Court of Appeal for Ontario

Date: 2021-04-09 Docket: C62930

Before: Pepall, van Rensburg and Brown JJ.A.

Between: Her Majesty the Queen, Respondent And: Andrew Bielli, Appellant

Counsel: James Lockyer and Jack Gemmell, for the appellant Emily Marrocco, for the respondent

Heard: October 21, 2020 by videoconference

On appeal from the conviction entered on January 5, 2017 and the sentence imposed on January 5, 2017 by Justice John B. McMahon of the Superior Court of Justice.

Pepall J.A.:

[1] At the centre of this appeal is a planned and intentional breach of s. 10(a) of the Canadian Charter of Rights and Freedoms. The breach formed part of a police ruse designed to search the appellant and his vehicle in furtherance of a larger investigation into illegal gambling in Ontario.

[2] The appellant appeals from his conviction of possession of proceeds of crime over $5000 for the benefit of a criminal organization. Prior to trial, the appellant applied to exclude evidence pursuant to s. 24(2) of the Charter on the basis that his Charter rights under ss. 8, 9, 10(a) and 10(b) had been infringed. M.G. Quigley J., the application judge, concluded that although there had been no breach of ss. 8 or 9, the appellant’s rights under ss. 10(a) and 10(b) had been breached. However, after conducting a s. 24(2) analysis, he dismissed the application. For the reasons that follow, I would allow the appeal.

A. Background Facts

(1) The Investigation

[3] In 2011, the police began an investigation into a suspected criminal organization operating illegal gambling online and in the City of Toronto. The investigation was called Project O’River. Detective Kevin Leahy, an officer with the Combined Forces Special Enforcement Unit, was the lead investigator.

[4] Platinum SB (Sports Betting) operated a betting website. It had a network of betting agents or “bookies”. The bookies dealt directly with the bettors, and the bettors’ losses were physically collected weekly by the bookies and ultimately remitted to management. The appellant was alleged to be one of those collecting the proceeds from the bookies for the benefit of members at the top level of the organization.

[5] The investigative team hoped to arrest prominent members of the organization. The “take-down day” was to be on the occasion of the 2013 Super Bowl party, an annual event where members would congregate early in the year.

[6] By November 2012, the lead investigators believed that the appellant was a central figure within the Platinum SB organization. The police had conducted wiretaps and surveillance and had observed the appellant exchange packages, and on one occasion cash, with at least one person thought to be operating an illegal gaming website that facilitated bookmaking activities and illegal gaming on sports activities. In addition, the appellant was seen meeting with subjects of the investigation on a number of different dates.

[7] The officers suspected that the appellant travelled regularly between London and Toronto on Tuesdays and Thursdays to collect money for Platinum SB. They believed he returned to London with the proceeds of the transactions which might be mixed with other monies when he got home. Det. Leahy testified that the investigation was losing evidence every week.

[8] Det. Leahy wanted to seize evidence from the appellant and his vehicle without disclosing or compromising the ongoing investigation. Undercover officers were engaged in the investigation and their safety was also of concern to him.

(2) Discussion with Crown Attorney

[9] Det. Leahy spoke with Andrew Sabbadini, the Crown attorney assigned to Project O’River. Mr. Sabbadini had given advice to Det. Leahy previously on general warrants and was familiar with the Project O’River file.

[10] Det. Leahy asked Mr. Sabbadini whether the police could apply for judicial authorization using a general warrant under s. 487.01 of the Criminal Code, R.S.C. 1985, c. C-46, so as to obtain evidence from the appellant’s vehicle without disclosing the investigation to him. Det. Leahy proposed that, using the Highway Traffic Act, R.S.O. 1990, c. H.8 to stop the appellant, the police would search his vehicle and seize the evidence pursuant to a general warrant, but he would not be arrested. The application judge described Det. Leahy’s discussion with Mr. Sabbadini at para. 16 of his reasons:

[W]e had asked whether we could type a general warrant to come up with an excuse for a search of Mr. Bielli’s vehicle under the guise of a general warrant. He [the Crown] told us that was not something you could do because the accused would not know the full jeopardy of the circumstances.

He said a Judge would not authorize a warrant in that particular scenario because Mr. Bielli would not know the full jeopardy of the stop.

[11] Thus, Mr. Sabbadini explained that he would not be willing to bring that general warrant forward as he did not feel that it would be authorized by a judge because the appellant would not know the full scope of the jeopardy he was in at the time. Det. Leahy testified that the police needed Mr. Sabbadini’s endorsement to go ahead with the general warrant.

(3) The Plan

[12] Around two weeks after receiving this advice from Mr. Sabbadini, Det. Leahy “hatched a plan” based on R. v. Dibble, 2011 ONSC 399, 230 C.R.R. (2d) 323, a case he learned about from a friend in another unit. There the police told the accused that his vehicle was being searched for a radar detection device when the true purpose of the search was to obtain evidence of narcotics. The Crown in that case conceded that the police breached ss. 10(a) and 10(b) of the Charter. The trial judge found that the police had breached their s. 10 obligations to protect an ongoing investigation and not to intentionally circumvent Mr. Dibble’s s. 10 rights. She refused to exclude the evidence seized. Det. Leahy familiarized himself with the Dibble decision and came up with a plan using a ruse. He cleared the ruse with his superior and prepared a typewritten “Operational Plan” (the “Plan”), the goal of which was “to conduct a vehicle stop on BIELLI, search the vehicle and seize evidence in relation to offences being investigated for Project ORIVER.”

[13] The appellant would be stopped on the highway going to London from Toronto after making his collections. If the appellant did not commit a Highway Traffic Act offence, the officer would initiate a vehicle stop regardless. So as not to put the investigation into jeopardy, the appellant would not be arrested. The vehicle and the appellant would be searched for the evidence the police were seeking.

[14] As Det. Leahy testified:

A: [T]he goal was to get the money on Mr. Bielli prior to him returning home after we had observed him doing these meets.

A: And the ruse was devised so [as] not [to] raise any suspicion to Mr. Bielli that we’d actually been watching him for a number of months and that he was a subject [of] a larger scale investigation that was occurring at the time.

[15] Det. Leahy acknowledged in cross-examination that the Plan had nothing to do with the arrest of the appellant, it had to do with the seizure of the items in the vehicle. He instructed that the appellant should not be arrested for criminal organization and gaming offences but that he should be told that he was being investigated and detained for possession of proceeds of crime. He specifically instructed that the term “investigative detention” be used and not the term “arrest”. The appellant would not know what he was “actually under investigation for”; he would know he was being investigated for money in the car but not for criminal organization, booking or money laundering charges.

[16] Det. Leahy appreciated that there were some issues with the Plan. He knew that the appellant would not know his full jeopardy and that he might make some self-incriminating remarks or statements. To mitigate the jeopardy, the officers were going to give him his rights to counsel, put him in touch with his lawyer, caution him, and would not elicit any incriminating evidence from the appellant himself, just the evidence of what the police were looking for in the vehicle and on his person.

[17] The appellant was not being told he was under arrest; that was the whole plan according to Det. Leahy. However, in Det. Leahy’s mind, even though the appellant was told he was under investigative detention, he was under arrest.

[18] That said, Det. Leahy acknowledged that because the appellant was told he was under investigative detention and presumably the appellant’s lawyer would be advised of the same, the appellant would get legal advice on the basis of being under investigative detention, not on the basis of being under arrest. Moreover, he acknowledged that the police could not search a vehicle incident to an investigative detention in this scenario. [1] Det. Leahy recognized that the appellant was educated in police techniques and might have refused to comply with an unlawful search pursuant to an investigative detention. Therefore the officers were to try and persuade the appellant to comply; they could try telling him that he would be arrested for obstruction, although if he fled, they were not to engage him in a pursuit.

[19] Det. Leahy agreed that the appellant’s lawyer inevitably had to be misled about what was really going on; his lawyer could not be fully informed.

[20] Det. Leahy offered that it was a unique situation. In hindsight it was complex and it would have been prudent to speak with Mr. Sabbadini or another lawyer. However, that was not the decision he made. In his mind, the appellant was arrestable for proceeds of crime, gaming offences, and criminal organization offences and they could search him and his vehicle incident to his arrest for those offences.

[21] On November 29, 2012, Det. Leahy briefed the two officers involved in the execution of the Plan, P.C. Brisebois and D.C. Lee. He gave them a copy of the Dibble decision, which they both read, and told them that the appellant was arrestable for proceeds of crime, gaming offences, and criminal organization offences.

[22] Under the Plan, P.C. Brisebois was to effect the Highway Traffic Act stop and D.C. Lee would be called in as backup. P.C. Brisebois would approach the car, get the documents from the appellant, and return to the police vehicle to do certain checks. Knowing that the appellant was associated with members of an outlaw biker gang (Hells Angels), as part of the ruse, the officers would return to the appellant’s vehicle, tell him they knew of his association with an outlaw motorcycle gang, and would like to search the car for contraband, and give the appellant his rights to counsel and a caution. Once the officers found the money, they were to stop their search and inform the appellant that he was “being detained [and] investigated for proceeds of crime … and given his rights to counsel, again”. P.C. Brisebois and D.C. Lee were told not to question the appellant. The officers were told that the appellant “would not know the full jeopardy of the circumstances he was in.” Moreover, his lawyer would not be fully informed.

[23] Det. Leahy’s notes after his briefing stated:

Brief PC Joe Brisebois & D/C LEE on scenario. I advise them I have grounds to arrest BIELLI for gaming & crim org related offences at this time but to protect integrity of investigation do not want to arrest him for these offences at this time.

(4) Execution of the Plan

[24] The Plan proceeded to execution on November 30, 2012. P.C. Brisebois stopped the appellant at 10:49 a.m., telling him that his speeding, abrupt lane change, and quick exit raised suspicion. The appellant provided P.C. Brisebois with his driver’s documentation as requested. P.C. Brisebois called D.C. Lee for backup. After conducting checks, P.C. Brisebois told the appellant that he was placing him under investigative detention as records showed his connection with the Hells Angels and that they would be searching his car for contraband and weapons. The appellant, knowing his rights, told the police that they needed a warrant. P.C. Brisebois testified that he gave the appellant two options: investigative detention or be arrested for obstruct. [2] While P.C. Brisebois could not recall the appellant’s exact response, his evidence was that the appellant became compliant and exited his vehicle. He was not arrested for obstruction but was hand-cuffed, subjected to a pat-down search, placed in the police cruiser, and given his rights to counsel and cautioned at 11:15 a.m. D.C. Lee testified that P.C. Brisebois had placed the appellant under investigative detention as soon as they reached the cruiser.

[25] The appellant spoke with his lawyer, James Lockyer, in private while in the police cruiser. D.C. Lee testified that he placed the call for the appellant and told Mr. Lockyer that the appellant had been placed under investigative detention. The call lasted 23 minutes, from 11:22 a.m. to 11:45 a.m.

[26] P.C. Brisebois searched the car and found cash. He testified that his lawful authority to search the appellant and his vehicle was incident to arrest based on Det. Leahy’s instruction that the police had reasonable grounds to arrest for possession of proceeds of crime. He advised the appellant at 11:55 a.m. that he was being investigated for possession of proceeds of crime. The appellant was given his rights to counsel and cautioned again and the appellant spoke with Mr. Lockyer again, from 12:08 p.m. to 12:16 p.m. At some point, P.C. Brisebois told Mr. Lockyer that the traffic stop was for speeding and an unsafe lane change and that the search was to look for contraband and weapons, based on “affiliation with Hells Angels”.

[27] The officers conducted a more thorough search of the vehicle which they completed at 12:49 p.m. They gave the appellant a receipt for the property taken: $74,835 in cash, a number of cellphones, and a laptop, among other things. Contrary to their instructions, the two officers did question the appellant, but he declined to answer them.

[28] P.C. Brisebois testified that he gave the appellant a verbal warning about his speed and improper lane change but did not issue a Highway Traffic Act ticket because he did not have proper evidence for this. The appellant was released without charges at 1:46 p.m. He had been detained for nearly three hours.

(5) Reporting on the Outcome

[29] The officers completed their paperwork for the stop. The Plan prepared and distributed by Det. Leahy instructed them to complete the necessary reports but that “[n]o mention of Project ORIVER will be included in the report. The OPP Port Credit officer [P.C. Brisebois] will be provided with a project book specific to ORIVER to make notes regarding the briefing to this stop. Duty books of the officer will not have any reference to ORIVER.”

[30] P.C. Brisebois prepared two sets of notes, one set that referred to the traffic stop with no reference to the underlying investigation, the true purpose of the stop, or Det. Leahy’s grounds for arrest, and another set that described Det. Leahy’s Project O’River and the grounds to arrest the appellant. D.C. Lee testified that he similarly kept a Project notebook and an administrative notebook as well that would not mention the Project. P.C. Brisebois testified that it was not typical to have two sets of notes.

(6) The Eventual Arrest

[31] The appellant was not told he was under arrest until over two months later, on February 3, 2013. At that time, and as anticipated at the time of the execution of the ruse, the police raided the annual Super Bowl party. The appellant was arrested as were five others. He was charged with conspiracy to commit an indictable offence, possession of proceeds of crime exceeding $5,000, committing an indictable offence for the benefit of a criminal organization, and two counts of possession of the proceeds of bookmaking exceeding $5,000. A financial audit revealed that Platinum SB grossed over $103 million from 2009 to 2013.

B. Superior Court Decisions

(1) Charter Application [3]

[32] The appellant brought a Charter application to exclude the evidence that the police had seized during the course of the traffic stop ruse on November 30, 2012. He alleged that his ss. 8, 9 and 10(a) and 10(b) rights had been violated by the police. The Crown contested the alleged ss. 8, 9, and 10(b) Charter breaches but conceded that the police had violated the appellant’s s. 10(a) Charter rights. The Crown argued that the evidence should be admitted nonetheless.

[33] The application judge determined that there was no s. 8 or s. 9 Charter breach but that the police had breached both ss. 10(a) and 10(b). He nonetheless concluded that the evidence should not be excluded under s. 24(2) of the Charter.

[34] Dealing first with s. 8 and s. 9, the application judge found that the search of the vehicle was a lawful search incident to arrest. The appellant had been de facto under arrest when detained. It was not necessary for the officers to state that he was under arrest. Although the appellant was never told why he was pulled over, detained and searched, nor told the full reason for the detention, the application judge found that the appellant was aware of the gravity of the situation and was under arrest. Accordingly, the search was conducted incident to that de facto arrest. As reasonable and probable grounds existed for the arrest, the search was valid, and there was also no arbitrary detention. The application judge considered the cases of Dibble, R. v. Grant and Campbell, 2015 ONSC 1646, and R. v. Whipple, 2016 ABCA 232, 39 Alta. L.R. (6th) 1, leave to appeal refused, [2016] S.C.C.A. No. 435, where ruses were used to conceal an ongoing police investigation. In his view, the Plan was a legitimate policing technique that was designed to preserve the larger investigation while obtaining evidence from the appellant. He thus concluded that the police had not infringed the appellant’s Charter rights under s. 8 and s. 9.

[35] However, the operation of the ruse resulted in a breach of both ss. 10(a) and 10(b). Putting the appellant in contact with counsel did not constitute a meaningful exercise of his right to counsel. There could not be meaningful communication between the appellant and his counsel when both were misled as to the true nature of the appellant’s jeopardy. Misinformation necessarily tainted counsel’s ability to provide meaningful and accurate legal advice. The failure to inform the appellant of the true reason for his detention and de facto arrest necessarily resulted in a substantive violation of ss. 10(a) and 10(b).

[36] That said, the application judge determined that the evidence should not be excluded under s. 24(2) of the Charter. The police acted in good faith, they took steps to comply with the appellant’s right to counsel and were directed not to question him, and there was a need to protect the integrity of the ongoing investigation. The breaches therefore were serious, but these factors significantly mitigated the seriousness of the Charter-infringing conduct. Moreover, there was no meaningful impact on the appellant’s Charter-protected interests as the police had prevented the appellant from incriminating himself. Society’s interest in the adjudication of the case on its merits favoured admissibility. Accordingly, the appellant’s Charter application was dismissed.

(2) The Conviction

[37] The Crown amended one of the counts in the indictment and the appellant entered a plea of not guilty to the amended count of committing the indictable offence of possession of property obtained by crime over $5,000 for the benefit of a criminal organization, contrary to s. 467.12 of the Criminal Code. An agreed statement of facts was read into the record, and the trial judge entered a conviction on the one count with brief reasons delivered orally. The Crown withdrew the remaining counts.

(3) The Sentence

[38] Following a joint submission, the appellant was sentenced to 15 months’ imprisonment. The trial judge observed that this was at the low end of the range for the offence.

C. Issues On Appeal

[39] The appellant raises three grounds of appeal on his appeal of conviction. First, he submits that the application judge erred in finding that the appellant was under de facto arrest and in finding that his s. 8 Charter right was not infringed. Second, he submits that the application judge’s analysis of the s. 10 breaches was flawed. Third, he argues that the application judge erred in his analysis under s. 24(2) of the Charter. At the suggestion of the Crown and given that the application judge found breaches of ss. 10(a) and 10(b), the appellant’s s. 10 arguments are encompassed in my s. 24(2) discussion.

[40] The appellant also seeks leave to admit fresh evidence for the purposes of the conviction appeal and also seeks leave to appeal his sentence and to admit fresh evidence for the purposes of the sentence appeal. The Crown seeks to admit responding fresh evidence on the sentence appeal.

[41] For the reasons that follow, I would dismiss the request for leave to admit fresh evidence on the conviction appeal but would allow the appeal. There is therefore no need to address the sentence appeal or the requests for leave to admit fresh evidence on the sentence appeal.

D. Discussion

(1) Appeal from Conviction

(a) Should fresh evidence be admitted on the conviction appeal?

[42] The appellant seeks leave to introduce the Report to a Justice made by D.C. Lee on December 10, 2012, after the seizure of the items from the appellant’s vehicle on November 30, 2012. The police required the Report to obtain a detention order for the items seized. The Report made no mention of the Project O’River investigation.

[43] The appellant was represented by Kim Schofield as counsel at the preliminary hearing and at trial. She considered the Report but decided against using it for reasons explained in her affidavit filed as part of the fresh evidence application:

1. In the Report, D.C. Lee did outline the details of the stop and did not try to fashion grounds for the search. Ms. Schofield noted that the Report to a Justice often does not contain the motive for the search and the form simply requires that the officer specify the exact nature of the search (including the premises, place or person searched) and the date and time of the search.

2. Ms. Schofield did not consider the Report to be crucial information; the argument was not that D.C. Lee embarked on his own breach of rights, but that he was part of a project that led to a warrantless search and a plan that resulted in breaches of ss. 8, 9 and 10 of the Charter.

3. She confirmed that the decision not to confront D.C. Lee with the Report was a strategic choice as there was a potential downside in doing so. D.C. Lee had testified well before the application judge. Ms. Schofield did not wish to call him a liar and lose credibility with respect to the rest of her arguments. Instead, her strategy was to say that all of the officers were following orders that put them in a spot to ignore Charter rights.

[44] In cross-examination, Ms. Schofield stated that with the benefit of hindsight, she may have used the Report at trial and “that another decision could have been made and may have been successful.”

[45] The appellant asserted in his affidavit filed in support of the request for leave that he had ineffective assistance from his counsel. However, he did not pursue this argument in his factum or in oral submissions.

[46] In cross-examination for the purposes of the fresh evidence application, D.C. Lee agreed that the synopsis in the Report did not contain the full story about the ongoing investigation and that this was to protect the integrity of the investigation. However, he had been instructed to advise the justice of the peace that the vehicle stop was a ruse and he had done so orally. The transcript of his attendance before the justice of the peace on December 7, 2012 confirms that he advised the presiding justice of the peace who granted the detention order that the traffic stop had been directed by the Combined Forces Special Enforcement Unit as part of an ongoing project.

[47] Due to an incorrect expiry date on the detention order, D.C. Lee subsequently attended before another justice of the peace on December 10, 2012 and swore to the truth of the information in the Report. The expiry date was then corrected.

[48] The test for leave to admit fresh evidence is described in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. The applicant must show that the proposed fresh evidence: (i) was not available at the time of the hearing by the exercise of due diligence; (ii) is relevant to a potentially decisive issue; (iii) is credible; and (iv) if believed and taken together with the rest of the evidence, it could reasonably be expected to have affected the result.

[49] The appellant submits that the test for admission of fresh evidence has been met. The appellant argues that the Report perpetuated the ruse, failed to comply with s. 489.1(1)(b) of the Criminal Code because it failed to make full and frank disclosure about the legal basis for the search and its investigative purpose, and also amounted to a violation of s. 8 of the Charter. Ms. Schofield as trial counsel did not consider the Charter implications of the Report’s failure to make full, frank and fair disclosure and if she had, she may have relied upon the Report. Furthermore, the filing of the deceptive Report was relevant to the appellant’s application under ss. 8 and 24(2) of the Charter and whether the police acted in good faith. Appeal counsel submits that the Report was probative and could reasonably be expected to have resulted in the exclusion of the evidence against the appellant. Counsel also asserts that the record before this court is sufficient to deal with this issue.

[50] The Crown responds that the appellant is seeking to raise a new argument on appeal and there is an insufficient record for this court to make the fact-specific inquiry that is required. In addition, the test for admission of fresh evidence has not been met.

[51] I would dismiss the application for admission of fresh evidence. The appellant has not met the requirements for raising a new argument for the first time on appeal, nor has he met the Palmer criteria.

[52] Clearly this is a new argument raised on appeal. There is a general prohibition against such arguments on appeal: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, leave to appeal refused, [2016] S.C.C.A. No. 432, at paras. 37-41. To avoid the general prohibition, the appellant must satisfy three pre-conditions:

i. the evidentiary record must be sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal;

ii. the failure to raise the issue at trial must not be due to tactical reasons; and

iii. the court must be satisfied that no miscarriage of justice will result from the refusal to consider the new argument on appeal.

The decision to consider the new argument is discretionary and informed by a balancing of the interests of justice as they affect all parties: see Reid, at paras. 42-44.

[53] The appellant has not satisfied any of the three pre-conditions.

[54] The evidence surrounding the Report emanated from D.C. Lee in cross-examination. He filed the Report on the instructions of Det. Sgt. Goodwin who did not testify. D.C. Lee did not recall whether he had authored the Report. This raises the spectre that the evidentiary record is incomplete.

[55] More significantly, this evidence was available to the appellant at the time the Charter application was heard. Experienced counsel considered and rejected the use of the Report at trial, a tactical decision based on a reasonable assessment of the evidence. The integrity of the trial process is undermined if those tactics can now be reassessed in hindsight: see R. v. Perlett (2006), 212 C.C.C. (3d) 11 (Ont. C.A.) at paras. 142-144, leave to appeal refused, [2007] S.C.C.A. No. 96.

[56] I also am not persuaded that any miscarriage of justice would ensue from the refusal to consider this new argument. Significantly, D.C. Lee orally advised the presiding justice of the peace of the ruse in that the traffic stop and seizure of property had been directed as part of an ongoing investigation. In addition, the alleged deficiencies with the Report consisted of its failure to disclose the quantum of money seized and the description of the legal basis for the search. Section 489.1(1) does not specifically require that the quantum and grounds be provided. Indeed, Ms. Schofield testified that based on her experience, Reports often do not provide exact amounts or the motive for the search. Nor did she agree that such Reports typically refer to the legal basis for the search.

[57] Accordingly, the appellant has not met the three pre-conditions nor do the interests of justice require that this new argument be addressed. I would decline to entertain this new argument on appeal.

[58] This is determinative of the leave application, but quite apart from the issue of a new argument on appeal, for many of the same reasons, the application for leave to admit fresh evidence should also not succeed. In particular, the evidence was available to the appellant at the time of the Charter application and, taken together with the rest of the evidence, could not reasonably be expected to have affected the result.

[59] In conclusion, I would dismiss the appellant’s application to admit fresh evidence on the conviction appeal.

(b) Did the application judge err in concluding that there was a de facto arrest and that therefore the search was reasonable within the meaning of s. 8 of the Charter?

(i) Background and Context

[60] Before the application judge, the appellant conceded that the police had reasonable and probable grounds to arrest. The Crown took the position that the appellant was under arrest at the time of his detention and that the search was incidental to a lawful arrest. In contrast, the appellant argued that regardless of the existence of reasonable and probable grounds to arrest, the appellant reasonably thought he was detained. Indeed, he was not put under arrest until two months later in February. The search was not incident to a lawful arrest, and as such was illegal and breached the appellant’s s. 8 Charter right.

[61] Given their respective positions, the application judge had to consider whether the appellant was under de facto arrest. The application judge found that there was a lawful de facto arrest in November and that the searches of the appellant and his vehicle were lawfully conducted incident to that arrest.

(ii) General Principles

[62] “Everyone has the right to be secure against unreasonable search or seizure.” So states s. 8 of the Charter.

[63] The Supreme Court has directed that a search is reasonable if it is authorized by a reasonable law and is conducted reasonably: see R. v. Collins, [1987] 1 S.C.R. 265, at p. 278; R. v. Caslake, [1998] 1 S.C.R. 51, at para. 10; and R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 12. Police may search based on a warrant. Or, if there is no warrant, the police have a common law power to search incident to an arrest. To be valid, the arrest must be lawful, the search must have been conducted as an incident to the arrest, and it must be carried out in a reasonable manner: see R. v. Stillman, [1997] 1 S.C.R. 607, at para. 27. As stated by Lamer C.J. in Caslake, at para. 17, “searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question.”

[64] The power to search incident to arrest is contrasted with the police power to search incident to an investigative detention. The power to search incident to an investigative detention is limited to safety concerns: see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 40. There is no dispute that the power to search incident to an investigative detention did not authorize the search of the appellant’s vehicle in the circumstances.

[65] In this case, the Crown relied on the common law power of search incident to arrest to provide the legal authority for the search. The right to search had to arise from the fact of the arrest: Caslake, at para. 13. Thus, the lawfulness of the search turns on whether the appellant was under a de facto arrest. If there was no de facto arrest, the common law power to search incident to arrest could not be relied upon.

[66] The subject of a de facto arrest was addressed by the Supreme Court in R. v. Latimer, [1997] 1 S.C.R. 217 in the context of an alleged breach of s. 9 of the Charter. That case bears some similarities to this one. The accused was the father of a severely disabled daughter who died while in his care. The RCMP began to treat the death as a homicide investigation. The officers attended at the accused’s farm, an officer told Mr. Latimer that what the officer was about to say had very serious consequences, and that Mr. Latimer was being detained for investigation into the death of his daughter. The RCMP officers decided prior to attending at the farm that they did not wish to arrest the accused.

[67] The accused was cautioned and advised of his right to retain counsel. At the police station, he confessed to the crime and gave a written statement.

[68] One of the issues to be addressed was whether the appellant had been arbitrarily detained in violation of s. 9 of the Charter. The Supreme Court concluded that the detention was not arbitrary. The RCMP had put the accused under de facto arrest. That arrest was entirely lawful because it was based on reasonable and probable grounds to believe that the accused had taken his daughter’s life. A de facto arrest which is lawful cannot be an arbitrary detention for the purpose of s. 9.

[69] In response to the accused’s argument that no arrest occurred because the officers deliberately chose not to arrest him, Lamer C.J. wrote that notwithstanding what their intention may have been, the conduct of the officers had the effect of putting the accused under arrest. He noted the definition of arrest found in R. v. Whitfield, [1970] S.C.R. 46: an arrest consists either of (i) the actual seizure or touching of a person’s body with a view to his detention, or (ii) the pronouncing of “words of arrest” to a person who submits to the arresting officer. As such, he declined to accept that only the word “arrest” will suffice to amount in fact to an arrest. At para. 24, he quoted from R. v. Evans, [1991] 1 S.C.R. 869, at p. 888, where McLachlin J. (as she then was) wrote for the majority that what counts is:

[T]he substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used.… The question is … what the accused was told, viewed reasonably in all the circumstances of the case….

[70] Thus the test asks what the accused can reasonably be supposed to have understood in light of what he was told, viewed reasonably in all the circumstances of the case.

[71] Lamer C.J. concluded that on the facts of Latimer, a de facto arrest had occurred through the use of words that conveyed clearly that Mr. Latimer was under arrest coupled with the conduct of the officers and the accused’s submission to the authority of the officers: at para. 25. Lamer C.J. was also satisfied that the arrest was lawful and hence concluded that the trial judge had correctly decided that there were reasonable and probable grounds for an arrest and accordingly the accused had not been unlawfully detained.

(iii) Positions of the Parties

[72] Before this court, the appellant’s argument is that the application judge’s finding that the appellant was under de facto arrest was unreasonable whereas the Crown submits that his finding was both reasonable and amply supported by the record. The Crown points to evidence that includes the police taking control of the appellant, the handcuffing, the cautions, giving the rights to counsel, informing the appellant of his known association with the Hells Angels and that his car would be searched for contraband, telling him he would be charged with obstruction if he did not cooperate, holding him for over two hours in the cruiser, permitting him to have extensive consultations with his lawyer, and his submission to the authority of the police.

(iv) Analysis

[73] There is no issue that the police had grounds to arrest the appellant when they conducted the vehicle stop on November 30, 2012. It is this alleged arrest that is relevant to the search, not the actual arrest of February 3, 2013.

[74] As discussed, the test for a de facto arrest asks what the accused can reasonably be supposed to have understood in light of what he was told, viewed reasonably in all the circumstances of the case.

[75] As in Latimer, the police Plan was not to arrest the appellant. Indeed, the Plan did not contemplate an arrest unless the appellant obstructed the police or was in possession of a gun or drugs. Det. Leahy told P.C. Brisebois and D.C. Lee that the appellant was arrestable but instructed that he “not be arrested” for criminal organization and gaming offences. In addition, he instructed the officers not to pursue the appellant if he fled.

[76] P.C. Brisebois testified that he did not arrest the appellant and that part of the ruse was to put him under investigative detention and then search the car.

[77] So from the police perspective, clearly there was no intention to arrest the appellant nor did they formally do so. In addition, there was no intention to tell the appellant that he was under arrest and the officers did not do so. As seen from Latimer, however, the absence of an intention by the police to arrest and the failure to advise the appellant that he is under arrest are not fatal. To reiterate, in addition to what he was told, what counts is “the substance of what the accused can reasonably be supposed to have understood”: see Evans, at p. 888.

[78] The appellant did not testify on the voir dire. That said, his circumstances were very different from those of Mr. Latimer. He was no ingenue as far as the criminal justice system was concerned. Det. Leahy testified that he believed that the appellant was educated in the area of police techniques and counter surveillance, and he was someone Det. Leahy believed would possibly know his rights. D.C. Lee also testified as to the appellant’s sophistication.

[79] P.C. Brisebois testified that the appellant was told he was under investigative detention. Indeed, P.C. Brisebois was told to use those words. In cross-examination, he confirmed that he was going to convey as much as he could that the appellant was not under arrest. The appellant refused to get out of his car and told P.C. Brisebois that he needed a warrant. P.C. Brisebois gave him “two options”: investigative detention or arrest for obstruction. The appellant chose not to be arrested and instead submitted to an investigative detention. He exited his vehicle, and he and P.C. Brisebois made their way to the police cruiser. It follows that having chosen not to be arrested for obstruction, he would have reasonably understood that he was under investigative detention rather than arrest. Although he was cuffed and sat in the police cruiser for a number of hours, viewed reasonably, one would expect that the appellant would take the police at their word that he was under investigative detention and not under arrest. D.C. Lee also recorded in his notes that “Brisebois placed Bielli under investigative detention”. He also told Mr. Lockyer that P.C. Brisebois had placed the appellant under investigative detention.

[80] The police gave the appellant an option and he chose investigative detention. The police planned not to arrest the appellant and they executed that plan. Considering the evidence as a whole, there was no de facto arrest. Again, the test turns on what the accused can reasonably be supposed to have understood. The application judge’s finding that the appellant knew he was under arrest cannot be reconciled with his factual finding that the police told the appellant that if he complied with the search, he would not be arrested. The application judge did not explain why, in light of the option the police gave the appellant, he would have believed himself to be under arrest. In conclusion, I agree with the appellant that the application judge’s finding that there was a de facto arrest was unreasonable and that the search was not incident to arrest. As such, the search was unlawful. The application judge erred in finding that there was no s. 8 breach.

(c) Did the application judge err in his s. 24(2) Charter analysis?

[81] In determining whether evidence should be excluded under s. 24(2), the court is to consider (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and (iii) society’s interest in an adjudication of the case on the merits: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. If the application judge considered the proper factors and has not made any unreasonable finding, the decision is owed considerable deference on appeal: see Grant, at para. 86; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44; and R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77.

[82] In light of my conclusion on s. 8, the Grant factors must be reassessed and the balancing of the factors reconsidered. However, as I will explain, quite apart from the s. 8 breach, I would also conclude that the s. 24(2) decision should not survive scrutiny.

(i) Background and General Principles

[83] At its heart, this case involves the planned and deliberate violation of the Charter. The Crown attorney, Mr. Sabbadini, advised the police that a general warrant would not be granted because the appellant would not be advised of his jeopardy. Put differently, the proposed plan would not legally justify the granting of a general warrant. The police did not pursue a general warrant. Rather, based on their reading of Dibble which served as their legal anchor and which involved breaches of ss. 10(a) and 10(b) of the Charter, they pursued a Plan which they knew would result in a Charter violation. This was not an incidental violation; it formed part of the Plan itself. The Plan, as formulated, anticipated a breach of the Charter.

[84] Section 10 of the Charter provides that everyone has the right on arrest or detention:

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right.

[85] Section 10 ensures that people have a chance to challenge the lawfulness of an arrest or detention. Police are to advise promptly the reasons for the arrest or detention, and individuals then have the right to receive legal advice about their situation from counsel. The information provided pursuant to s. 10(a) serves to inform the advice provided as a result of the invocation of s. 10(b). If the information is inaccurate, it taints the ability of counsel to give meaningful and responsive advice.

[86] In this case, even though the police took steps to attenuate the prejudice to the appellant by facilitating the right to counsel and by at least planning not to question the appellant (even though they ultimately did do so), their approach ignores the foundation of the s. 10(a) right. As McLachlin J., as she then was, said in Evans, at pp. 886-87:

The right to be promptly advised of the reason for one’s detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to arrest if one does not know the reasons for it. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, [1989] 2 S.C.R. 138, at pp. 152-153, “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right. [Citation omitted.]

(ii) Positions of the Parties

[87] The appellant advances three arguments in support of his position that the application judge erred in his s. 24(2) analysis. First, he submits that the application judge placed excessive weight on the cases on police ruses, and in any event, these cases were all distinguishable. Second, he submits that the application judge erred in finding that the police conduct in designing and implementing the ruse was indicative of good faith when in fact, the conception and execution of a Plan designed to deliberately violate the appellant’s rights were indicative of bad faith. Third, he made errors in his analysis of the impact of the breaches on the Charter-protected interests of the appellant.

[88] The Crown submits that the principles from the ruse case law relied upon supported the application judge’s conclusion, including that the seriousness of the breach can be mitigated by the motivation of the police to protect an ongoing investigation. The application judge engaged in a fact-specific analysis into the seriousness of the breaches. The finding of good faith is entitled to deference and supported by the evidence. As to impact, the appellant was only briefly questioned after he had spoken with counsel and only to assist with completing a form. The police had reasonable grounds to arrest and search at the time of the stop and the evidence would have been discovered regardless. In addition, the application judge correctly observed that informing the appellant about the offence of proceeds of crime for which he was being investigated mitigated the seriousness of the breaches.

(iii) Reliance on Ruse Authorities

[89] The appellant’s first argument was that the application judge relied excessively on cases involving police ruses that were distinguishable and that this infected his s. 24(2) analysis and more particularly, his treatment of the seriousness of the Charter-infringing conduct. At para. 70 of his reasons, the application judge concluded that the use of the ruse was a legitimate policing technique:

In summary, in my view, the operational plan developed by the police in this case was a legitimate policing tool designed and implemented by them based on this well-recognized existing line of judicial authority.

[90] The cases relied upon by the application judge that constituted the “well-recognized existing line of judicial authority” were Dibble, Grant and Campbell, and Whipple. He also referred to the oft-quoted dicta of Lamer J. in the pre-Charter decision of Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 697, to the effect that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules.

[91] In Dibble, the police were engaged in a Guns & Gangs Task Force investigation. Mr. Dibble was not a target. However, he was observed leaving a building with a gym bag suspected to be holding illicit drugs and getting into a car with a driver. One of the surveillance officers immediately contacted the OPP to stop and search the car but to avoid divulging the reason for the search, they were asked to create a false reason for the search. The car was stopped and the police told Mr. Dibble and the driver that this was due to a radar detector signal. On searching the car, including the gym bag, the police found cocaine. Mr. Dibble was then arrested for possession of cocaine for the purpose of trafficking.

[92] Relying on alleged violations of ss. 8, 10(a), and 10(b) of the Charter, Mr. Dibble applied for an order excluding the evidence of the search pursuant to s. 24(2). Croll J. reasoned that Mr. Dibble did not have a reasonable expectation of privacy in relation to the vehicle or the gym bag, but she went on to consider whether the search was reasonable. She determined that this was a continuing and dynamic investigation and the police had grounds to believe that Mr. Dibble was in possession of cocaine. As such, there was no s. 8 breach. The Crown conceded a s. 10(a) and a s. 10(b) breach. In considering s. 24(2), Croll J. stated that the police did not comply with the s. 10 requirements but did so “to protect the investigation and not to intentionally circumvent Mr. Dibble’s section 10 rights”. The police did not ask any questions about the drugs or take advantage of his lack of access to counsel. Given the nature of the ongoing investigation, the breaches were minor and made in good faith. She also found in favour of the Crown on the other two lines of inquiry under Grant. As such, Mr. Dibble’s application was dismissed.

[93] In Grant and Campbell, relying on ss. 8, 10(a), and 10(b) of the Charter, the two accused argued that they were subjected to unlawful searches of their persons and vehicle and were not promptly advised of the reasons for detention or arrest or provided with their rights to counsel. They sought an order excluding evidence of two prohibited firearms pursuant to s. 24(2) of the Charter. The police had information from a confidential informant that individuals would be attending a certain nightclub, carrying firearms, on the night in question. Based on surveillance of the area outside the nightclub that night, the police believed that one of the two accused had placed a firearm in a vehicle. The police were not going to let the vehicle travel far from the nightclub without stopping it but given public safety concerns for people around the nightclub, they did not want the interaction to take place in the parking lot. The police plan was to stay with the vehicle and later effect an arrest when it was safe to do so; the only question was where and how to effect the arrest safely.

[94] After allowing the vehicle to leave the nightclub area and travel a short distance, the police stopped the vehicle for two purposes: the criminal firearms investigation and evident seat-belt infractions under the Highway Traffic Act. However, the police only told the occupants of the vehicle, including the two accused, of the Highway Traffic Act infraction. This was thought to be safer and would allow for a more controlled stop and interaction. The police told the occupants they were detained, walked them to the police scout car, conducted pat-down searches, searched the vehicle, and found a firearm. The police then informed the occupants that they were under arrest for possession of a firearm and advised them of their rights to counsel. The police subsequently found a second firearm in the vehicle.

[95] Campbell J. found that there was a de facto arrest when the police first stopped the vehicle and had the accused exit the vehicle. This permitted the police to conduct searches of the occupants and the vehicle as incident to the arrest in an effort to discover the firearm that the police honestly and reasonably believed was in the vehicle. Campbell J. accepted the evidence of the police that they always intended to arrest the occupants of the vehicle as soon as they could do so safely. The fact that the search and seizure preceded the arrest by a few minutes did not mean that it was not incidental to the subsequent formal arrest. He found no s. 8 violation but did find both s. 10(a) and s. 10(b) violations. However, he found that compliance with s. 10(a) took place about three minutes after it should have and the delay was motivated by a continuing police concern over the whereabouts of the firearm reasonably believed to be inside the vehicle and by an interest in gaining control over it. As such, the s. 10(a) breach was not a serious breach. It was technical, very short-lived, and committed honestly and in good faith. The second and third prongs of the Grant s. 24(2) analysis also favoured the Crown’s position. Accordingly, the evidence was admissible.

[96] These two cases are materially different from that of the appellant. First, the Charter breaches in those cases were not planned in advance. Second, the ruses in those cases developed in dynamic circumstances. The police conduct was immediately responsive to the circumstances that presented themselves. Both Dibble and Grant and Campbell involved spur-of-the-moment decision making by the police, not a planned, intentional violation of the Charter as occurred here. The cocaine in Dibble and the firearm in Grant and Campbell were dangerous contraband that could cause harm to the public, and the conduct in Grant and Campbell was motivated by safety concerns. Here, there was no urgency to the alleged de facto arrest. Moreover, the s. 10(a) breaches in Grant and Campbell were momentary, and the accused were advised of the real reason for their arrests within just a few minutes, unlike this case. The accused in Dibble was similarly advised of the real reason for his arrest not long after he was stopped, and before he was afforded access to counsel.

[97] The police conduct in Whipple also differed from that in this case. There the police had obtained a general warrant that authorized the police to use a ruse to effect a traffic stop. As in Dibble and Grant and Campbell, the accused was advised of the real reason for his arrest within minutes of the vehicle stop. In addition, unlike the application judge, I do not read Whipple as authorizing police conduct that intentionally breaches s. 10(a). The Alberta Court of Appeal expressly concluded that the warrant did not authorize a breach of s. 10(a) and in any event, there was no breach of s. 10(a). This is in contrast to the case under appeal: the police both planned to breach s. 10(a) and actually breached s. 10(a) as planned. Furthermore, here, the Crown attorney, Mr. Sabbadini, had previously advised Det. Leahy that a warrant would not be granted because the appellant would not know the full scope of the jeopardy he was in.

[98] In Evans, Sopinka J. stated in concurring reasons, at p. 875, that the purpose of s. 10(a) is “inter alia, to enable the person under arrest or detention to immediately undertake his or her defence, including a decision as to what response, if any, to make to the accusation.” The accused in Dibble, Grant and Campbell, and Whipple could undertake their defences shortly after their detentions or arrests whereas here, the appellant was not informed that he was under investigation for possession of proceeds of crime until nearly an hour into his detention and was not charged for over another two months.

[99] Contrary to the conclusion of the application judge, the Plan developed by the police in this case was not based on “a well-recognized existing line of judicial authority”. As explained, the police conduct in those cases was materially different from that engaged by this appeal. Those cases do not support the police conduct in issue. The application judge’s finding that the police in this case had engaged in a legitimate policing technique was an error and infected his analysis of the first prong of Grant.

(iv) Good Faith Conduct

[100] Second and as mentioned, the appellant submits that the application judge erred in finding that the police acted in good faith. He argues that, to the contrary, the conception and execution of a plan designed to deliberately breach the appellant’s rights was indicative of bad faith. Det. Leahy knew that a traffic stop ruse was unlawful, there was no urgency to the operation, and he designed the Plan in a way that would ensure that the appellant would remain ignorant long after the operation was completed. The Crown submits that the application judge’s finding of good faith was open to him on the record and is entitled to deference.

[101] In assessing the seriousness of the infringement of the appellant’s ss. 10(a) and 10(b) rights, the application judge found that the violation was plain and serious but resulted from good faith police work based on the line of judicial authority including Dibble which permitted the police to conduct such a deceptive ruse in order to preserve the integrity and secrecy of a larger police investigation. Moreover, he concluded that there was no need for the court to disassociate itself from this conduct.

[102] In Dibble and Grant and Campbell, the accused were arrested shortly after their initial detention and could undertake their defence immediately; not so here. In addition, Det. Leahy had familiarized himself with Dibble and knew that the timing in Dibble differed from his conceived ruse. He also knew from Mr. Sabbadini, the Crown attorney, that a general warrant would not be granted for a plan where the police would “stop his car for a Highway Traffic Act offence and search his vehicle and just take the evidence” because the appellant would not know the full scope of his jeopardy. The plan in support of a general warrant was considered to be unlawful. Nonetheless, on discovering the Dibble decision, Det. Leahy made no further inquiries of Mr. Sabbadini and instead proceeded with a plan that would necessarily result in a Charter breach. Indeed, the breach was an integral part of the ruse. The breach was planned and deliberate. Dibble did not depend on an absence of any Charter breach; rather it depended on a s. 24(2) rescue. This would have been evident to Det. Leahy, P.C. Brisebois and D.C. Lee, all of whom testified to having read the decision. The application judge failed to consider the reasonableness of the police reliance on Dibble and how the facts in that case differed from the Plan they were pursuing.

[103] In addition, as argued by the appellant, there were no pressing or exigent circumstances here. To use Det. Leahy’s terminology, the excuse for the stop was “practical”. There was no evidence of urgency nor was this a spontaneous police response. Indeed, the police already had plans to conduct a takedown at the annual Super Bowl party a few months later. As stated by Michelle Fuerst J., Fairburn J. (as she then was), and Scott Fenton in “‘Ruse’ Traffic Stop for the Purpose of Conducting Search Incident to Arrest (Two Months Prior to Arrest) is Charter Compliant”, Police Powers Newsletter 2017-1 (January 2017), “it was a strategic mid-investigation decision designed to benefit the investigation at the intended cost of breaching the [appellant’s] rights.” Although I acknowledge that deference is owed to an application judge’s finding of good faith, the finding in this constellation of facts was unreasonable.

[104] As a result of my conclusions and given that it is necessary to conduct the Grant analysis anew, there is no need to address the appellant’s third argument on the impact of the breaches on the Charter-protected interests of the appellant. The appellant had submitted that the application judge erred in minimizing the impact of the s. 10 breaches based on the fact that the police provided semi-accurate information partway through the ruse and had also argued that the application judge erred in concluding that the impugned evidence was discoverable in any event regardless of the premeditated breach of his Charter rights. In light of the s. 8 breach and the other s. 24(2) errors I have found, it is unnecessary to consider these arguments. Even accepting the application judge’s findings on these points, as I will explain, on a fresh Grant analysis, the evidence should be excluded.

[105] In conclusion, quite apart from the s. 8 breach, there were errors in the application judge’s s. 24(2) analysis.

(v) Fresh Charter s. 24(2) Analysis

[106] Due to my determination that there was a s. 8 violation, which the application judge did not find, coupled with those of ss. 10(a) and 10(b), it now falls to me to conduct a s. 24(2) Charter analysis. As I have explained, it is unnecessary to address the appellant’s arguments regarding the expanded impact of the s. 10 breaches, because even on the application judge’s more limited findings, the evidence should be excluded.

[107] First, regarding the seriousness of the Charter-infringing state conduct, as I have explained, the police were not relying on a well-established line of authority when they engineered this ruse. On the contrary, the police proceeded with a Plan which they knew or should have known would breach the appellant’s s. 10 rights. The fact that the police also planned to search the appellant incident to arrest without actually arresting the appellant makes the state conduct all the more troubling. The violation of the appellant’s Charter rights was integral to the police Plan. They would not have proceeded with the Plan had it not involved violating the appellant’s Charter rights.

[108] I would also add that the police conduct is elusive of public confidence and ought not to be sanctioned by the court. Put differently, and adopting the language of McLachlin C.J. and Charron J. in Grant, the court should dissociate itself from such police conduct. I fail to see how the police conduct in this case does not threaten the integrity of the criminal justice system. Protection of Charter rights is the operative principle, not planned circumvention for investigative purposes however laudable they may be.

[109] Second, the impact on the appellant’s Charter-protected interests was significant. He was subjected to a search without lawful authority. The appellant was, at least initially, unable to have a meaningful consultation with counsel because the police left him in ignorance of his full jeopardy. His counsel was equally misled about the reason for his detention. Assuming the application judge correctly concluded that the impact of the breach was somewhat mitigated by the semi-accurate information the police provided partway through the ruse, in light of the s. 8 breach, the impact remains serious. I acknowledge that the police attempted to mitigate the impact of the breach by affording the appellant access to counsel, but those steps fall short given that he was misinformed. This factor favours exclusion.

[110] Finally, I accept, as the application judge did, that the third Grant factor, society’s interest in an adjudication of the case on its merits, weighs in favour of admitting the evidence. The weight of this factor is somewhat attenuated because, as the application judge found, while important, this evidence is not crucial to the Crown’s case.

[111] For these reasons, I would exclude the impugned evidence under s. 24(2) of the Charter, allow the appeal from conviction and order a new trial.

(2) Appeal from Sentence

[112] Under the circumstances, there is no need to address the appellant’s request for leave to appeal sentence and to admit fresh evidence or the Crown’s responding fresh evidence in support of the sentence appeal.

E. Disposition

[113] For these reasons, I would dismiss the application for the admission of fresh evidence on the conviction, allow the appeal from conviction, and order a new trial.

Released April 9, 2021

“S.E.P.” “S.E. Pepall J.A.”

“I agree. K. van Rensburg J.A.”

“I agree. David Brown J.A.”

Footnotes:

[1] Det. Leahy stated that the appellant’s vehicle could be searched incident to an investigative detention if the officer saw a weapon in the vehicle. This did not become an issue.

[2] P.C. Brisebois could not recall whether he said obstruct police or obstruct justice.

[3] The application judge’s reasons are reported at 2016 ONSC 6866, 367 C.R.R. (2d) 219.