Court of Appeal for Ontario

Date: 2025-04-25
Docket: COA-22-CR-0222

Before: B.W. Miller, B. Zarnett, L. Madsen

Between:
His Majesty the King (Respondent)
and
Seyed Amir Yaghoubi-Araghi (Appellant)

Appearances:
Matthew Gourlay and Brandon Chung, for the appellant
Ken Lockhart, for the respondent

Heard: 2025-04-09

On appeal from the conviction entered on May 30, 2022 by Justice Nancy Mossip of the Superior Court of Justice, sitting without a jury, with reasons reported at 2022 ONSC 4560, and the sentence imposed on October 12, 2022, with reasons reported at 2022 ONSC 5730.

Reasons for Decision

A. Introduction

[1] The appellant was stopped by police under the R.I.D.E. program. He fled in his car, was pursued, and then apprehended. A search of the car and its contents revealed a handgun and drugs. He was charged with gun, drug, and driving offences.

[2] Alleging breaches of his rights under ss. 8 and 10(b) of the Charter of Rights and Freedoms, the appellant sought to exclude the handgun and the drugs from evidence at his trial. The trial judge determined that there had been no breach of the appellant’s right to be secure against unreasonable search or seizure under s. 8 of the Charter. She found that there had been breaches of the appellant’s rights under s. 10(b) of the Charter to retain and instruct counsel without delay upon arrest or detention, and to be informed of that right. After considering the factors in R. v. Grant, 2009 SCC 32, she ruled the evidence was nonetheless admissible under s. 24(2) of the Charter.[^1]

[3] The trial judge convicted the appellant of four offences: operating a motor vehicle while being pursued by police and failing to stop as soon as reasonable, possessing a prohibited handgun, violation of a court order (that prohibited him from having a firearm), and possession of methamphetamine for the purpose of trafficking. She sentenced the appellant to 5 years, 11 months and 13 days in custody, after applying credits for pre-trial custody, strict bail conditions and state misconduct. The latter credit – two months – was given for the breaches of the appellant’s s. 10(b) rights.

[4] The appellant challenges the convictions on the firearm and drug trafficking charges on the basis that the trial judge erred in her Charter ruling by failing to exclude the evidence. The appellant also appeals his sentence. In the event that his conviction appeal is dismissed he asks that the credit for state misconduct be increased. The common thread in both the conviction and the sentence appeal is the submission that the trial judge erred in downplaying the seriousness of the Charter-infringing conduct.

[5] For the reasons below we dismiss both the conviction appeal and the sentence appeal.

B. The Conviction Appeal

(1) Factual Background

[6] P.C. Bigger of the Ontario Provincial Police smelled cannabis in the appellant’s car when he pulled the appellant over as part of the R.I.D.E. program. He asked the appellant where the cannabis was. The appellant told him it was in a bag on the backseat. The appellant then drove away.

[7] After giving chase, P.C. Bigger and another O.P.P. officer, P.C. Merkus, located the appellant in a field where he had crashed his car into a tree about 100 metres from the road. P.C. Bigger: arrested the appellant for dangerous driving and flight from a police officer; walked the appellant back to his police cruiser that was parked at roadside and placed the appellant inside; returned to the appellant’s vehicle to retrieve the bag in the backseat which, on inspection, contained not only cannabis, but a handgun; returned to the cruiser; returned again to the appellant’s vehicle where P.C. Merkus had located methamphetamine in the trunk of the vehicle; and returned again to the cruiser, informing the appellant he was also under arrest on firearm and drug charges.

[8] It was only on his last return to the police cruiser, when P.C. Bigger informed the appellant of the additional charges he was facing, that he informed the appellant of his right to counsel. By this time, according to the trial judge, between 6 to 10 minutes had elapsed from the time P.C. Bigger had originally arrested the appellant. From the time of the initial arrest until he informed the appellant of his right to counsel, P.C. Bigger repeatedly asked the appellant questions, the answers to which could have been incriminating.

[9] Upon being informed of his right to counsel, the appellant said he wanted to speak to a lawyer. In addition to taking steps to put the appellant in touch with his lawyer, P.C. Bigger continued to ask the appellant questions, the answers to which could have had evidentiary value in a prosecution.

(2) The Trial Judge’s Ruling

[10] The Crown did not seek to rely on any statements the police had obtained from the appellant; the issue was whether the handgun and drugs should be excluded.

[11] The trial judge held that there had been no breach of the appellant’s rights under s. 8 of the Charter. The search of the bag in the appellant’s car was lawful under the Cannabis Control Act, 2017, SO 2017, c 36, Sched. 1 (“CCA”), as P.C. Bigger had reasonable grounds to believe cannabis was being transported other than in compliance with the CCA. The handgun was located as a result of that lawful search. The trial judge found that this authorized the lawful search of the car leading to the discovery of methamphetamine in the trunk.

[12] Turning to s. 10(b), the trial judge observed that it was clear that the right to counsel had to be given without delay, meaning immediately upon detention or arrest: R. v. Suberu, 2009 SCC 33. She also recited counsels’ agreement that the duty to hold off questioning until an accused has spoken to counsel is well-established: R. v. Taylor, 2014 SCC 50.

[13] The trial judge found three breaches of the appellant’s right under s. 10(b) of the Charter. The breaches consisted of the delay in informing the appellant of his right to counsel, attempting to elicit information from the appellant between the time of his arrest and when the right to counsel was given, and continuing to ask the appellant incriminating questions after the appellant had been informed of his right to counsel but before he had spoken to his lawyer.[^2]

[14] Noting that no issue was raised about whether the s. 10(b) breaches met the threshold requirement in s. 24(2) to evaluate whether the evidence should be excluded, the trial judge proceeded to consider the test in Grant, which governs that question and requires three factors to be balanced.

[15] On the first Grant factor, the seriousness of the breaches, the trial judge found that P.C. Bigger should have given the appellant the right to counsel and a caution “when he returned with the [appellant] to his cruiser for the first time”.[^3] She acknowledged the Crown’s concession that P.C. Bigger’s understanding of his duty – to inform the detainee of his right to counsel “as soon as practicable” – was incorrect.

[16] The trial judge summarized P.C. Bigger’s evidence that because the situation was fluid with additional discoveries taking place in a relatively brief time, he had wanted to “ascertain the full jeopardy the [appellant] was facing before he gave him his rights to counsel, so the [appellant] could talk to his lawyer about all of his jeopardy.” She held that P.C. Bigger’s explanation for the delay did not excuse it. She found the delay unacceptable. But she found that, on its own, it was not egregious, and the explanation gave “perspective to the delay”.

[17] The failure to hold off questioning the appellant was, according to the trial judge, “more egregious” and there was no “acceptable reason” for it. She concluded:

I would put the delay, the questioning of the [appellant], and the improperly stated test for timing of the rights to counsel, on the moderate to serious end of the spectrum of s. 10(b) breaches. This factor, standing alone, favours exclusion of the evidence.

[18] On the second Grant factor, the trial judge returned to her finding that the evidence sought to be excluded – the handgun and the drugs – had been obtained by lawful searches. She found that the impact of the s. 10(b) breaches on the appellant’s Charter protected interests “weighs in favour of inclusion of the real evidence.”

[19] The third Grant factor weighed in favour of inclusion. The trial judge noted that exclusion would gut the prosecution case, and society has a heightened interest in keeping illegally possessed guns off the streets and safeguarding citizens from the “terrible impact” of hard drugs.

[20] After weighing the three factors, the trial judge concluded that the admission of the evidence would not bring the administration of justice into disrepute.

(3) Analysis

[21] The appellant does not challenge the trial judge’s conclusion that the searches by which the handgun and the drugs were discovered were lawful and thus no breach of the appellant’s s. 8 rights had occurred. In the appellant’s submission, the trial judge erred by underemphasizing the seriousness of the s. 10(b) breaches, and in failing to fully appreciate the impact of the breaches. He submits that on a proper reweighing of the factors, the result should be exclusion.

[22] The appropriate appellate approach to a trial judge’s analysis of the Grant factors is one of deference. As this court stated in R. v. Hamouth, 2023 ONCA 518, at para. 37:

A trial judge’s assessment of the Grant factors in light of the facts must be afforded “considerable deference by an appellate court”: R. v. Mian, 2014 SCC 54. Where the trial judge has considered all proper factors and has not made any unreasonable findings, then appellate courts must show deference to the “ultimate determination”: Grant, at para. 86; R. v. Côté, 2011 SCC 46.

[23] The appellant’s complaint about the trial judge’s analysis of the first Grant factor highlights some of the terminology the trial judge used – including the term “moderate” in her assessment that the breaches were “moderate to serious” and her description of the delay on its own as “not egregious”. However, the exact mode of the trial judge’s expression and whether she could have picked other descriptors to categorize the seriousness of a breach is not the proper subject of appellate review: Hamouth, at para. 36. What matters is whether the trial judge appreciated the seriousness of the breaches so as to be able to give them proper weight in the balancing exercise. In our view, she did.

[24] The trial judge analyzed different breaches, evaluated the explanations, and concluded they were “moderate to serious”, by which we understand her to have meant that while the delay on its own may only have been of moderate severity, the other breaches were more serious. She specifically referred to the failure to hold off questioning as “more egregious” and lacking any acceptable explanation. In other words, the trial judge did not shy away from identifying and labelling significant aspects of the police conduct as being at the serious end of the spectrum. We do not view her comments about one aspect – the delay in providing the right to counsel – as being partially, though inadequately, explained as watering down the finding that other conduct was egregious and lacked any adequate explanation. Her ultimate conclusion, that the first Grant factor favoured exclusion, shows she appreciated the serious aspects of the breaches, and that level of seriousness was to be weighed in the balance.

[25] The appellant also argues that the trial judge did not place sufficient weight on the significance of P.C. Bigger being a 23-year veteran of the O.P.P. who failed to understand legal obligations about well-settled Charter rights, and that she should have equated that with a systemic problem. We do not accept this argument.

[26] The trial judge was aware of the police officer’s experience and carefully considered the circumstances. She was clearly aware of his incorrect understanding of the constitutional tests. Although she characterized P.C. Bigger’s explanation of the fast-moving situation as perspective-giving but inadequate on the question of delay on its own, she completely rejected the suggestion that there was any acceptable explanation for his egregious failure to hold off questioning. The fact that she did not call the problem “systemic” does not mean she minimized it. It is not necessary for infringing police conduct to be part of a systemic problem for such conduct to rise to the serious breach category, as the absence of a systemic problem is not mitigating: R. v. Jarrett, 2021 ONCA 758; R. v. Whittaker, 2024 ONCA 182.

[27] A systemic disregard by a police force of their constitutional obligations may make a serious breach “worse still”: R. v. Thompson, 2020 ONCA 264. But here there was no evidence that delays in the provision of rights to counsel or failures to hold off questioning were repeatedly committed by P.C. Bigger or members of his police force in a fashion similar to the systemic breaches by the Peel Regional Police identified in Thompson.

[28] With respect to the second Grant factor, the impact of the breaches, the appellant submits that the trial judge did not expressly consider the “lifeline" interest protected by the right to counsel. We note however, that the delay in advising of the right to counsel in this case was found to be 6 to 10 minutes, and that no argument was made that there was a delay in implementing the right to counsel once the appellant was advised of the right. This case is not similar to those in which the “lifeline” interest was determinative, such as Jarrett (a 30-hour delay), or R. v. Rover, 2018 ONCA 745 (a six-hour delay).

[29] Two matters that the case law has confirmed lessen the negative impact of a Charter breach were present in this case. The first is that the Crown would not rely on any statements made by the appellant. Such voluntary exclusion lessens the impact of a breach: Hamouth, at paras. 42-45, 48-49; R. v. Truong, 2025 ONCA 69, at paras. 57-58. The second is the absence of a causal connection between the Charter-infringing conduct and the discovery of the evidence sought to be excluded. The handgun and drugs had been discovered by a lawfully performed search rather than as a result of the s. 10(b) breaches. This also lessens the impact of those breaches: Grant, at para. 122; Rover, at para. 43; Hamouth, at paras. 54-55; Truong, at paras. 52-53.

[30] The appellant also points out that the trial judge concluded that the second factor weighed in favour of inclusion, whereas in R. v. Zacharias, 2023 SCC 30, Rowe and O’Bonsawin JJ. expressed the view that neither of the first two Grant factors could ever favour admission – at most they could weakly favour exclusion. In this case, the trial judge’s mode of expression, which is also used in jurisprudence of this court, does not warrant interference with the result she reached. The point she was making was essentially the one made in Grant, at para. 119, that where evidence could have been obtained in any event without Charter-infringing conduct, the impact of the breach is lessened and “admission [is] more likely”.

[31] The appellant did not contest the trial judge’s view that the third Grant factor favoured admission. Indeed, it did so strongly. The handgun and drugs were real, reliable, and crucial to the Crown’s case and there was a strong societal interest in the adjudication of the case on its merits.

[32] Nor is there any reversible error in the balancing the trial judge engaged in.

[33] In summary, we see no error in the trial judge’s assessment of any of the Grant factors, or in the ultimate weighing, that would justify appellate interference.

[34] We therefore dismiss the conviction appeal.

C. The Sentence Appeal

[35] The appellant does not argue that the sentence was unfit or was influenced by any error in principle. The appellant asked us, were we to find that the trial judge erred in her appreciation of the seriousness of the breaches but nonetheless upheld the ruling that the evidence should have been admitted, to increase the credit the trial judge gave for state misconduct. Since we find no reversible error in the trial judge’s appreciation of the seriousness of the Charter-infringing conduct, we reject this argument.

D. Disposition

[36] The conviction appeal is dismissed. We grant leave to appeal sentence but dismiss the sentence appeal.

“B.W. Miller J.A.”
“B. Zarnett J.A.”
“L. Madsen J.A.”

[^1]: The reasons on the Charter application are reported as R. v. Yaghoubi-Araghi, 2021 ONSC 5060.
[^2]: The appellant did not contend below that P.C. Bigger had failed to properly implement the right to counsel after the appellant was informed about his right to counsel.
[^3]: It was common ground that the right to counsel did not have to be given when the appellant was first apprehended in the field near the car he crashed.