Her Majesty the Queen v. Christian Masci, 2022 ONCA 296

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220411 DOCKET: C69103

van Rensburg, Nordheimer and Sossin JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Christian Masci Appellant

Counsel: Christian Masci, acting in person Dan Stein, appearing as duty counsel Avene Derwa, for the respondent

Heard: April 7, 2022

On appeal from the conviction entered on September 24, 2020 by Justice Mary Teresa E. Devlin of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

[1] The conviction appeal was dismissed for reasons to follow. These are our reasons.

[2] The Crown acknowledged a s. 8 Charter breach based on the failure to comply with s. 489.1 of the Criminal Code, when the required report was not filed until a year after the seizure from the appellant of a shotgun, a cell phone and other items following a search incident to arrest. On application under s. 24(2) of the Charter, the trial judge declined to exclude the gun and the cell phone from evidence at the appellant’s trial on a number of charges. The issue on the conviction appeal is whether the trial judge erred in her Grant analysis (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353), and if so, whether the items ought to have been excluded.

[3] Mr. Stein, as duty counsel, fairly acknowledges that, based on the trial judge’s reasons for conviction, the exclusion of the cell phone would have no impact on any of the appellant’s convictions, and that the exclusion of the gun would only affect counts 16 to 20, in respect of which the appellant received a consecutive sentence of 12 months. He argues that the trial judge erred in her assessment of the Grant factors, each of which she found supported admission of the evidence. His submissions focussed on the first two factors: the seriousness of the Charter-infringing state conduct, and the impact of the breach on the appellant’s Charter-protected interests.

[4] The trial judge’s findings of fact based on the evidence on the voir dire are entitled to deference, as are her evaluation and weighing of the factors: “Where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review”: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.

[5] We see no error of law or principle, or palpable and overriding error of fact, that would justify intervention in this case.

[6] On the first Grant factor, while we would not necessarily agree with the trial judge’s characterization of the one-year delay in filing the s. 489.1 report as a “technical” breach, we agree that, where this occurred as a result of the officer’s oversight, it lessens the seriousness of the breach and thus weighs in favour of the admission of the evidence. Contrary to counsel’s submission, the trial judge did not misapprehend the officer’s evidence at para. 16 of her reasons. The officer believed he had filed a report, and offered an explanation for his oversight, while acknowledging that this did not justify his failure to meet the timelines.

[7] As for the second Grant factor, we see no error in the trial judge’s analysis. As she noted, the shotgun could never have been returned to the appellant as he was not its lawful owner, and since the seized items were required for the trial, the inevitable outcome of the report would have been an order for the continued detention of the items.

[8] Accordingly, we would not interfere with the trial judge’s conclusion that all three Grant factors favoured admission of the evidence, her balancing of the factors, and her dismissal of the appellant’s Charter application.

[9] For these reasons we dismissed the conviction appeal.

“K. van Rensburg J.A.”

“I.V.B. Nordheimer J.A.”

“L. Sossin J.A.”