant was essential to the appellant’s convictions on these charges, I would substitute verdicts of acquittal. I would dismiss the appeal of the appellant’s conviction for trafficking crack cocaine.

[6] Briefly, with respect to the possession for the purpose of trafficking convictions, the trial judge erred in his Grant analysis when he decided not to exclude the drug evidence that was seized from the appellant on his arrival at the police station. In considering the first Grant factor, the trial judge did not give proper effect to his significant findings of police misconduct that demonstrated a serious disregard for the appellant’s Charter rights, and the officers’ dishonest and misleading evidence in court. In concluding that the second Grant factor favoured the admission of the evidence, the trial judge allowed the fact that the drugs would have been found in any event to overwhelm his analysis. After concluding that the third Grant factor strongly favoured the admission of the evidence, the trial judge completed his analysis without conducting a final balancing to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Conducting the Grant analysis anew, I would exclude the evidence of the drugs that were seized in violation of the appellant’s s. 10(b) rights.

[7] As for the conviction for trafficking crack cocaine, the verdict was not unreasonable. The trial judge explained why he accepted the evidence of the arresting officers that the appellant put a piece of crack on the store shelf for another individual to take, and he was entitled to convict the appellant based on that evidence.

A. Facts

[8] On August 21, 2019, at around 5:10 p.m., acting on information about drug trafficking received by the Toronto Police Services, Police Constable Esteves and Detective Constable Sukman (the “arresting officers”) attended at a convenience store at the intersection of Dundas and Sherbourne Streets in Toronto. There they observed the appellant and another man engaging in what appeared to be a drug transaction: the appellant placed a small piece of what appeared to be crack cocaine on a shelf and the other man reached for it. The officers immediately intervened.

[9] The appellant was arrested for trafficking cocaine. P.C. Esteves read him his rights to counsel and searched him incident to arrest, discovering a car key and some cash. Armed with the key, the arresting officers located the appellant’s car, and performed what they described as an “inventory search” of the car. They found cash in the centre console in small bills, scales, bottles of wine, some clothing, the appellant’s driver’s licence, and a satchel containing approximately $1,000 in cash.

[10] Following the arrest P.C. Esteves brought the appellant to another police vehicle for transport to 51 Division. D.C. Sukman spoke to the appellant in the vehicle and advised him of the reasons for his arrest and his rights to counsel. This was captured by the in-car camera. P.C. Blunk and P.C. Koptie (the “transporting officers”) followed P.C. Esteves’ instructions to handcuff the appellant to the partition between the front and back seats of the car in order to prevent him from discarding any drugs that were believed to be on his person.

[11] While they were driving to the police station the appellant became agitated and repeatedly tried to reach his hands into his pants. The officers had to stop the car twice on the way to the station due to disturbances from the appellant. Ultimately, he was placed in leg restraints. The drive to the station took approximately ten minutes.

[12] Upon arrival at 51 Division, the transporting officers parked outside the sally port. Another officer, P.C. Freeman, was in the area when they arrived. The appellant called over to the officer, who approached the car and spoke to him. At the officer’s request the in-car camera was shut off for what he described as “investigative purposes”, and he proceeded to have a conversation with the appellant.

[13] The officer asked the appellant whether he had more drugs on him. The appellant admitted that he had crack cocaine and fentanyl. While the appellant was still handcuffed to the partition of the police car, cocaine and fentanyl were removed from his pants. It was agreed at trial that 43.9 grams of cocaine and 14.1 grams of fentanyl were in the appellant’s pants and that these drugs were in his possession for the purpose of trafficking. P.C. Freeman also testified that he had received and processed 1.3 grams of crack cocaine from D.C. Sukman that had been located on the other party to the transaction at the convenience store.

[14] The appellant was taken into the station and paraded before the officer-in-charge at 5:44 p.m. A Level 3 search was conducted, but no other evidence was found. P.C. Koptie left a message for the appellant’s lawyer. The appellant spoke to his girlfriend at 5:50 p.m. and to his counsel at 6:45 p.m. A few hours later P.C. Freeman spoke to the appellant to discuss his charges and possible consideration in exchange for the appellant providing information. According to the officer he made no notes of the meeting and nothing came of it.

[15] The appellant was charged with one count of trafficking crack cocaine pursuant to s. 5(1) of the Controlled Drugs and Substances Act (CDSA) – in relation to the transaction observed in the convenience store – and two counts of possession for the purpose of trafficking (fentanyl and crack cocaine) pursuant to s. 5(2) of the CDSA – in respect of the drugs found on his person in the parking area of the police station. [^1]

B. The Charter Application and the Trial Judge’s Findings

[16] The appellant brought a pre-trial application seeking to exclude evidence from his trial based on breaches of his rights under ss. 8, 9 and 10(b) of the Charter. The matter proceeded as a blended voir dire and trial. The five police officers referred to above testified, and the appellant testified on the voir dire.

[17] The trial judge provided a single set of reasons, delivered orally, addressing the Charter application, and convicting the appellant of the three drug offences.

[18] The trial judge was very critical of various aspects of the police officers’ evidence, concluding that several officers had lied under oath. The trial judge also concluded that the appellant had exaggerated his evidence with respect to his treatment by the police and that he was not entirely honest with the court.

[19] With respect to the alleged s. 9 violation, the trial judge accepted that both P.C. Esteves and D.C. Sukman had subjective grounds that were objectively reasonable for the appellant’s arrest for trafficking crack cocaine, based on the information they had received and what they observed when they attended at the convenience store. The trial judge also concluded that there was no violation of s. 8 in the search of the appellant, which was incident to his lawful arrest.

[20] As for the alleged violation of s. 8 in the search of the appellant’s vehicle, the trial judge did not believe the arresting officers’ evidence that they conducted an “inventory search” to ensure that none of the appellant’s belongings went missing after someone told them the car would be towed. Rather, as P.C. Esteves eventually admitted, the purpose of the search was to see if there were more drugs or related evidence in the vehicle, and the police had no legal authority to search the vehicle. The Crown conceded that the search of the appellant’s car violated s. 8 and did not seek to lead any evidence resulting from that search. According to the trial judge, the evidence demonstrated a “rather cavalier attitude towards the [appellant’s] Charter rights”, and the seriousness of the breach was aggravated by the fact that the arresting officers were dishonest about the reason for the search.

[21] The trial judge concluded that the implementational components of the appellant’s rights under s. 10(b) were breached by P.C. Freeman’s conduct at the police station. D.C. Sukman had explained both the arrest and the appellant’s s. 10(b) rights when the appellant was taken to the police vehicle. While the arresting officers could not recall any such conversation, the trial judge accepted the appellant’s evidence that he had asserted his s. 10(b) rights by asking to speak with a lawyer when he was still in the convenience store. The trial judge concluded that neither of the arresting officers had advised the transporting officers about the appellant having asserted his right to counsel prior to his transport to the station, and that P.C. Freeman had not, in turn, asked the transporting officers about the appellant’s right to counsel. He found that the appellant’s rights under s. 10(b) were violated when, before he had the opportunity to speak to counsel, and without asking him whether he wished to speak to counsel, he was questioned and searched, and fentanyl and crack cocaine were retrieved from his pants.

[22] The trial judge found that P.C. Freeman was a dishonest witness overall when he testified about his interactions with the appellant. He referred to the sally port entrance video evidence that captured the officer’s “aggressive” and “animated” manner of speaking with the appellant. He rejected the officer’s testimony that he had asked that the in-car camera be shut off for investigative purposes in order to protect the appellant, who he thought was going to try to provide police with sensitive information. The trial judge found that the officer was dishonest when he initially denied (but eventually admitted to) asking the appellant whether he had drugs on him. He found that the officer lied when he claimed he could not remember who removed the drugs from the appellant’s pants and when, after conceding he might have taken the fentanyl out of the back of the appellant’s pants, he insisted that he had not removed the crack cocaine.

[23] The trial judge also criticized the transporting officers’ evidence that, although they were close enough to see and hear what was going on, they did not remember the interaction between the appellant and P.C. Freeman after the in-car camera was turned off. He characterized their evidence as at best a “failure to take proper notes and a failure of memory” and at worst as “not being honest with the Court”.

[24] The trial judge went on to consider whether the evidence, which had been obtained in a manner that violated the appellant’s rights under ss. 8 and 10(b) of the Charter, should be excluded from the trial pursuant to s. 24(2). The trial judge reviewed the evidence in relation to the three lines of inquiry under R. v. Grant, 2009 SCC 32.

[25] Under the first Grant factor, the trial judge considered the seriousness of the Charter-infringing conduct. He concluded that the police had acted in bad faith in searching the appellant’s car when they knew they did not have the legal authority to do so. He stated that the first prong of the s. 24(2) Grant analysis strongly favoured the exclusion of the evidence seized in the car, and that the Crown agreed with this conclusion.

[26] With respect to the s. 10(b) breach, the trial judge concluded that the conduct outside the sally port, both in questioning and searching the appellant, constituted a serious violation of his s. 10(b) rights and that the officer had acted in reckless disregard of these important rights. He concluded that the first prong of the Grant test strongly favoured the exclusion of the drugs seized by the officer.

[27] In assessing the impact of the Charter violations on the appellant, the trial judge found that the search of the appellant’s car completely undermined his privacy interests and strongly favoured the exclusion of any evidence seized from that search. The Crown also agreed with this conclusion.

[28] With respect to the s. 10(b) violation, after stating that the violation was serious because the implementational duties imposed by the Charter-protected right to counsel had been ignored, the trial judge noted that the drugs would have been discovered once the appellant was subjected to a Level 3 search after he was booked, regardless of the breach. As such, he observed that the practical effect of the s. 10(b) breach was that the drugs were discovered and seized slightly earlier than they otherwise would have been. The trial judge concluded that this branch of the analysis supported the inclusion of the evidence seized from the appellant in the sally port area.

[29] The trial judge then considered the third line of inquiry, whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence. He noted that the evidence seized from the appellant’s car, while reliable, was not critical to the Crown’s case. As for the drugs seized from the appellant outside the sally port, the third prong of the Grant test favoured admission: if this reliable and critical evidence were excluded, the Crown’s case on these charges would fail.

[30] The trial judge concluded his analysis by stating that he would exclude from the trial the products of the search of the appellant’s vehicle, and that he would not exclude the drugs seized by P.C. Freeman.

[31] The trial judge then stated that he found the appellant guilty of all three charges. The Charter application was determinative of the appellant’s guilt on the possession for the purpose of trafficking charges. With respect to the trafficking charge, the trial judge had rejected the appellant’s denial that he had put the crack cocaine on the shelf in the convenience store, and his evidence that it was in fact the other man who was conducting a drug transaction, and he had accepted the officers’ evidence of what they had seen.

[32] The appellant received a global sentence of 3.5 years, after receiving six months’ credit for pre-trial custody and a one-year deduction to account for the police misconduct. [^2]

C. Issues on Appeal

[33] The appellant raises two issues on appeal. First, he submits that the trial judge erred in dismissing the Charter application and admitting the evidence of drugs found on the appellant’s person. Second, he contends that the trial judge’s verdict on the trafficking crack cocaine charge was unreasonable, since there was no evidence that the substance being “trafficked” was in fact cocaine. [^3]

D. Discussion

(1) The Charter Ground of Appeal

(a) Standard of Review

[34] On an appeal of a s. 24(2) decision, a trial judge’s assessment of the Grant factors in light of the facts is typically entitled to deference. A s. 24(2) decision is reversible only when there is an error in legal principle, a palpable and overriding factual error, or an unreasonable determination: R. v. Truong, 2025 ONCA 69, para 37.

[35] In this case there is no challenge to the trial judge’s findings of fact about the circumstances of the breaches of s. 8 and s. 10(b) of the Charter, and the conduct of the police officers. Indeed, on the issues that are central to this appeal, the trial judge found breaches of the Charter by a number of police officers and that some of the conduct demonstrated a serious disregard for the appellant’s Charter rights. There were also multiple findings of police dishonesty by several of the officers, who lied under oath. The issue is whether the trial judge gave proper effect to these findings in his Grant analysis.

(b) The First Grant Factor

(i) The trial judge erred in compartmentalizing his assessment of the Charter breaches under s. 24(2)

[36] The appellant alleges that the trial judge adopted a compartmentalized approach to the Charter breaches, and that he failed to take into consideration the pattern of Charter-infringing conduct by the police. As a result, although the trial judge concluded that the first Grant factor weighed in favour of exclusion of both the evidence found in the search of the appellant’s vehicle and in the search of the appellant outside the sally port of the police station, the trial judge underestimated the seriousness of the police misconduct, and accordingly the strength of the first Grant factor in the overall analysis.

[37] As this court noted in Truong, a failure to consider related breaches together can distort the view taken of the seriousness of the Charter-offending conduct, and it may fail to capture the overall impact of the offending conduct on the accused’s Charter-protected interests, since they are all “part of the constellation of factors” relevant to this question: at para. 42, citing R. v. Mhlongo, 2017 ONCA 562, paras 60-62; R. v. Just, 2020 ONCA 362, paras 38, 54; R. v. Zacharias, 2023 SCC 30, para 49.

[38] I agree with the appellant that the trial judge, in conducting his s. 24(2) analysis, adopted a compartmentalized approach to the Charter breaches. For each breach, he concluded separately that the police misconduct was serious. With respect to the s. 8 breach, he made an express finding of bad faith, which he said strongly favoured the exclusion of the evidence from the appellant’s car. With respect to the s. 10(b) breach, the trial judge concluded that P.C. Freeman, both in his questioning and search of the appellant, acted in reckless disregard of the appellant’s rights, which strongly favoured exclusion of the drugs.

[39] While the trial judge acknowledged that the first Grant factor weighed in favour of exclusion of the evidence in respect of both breaches, and that the breaches were “serious”, in considering the first Grant factor separately in respect of the s. 10(b) breach, he did not give effect to the pattern of police misconduct. In Truong, where the trial judge had similarly conducted a siloed review of related breaches, Zarnett J.A. noted, “[t]wo separate analyses will not necessarily equate to one analysis that considers the cumulative effect of the related breaches – the whole may be more than the sum of the parts”: at para. 43. While the Supreme Court was divided in Zacharias on the effect of consequential breaches (that cascaded from an initial Charter breach without additional police misconduct) on the first Grant factor, the majority agreed that a pattern of cumulative Charter breaches can increase the seriousness of the Charter-infringing state conduct: at paras. 49 and 115.

[40] The Crown argues that the breaches, while serious, were “situation-specific and isolated”, rather than institutional or systemic, and that this made the breaches less serious. Pointing to the fact that the s. 10(b) breach occurred after the appellant called over P.C. Freeman and initiated their interaction, the Crown seeks to characterize the conduct of the officer as “an unintentional, situation-specific police slip”. The Crown asserts that, unlike in R. v. Rover, 2018 ONCA 745, where the police misconduct stemmed from an internal policy aimed at ensuring that officers could execute a search warrant while the accused was detained, there is no indication that the Charter breaches in this case were systemic.

[41] While the trial judge did not accept the argument at first instance that the breaches were consistent with other breaches by officers at 51 Division, and accordingly were systemic, he found multiple breaches in the specific dealings with the appellant, with officers showing a “cavalier attitude” and a “reckless disregard for” the appellant’s Charter rights. The fact that the appellant initiated the contact with P.C. Freeman does not justify or explain the officer’s failure to “hold off”, which was the breach of the s. 10(b) implementational duty, nor does it in any way attenuate the seriousness of the Charter-breaching conduct: an officer who, up to that point had no involvement in the police investigation or the appellant’s arrest, and who did not know whether the appellant had spoken with legal counsel, asked the appellant whether he had any drugs on him and then searched him by reaching into his pants.

[42] By dealing separately with the s. 8 breach in the search of the vehicle and with the s. 10(b) breach in the search of the appellant outside the sally port, the trial judge did not give effect to the fact that the multiple breaches demonstrated a pattern of police disregard for the appellant’s rights.

(ii) The trial judge erred in failing to consider the impact of the police officers’ dishonesty

[43] The appellant asserts that the trial judge did not take into consideration the police dishonesty during the voir dire as part of the first Grant factor. The trial judge was critical of the evidence of the police officers in a number of respects. He found that the arresting officers were not honest about the reason for the search of the appellant’s vehicle when they claimed that they were conducting an inventory search before the vehicle was towed, rather than searching for drugs or evidence of trafficking. He disbelieved P.C. Freeman’s exculpatory version of the events: his denial that he had been aggressive in speaking with the appellant (which was belied by the sally port camera footage), his rationale for having the in-car camera shut off (that he was trying to protect the appellant), his assertion that the appellant had removed the drugs from his own pants, his suggestion that the appellant volunteered that he had drugs on him, his denial that he had reached into the appellant’s pants, and his after-the-fact attempt to justify the search relying on the dangers of fentanyl contacting the appellant’s skin. The trial judge was critical of the transporting officers’ claim that they did not recall anything about the appellant’s interactions with P.C. Freeman after the camera was turned off.

[44] Police dishonesty aggravates the seriousness of a Charter breach and is properly considered in relation to the first Grant factor given the need for a court to dissociate itself from such behaviour: R. v. Harrison, 2009 SCC 34, para 26. The failure to consider police dishonesty or understating its impact in the s. 24(2) assessment is an error: R. v. Lai, 2019 ONCA 420, paras 13-23; R. v. Pino, 2016 ONCA 389, paras 100-103.

[45] That error was made by the trial judge in this case. Although the trial judge made findings that certain officers had lied under oath, and accordingly rejected aspects of their evidence in finding s. 8 and s. 10(b) breaches, he did not refer to these findings in his assessment of the first Grant factor.

(iii) Conclusion on the trial judge’s assessment of the first Grant factor

[46] It is helpful to recall what the Supreme Court said about the first Grant factor. At para. 72 of Grant, the majority noted:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.

The court stated that, in evaluating the seriousness of the state conduct that led to the breach, “[w]ilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct”, and that “[i]t follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence”. Further, the court observed that “evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion”: Grant, at para. 75.

[47] Even if the trial judge concluded that the police misconduct in relation to the s. 10(b) breach was very serious and “strongly favoured” the exclusion of the drugs seized from the appellant outside the sally port, in adopting a compartmentalized approach to the breaches that ignored the pattern of police misconduct and in failing to advert to the police dishonesty when officers gave their evidence in court, the trial judge underestimated the seriousness of the state misconduct and the extent to which the first Grant factor alone weighed in favour of exclusion of the evidence.

(c) The Second Grant Factor

[48] I turn to the trial judge’s consideration of the second Grant factor. The second Grant factor concerns the effect of the breach or breaches on the Charter-protected rights of the accused.

[49] The appellant asserts that the trial judge erred in failing to consider the interests protected by s. 10(b) and their effect on him, and all the relevant circumstances, including the effect of the s. 8 breach in the search of the appellant’s vehicle, when he considered the second Grant factor. Instead, the trial judge, in concluding that the second Grant factor favoured admission of the drugs, allowed their discoverability – a relevant, but not determinative factor – to overwhelm his analysis. The appellant contends that, if the trial judge had taken a holistic approach to the evidence, considering all of the circumstances, exclusion would be the only reasonable result.

[50] The Crown submits that the appellant testified that he was aware of his rights and familiar with the process, since he had been arrested several times before, and that he disavowed any psychological impact from the delay in his rights to counsel. The Crown asserts that the trial judge was entitled to take this evidence into account at the second stage of his analysis, as well as the fact that the drugs would have been found notwithstanding the s. 10(b) breach.

[51] I begin by referring to the specific s. 10(b) breach that the trial judge found in this case. Here, the breach was in an officer’s failure to “hold off” after the appellant had expressed a desire to speak to counsel. This duty requires the police to promptly facilitate access to legal advice and, in the interim, to refrain from taking further investigative steps to elicit evidence from the detainee until the requested access to counsel has been provided: R. v. Burnett, 2021 ONCA 856, paras 131, 135; R. v. Willier, 2010 SCC 37, para 33.

[52] I agree that the trial judge did not give sufficient consideration to all of the circumstances related to the second Grant factor. He stated only that the violation was “serious in so far as it involved the officer ignoring the implementational duties imposed on police by s. 10(b)”, and that the actions had no effect on when the appellant was permitted to speak to his lawyer. In considering the second Grant factor, he emphasized one point: that the “practical effect” was that the drugs were seized slightly earlier than they would have been. In other words, the drugs were discoverable irrespective of the Charter breach.

[53] In considering the second Grant factor the court must “look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests”: Grant, at para. 77. In the second Grant factor analysis, multiple breaches should be considered as part of “all the circumstances” considered under s. 24(2): Zacharias, at paras. 55-57. The fact that evidence would have been discovered in the police investigation without the Charter breach is relevant to the second Grant factor, but not determinative: R. v. Côté, 2011 SCC 46, para 70; Grant, at para. 122; Rover, at para. 43.

[54] While discoverability of the evidence is a factor appropriately considered at the second stage of the Grant analysis, in this case the trial judge allowed this factor to dominate when he concluded that the second Grant factor supported the inclusion of the evidence at the trial. The trial judge did not address how the failure to “hold off” (which was the essence of the s. 10(b) breach in this case) affected the specific interests of the appellant: his right against self-incrimination and his personal integrity. Unlike many s. 10(b) cases, the impact on the appellant in this case was not in the delay in his ability to speak to counsel – with the various benefits that speaking with counsel could have offered. The fact that a statement was elicited, and an intrusive search was conducted, ought to have been taken into consideration in weighing the second Grant factor.

[55] As in R. v. Jarrett, 2021 ONCA 758, paras 51, 55, the trial judge failed to consider all of the interests the appellant’s right to counsel is to protect in his evaluation of the impact of the s. 10(b) breach, and he placed undue emphasis on the lack of a causal connection between the search and seizure of the evidence and the breach, in concluding that the search and seizure would have happened anyway: see also R. v. Whittaker, 2024 ONCA 182, para 53.

[56] Nor did the trial judge consider the cumulative effect of the Charter breaches on the appellant at the second stage of his Grant analysis. Rather, he considered the impact of the s. 10(b) breach separately from the impact of the s. 8 breach, in respect of which the trial judge had concluded that the search “completely undermined [the appellant’s] privacy interests in the contents of the vehicle”. Taken together, the s. 8 breach and the s. 10(b) breach had an impact on the appellant’s Charter-protected interests. It was an error for the trial judge to conclude that the second Grant factor favoured admission of the evidence.

(d) The Third Grant Factor

[57] No issue is taken with the trial judge’s consideration of the third Grant factor. The trial judge noted that the evidence seized from the appellant’s car, while reliable, was not critical to the Crown’s case, while the exclusion of the reliable and objective evidence of the drugs seized by P.C. Freeman would result in the failure of the Crown’s case on very serious drug charges. Since society’s interest in the adjudication of a criminal trial on its merits would be seriously undercut if such highly reliable and critical evidence were excluded, the third aspect of the s. 24(2) analysis clearly favoured the admission of the evidence.

(e) The Failure to Conduct a Final Balancing

[58] Finally, the appellant asserts that the trial judge erred by not conducting a final balancing after considering each Grant factor. The appellant asserts that a proper balancing would have recognized that the first and second branches together made a very strong case in favour of exclusion.

[59] After each of the three Grant factors have been considered, the court’s role 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”: Grant, at para. 71. At this stage, the court must “assess the impact of the admission or exclusion of the evidence on the long-term repute of the administration of justice”: R. v. Tim, 2022 SCC 12, para 98. It is an error of law to fail to engage in any meaningful balancing of the three lines of inquiry: R. v. Sandhu, 2011 ONCA 124, paras 66, 69, 75.

[60] Although the trial judge adverted to the need to balance the assessments under the three lines of inquiry to determine whether, considering all the evidence, admission of the evidence would bring the administration of justice into disrepute, he did not conduct a final balancing. Instead, after addressing each of the Grant factors he concluded:

For the foregoing reasons, given the gravity of the violation of [the appellant’s] s. 8 rights arising from the search of the vehicle, I would exclude the products of that search from the trial. As for the drugs seized by P.C. Freeman, while this involves a breach of [the appellant’s] s. 10(b) rights, I would not exclude them from the trial.

[61] A final balancing was essential in this case. Where police misconduct is deliberate, rather than careless or negligent, and where the police give misleading or false evidence, it is particularly important for the court to consider and to weigh in the balance against the truth-seeking interests of the criminal justice system, the need to dissociate the justice system from the police misconduct: see Grant, at para. 75; Harrison, at paras. 39-40; Pino, at para. 103.

[62] Accordingly, I agree with the appellant that the trial judge erred when he failed to complete his s. 24(2) analysis through a final balancing after considering the three Grant factors.

(f) The s. 24(2) Analysis Conducted Afresh

[63] Where reversible errors in a trial judge’s s. 24(2) analysis are found on appeal, it falls to this court to conduct the s. 24(2) analysis afresh: R. v. Davidson, 2017 ONCA 257, para 46.

[64] The focus must be on whether the administration of justice would be served by the admission or exclusion of the evidence. In my view, the evidence ought to have been excluded.

[65] At the first stage of the Grant analysis, effect must be given to the trial judge’s strong findings of police misconduct and dishonesty. The police conduct in this case was egregious, in terms of the dealings of individual officers with the appellant at the time of his arrest and detention, and their efforts to recast what happened in their evidence at the voir dire, which can only be understood as an attempt to minimize their misconduct. Moreover, even without a finding of systemic misconduct, there was a pattern of disregard for Charter rights. The first Grant factor pulls very strongly in favour of exclusion of the drugs.

[66] The second Grant factor also pulls toward exclusion of the drugs seized outside the sally port from the evidence at trial, albeit not as strongly as the first factor. The s. 10(b) breach resulted in the appellant providing incriminating information: his admission that he had drugs on him, leading to an intrusive search. This was a continuation of the Charter-infringing conduct that occurred when the appellant’s car was searched without reasonable grounds. In effect, the arresting officers and P.C. Freeman demonstrated to the appellant that they were intent on securing evidence of his drug dealing without regard for his Charter rights. While the effect of the s. 10(b) breach was mitigated by the fact that the drugs would have been found irrespective of the breach, this factor alone would not justify admission of the drugs in the circumstances of this case. As Cromwell J. noted in Côté, at paras. 69-74, the fact that evidence is legally discoverable can cut both ways: while it can attenuate the effect on the detainee’s interests under the second Grant factor, it can also heighten the seriousness of the police misconduct in proceeding illegally when a legal avenue was available: see also R. v. Tsekouras, 2017 ONCA 290, para 112; see also R. v. S.S., 2023 ONCA 130, para 89.

[67] As for the third Grant factor, the two offences in question – possession for the purpose of trafficking crack cocaine and fentanyl – are extremely serious. The police seized significant amounts of the most dangerous controlled substances in an area plagued by drug trafficking. The evidence was essential to the Crown’s case. I acknowledge that there is a very real societal interest in an adjudication of the charges on the merits, and that the third Grant factor strongly favours the admission of the evidence. This is conceded by the appellant.

[68] In balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: R. v. McColman, 2023 SCC 8, para 74. In R. v. Le, 2019 SCC 34, para 141, the Supreme Court noted that, in considering the Grant factors evidence could be excluded even if the first two inquiries do not both pull strongly toward exclusion, as in the case of a serious Charter breach coupled with a weaker impact on Charter-protected rights. “It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion”: at para. 141; see also Whittaker, at para. 34.

[69] Here, the first Grant factor very strongly weighs in favour of exclusion of the evidence, while the second Grant factor also favours exclusion, but not as forcefully. Together, they make a compelling case for exclusion. The third line of inquiry pulls strongly in the other direction. There is without question an important interest in the prosecution of those who are engaged in the supply of the most dangerous drugs to vulnerable members of our society. In conducting the final balancing, however, the seriousness of the offence cannot be the controlling consideration in the decision whether to exclude evidence: Harrison, at para. 40. I refer to the observations of Doherty J.A. in R. v. McGuffie, 2016 ONCA 365, paras 63, 83, that “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”. As he further noted, at para. 83: “[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the community’s commitment to individual rights protected by the Charter by excluding the evidence. … This unpalatable result is a direct product of the manner in which the police chose to conduct themselves.”

[70] Similarly, the exclusion of the evidence of substantial amounts of dangerous drugs is the “unpalatable”, but necessary, result in the present case. The significant factors here, that weigh strongly against the admission of the evidence, are that the police were not acting in good faith; that they demonstrated a pattern of “cavalier” and “reckless” disregard for the appellant’s Charter rights; and that they gave dishonest and misleading in-court testimony. The admission of the evidence would in effect vindicate the serious Charter breaches by the police in this case, and in this way harm the long-term repute of the administration of justice. Accordingly, the administration of justice would be better served by excluding the evidence than by admitting it.

[71] Finally, I note that the Crown initially relied on the fact that the trial judge provided a remedy other than exclusion of evidence for the breach of the appellant’s s. 10(b) Charter rights, asserting that this was a proper exercise of the trial judge’s discretion pursuant to R. v. Nasogaluak, 2010 SCC 6, para 49. The sentencing reasons were not included in the record on the appeal, and the indictment simply notes a “one year additional credit”, and does not specify the nature of that credit. The Crown, in oral argument, retreated from any reliance on this argument. Accordingly, it is not necessary or appropriate to address it in this case.

[72] The effect of the exclusion of the evidence seized from the appellant outside the sally port area is to set aside the appellant’s convictions on counts 2 and 3, possession of cocaine and fentanyl for the purpose of trafficking, and to acquit him of these charges.

(2) The Unreasonable Verdict Ground of Appeal

[73] This ground of appeal challenges the appellant’s conviction for trafficking crack cocaine, pursuant to s. 5(1) of the CDSA.

[74] In his oral reasons, the trial judge moved directly from his conclusions on the Charter application to convicting the appellant on all of the charges. The Charter application challenged all of the evidence that was seized, including the crack cocaine in the convenience store, which the appellant sought to exclude on the basis that the police had no reasonable and probable grounds for his arrest. The trial judge found no s. 9 Charter breach and accordingly there was no basis for excluding the crack cocaine from evidence. This is not challenged on appeal.

[75] Instead, the appellant asserts that the trial judge convicted him of trafficking crack cocaine without considering whether the evidence satisfied the Crown’s burden to prove that the substance was in fact crack cocaine. The appellant points to the officers’ testimony indicating that 1.3 grams of crack cocaine was handed over by D.C. Sukman to P.C. Freeman. The appellant contends that this amount represented the drugs that were found on the other person involved in the transaction. The appellant submits that the evidence before the trial judge could only support one of two possible conclusions: the drugs seized from the shelf at the time of the arrest either went missing, or they never existed in the first place. The trial judge did not address this issue in his findings and convicted the appellant of trafficking crack cocaine. The appellant suggests this was an error leading to an unreasonable verdict on that offence.

[76] The Crown asserts that the verdict as it relates to the crack cocaine trafficking charge was reasonable. It submits that the trial judge accepted evidence from the arresting officers that the substance being trafficked was crack cocaine, noting that the evidence was not clear with respect to the additional cocaine seized from the other individual at the store.

[77] I would not give effect to this ground of appeal. The arresting officers testified that, in their role as officers, they had seen, seized and processed crack cocaine, and had seen it being sold. Although there were parts of their evidence that he did not accept, the trial judge was clear that he accepted the evidence of the arresting officers that they observed the appellant put a crumb-sized piece of crack cocaine on a middle shelf in the convenience store, and saw the other party reach for it, and that D.C. Sukman seized several crumb-sized pieces of crack cocaine that were on the shelf and later gave the drugs to P.C. Freeman. The trial judge specifically stated that he rejected the appellant’s description of his interaction with the police and his insistence that he did not put any crack cocaine on the shelf, and that he preferred the evidence of the arresting officers in this regard. Accordingly, the trial judge made no error in concluding on the evidence before him that the appellant was guilty of trafficking crack cocaine.

E. Disposition

[78] For these reasons, I would set aside the appellant’s convictions for counts 2 and 3, possession of fentanyl and cocaine for the purpose of trafficking, and enter acquittals on those charges. I would dismiss the balance of the appeal.

Released: March 20, 2025

“K.M.v.R.”
“K. van Rensburg J.A.”
“I agree. B.W. Miller J.A.”
“I agree. S. Gomery J.A.”

[^1]: The appellant was also charged with possession of property or proceeds of property obtained by crime pursuant to s. 355(b) of the Criminal Code, R.S.C. 1985, c. C-46. This charge was withdrawn before trial.

[^2]: The indictment indicates that the sentence was allocated 6 months on the first count, 18 months concurrent on the second count, and 3.5 years concurrent on the third count, with a pre-trial custody credit of 6 months and a one-year “additional credit”. The sentencing decision is not in the appeal record however the parties informed this court that the reason for the one-year deduction was to account for police misconduct.

[^3]: The appellant’s counsel only addressed the first issue at the hearing of the appeal. He relied on his factum for the second issue.