Court File and Parties

COURT FILE NO.: CRIM J(P) 625/21 DATE: 2023 02 23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: His Majesty the King v David Morias

BEFORE: Fowler Byrne J.

COUNSEL: Tina T.H. Kim, for the Crown Adam R. Newman, for Mr. Morias

HEARD: October 28, 31, November 1, 2, 3, December 5, 6, 2022

JUDGMENT

[1] The accused Mr. David Morias has brought this application to exclude evidence that was obtained during a search and seizure, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. He seeks this relief on the basis that his rights under sections 7, 8 and 10(b) of the Charter were infringed.

I. The Charges

[2] The Applicant is charged with the following offences, which resulted from a search of a home on July 11, 2019:

a) Possession of a firearm, to wit: a handgun, knowing he was not the holder of an authorization or license, contrary to section 92(1) of the Criminal Code, R.S.C., 1985, c. C-46;

b) Possession of a prohibited device: to wit, a magazine, knowing he was not the holder of a license, contrary to section 92(2) of the Criminal Code;

c) Possession of a loaded, restricted firearm while not being the holder of an authorization of license, contrary to section 95(1) of the Criminal Code;

d) Possession of the property to wit: money, of a value exceeding five thousand dollars, knowing it had been obtained by the commission in Canada of an indictable offence, contrary to section 354(1)(a) of the Criminal Code;

e) Possession for the purpose of trafficking a Schedule I substance (cocaine), contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996 c. 19 (“CDSA”); and

f) Possession for the purpose of trafficking a Schedule I substance (fentanyl), contrary to section 5(2) of the CDSA.

II. Background

[3] On or about July 11, 2019, Police Constable John Lontoc of the Peel Regional Police Service (“PRP”) swore an Information to Obtain a Search Warrant (“ITO”) for a residence located at 7493 Catalpa Road, in Mississauga. Based on the evidence contained therein, Justice of the Peace Butany-Goyal (the “JP”) issued a warrant to search said address to be executed between the afternoon of July 11, 2019 and the end of day on July 13, 2019.

[4] The Tactical and Rescue Unit (“TRU”) was contacted to help execute the search warrant by clearing the residence so that the investigating officers could fully execute the search warrant in a safe manner. On July 11, 2019, the TRU attended at the residence, cleared the home and arrested Mr. Morias. In executing the search, the PRP found a loaded firearm, identification documentation of Mr. Morias, cash, cocaine and fentanyl.

[5] In brief, Mr. Morias argues that his Charter rights were violated in three ways:

a) The search warrant was not lawful, and thereby the search conducted pursuant to it was a violation of Mr. Morias’ rights under s. 8 of the Charter;

b) the manner in which Mr. Morias was tasered upon exiting the property was excessive, thereby violating his rights under s.7 of the Charter; and

c) Mr. Morias was denied his right to speak to counsel in a timely manner, thereby violating his rights under s. 10(b) of the Charter.

[6] The Crown concedes that there was a violation of Mr. Morias’ s. 10(b) rights but takes the position that no other rights were violated. They argue that to exclude this evidence under s. 24(2) of the Charter would bring the administration of justice into disrepute.

[7] In the course of this pre-trial application, I heard from PC John Lontoc, PC Karl Lauretti, PC Michael Kremer, PC Janson Storring, PC Sean Parkin, William Stewart, a retired inspector of the PRP, Huu Pham, a paramedic, PC Justin Marra, Sergeant Fabian Canas, PC Chris Holmes, PC David Craig, and the accused Mr. Morias. In addition, and on consent, portions of the transcript of DC Muhammad Mahmood’s testimony at the preliminary hearing were admitted.

[8] I will examine the alleged Charter violations in chronological order. If any violations are found, I will then consider whether any evidence should be excluded.

III. Analysis

A. Section 8

[9] Mr. Morias argues that the search warrant should not have been issued by the JP as it did not disclose reasonable grounds to support the search, it did not contain full, frank and fair disclosure of the investigation, and it contained conclusory and unsupported assertions.

1. Law

[10] Section 8 of the Charter states that everyone has the right to be secure against unreasonable search or seizure. A search will be reasonable if it is authorized by law, if the law is reasonable and if the manner in which the search is carried out is reasonable: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.

[11] A search will be lawful if conducted by way of a valid search warrant. The authority to obtain a search warrant is found in s. 487(1) of the Criminal Code. A warrant is presumptively valid. The accused bears the onus of showing that it was not validly issued. Accordingly, the accused must show that the minimum standard required for authorizing a search was not established in the ITO. The standard is reasonable and probable grounds to believe that an offense has been committed and that there is evidence to be found at the place of the search: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1444; R. v. Crevier, 2015 ONCA 619, at para. 66, citing Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168.

[12] It is not my role to substitute my opinion for that of the authorizing justice. If, based on the record before me and amplified on review, I conclude that the authorizing justice could have granted the warrant, then I should not interfere: Garofoli, at p. 1452; R v. Gero, 2021 ONCA 50 at para. 67.

[13] In this case, the search warrant was granted based on the ITO sworn by PC Lontoc. This ITO itself was based on information obtained from a confidential informant (“CI”). The information obtained by the CI is hearsay. While hearsay statements of a CI can provide reasonable and probable grounds, other evidentiary rules apply: Garofoli, at pp. 1456-1457.

[14] If the information contained in ITO is based on information obtained through a confidential informant, the sufficiency of the ITO is based on (1) whether or not the information from the CI is compelling; (2) whether or not the CI is credible; and (3) whether the information provided has been confirmed by independent police investigation: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168; R. v. Rocha, 2012 ONCA 707, at para. 16.

[15] The reliability of the information must be assessed by recourse to the totality of the circumstances. Weakness in one of the factors may, to some extent, be compensated by strengths in the other two. There is no formulaic test as to what this entails. The court must look at a variety of factors including the degree of detail of the information, the informer’s source of knowledge, and any indicia of the informer’s reliability such as past performance or confirmation from other investigative sources: Garofoli, at p. 1457; Crevier, at para. 106; Debot, at p. 1168.

[16] When assessing the compelling nature of the CI’s information, the court will consider the degree of detail of this information, and whether it was first-hand knowledge or second-hand hearsay, rumor or gossip. A mere conclusory statement by the CI to a police officer would not constitute reasonable grounds.

[17] When assessing the credibility of the CI, the court will consider the motivation of the CI, whether the CI has a criminal background, and whether the CI has provided reliable information to the police in the past: Garofoli, at para. 68. The ITO must also include details unfavourable to the CI as part of the affiant’s duty to make full and frank disclosure: R. v. Morelli, 2010 SCC 8, at para. 58.

[18] Finally, the court will consider whether the police took any investigative steps to corroborate the CI’s information.

[19] When a CI is involved, the Crown is required to redact any information that would tend to identify the CI, so that they do not violate the informer’s privilege. In this case the Crown conceded that the redacted ITO could not support the issuance of the search warrant. Accordingly, the Crown applied under step six of the Garofoli procedure for a judicial summary of the redacted information. This judicial summary was presented by the Crown and entered as an exhibit.

[20] Mr. Morias then applied for leave to cross-examine PC Lontoc on his ITO, and to cross-examine PC Michael Kremer with respect to the information provided to PC Lontoc. With respect to PC Lontoc, leave was granted, for the reasons specified at that time. The areas of cross-examination were limited to the different descriptions of Mr. Morias in the ITO, the omission of a computer purchase while under surveillance, the lack of information with respect to Mr. Morias’ connection to the subject property, and details around PC Lontoc’s recent arrest and police conduct investigation, as it relates to his credibility. With respect to PC Kremer, leave was granted only to determine if he told PC Lontoc about the computer handoff.

[21] On this amplified record, Mr. Morias challenged both the facial and sub-facial validity of the search warrant.

2. The ITO

[22] In the ITO, the PRP sought authority to search 7493 Catalpa Road, in Mississauga (“the Property”), wherein they sought to seize a firearm, ammunition, and any documentation with Mr. Morias’ name indicating that he resides at the Property. It was believed that Mr. Morias had committed the offense of illegally possessing a firearm contrary to section 91(1) of the Code.

[23] The following is a summary of the relevant information contained in the redacted ITO, supplemented by the judicial summary:

a) Information that Mr. Morias was in possession of a firearm was provided by a CI, as well as by police surveillance and electronic investigative inquiries;

b) the details of the information provided by the CI were set out in Appendix D of the ITO. A summary of this information, as well as what information was redacted and summarized in the judicial summary, disclosed the following:

1. That Mr. Morias was in possession of an illegal firearm;

2. The details of the CI’s information relating to the firearm, including the basis of his knowledge, whether the knowledge is direct or second hand, the timing of when the CI obtained the knowledge and what specific details, if any, the CI was able to provide regarding the firearm and its connection to Mr. Morias;

3. That the CI provided a detailed physical description of Mr. Morias including his height, weight and complexion; confirmation by the CI that upon viewing a mug shot of Mr. Morias, that the male in possession of the firearm was Mr. Morias;

4. That the CI provided information to its handler who then provided it to PC Lontoc; the season and year in which the information was provided to PC Lontoc;

5. Whether or not the CI has any outstanding charges, warrants or criminal convictions, including the nature of any outstanding charges, warrants or criminal convictions; whether the CI had provided reliable information in the past; whether any such information has led to arrests, seizures or convictions; instances of whether past information provided by the CI, if any, has ever been proven unreliable or false was not included;

6. The motivation for the CI giving the information, the lifestyle of the CI and the nature of the criminal lifestyle of Mr. Morias as observed by the CI;

7. Details provided by the CI relating to the area within Malton associated with Mr. Morias and his connection, if any, to the Property;

8. whether the CI has a criminal record, but contains a typographical error which made it obviously inconsistent with other earlier paragraphs in the ITO;

c) PC Lontoc provided the results of his own investigation. The results of this investigation include:

1. Mr. Morias’ date of birth, and that his address listed was at 3773 Keenan Crescent, in Mississauga;

2. That Mr. Morias is a black male, 6 feet tall, 268 pounds, heavy build, with a black brush cut, brown eyes, facial black beard and a dark complexion;

3. that Mr. Morias has a mug shot on file with the police which was provided in the ITO;

4. that Mr. Morias was noted in a previous occurrence report in August 2018 where he was the driver of a 2013 Honda Civic with license plate CBDJ953; the police investigated the vehicle in a parking lot and found crack cocaine and marijuana. Mr. Morias was arrested and charged for possession of a controlled substance and the matter is currently outstanding before the court (“August 2018 Occurrence”);

5. that police surveillance of the property on July 10, 2019 revealed that a 2013 Honda Civic with license number CFDV879 was parked in the driveway of the property, which license plate was registered to David Morias with the same birth date;

6. That the VIN number of the 2013 Honda Civic in the August 2018 Occurrence was the same VIN number of the 2013 Honda Civic parked at the Property during surveillance; the police confirmed that the vehicle from the August 2018 Occurrence and the vehicle in the driveway of the Property were the same vehicle with different license plates;

7. That Mr. Morias was noted in another occurrence from January 2018 whereby Mr. Morias was operating a 2013 Honda Civic with license plate CBDJ953 and was detained on a Highway Traffic Act violation; Mr. Morias failed to identify himself, and on a search incident to arrest, crack cocaine was found within the vehicle. These charges were stayed (“January 2018 Occurrence”);

8. That a further police occurrence was found involving Mr. Morias from September 2017; at this time, the police investigated a 2013 Black Honda Civic with license plate CBDJ953, which Mr. Morias was operating. The investigation revealed an odour of marijuana and Mr. Morias was charged for possession of a controlled substance and possession for the purpose of trafficking; the matter went before the courts and Mr. Morias was sentenced to complete an Alternative Measures Resolution (“September 2017 Occurrence”);

9. That a connection was made between the vehicle from the January 2018 Occurrence and the September 2017 Occurrence, and the Honda Civic located in the driveway of the Property on July 10, 2019;

10. That Mr. Morias was otherwise involved with the OPP and Toronto Police which however was not relevant to their investigation;

11. That a Ministry of Transportation search revealed that Mr. Morias had a registered address of 24 Gateway Court in Whitby, Ontario, and that he was described as being 6’3”; the photo of Mr. Morias on his driver’s license was the same as the photo of Mr. Morias on his mug shot which was contained in the ITO; Mr. Morias’ registered address was previously the Property, in December 6, 2011, some seven and one-half years prior to this incident;

12. That a CPIC search of Mr. Morias disclosed that he had outstanding charges for possession of a controlled substance, and that his address was registered as 3773 Keenan Crescent in Mississauga; he is described as being non-white, 6’1”, 260 pounds, with black hair and brown eyes;

13. That a Canadian Firearms Registry Online search revealed that Mr. Morias did not have a valid firearms license or have any firearms registered under his name;

14. That various computer queries conducted by PC Lontoc revealed that the 2013 Honda Civic with license plate CFDB879 identified Mr. Morias as the registered owner and that his address is listed as 24 Gateway Court, Whitby;

15. That the investigation with regards to the Property revealed “no related information” and that no person in the Property had a valid firearms license or registered firearm;

d) Details of police surveillance were also provided. The surveillance was conducted on July 10, 2019, commencing at 3:00 p.m., which revealed the following:

1. At the time of the surveillance a 2013 black Honda Civic with license plate CFDV879 was parked in the driveway unoccupied; this vehicle was registered to Mr. Morias;

2. Detective Constable Mahmood, who was conducting the surveillance, observed that a 2016 Honda CR-V, silver, with license CBAZ651 pulled into the driveway of the property, and DC Mahmood observed David Morias exiting the basement entrance of the residence and getting into the said Honda CR-V; he described Mr. Morias as a Black male, 6’1”, medium build, dark skinned, small black cornrows, wearing a black T-shirt and blue jeans;

3. Mobile surveillance then commenced; at 5:20 p.m., the Honda CR-V pulled into the parking lot of a bank in Mississauga, where the surveillance team observed a male Filipino approach the rear driver side of the CR-V and enter the vehicle; the CR-V then drove to the other end of the parking lot at which time the male Filipino exited; PC Lontoc opined that a drug transaction had occurred at that time; and

4. surveillance was discontinued at 5:47 p.m.;

[24] In his cross-examination, PC Lontoc testified as follows:

a) his notes were only 2 to 3 pages long;

b) he attached none of the materials, such as the computer searches, on which he relied;

c) he spoke to PC Kremer on July 11, 2019, the day he swore the ITO; PC Kremer was the scribe for the surveillance, and he relayed his observations of the surveillance to PC Lontoc for the ITO;

d) PC Lontoc did not review the notes of PC Kremer but relied on what PC Kremer told him at the time; he made no other notes himself other than what he put directly into the ITO at the time that PC Kremer was advising him what happened;

e) PC Lontoc concedes that he does not know what PC Kremer heard over the radio during surveillance, or what DC Mahmood told PC Kremer, and whether that was what was told to PC Lontoc;

f) PC Lontoc never looked at DC Mahmood’s notes and simply relied on what PC Kremer told him;

g) PC Lontoc did not make separate notes of the results of his computer investigation, but simply inserted the information he found directly into the ITO;

h) PC Lontoc made no notes of who was actually living at the Property and didn’t provide any copies of the searches he did with respect to the Property;

i) PC Lontoc indicated that the very morning of his cross-examination in this application, he reviewed the computer search for the Property and saw that there was relevant information relating to Mr. Morias; he now sees that there was a break and enter in 2011 related to the Property and in 2009 there was a fire; PC Lontoc has no memory as to why he missed these in his 2019 investigations but perhaps he saw them and decided they were irrelevant; he now believes the fire is relevant because Mr. Morias was noted in that occurrence and he was 13 years old at the time;

j) PC Lontoc acknowledged the difficulty with not keeping proper notes and search results because his investigation is hard to test;

k) PC Lontoc never asked DC Mahmood directly what he observed; he never asked DC Mahmood if he knew the person observed was Mr. Morias; PC Lontoc took the word of the surveillance team and never asked for the basis of its belief that it was Mr. Morias who left the house; he usually does not question officers who conduct the surveillance; he accepts and believes what they report and includes it in his ITO;

l) the mug shot that is in the ITO is consistent with what Mr. Morias looked like when he was arrested in 2019; and

m) PC Lontoc was not aware that DC Mahmood expressed concern that it may not have been Mr. Morias that he observed leaving the Property because he never spoke to DC Mahmood directly at the time.

[25] In addition, PC Lontoc admitted during his cross-examination that he now has a criminal record for impaired driving, that his license was suspended for one year and he was subjected to a Police Services Act prosecution. He was found to have shown discreditable conduct and was demoted for 18 months.

[26] When drafting the ITO, PC Lontoc indicated that when he got the description of Mr. Morias from Mr. Kremer, he did not turn his mind to the fact that that description was different to other descriptions in the ITO; he found that the information he received from PC Kremer corroborated his investigation and he believed the information from PC Kremer to be true; PC Lontoc does acknowledge inconsistencies with respect to Mr. Morias’ purported weight, hair and facial hair, but that it remained consistent with respect to his race and his height.

[27] PC Lontoc acknowledged that he had no information about who lived at the house and that he only conducted about three hours of surveillance in this case to corroborate the CI information. That small period of surveillance did not help him determine who lived at the house.

[28] PC Lontoc agrees that his statement about a drug transaction occurring between Mr. Morias and the Filipino man was based on his opinion only and that he was not there to observe anything himself. PC Lontoc also recalled that PC Kremer told him there was a hand-to-hand exchange of a computer during their mobile surveillance but agrees it was not included in the ITO. PC Lontoc now agrees that it should have been put in the surveillance and that it was a mistake not to do so. He speculates that he may not have considered it relevant at the time as it did not concern a firearm.

[29] PC Kremer, in cross-examination, notes that he described a laptop bag but did not refer to a computer. He would have only told PC Lontoc about what was in his notes.

[30] When drafting the ITO, PC Lontoc’s conversation with PC Kremer took about 10 minutes. He simply typed into the ITO what he heard from PC Kremer while being briefed. Then he went back to ensure that the ITO contained proper sentences. In his briefing on July 10, 2019, PC Kremer did not mention whether Mr. Morias was wearing a beard, one way or the other.

[31] Although PC Lontoc acknowledges a difference in descriptions of Mr. Morias, he still believed the surveillance team that they observed Mr. Morias at the Property. He was working as part of the team. The surveillance team had its role and he had his own. Their role is to brief them on what they saw. He believed what they told him, as they had worked together before and there was no reason not to believe them.

3. Analysis

[32] Mr. Morias challenges the credibility of PC Lontoc. He has minimal notes, which makes it hard to challenge his evidence. There is information in the ITO that is not in the surveillance team’s notes.

[33] Mr. Morias also challenges the corroboration. There is no record of the computer searches done. The surveillance is only three hours long; PC Lontoc did not include the computer exchange but included a speculated drug transaction. PC Lontoc omits the relevant information regarding the Property. There are different descriptions of Mr. Morias that PC Lontoc does not question.

[34] DC Mahmood stated in the preliminary inquiry, which was admitted on consent in this application, that he observed that Mr. Morias purchased a MacBook or other type of Apple product from another individual in the parking lot of Playdium at Square One in Mississauga. This is the computer exchange referred to by PC Kremer.

[35] Mr. Morias argues that I should excise the statement that Mr. Morias left the Property while under surveillance, and also excise the opinion that he participated in a drug transaction in a parking lot.

[36] In this case, I do not believe it is appropriate to excise this information. At the time that PC Lontoc swore the ITO, he believed that the person exiting the Property was Mr. Morias. Other information in the ITO corroborated this description or part of it. The JP had before her the entire ITO, which included different descriptions, but issued the warrant nonetheless. With respect to the observed drug transaction, the ITO clearly states that PC Lontoc believes it was a drug transaction. It is clearly an opinion. It is clear on the face of the ITO that it was DC Mahmood who made the observation and it was PC Lontoc who drew the conclusion. It is something that the JP could easily ascertain and could apply the appropriate weight to it, if any.

[37] After reviewing this information, I do find that the JP could have granted the warrant as it showed reasonable and probable grounds to believe that an offense had been committed and that there was evidence to be found at the Property.

[38] PC Lontoc had no reason to disbelieve the surveillance team that they observed Mr. Morias exit the Property. The observations and investigations of PC Lontoc, in addition to the information provided by the CI, which was redacted, all assisted the JP. While PC Lontoc admitted his own criminal record, it was not a crime involving dishonesty. His evidence of his charges and with respect to the ITO was forthright.

[39] The information provided by the CI was compelling. The JP was able to examine the degree of detail and the CI’s source of the information. Based on the information provided, the statements could not be considered conclusory.

[40] The JP could find that the CI was credible. Again, there was information available to the JP to assess the CI’s motivation, whether the CI had past involvement with the law and whether there was a history of prior cooperation with the police. Granted, there was no mention if the CI was ever wrong in its information, which would have been preferrable, but considering the detail of the CI’s information, there would be no reason to doubt it.

[41] There was corroboration by the police by way of computer checks and surveillance. I agree with Mr. Morias that the corroboration could have been better. This was the weakest of the Debot factors. Viewed in the totality of the circumstances though, the compelling and credible nature of the CI makes up for the less than satisfactory corroboration by the police.

[42] Accordingly, I find that the search warrant was properly issued on the ITO before the JP. Having found that the search was legal, I find no violation of Mr. Morias’ rights under s. 8 of the Charter.

B. Section 7

[43] Mr. Morias has alleged that his rights under s. 7 of the Charter were violated when the police executed the search warrant at the Property. In particular, he alleges the police used excessive force to detain him when he attempted to exit the Property on the day the search warrant was executed.

1. Law

[44] Section 7 of the Charter grants everyone the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The excessive use of force by police affects the liberty and security of the person, violating their rights under s. 7. The onus is on Mr. Morias to demonstrate on the balance of probabilities that his s. 7 rights were violated by the police’s use of force.

[45] Section s. 25(1) of the Criminal Code authorizes a police officer, if he or she acts on reasonable and probable grounds, to use as much force as is necessary to perform their duties. Subsection 25(3) prohibits a police officer from using a greater degree of force (something that is intended or likely to cause death or grievous bodily harm) unless he or she believes it is necessary to protect him or herself, or another person under their protection, from death or grievous bodily harm: R. v. Nasogaluak, 2010 SCC 6, at para. 34.

[46] The degree of force to be used by the police remains constrained by the principles of proportionality, necessity and reasonableness. The test for evaluating whether excessive force was used is both subjective and objective. The court must consider the subjective belief of the officer at the time he or she applied the force, but that belief must also be objectively reasonable, taking into account factors such as the circumstances and dangers present during the deployment of the force: Nasogaluak, at paras. 32-34.

[47] Judicial review of the use of force by police in the context of an arrest requires an assessment of the reasonableness of the forcible arrest in “all the circumstances”: R. v. Asante-Mensah, 2003 SCC 38, at paras. 74-76.

[48] The circumstances and dangers that can be considered include:

a) Whether the suspect was acting in a hostile manner towards the police resisting arrest, or failing to comply with the officer’s arrest procedure;

b) Consideration of the relative sizes and weights of the officer and the suspect;

c) Whether the officer was at risk of harm;

d) If the police knew the suspect had a history which might represent a threat to them; or

e) If the police understood that weapons might be on the premise.

R. v. Walcott (2008), 57 C.R. (6th) 223, at para. 24 (Ont. S.C.).

[49] The totality of the circumstances must be considered and the actions of the police must not be held to a standard of perfection. Many situations are fluid, dynamic and call for on-the-spot decision-making. It must be remembered that the police engage in dangerous and demanding work and must often react quickly to emergencies. Their actions should be judged in light of these exigent circumstances and the degree of force should not be measured with exactitude: Nasogaluak, at para. 35; R. v. DaCosta, 2015 ONSC 1586, at para. 99.

[50] The reviewing court must also be careful to guard against the tendency to judge the actions of police with the benefit of hindsight: see DaCosta, at para. 98; R. v. Cornell, 2010 SCC 31, at paras. 23-24. Nor should the conduct be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture: R. v. Amofa, 2011 ONCA 368, at paras. 19, 24-25; R. v. Rigo, 2017 ONSC 3694, at para. 73.

2. Facts

[51] There were three people who had direct knowledge of the force used on Mr. Morias on that day, and several others that overheard something or viewed the aftermath. Unfortunately, all accounts do not coincide. Accordingly, I must analyze the various accounts in order to make the necessary findings of fact.

[52] In order to execute the search warrant on July 11, 2019, the Street Level Organized Crime Unit (“SLOC”) of the PRP contacted the TRU. The TRU is a special unit that gets called to assist when there is a weapon or a higher risk of violence involved in the execution of a search warrant.

[53] The TRU had briefing on the evening of July 11, 2019, between 7:32 p.m. and 7:41 p.m. All the officers involved were aware that their mission was to safely execute a search warrant of the property and arrest Mr. David Morias for the unauthorized possession of a firearm, if he was present. They were also to safely detain any other parties in the Property, render the residence safe for investigators and prohibit the destruction of evidence.

[54] PC Karl Lauretti prepared the briefing notes that all the members of the TRU shared. From these briefing notes, all TRU officers knew that they were being asked by SLOC to execute a search warrant on July 11, 2019 and that the target was Mr. Morias, who was arrestable for the unauthorized possession of a firearm.

[55] The briefing notes also indicated that the threat assessment was at Level 4, the highest level. The TRU officers understood that a firearm was involved, but there was no past assaultive behaviour on the police by Mr. Morias nor did they have any knowledge of past use of a weapon by him. They had a description of Mr. Morias, and knew that he had no current criminal convictions but that he had a number of outstanding drug charges before the court.

[56] The typed briefing notes were used by all TRU officers, but each created their own handwritten notes at the bottom to record their personal observations shortly after the event.

[57] The TRU met at the rendezvous point, close to the Property, at approximately 7:53 p.m. on the evening of July 11, 2019. At that time, or just before they reached the Property, they were advised that Mr. Morias was present at the Property and that two other men had just arrived.

[58] All members of the TRU wore similar attire – a grey tactical uniform, ballistic vest, helmet and a balaclava. They each wore a tool belt that had a place for a radio, ammunition, taser, pepper spray and a baton. Most carried an M-16 rifle and a 9mm sidearm as well. They are identified as police both on the back of their vest and on the helmet. There are also shoulder patches that identify them as part of PRP.

[59] The TRU left the rendezvous point at 8:20 p.m. and arrived at the Property at 8:23 p.m. PC Lauretti, who led the tactical team, had his long arm weapon in the “low ready” position as he entered the Property. He and other members of the TRU were all able to view two men behind a fence at the right side of the house on the Property, next to the side door entry point. PC Sean Parkin, who was the acting supervisor that day, yelled “compromise” so the other officers would know that they had lost the element of surprise. PC Lauretti announced their presence loudly, identifying themselves as the PRP, that they had a search warrant to execute, and demanded that the two men go to the ground. The two men complied.

[60] Some members of the TRU entered the side door. PC Sean Parkin and PC Janson Storring heard another member of the TRU yell “drop the knife” in through the side door.

[61] PC Parkin and PC Storring stopped and arrested the men on the ground. They were taken into custody without incident. PC Lauretti did not stop and immediately continued into the backyard where he observed seven or eight cement stairs heading down towards a basement door. The stairwell was about four feet wide. PC Lauretti observed a man at the bottom of the stairwell, exiting the basement door at the bottom. The identity of the man was not yet known by PC Lauretti.

[62] Upon seeing this man, PC Lauretti raised his gun and pointed it at him. He commanded the man to stop and show his hands. We now know that this man was David Morias.

[63] Mr. Morias states that at this time, he heard loud noises and screams upstairs, but no words in particular. Given the commotion, he wanted to check on his grandmother who was upstairs. He used the door to the backyard instead of the interior stairway to the main floor. He states that when he exited the basement door, he was surprised to see PC Lauretti with his gun.

[64] Mr. Morias admits that when he exited the basement door, he had his black fanny pack over his right shoulder. Mr. Morias claims that despite having his fanny pack on him, he was not going anywhere. He maintained that he wore his fanny pack consistently, as it contained his phone, cash and a debit card. PC Chris Holmes, another officer who arrived shortly thereafter, confirmed seeing Mr. Morias with the fanny pack across his chest, either wearing it over his shoulder or holding it over his chest area. PC Lauretti doesn’t recall seeing Mr. Morias carrying or wearing a fanny pack.

[65] Upon seeing Mr. Morias, PC Lauretti loudly commanded him to stop or freeze, and to show his hands. This is confirmed by PC Holmes who, from the side of the house, heard PC Lauretti yell something like “don’t move – show me your hands.” PC Janson Storring, who was also at the side of the house, also heard PC Lauretti issue this command anywhere between two to five times, which led him to believe that the target was not complying.

[66] Mr. Morias agrees that he first was ordered to “stop” or “freeze”, but he remembers next being commanded to take off his bag and then put up his hands. Whatever the exact wording of those commands, their intent is the same. Despite this, Mr. Morias, PC Lauretti and PC Holmes all testified that Mr. Morias did not stay put. Instead, Mr. Morias started coming up the stairs. PC Lauretti commanded again for Mr. Morias to stop or freeze, and he did not.

[67] There are different accounts of how Mr. Morias came up the stairs.

[68] Mr. Morias maintains that when he was at the bottom of the stairs, he told the officer that he was coming up to surrender. In order to show that he did not intend to be threatening, he said he walked slowly and deliberately up the stairs, with his fanny pack raised in his hand. He handed the fanny pack to PC Lauretti at the top of the stairs. He states that PC Lauretti then asked him his name, and when Mr. Morias told him who he was, he claims that PC Lauretti’s face changed completely, PC Lauretti became very angry, grabbed Mr. Morias and threw him to the ground in the grass.

[69] PC Lauretti testified that Mr. Morias came up in a brisk, deliberate and confident walk, but was not running. When Mr. Morias was approximately three or four steps from the top, Mr. Morias threw a black fanny pack at him, though he does not recall being hit by it. PC Lauretti hadn’t noticed the fanny pack before then and perceived this as a threatening move. When Mr. Morias was almost at the top of the stairs, PC Lauretti grabbed him by the shoulder, in an attempt to ground him. He did not hear Mr. Morias say anything.

[70] By this time, PC Holmes had come to the backyard to assist PC Lauretti. PC Holmes positioned himself several paces behind PC Lauretti, who was already a few paces back from the stairway. He arrived quick enough to see Mr. Morias at the bottom of the stairwell. He testified that he observed Mr. Morias come up the stairs running, with his fanny pack at his chest area, seemingly with the intent to run past the two officers who had weapons aimed at him.

[71] With respect to the speed of Mr. Morias’ ascent, I accept the evidence of PC Lauretti over that of PC Holmes and Mr. Morias. PC Lauretti had the better vantage point than PC Holmes from the time Mr. Morias came out of the basement. Also, PC Lauretti’s evidence that Mr. Morias ascended the stairs deliberately and with confidence is not that dissimilar to how Mr. Morias described his ascent.

[72] That being said, I do not accept Mr. Morias’ evidence that he was surprised to see the police outside of the basement door, and that he told them he was surrendering and coming up.

[73] I find that Mr. Morias was trying to exit the Property in light of the police presence. If he was only worried about his grandmother’s welfare in light of the yelling he heard, he would have taken the most direct route upstairs by the internal stairway and would not exit into the backyard. Also, he would not need his fanny pack to check on his grandmother, with his phone, cash and debit card. I do not accept that Mr. Morias keeps this strapped to himself at all times, even when relaxing in the basement of his grandmother’s house. Finally, it is hard to believe that Mr. Morias would not have been aware of the police presence at the Property when he attempted to leave. The TRU was loudly announcing its presence at the side of the house and inside the house upstairs.

[74] I also do not accept that Mr. Morias indicated to the police that he was surrendering and ask that they not shoot. Numerous police officers heard multiple commands issued by PC Lauretti, which would indicate non-compliance by the target. No one heard anything from Mr. Morias, including PC Holmes, who was right at the stairwell. If Mr. Morias did say anything before he came up, he did not say it loud enough for it to change the dynamics of the situation.

[75] It is also difficult to accept Mr. Morias’ evidence that he walked up the stairs calmly but that PC Lauretti’s face changed when he learned of Mr. Morias’ identity. As indicated, all TRU officers wore balaclavas, concealing most of their face. All that would be visible would be PC Lauretti’s eyes. Also, one of the goals of the TRU was to apprehend Mr. Morias. It could not have been a great surprise that Mr. Morias was on the Property, and in fact the TRU was advised that day that Mr. Morias was at the Property.

[76] Mr. Morias’ actions are also not consistent with someone who wanted to surrender. If he wanted to surrender, he would have stopped as commanded. Mr. Morias was not commanded to come up the stairs – slowly or otherwise. Mr. Morias conceded this in his evidence. Accordingly, no matter what demeanor Mr. Morias thought he was exhibiting, or whatever speed he was ascending the stairs, it is clear that he was not obeying the commands of a TRU officer who had a gun pointed at him. Instead, he proceeded up the stairs, whatever the speed, towards the two officers, with a black bag in his hand, with the intention to leave. Whether or not the fanny pack was tossed or carried up, the situation was tense, quickly unfolding, and Mr. Morias was not compliant to the numerous commands issued to him to stop.

[77] Given Mr. Morias’ continuation up the stairs and his failure to comply with the commands to stop, PC Lauretti and PC Holmes had to act quickly. PC Lauretti grabbed him by the shoulder to ground him, while at the same time, PC Holmes deployed his taser gun in an attempt to do the same. Both PC Lauretti and PC Holmes agree that they both acted at the same time, and neither knew what the other intended to do. It all happened quite quickly. PC Lauretti did indicate that it was not difficult to ground Mr. Morias as the taser deployment had some effect.

[78] While PC Holmes testified that he does not remember deploying his taser for more than the minimal 5 seconds, his taser records, retrieved after his testimony, showed that the taser was activated for 10 seconds, twice the minimum time. That being said, PC Holmes testified that upon deployment of his taser, Mr. Morias did not exhibit the usual signs of muscle lock out, but his pace did slow, and Mr. Morias was able to advance another three or four steps before he fell to the ground. PC Holmes then heard PC Lauretti deploy his taser, before Mr. Morias hit the ground, or maybe as Mr. Morias was on his way to the ground, he is not sure.

[79] When describing Mr. Morias’ movements when he fell to the ground, PC Holmes stated that Mr. Morias continued to actively resist arrest. He was flailing, not in a way so as to strike the officers, but more passively. PC Holmes believes his taser had an impact on getting Mr. Morias to the ground. Mr. Morias was ordered to roll over and give up his hands, but he did not comply. PC Holmes conceded that possibly, the movements may have been the effects of being hit by a taser.

[80] PC Lauretti stated that from his experience, Mr. Morias was acting in a manner that showed that the first taser was not effective, as Mr. Morias did not become incapacitated. While he acknowledged that muscle spasming can happen after a successful taser deployment, his experience told him that this was not what he was observing in Mr. Morias. Mr. Morias was still struggling. PC Lauretti continued his commands to roll onto his stomach, but Mr. Morias did not do so. Mr. Morias continued to thrash about and would not roll to his stomach and present his hands for cuffing. PC Lauretti deployed his taser in the front belt area of Mr. Morias after he was already on the ground. Everyone agrees that it was effective and Mr. Morias experienced a lock out of his muscle control. Immediately after the second taser, Mr. Morias was compliant – he rolled over and presented his hands for handcuffs.

[81] Both PC Lauretti and PC Holmes agree that only 15 to 30 seconds passed from the point Mr. Morias came up the stairs until the second taser. Everything happened very quickly.

[82] Mr. Morias maintained that the first taser deployment locked him out completely. He recalls being hit with a second taser only 3 to 5 seconds after the first, when he was still locked out from the first taser. The second taser was deployed on him while he was on the ground. He believes he landed on his back. He disagrees that he was flailing on the ground but said he simply could not roll over because he was locked out. He stated he could not breathe, could not get up, rollover or move at all. He maintains he was lying still on the ground, on his back, and PC Lauretti tasered him for a second time.

[83] With respect to where Mr. Morias was when the second taser was deployed, I accept the evidence of PC Lauretti over that of PC Holmes. Again, it all happened very fast, but PC Lauretti was the officer who deployed the taser, and he would have the best vantage of where Mr. Morias was when he deployed it. His evidence is clear that he deployed because Mr. Morias was on the ground, and he was still not compliant. Mr. Morias also testified that he was on the ground when the second taser was deployed.

[84] I do not accept the evidence of Mr. Morias that he lay completely locked out, not moving after the first taser, and was tasered again almost immediately thereafter.

[85] Mr. Morias’ evidence does not make any sense. He testified that after the first taser, he was completely locked out and unable to move. He did not testify that he was spasming or moving involuntarily as a result of a taser that may have lasted 10 seconds and thus unable to comply. His testimony was that he was completely locked out and just could not move and comply. It makes no sense then, after being tased again, within seconds of the first taser, and for an additional 5 seconds, that he then was able to comply, and roll over to be handcuffed.

[86] Also, I accept that Mr. Morias continued to move after being struck with the first taser deployment. It was the evidence of PC Lauretti and PC Holmes that Mr. Morias was initially grabbed and tasered at the top of the stairs. By all accounts, Mr. Morias then collapsed in the grassy area, which was a couple of metres from the top of the stairs, towards the back fence. That was where PC Storring observed him lying down when he came around to the backyard to assist. PC Storring estimated that Mr. Morias was 15 to 20 feet from the back door. If Mr. Morias was completely locked out, as he testified, he would have collapsed at the grass near the top of the stairs, and not heaved 15 to 20 feet by PC Lauretti when he was grabbed, as Mr. Morias testified. It appears clear that Mr. Morias continued to move after the first taser.

[87] Also, I do not accept that Mr. Morias identified himself to PC Lauretti when he reached the top of the stairs. Had PC Lauretti known who he was, he could have arrested him once he was detained, and not handed him off to other police to arrest, like had occurred with the two men at the side of the house, and not hurried back down to the basement to continue the clearing of the building and search for Mr. Morias. PC Storring testified that he was the one that asked Mr. Morias for his name, and as soon as he was told, he was arrested for the unlawful possession of a firearm.

[88] Considering all the circumstances, I do not find that the TRU used an excessive degree of force. In the thirty seconds in which this all transpired:

a) Mr. Morias was trying to exit the building;

b) Mr. Morias was not complying with commands to stop;

c) The TRU did not know if Mr. Morias had a firearm in his fanny pack or on his person;

d) The fanny pack was thrown towards the officers;

e) The TRU were advised that there was a firearm on the premises;

f) PC Lauretti and PC Holmes heard that there was a knife at the side door when the other police entered;

g) The TRU had no idea if there was anyone else in the basement and whether they had a gun;

h) After having the taser gun deployed on him, Mr. Morias continued to move away from the house, thrashing on the ground, albeit more passively, still failing to obey the commands, and still resisting detention;

i) Given the uncertain nature of who else was in the house, and not knowing that the man on the ground was the actual target, the police did not have time to wait for Mr. Morias to calm down, nor could they wait to see if any of the other officers were available to help before they finished their sweep of the Property; and

j) The TRU had to act quickly to continue their search of the house and maintain their element of surprise.

[89] Subjectively, the police would have feared for their safety and the safety of the others due to the presence of a firearm. Objectively, the dangerous situation, the speed of action which was required, Mr. Morias’ failure to comply with multiple police commands and his attempt to leave the Property, make the officers’ conduct objectively reasonable as well.

[90] I concede that at the time Mr. Morias was on the ground, he had two TRU officers surrounding him, both with long guns, sidearms and tasers at the ready had he tried to get up and flee. I also acknowledge that while Mr. Morias was well over 200 lbs at that time, PC Holmes was 6’3” and weighed about 260 pounds and he had the assistance of PC Lauretti who was 5’6” or 5’7” and weighed about 190 pounds. That being said, this situation was dynamic and there was no guarantee that in the time it would take to restrain Mr. Morias with their weight alone, another dangerous situation would not evolve in the basement to which they could not respond.

[91] I also concede that PC Holmes’ failure to download the information from his taser gun after the incident, and PC Lauretti’s failure to do so in timely manner, can impact these officers’ credibility on these important findings of fact. On the facts before me though, I do not find that it did in this instance. While this failure to follow proper procedure could at times be fatal to their evidence, in this case, there was other evidence to support the officer’s recitation of the facts, and enough difficulties with Mr. Morias’ evidence that I was able to make the necessary findings of fact that support my conclusion that the force used was both subjectively and objectively reasonable in the circumstances.

[92] Accordingly, I find that the use of force in this scenario was reasonable, and not a violation of Mr. Morias’ rights under s. 7 of the Charter.

C. Section 10(b)

[93] Section 10(b) of the Charter provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right.

[94] This right imposes both an informational and an implementational duty. The informational duty is the police’s obligation to advise the detainee of their right to retain and instruct counsel without delay, and of the existence and availability of legal aid and duty counsel. The implementational duty includes providing the detainee a reasonable opportunity to exercise their right to counsel and refraining from eliciting evidence from the detainee until he or she has had that opportunity. These implementational duties are not triggered until a detainee indicates a desire to exercise his or her right to counsel: R. v. Bartle, [1994] 3 S.C.R. 173, at pp. 191-192; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 30 and 33; R. v. Owens, 2015 ONCA 652, 127 O.R. (3d) 603, at para. 20.

[95] The Crown concedes that there was a breach of Mr. Morias’ s. 10(b) rights, due to the time it took for the PRP to provide Mr. Morias with an opportunity to speak to his lawyer once he indicated his desire to do so.

[96] While this breach is conceded, the facts should be set out so as to assist with the s. 24(2) analysis.

[97] The following is not disputed. Upon Mr. Morias’ arrest by PC Storring, he was told that he should not say anything until he was read his rights. There is no notation of when this arrest took place. Mr. Morias was immediately transferred to PC Lontoc, who was with the investigative team. PC Lontoc indicated that he took custody of Mr. Morias at 8:27 p.m. Given that the TRU team arrived at the Property at 8:23 p.m., and that PC Lauretti estimated no more than 2 minutes passed between their arrival and the detention of Mr. Morias, I infer that Mr. Morias was arrested at approximately 8:25 p.m. PC Lontoc indicated that he took custody of Mr. Morias at 8:27 p.m. and brought him around to the front of the house at the Property.

[98] At that point, Mr. Morias experienced some physical distress. Mr. Morias states he collapsed. PC Justin Marra reported that Mr. Morias appeared bent over, wincing with pain. Everyone agrees that Mr. Morias was experiencing shortness of breath and that Mr. Morias indicated he was suffering from anxiety. PC Justin Marra took custody of him. He did not note the time, but from his other notes, he can advise that he took custody of Mr. Morias shortly after his arrival on the scene at 8:33 p.m. The paramedic, Mr. Huu Pham was called over to treat Mr. Morias. He observed that Mr. Morias was suffering shortness of breath, or hyperventilation.

[99] When he was able, Mr. Morias was brought over to the ambulance. A number of tests were conducted on Mr. Morias by the paramedic team.

[100] Mr. Pham has no independent recollection of the notations he made in his Ambulance Call Report. As a result, Mr. Morias stated it was hearsay and objected to it being entered into evidence. The Crown has relied on the “past recollection recorded” exception to the hearsay rule and asked that it be admitted.

[101] The prerequisites to admitting “past recollection recorded” evidence are that (1) the past recollection must have been recorded in some reliable way; (2) at the time, it must have been sufficiently fresh and vivid to be probably accurate; (3) the witness must be able now to assert that the record accurately represented his knowledge and recollection at the time, that he knew it to be true at the time; and (4) the original record itself must be used, if it is procurable: R. v. Fliss, 2002 SCC 16, at para. 63.

[102] I agree with the Crown that the Ambulance Call Report qualifies as an exception to the hearsay rule as a past recollection recorded. Based on Mr. Pham’s testimony, I am satisfied that his observations were recorded in a reliable way, as is required in his employment. He made his notes simultaneously or immediately after the event described. Mr. Pham testified that the contents were true, as he was required to record them in his capacity as a medic. While the original was not in court, an electronic copy was available.

[103] The Ambulance Call Report indicates that the initial assessment of Mr. Morias occurred at 8:35 p.m. One set of taser probes were removed at 8:36 p.m. and an electrocardiogram test was performed at 8:44 p.m. No other taser probes were located. Vital signs were taken at 8:44 p.m., blood samples taken at 8:45 p.m., and vital signs repeated at 8:48 p.m. Mr. Morias indicated that he wanted to go to the hospital.

[104] When the paramedics were finished performing their tests on Mr. Morias and he was stable, PC Marra read Mr. Morias his rights to counsel between 8:50 p.m. and 8:55 p.m. At that time Mr. Morias immediately asked to speak to Mr. Stephen Bernstein, who was at that time, a lawyer from Toronto. PC Marra then read the caution, and then the secondary caution, all in the back of the ambulance. It was all completed by 9:00 p.m.

[105] PC Marra then “googled” Stephen Bernstein and found his phone number. They left for the hospital at 9:02 p.m. and arrived at 9:18 p.m. When they arrived at the hospital, Mr. Pham updated the hospital staff and placed Mr. Morias where directed. Mr. Pham finished offloading Mr. Morias to the hospital at 10 p.m. and left.

[106] PC Marra concedes that he did not call Mr. Morias’ lawyer right away when they got to the hospital. He could find no place of privacy and he only had his own personal cell phone. During this time, Mr. Morias underwent some tests, PC Marra was training PC Greenwood at the time, and there were large periods of waiting when they did nothing but talk about sports or how hungry they were.

[107] When asked why he did not facilitate a call to Mr. Morias’ lawyer, PC Marra stated that his sole purpose was to transport Mr. Morias to the hospital and then take him back to the cells. He had nothing to do with the investigation regarding the search warrant. PC Marra knew though, that when dealing with a firearm offense, the police don’t want anyone showing up at a residence or hospital causing any issues. He stated that he was not sure of the status of the search warrant. PC Marra concedes he made no calls himself to ascertain the status of the search. PC Marra did not ask the hospital if he could have access to a phone or access to a private room for a phone call. He acknowledges that if really pressed, hospital staff could find him a spot unless the hospital was at full capacity. He has no idea if the hospital was at capacity that night.

[108] It should be noted that PC Marra never mentioned his concerns about an ongoing investigation when he testified at the preliminary inquiry. He stated that he remembered this aspect immediately after the inquiry. Despite this, he never contacted the Crown to advise as such.

[109] After various tests, Mr. Morias was medically cleared and his I.V. was removed by 3:00 a.m. on the morning of July 12, 2019. PC Marra and PC Greenwood then transported Mr. Morias to the cells at 21st Division, arriving at 3:17 a.m. At 3:30 a.m. PC Marra made his first attempt to contact Mr. Bernstein and left a voicemail message. He then called another number for an associate at the same office at 3:33 a.m. and left another voicemail message. He left the booking area somewhere between 3:40 a.m. and 3:45 a.m. No one from Mr. Bernstein’s office called back by that time. As far as PC Marra knew, Mr. Morias was waiting for a call back from his lawyer when he left.

[110] In the meantime, PC Lontoc went to the 21st Division at approximately 3:30 a.m. He was advised at that time that a call had been placed for Mr. Morias’ lawyer. PC Lontoc then went to see Mr. Morias in the cells at appropriately 3:36 a.m. and advised Mr. Morias of the additional charges. At this time, he also read Mr. Morias his rights to counsel and cautioned him again. When asked if he wanted to speak to a lawyer, Mr. Morias indicated that when he was being booked, one of the officers told him that a lawyer was being called for him already. PC Lontoc took no further steps with respect to contacting a lawyer for Mr. Morias and left it for the officers in charge of the cells.

[111] Accordingly, from the time Mr. Morias was arrested for the unlawful possession of a firearm, until which time he was read his rights, approximately 35 minutes passed. In the circumstances, this was not an unreasonable delay, given that he was receiving medical treatment. What was unreasonable though, and the Crown concedes it, is that no efforts were made to actually contact a lawyer for Mr. Morias until 3:30 a.m. the next day, a delay of 8 hours.

[112] With respect to the additional charges, Mr. Morias was arrested at 3:36 a.m. and advised of his right to counsel immediately thereafter. When asked if he wanted to speak to a lawyer, he did not request that a call be made, because he was told that the lawyer was already called. Mr. Morias had no recollection of actually connecting with his lawyer until the bail hearing the next morning at approximately 10:52 a.m. on July 12, 2023.

[113] Accordingly, I find there was a violation of Mr. Morias’ 10(b) rights with respect to his initial charge of unlawful possession of a firearm. I find no violation of his 10(b) rights with respect to the other charges.

D. Section 24(2)

[114] Where the courts have concluded that evidence was obtained in a manner that infringed or denied Charter protected rights, the evidence obtained shall be excluded under section 24(2) of the Charter if it is established that, having regard to the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute.

[115] Having found that Mr. Morias’ rights under section 10(b) of the Charter were violated, I must now determine whether the evidence seized should be excluded.

[116] Mr. Morias bears the onus of convincing the court that the exclusion of the evidence is appropriate: R. v. Fearon, 2014 SCC 77, at para. 89; R. v. Lenhardt, 2019 ONCA 416, at paras. 11-12. He must first show that the evidence was obtained in a manner that violated the Charter. Once this has been done, he must then show that the admission of the evidence would bring the administration of justice into disrepute: R. v. Pino, 2016 ONCA 389, at paras. 35-36.

i. Was Evidence Obtained in a Manner that Violated the Charter?

[117] Whether the subject evidence was “obtained in a manner” that infringed Mr. Morias’ Charter rights is a threshold issue: R. v. Pileggi, 2021 ONCA 4, at paras. 98 and 100. This must be considered before I embark on the second part of the analysis.

[118] In R. v. Tim, 2022 SCC 12, at para. 78, the Supreme Court of Canada recently provided guidance in determining whether evidence is obtained in a manner that breaches an accused’s Charter rights, so as to trigger a s. 24(2) analysis. The following is a summary of the principles to be applied:

1. The courts should take a purposive and generous approach to whether evidence was “obtained in a manner” that breached an accused’s Charter rights.

2. The entire chain of events involving the Charter breach and the impugned evidence should be examined.

3. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct.

4. The connection between the Charter breach and the impugned evidence can be temporal, contextual, causal or a combination of the three. A causal connection is not required.

5. A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2). Such situations should be dealt with on a case by case basis. There is no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote.

[119] In the case before me, the firearm and drugs that were seized were all contextually linked to the Charter breach, as they were all part of the same course of conduct. While the violation of Mr. Morias’ s. 10(b) rights occurred for the most part after the discovery of the evidence, I accept the Applicant’s position that it is sufficiently linked for the purposes of this threshold analysis.

ii. Would Admission Bring the Administration of Justice into Disrepute?

[120] An inquiry under s. 24(2) examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term. The inquiry is based on (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the accused’s Charter-protected interests, and (iii) society’s interest in the adjudication of the case on the merits. The court’s role on a s. 24(2) application is to balance the assessments under these three avenues and determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant, 2009 SCC 32, at para. 71.

[121] Any analysis under s. 24(2) should be conducted so that it takes into account the cumulative effect of the various Charter breaches, if applicable: R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, at para. 62.

a. Seriousness of Breach

[122] When determining the seriousness of the breach, the court should determine whether the police engaged in misconduct from which the court should disassociate itself. The most serious conduct is wilful or reckless disregard of Charter rights which will have a negative effect on public confidence in the rule of law and bring the administration of justice into disrepute. On the other end of the spectrum is inadvertent or minor violations of the Charter, or an understandable mistake, which would not undermine public confidence in the rule of law: Grant, at paras. 72-74; R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 83.

[123] In this situation, I find that there was no delay in providing the informational component of s. 10(b), but the delay in implementing Mr. Morias’ 10(b) rights was serious. There was absolutely no effort on the part of PC Marra to facilitate a phone call. He was at the hospital by 9:00 p.m. There was a better chance of Mr. Morias being able to speak to a lawyer at that hour than at 3:30 a.m. in the morning when the call was finally made. No efforts were made to see if a phone or private room were available. To compound the seriousness, PC Marra was training another officer at that time. This could leave to systemic violations of an accused’s right to counsel by a whole new generation of police officers. This prong of the analysis favours exclusion of the evidence.

b. Impact of the Breach

[124] This prong of the inquiry calls upon the court to first look at the interests engaged by the particular Charter right, and then consider the degree to which the violation impacted those interests: Grant, at paras. 76-77; Tim, at para. 90; R. v. Keshavarz, 2022 ONCA 312, at para. 112.

[125] The impact of the breach may range from fleeting and technical to profoundly intrusive. The more serious the impact of the accused’s protected interests, the greater the risk that the admission of the evidence may signal to the public that Charter rights are of little avail to the citizen, bringing the administration of justice into disrepute: Grant, at para. 76.

[126] The right to immediate access to counsel is important for many reasons:

a) The detainee may need immediate advice about the lawfulness of their arrest and their obligation to submit to a search;

b) The detainee is entitled to know about their rights during detention, including the right against self-incrimination;

c) Counsel can provide reassurance and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty.

R. v. Noel, 2019 ONCA 860, at paras. 23-26; Keshavarz, at para. 114.

[127] The impact of the breach is not particularly serious when the applicant did not incriminate himself and there is no indication that he would have obtained his liberty any earlier had the breach not occurred: Keshavarz, at para. 114.

[128] Also, while there need not be a causal relationship between the evidence and the Charter breach to establish a case for exclusion under s. 24(2), the absence of any such connection between the Charter breach and the evidence lawfully seized lessens the impact of the breach of the applicant’s Charter-protected interests and would make its admission more likely. It is entirely appropriate to consider the lack of a causal connection in calibrating seriousness under the second stage of the Grant analysis: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 87; Grant, at para. 122; Pileggi, at para. 108, 120; Keshavarz at para. 115; R. v. Lenhardt, 2019 ONCA 416, at para. 11.

[129] Where it can be said with confidence that the Charter-infringing conduct did not cause the evidence to become available because it was otherwise discoverable in obedience to constitutional restraints, the impact of state action is minimized: Grant, at para. 122; R. v. Wong, 2015 ONCA 657, at paras. 79-81.

[130] On the facts before me, I concede that had this right been exercised sooner, Mr. Morias may have been able to obtain legal counsel sooner. That being said, the discovery of the evidence is not causally connected in any way to the breach of Mr. Morias’ s. 10(b) rights. The police entered on a search warrant. The evidence would have been discovered whether Mr. Morias was present or not, and whether Mr. Morias spoke to a lawyer or not.

[131] Accordingly, I find that the impact on Mr. Morias’ 10(b) rights was minor, which favours the exclusion of the evidence.

c. Societal Interests

[132] Society expects that a criminal allegation will be adjudicated on its merits. In considering this final factor, the court is asked to determine whether the admission of the evidence, even if obtained due to a breach of the Charter, would assist the court in its truth-seeking function. If the breach undermines the reliability of the evidence, then the court should be more inclined to exclude it. On the other hand, the exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute: Grant, at paras. 79-81.

[133] Mr. Morias is charged with a number of weapons offenses and possession of controlled substances. Accordingly, evidence of the firearm, ammunition and the controlled substance are at the heart of this charge. Without this evidence, the Crown would have difficulty proving this offence.

[134] The exclusion of evidence, based on constitutional violations that were not connected to its discovery, would damage the repute of the justice system. When evidence is discovered by virtue of a proper search and seizure, which was executed in a reasonable manner, the exclusion of that evidence would only serve to indirectly punish the offending officers, rather than aligning with the overall purpose of s. 24(2) – vindicating the long-term repute of the criminal justice system: Pileggi, at paras. 126-127; R. v. Hobeika, 2020 ONCA 750, at para. 90.

[135] Accordingly, this third factor favours the inclusion of the subject evidence.

d. Weighing All Factors

[136] There is no overarching rule that governs how the balance is to be struck between the three factors in a s. 24(2) analysis, and I must consider all the circumstances of the case before me: Grant, at para. 86; R. v. Omar, 2018 ONCA 975, Brown J.A. dissenting, at paras. 114-115, adopted in 2019 SCC 32, at para. 1. That being said, when the first two inquiries taken together make a strong case for exclusion, “the third inquiry will seldom if ever tip the balance in favour of admissibility”: R. v. Le, 2019 SCC 34, at paras. 141-142.

[137] Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice. As stated in Tim, at para. 98:

The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach does not do further damage to the repute of the justice system. The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing the broad impact of admission of the evidence on the long-term repute of the justice system. [Citations omitted.]

[138] On the fact before me, I find that it would bring the administration of justice into disrepute if this evidence was excluded. The search warrant was validly obtained. The warrant was validly executed. The violation of Mr. Morias’ rights under s. 10(b) of the Charter did not undermine the reliability of the evidence seized. While the delay in connecting Mr. Morias to his counsel was unconscionable, no evidence was obtained during that time, and Mr. Morias’ medical needs were being met. The evidence was going to be discovered in any event.

IV. Conclusion

[139] Accordingly, for the foregoing reasons, Mr. Morias’ application is dismissed.

Fowler Byrne J.

DATE: February 23, 2023