COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Keshavarz, 2022 ONCA 312

DATE: 20220421

DOCKET: C67458

Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nujan Keshavarz

Appellant

Andrew Menchynski, for the appellant

Andrew Hotke, for the respondent

Heard: October 25, 2021 by video conference

On appeal from the convictions entered by Justice Vincenzo Rondinelli of the Ontario Court of Justice, dated August 12, 2019.

Fairburn A.C.J.O.:

A. OVERVIEW

[1] This is an appeal from two convictions for trafficking in firearms.

[2] On April 29, 2017, the police were conducting surveillance on a man named Yama Ghousy. The police watched as the appellant carried what they described as two “weighted” LCBO bags in his hands. He entered Mr. Ghousy’s vehicle. A short time later, the appellant emerged from the vehicle with nothing in his hands. Arrests for firearms trafficking ensued, followed by searches incident to arrest. The two LCBO bags were found in the back of Mr. Ghousy’s vehicle, each one containing a Glock.

[3] Mr. Ghousy and the appellant were each informed of their right to counsel but, owing to concerns over safety and the preservation of evidence, that right was not facilitated until after the police had obtained and executed three search warrants. One of those warrants was executed at the appellant’s home, where the police uncovered another seven firearms.

[4] Mr. Ghousy and the appellant were tried together in the Ontario Court of Justice. The trial commenced with a blended Charter voir dire. On his own, the appellant advanced numerous Charter applications, all of which were dismissed except one: a s. 8 application that resulted in the s. 24(2) exclusion of the seven firearms that the police had seized from his home.

[5] The appellant and Mr. Ghousy also together advanced a s. 10(b) Charter application, which was predicated on the delay that accrued between the time when he and Mr. Ghousy were informed of their right to counsel and the time when they were permitted access to a lawyer. That s. 10(b) application was granted. It is the s. 24(2) application that followed upon the finding of a s. 10(b) breach that lies at the apex of this appeal.

[6] Mr. Ghousy succeeded on that s. 24(2) application, with the two Glocks in the LCBO bags being excluded from the prosecution’s case against him. In contrast, the Glocks were not excluded from the prosecution’s case against the appellant because, as the trial judge found, the appellant had “abandoned” his privacy interest in them when he left them behind in Mr. Ghousy’s vehicle, and so he had no reasonable expectation of privacy. Given this finding, the trial judge “decline[d] to embark on any Section 24(2) analysis.”

[7] The appellant contends that the trial judge erred in law by allowing the legal concept of abandonment to bar exclusion of the two Glocks under s. 24(2). He maintains that this court should set aside the trial judge’s s. 24(2) conclusion, conduct a proper admissibility analysis, bring the appellant into sync with what happened to Mr. Ghousy, exclude the firearms, and enter acquittals.

[8] For the reasons that follow, I would dismiss the appeal.

B. BACKGROUND FACTS

(1) The Police Investigation and Arrests

[9] Mr. Ghousy was at the centre of a criminal investigation into firearms trafficking. That investigation involved information that came from confidential informants. The police had Mr. Ghousy under surveillance for some time, and the investigation had given rise to numerous persons of interest to the police.

[10] Two days before the arrests, police officers conducting surveillance on Mr. Ghousy saw an unknown male, someone the police would later come to know as the appellant, driving a Ford Explorer. The appellant parked close to Mr. Ghousy’s vehicle and began interacting with Mr. Ghousy. The appellant then passed Mr. Ghousy a weighted black bag, after which Mr. Ghousy drove away.

[11] On the day of the arrest, police officers saw the appellant pull into a gas station parking lot while driving the same Ford Explorer. He parked beside Mr. Ghousy’s vehicle, which was already in the parking lot. The police watched as the appellant retrieved two weighted LCBO bags from the rear hatch of his own vehicle, entered Mr. Ghousy’s vehicle, sat for a while, and then exited with nothing in his hands.

[12] Having regard to all the information learned during the investigation, the police believed that they had just witnessed a firearms transaction and that they had no choice but to immediately arrest the appellant and Mr. Ghousy. Therefore, a high-risk takedown ensued, with the two men being arrested at about 5:50 p.m. Searches incident to arrest resulted in the discovery of: (1) the LCBO bags, each containing a Glock, on the back floor of Mr. Ghousy’s vehicle; (2) fentanyl and two firearm trigger locks in the appellant’s vehicle; and (3) a large sum of cash in the appellant’s pocket.

[13] There is no dispute that: (1) upon arrest, just after 5:50 p.m., both of the men were properly cautioned and informed of their right to counsel; (2) the appellant said he would like to speak with counsel and asked to retrieve his lawyer’s phone number from his cellphone; and (3) the appellant was told that he would be permitted to get the phone number from his cellphone at a later time.

(2) The Police Rationale for Suspending the Right to Counsel

[14] Detective Sergeant (“Det. Sgt.”) Harris was the officer in charge of the investigation. Right after the arrests, he determined that it was necessary to obtain and execute three search warrants for residential addresses associated to Mr. Ghousy and the appellant. Those warrants were aimed at locating and intercepting other firearms.

[15] The police immediately set about preparing an Information to Obtain the warrants. Ultimately, the warrants were issued by a judge of the Ontario Court of Justice about four hours after the arrests, at around 10:00 p.m. Two of the warrants were for locations associated with Mr. Ghousy. The third was for the appellant’s home, where the police seized ammunition, magazines, and seven more firearms, comprised of five handguns, a shotgun, and an AR-15 rifle.

[16] Det. Sgt. Harris testified that he decided it was necessary to suspend the right to speak with counsel until after the search warrants had been obtained and executed. That decision was based upon the officer’s view that permitting the appellant and Mr. Ghousy to make calls before the searches were complete could create real risks for officer safety, public safety, and the preservation of evidence.

[17] I will later return to Det. Sgt. Harris’ evidence on this point.

(3) Implementing the Right to Counsel

[18] The final search was completed around 12:45 a.m. Sometime between 1:15 and 1:30 a.m., the searching officers returned to the police Division where the appellant and Mr. Ghousy were detained. Det. Sgt. Harris tasked Detective Constable (“Det. Cst.”) Johnston with the responsibility of facilitating the appellant’s communication with counsel. The appellant was permitted to retrieve a phone number from his cellphone. However, he chose not to speak with counsel. Instead, he retrieved the number of a friend and called that friend, speaking with him at 1:44 a.m.

[19] Det. Cst. Johnston testified that, after that call was complete, he asked the appellant again if he wished to speak with a lawyer, but that the appellant said no, explaining that his friend was going to arrange for him to speak with counsel. Det. Cst. Johnston testified that he told the appellant that he could speak to duty counsel but that the appellant again declined the offer.

[20] The appellant testified differently. While he originally said that he was never told that he could avail himself of duty counsel, he later retracted that claim, acknowledging that he was “probably” provided with a 1-800 number. On cross-examination, the appellant was asked why he decided to call his friend instead of any of the several lawyers whose phone numbers he said he had recorded in his cellphone. The appellant answered:

The reason for that is because I trust [my friend]. I’ve known him for an extensive period of time, and I know that he’s going to put me towards a lawyer I can trust. … In that situation, I can’t really trust anyone besides my best friend, which at that point I did.

[21] In contrast to how things unfolded with the appellant, at Mr. Ghousy’s request, Det. Cst. Johnston attempted to facilitate contact with a specific lawyer. When it became clear that his preferred lawyer was not available, Det. Cst. Johnston facilitated contact between Mr. Ghousy and duty counsel. Det. Cst. Johnston testified that he would have done the same thing for the appellant had he wished to speak to duty counsel.

C. THE CHARTER RULING

[22] The Charter ruling is somewhat dense, not because of its length, but because of the ground it covers.

[23] The appellant raised a s. 7 Charter claim, arguing that the police used excessive force when arresting him. The trial judge concluded that, contrary to the appellant’s evidence, the force used in the arrest was “proportional, reasonable and necessary.” That claim was dismissed.

[24] The appellant raised a s. 9 Charter claim, arguing that there were insufficient grounds to arrest him. That claim was followed by a s. 8 claim, arguing that because the arrest was unlawful, the search incident to arrest was unlawful. Both of those claims were dismissed.

[25] The appellant also raised a s. 8 Charter claim, arguing that there were insufficient grounds to support the warrant that was issued to search his home. This constituted a facial validity challenge to the search warrant. Accordingly, the test for review was whether, on the face of the information disclosed to the issuing justice, that justice could have issued the warrant: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 19; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452.

[26] The trial judge concluded that the issuing justice – also a judge of the Ontario Court of Justice – could not have issued the warrant based upon the information available to him because, in the trial judge’s view, that information did not disclose an “obvious nexus between [the appellant], the offences under investigation and 5622 Whistler Crescent.”

[27] As the overall seriousness of the police conduct in this case is a matter that informs the admissibility analysis undertaken later in these reasons, I pause now to make the following observation. Respectfully, the suggestion that there was not an “obvious nexus between [the appellant], the offences under investigation and 5622 Whistler Crescent” cannot be reconciled with the information that was available to the issuing judge. There was in fact a significant body of evidence upon which the warrant could have been issued. By way of example, there was information that: (1) the appellant had been seen passing packages to Mr. Ghousy on at least two occasions; (2) on the second occasion, the packages – LCBO bags – were confirmed to contain Glocks; (3) the appellant had taken those bags out of the Ford Explorer; (4) the Ford Explorer was registered to 5622 Whistler Crescent; (5) the appellant’s driver’s licence was registered to 5622 Whistler Crescent; and (6) the appellant’s firearms’ licence was registered to 5622 Whistler Crescent.

[28] That body of evidence alone reflects an abundance of information upon which the issuing judge could have arrived at the conclusion that he arrived at: that there existed a credibly-based probability – less than a balance of probabilities – that evidence with respect to the commission of the offence of firearms trafficking would be located at 5622 Whistler Crescent: see Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.

[29] Having found a s. 8 breach, the trial judge then went on to exclude all the firearms seized from the appellant’s home. The exclusionary ruling was based upon the conclusion that, despite having been issued a search warrant, the police were “not even close to the constitutional mark” and they were on nothing more than a “fishing expedition.” The exclusion of those seven firearms led to acquittals on the counts arising from the seizures from the appellant’s home.[^1]

[30] Mr. Ghousy and the appellant joined suit in advancing the final Charter claim. They argued that their s. 10(b) Charter rights had been breached as a result of the lengthy delay that accrued between their arrests and when they were offered the opportunity to speak with counsel.

[31] The trial judge acknowledged that concerns over public and police safety, as well as the preservation of evidence, can justify a delay in implementing the right to counsel. He also accepted that Det. Sgt. Harris’ concerns about those matters were genuine, stating: “I do not have much difficulty in accepting that Detective Harris’s concerns were genuine.”

[32] Despite that conclusion, the trial judge found a breach of s. 10(b) because, in his view, Det. Sgt. Harris had failed to provide “specifics” to “justify” his genuinely held concerns. The two remaining Glocks were then excluded from the prosecution’s case against Mr. Ghousy, an exclusion that resulted in Mr. Ghousy’s immediate acquittals and release from the trial.

[33] As for the appellant, the trial judge announced that, with reasons to follow, the fentanyl seized from the appellant’s car and the cash seized from his person would be excluded from evidence. In contrast to Mr. Ghousy, the trial judge also announced that he would not be excluding the two remaining Glocks from the prosecution’s case against the appellant because, in the trial judge’s view, the appellant had “abandoned” all interest in those Glocks when he left them behind in Mr. Ghousy’s vehicle.

[34] Accordingly, at the conclusion of the Charter rulings, the prosecution was left to proceed only against the appellant and only with respect to the two Glocks in the LCBO bags, found in the back of Mr. Ghousy’s vehicle. As a result of those Glocks, the appellant was ultimately convicted of two counts of trafficking in firearms.

D. THE PARTIES’ POSITIONS ON APPEAL

[35] The appellant contends that the trial judge erred in law when he dismissed the s. 24(2) Charter application on the basis that the appellant had “abandoned” his Charter interest in the Glocks. In relying upon the doctrine of abandonment, the trial judge is said to have erroneously imported a s. 8 Charter concept into the s. 24(2) analysis conducted in the wake of a s. 10(b) Charter breach.

[36] Instead of focusing upon whether the appellant had abandoned his privacy interest in the Glocks, as if he were dealing with a question of standing under s. 8 of the Charter, the appellant says that the trial judge should have concerned himself with whether the Glocks were causally, contextually, or temporally connected to the s. 10(b) breach and, if so, asked whether their admission into evidence at trial would bring the administration of justice into disrepute. The appellant maintains that the answer to both of those questions is a resounding yes.

[37] The respondent agrees that the trial judge erred, as suggested by the appellant, but parts company with the appellant respecting the implications of that error.

[38] In making this concession, the respondent emphasizes that the fruits of a s. 8-compliant seizure can be excluded under s. 24(2) of the Charter, provided that the fruits of that seizure are causally, contextually, or temporally connected to another Charter breach: see R. v. Cuff, 2018 ONCA 276, 359 C.C.C. (3d) 415, at para. 30; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 12-13, 35; and R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at paras. 25, 33, 48, and 54. Therefore, the respondent agrees with the appellant that the trial judge erred by relying upon his conclusion on abandonment to dismiss the s. 24(2) inquiry.

[39] In light of this concession, the respondent accepts that this court must set aside the trial judge’s s. 24(2) finding and conduct its own s. 24(2) analysis. The respondent also accepts that there is some contextual and temporal connection between the s. 10(b) breach and the Glocks. Where the respondent and appellant part company is on the question of whether the Glocks should have been excluded. In all of the circumstances, the respondent answers that question with a resounding no.

E. ANALYSIS

(1) Did the Trial Judge Err in his Conclusion about the Impact of Abandonment on the s. 24(2) Analysis?

(a) Overview

[40] The focus in this section of the reasons is on whether the trial judge erred when he held that the appellant could not lay claim to a s. 24(2) remedy because, in his view, the appellant had “abandoned” the Glocks.

[41] The impugned passage from the ruling reads as follows:

I … decline to embark on any Section 24(2) analysis relating to the two firearms seized from the LCBO bags in Mr. Ghousy’s vehicle since the totality of circumstances compels the conclusion that [the appellant] did not have a legitimate or reasonable expectation of privacy in the LCBO bags at the time that they were searched. He had abandoned any interest in them.

So, consequently, having abandoned his interest in the LCBO bags … [the appellant’s] Charter rights are not engaged with respect to the bags. [Emphasis added.]

[42] In this court, the appellant does not take issue with the fact that he was found to have abandoned the Glocks. Rather, with the concurrence of the respondent, he takes issue with the use of the doctrine of abandonment to dismiss his s. 24(2) application, particularly where it was predicated upon a s. 10(b) Charter breach.

[43] While I agree with the parties that the trial judge erred in how he used the doctrine of abandonment to “decline to embark” on a s. 24(2) analysis, the doctrine of abandonment is not irrelevant to a s. 24(2) analysis, even when arising from a breach other than under s. 8 of the Charter. To explain this conclusion, I start with the legal underpinnings of the doctrine of abandonment.

(b) Section 8: A Reasonable Expectation of Privacy and the Doctrine of Abandonment

[44] Section 8 of the Charter – “the right to be secure against unreasonable search or seizure” – is a personal right; one that protects people, not places: see R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128,at para. 45. Because s. 8 is a personal right that protects personal privacy, an accused asserting a s. 8 claim must first establish a reasonable expectation of privacy over the subject matter of the search. This is frequently referred to as establishing “standing” to assert a s. 8 claim.

[45] To determine the question of standing to assert a s. 8 claim, the court applies a test that is both subjective and objective in nature: did the accused have a subjective expectation of privacy over the subject matter of the search and was that expectation objectively reasonable in all of the circumstances? See Edwards, at para. 45; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 19, 31-32; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 26-27; and R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 10-11.

[46] Even where an accused is found to have had, at one point, a reasonable expectation of privacy in the subject matter of the search, abandonment marks the point in time at which the accused ceased to have that expectation of privacy: see R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 435. Accordingly, a pre-existing reasonable expectation of privacy will give way where, bearing in mind all of the circumstances, a person acts in a way that would lead “a reasonable and independent observer to conclude” that the person has ceased to assert any privacy interest in the subject matter of the claim: see Patrick,at paras. 20, 25. And, where the person is found to have ceased to assert a privacy interest in the subject matter of the claim, that person is without standing to raise a s. 8 claim.

[47] But where does that leave the concept of abandonment in relation to s. 24(2) of the Charter, specifically in relation to a request to exclude evidence because of a s. 10(b) Charter breach? In other words, where does that leave the concept of abandonment in relation to the issue on appeal?

(c) The Trial Judge’s Reasons and Abandonment in the Context of a Section 24(2) Application

[48] The only way to read the trial judge’s reasons is that he used the concept of abandonment in the same way that it is used to determine the question of standing under s. 8 of the Charter; he used it to find a lack of standing in relation to the Glocks and then used that lack of standing to bar s. 24(2) relief. This approach is clear in the reasons, where the trial judge explicitly “decline[d] to embark on any Section 24(2) analysis” because, as he saw it, the appellant had “abandoned” his privacy interest in the Glocks and, therefore, his “Charter rights [were] not engaged with respect to those bags.”

[49] The parties agree, as do I, that a lack of standing in relation to evidence targeted for exclusion, while relevant for purposes of a s. 8 claim, does not bar access to s. 24(2) relief in the wake of a different Charter breach: see Cuff, at para. 30; R. v. Bzezi, 2022 ONCA 184, at paras. 24-25. Abandonment of evidence targeted for exclusion is a relevant consideration in the admissibility analysis that ensues under a s. 24(2) application, but it does not preclude that analysis from taking place. Accordingly, the trial judge erred when he “declin[ed] to embark on [a] Section 24(2) analysis” merely because he determined that the appellant had abandoned the two Glocks in the LCBO bags.

[50] Instead of using the fact of abandonment as a bar to accessing s. 24(2) relief, the trial judge should have started the analysis by asking the gateway question on all s. 24(2) applications: were the Glocks “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter”? See R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 56; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 101. If the answer to this question was yes, then the trial judge should have gone on to determine whether the admission of the evidence into the proceedings would “bring the administration of justice into disrepute.”

[51] While most cases travel a straight path between the breach and the evidence targeted for exclusion, meaning that the gateway inquiry is passed with ease, some do not. Where that path is more circuitous, like this case, trial judges must calibrate the strength of the connection between the evidence sought to be excluded and the breach.

[52] Over time, a framework has developed for determining whether the s. 24(2) “obtained in a manner” language has been met. That framework involves inquiring into whether there is a causal, temporal, or contextual connection between the evidence and the breach: see R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1002, 1005-6; R. v. Tim, 2022 SCC 12, at para. 78; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at paras. 37-38; R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at paras. 32-47; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 19, 21; R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at paras. 45-46; and Pino, at para. 72.

[53] This framework is built on an admittedly “generous” approach: Tim, at para. 80. However, that generosity is not unbounded. Causal, temporal, or contextual connections must be real ones, connections that are not too “remote” or too “tenuous” in nature: Tim, at para. 78; Mack, at para. 38; Goldhart, at para. 40; Wittwer, at para. 21; Plaha, at para. 45; and Pino, at para. 72. In other words, remote or tenuous connections are no connections at all.

[54] In my view, while the trial judge erred in using abandonment as a definitive bar to s. 24(2) relief, the fact of abandonment was not irrelevant to the question of whether the Glocks in the LCBO bags were sufficiently connected to the s. 10(b) breach to meet the “obtained in a manner” requirement. For instance, the fact of abandonment may dilute the strength of a contextual connection between the underlying Charter breach and the abandoned evidence targeted for exclusion. To use the framework language, it may render that connection too “tenuous” or “remote” to satisfy the “obtained in a manner” requirement.

[55] In this case, though, the respondent acknowledges that, while weak, there existed both a temporal and contextual connection between the discovery of the Glocks in Mr. Ghousy’s vehicle and the s. 10(b) breach that came later. The connection is indeed weak, given that the discovery of the Glocks has no causative connection to the breach of the right to counsel. However, given the respondent’s position, which I would accept for the purposes of this appeal, the gateway test was met. This leaves the following question: would the admission of the evidence into the proceedings “bring the administration of justice into disrepute”?

[56] This latter question requires a balancing of the well-known factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 71-86: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the Charter breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on the merits. Again, the fact of abandonment can inform that analysis, specifically when calibrating the impact of the Charter breach on the accused’s Charter-protected interests.

[57] I will return to this concept of abandonment during the Grant analysis at the end of these reasons. First, though, I will address the actual extent of the s. 10(b) Charter breach.

(2) The Extent of the s. 10(b) Breach

(a) Overview

[58] Where a trial judge erroneously fails to conduct a s. 24(2) analysis, this court must conduct the admissibility analysis for the first time on appeal: see R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, at para. 31. That will sometimes require the court to first consider whether there was a breach and, if so, the extent of that breach. Only when that question is answered can we properly calibrate the seriousness of the Charter-infringing state conduct for the purposes of the Grant analysis. Accordingly, the question we are now dealing with is: when did the s. 10(b) breach commence and when did it end?

[59] There are two components to the right to counsel: informational and implementational. The police must inform the detainee of the right to speak to counsel “without delay” – interpreted as “immediately” – and provide the detainee with a reasonable opportunity to exercise that right without delay: see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460,at paras. 38-42; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at pp. 191-92; and Rover, at para. 25.

[60] In some circumstances, there will be a justified delay in providing a detainee with access to counsel. Those circumstances will often arise from concerns over police safety, public safety, or the preservation of evidence: see Rover, at para. 26. Even so, until the reasonable opportunity to reach a lawyer has been provided, or until the accused unequivocally waives the right to speak with a lawyer, the police must suspend any attempts to elicit information from the detainee: see Suberu, at para. 38.

[61] This case has never been about the informational component of s. 10(b). Everyone agrees that the appellant received the necessary information to exercise his right to counsel. What this case has always been about is that the police failed under the second prong of s. 10(b) to implement the appellant’s contact with counsel in a timely way. Everyone agrees there was a failure. The issue is the extent of that failure.

(b) Parties’ Positions

[62] While the respondent acknowledges that there was in fact a s. 10(b) breach in this case, the respondent maintains that the breach was much shorter – and, therefore, much less serious – than the trial judge found. The appellant counters that submission, contending that while this court can inquire into the extent of the breach, it must do so by showing deference to the trial judge’s findings of fact. According to the appellant, those findings of fact lead to only one conclusion in this case: the breach was exactly as serious as the trial judge said.

[63] I start with the two legal errors in the trial judge’s s. 10(b) analysis alleged by the respondent.

(c) The Errors in the Trial Judge’s Section 10(b) Analysis

(i) The Breach Did Not Start at the Time of Arrest

[64] In the initial set of reasons, found in the omnibus Charter ruling, the trial judge described the delay in the implementational component of s. 10(b) as “over seven hours” in length, constituting the time between the arrest and when the appellant was “given the opportunity to contact his friend.” In the trial judge’s second set of reasons, the ones dealing with the exclusion of the fentanyl found in the appellant’s car and the cash on his person, he described the length of the breach as commencing “shortly after [the appellant’s] arrest and continu[ing] through the course of his detention at the police station.” On either version of the reasons, the trial judge appears to have determined that the breach commenced at or just around the time of arrest. That is not so.

[65] The appellant was arrested at the scene of a high-risk takedown, where the police had just seen the exchange of two firearms. The arrest was in broad daylight in a public space, a gas station parking lot, where the public was milling about. Two Glocks had been recovered. And the police believed that there were other persons of interest to the firearms trafficking investigation still at large.

[66] Against that backdrop, the suggestion that the implementational obligation of the s. 10(b) right commenced at the scene of the arrest is without foundation. To the contrary, it was entirely reasonable for the police to suspend any contact with counsel until, at a minimum, the safety of the situation permitted that call: see Pileggi, at paras. 75-77. Therefore, contrary to what was found in both iterations of the s. 10(b) rulings, it was an error to find that the breach commenced at the time of arrest.

[67] Realistically, leaving all else aside for a moment, the police were under no obligation to implement the right to counsel until after the appellant was in a safe and secure location where a private call with counsel could be facilitated. That was about two hours after his arrest, after the booking procedure had been completed and his safety and the safety of all was secured.

[68] Of course, even with those two hours taken into account, there was still a long time between when the appellant could have been offered a phone and when he was offered a phone. I now turn to that period of time.

(ii) The Rover Error

[69] While the trial judge accepted that the right to counsel can be suspended in some circumstances involving concerns over safety and lost evidence, he concluded that Det. Sgt. Harris did not even provide “some evidence” to support his expression of concern. The trial judge said: “There simply was no specific evidence before me pertaining to [the appellant’s] case to justify the delay in contacting counsel” and the concerns were merely “generic in nature and could easily be said in many drug or firearm related cases.” The trial judge came to that conclusion despite his finding that he had little difficulty “accepting that Detective Harris’s concerns were genuine.”

[70] This brings us to the second legal error as alleged by the respondent: what I will refer to as the “Rover error”.

[71] In Rover, this court recognized that in specific circumstances the implementational component of the right to counsel may be suspended. Those specific circumstances often involve concerns over police or public safety or the preservation of evidence: see Rover, at para. 26. See also Suberu, at para. 42; Griffith, at para. 38. Indeed, the suspension of the implementational component of the right to counsel has been recognized in the context of needing to execute search warrants, just like this case: see Strachan, at pp. 998-99; Rover, at para. 26; R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75; and Griffith, at para. 38.

[72] The difficulty with suspending the facilitation of contact with counsel is that the seriousness of doing so cannot be gainsaid. As noted by Doherty J.A. in Rover, at para. 45, the right to counsel is a “lifeline” for all those who are detained. The right to counsel assists detainees with regaining their liberty and acts as a “guard against the risk of involuntary self-incrimination”: Suberu, at para. 40. As well, there is a recognized “psychological value” to providing access to counsel, a value that “should not be underestimated”: Rover, at para. 45.

[73] At the same time, the critical importance of protecting the safety of the public and law enforcement, as well as preserving evidence – particularly evidence such as deadly weapons that are illegal to possess – cannot be refuted.

[74] To resolve the inherent tension that arises when these laudable goals collide, the law permits a delay in the facilitation of the right to counsel, but only where the police have turned their minds to the specific circumstances of the case and concluded “on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel”: Rover, at para. 27. Doherty J.A. explained the test as follows in Rover, at para. 33:

[T]o fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance.

[75] Where those circumstances prevail, the police must move as efficiently and reasonably as possible to minimize any ensuing delay: see Rover, at para. 27; Griffith, at para. 38. They must also suspend any questioning of the detainee until such time as the implementational component of the right to counsel has been accommodated.

[76] While the trial judge appears to have been aware of the legal underpinnings for the doctrine permitting delay in the facilitation of the right to counsel, making specific mention of Rover, he erred in his application of that doctrine. Without explaining how he arrived at the conclusion, and without adverting to Det. Sgt. Harris’ testimony on the point, the trial judge concluded that the officer gave “no specific evidence … to justify the delay in contacting counsel.” That is simply not so.

[77] To use the terminology from Rover, Det. Sgt. Harris turned his “mind to the specific circumstance of the case” and provided “reasonable grounds to justify the delay”, grounds that were “premised on the risk of the destruction of evidence, public safety, [and] police safety.”

[78] First, he explained his understanding of the law: that any decision to suspend the right to counsel must be made on a case-by-case basis and is entirely dependent upon the circumstances operative at that moment in time.

[79] Second, he explained that in this case, his decision was based upon multiple factors, including that:

(1) the police had just witnessed a clear firearms transaction involving two Glocks;

(2) while in a perfect world there would have been the luxury of time to prepare search warrant applications in advance, given what the police had witnessed in the gas station parking lot, they had no choice but to make the arrests at that time;

(3) the appellant’s identity was only discovered as a result of his arrest;

(4) warrants had to be obtained and then executed at three locations;

(5) the primary items being looked for were deadly weapons; and

(6) based upon observations made during surveillance over a lengthy period of time, and other evidence gleaned during the investigation, the police believed that the firearms-trafficking ring was broad, and that there remained a number of persons of interest to the investigation at large whose identities were still unknown to the police.

[80] Third, Det. Sgt. Harris explained, against that backdrop, particularly with persons of interest to the firearms-trafficking investigation still circulating freely in the community, that he had real concerns for officer and public safety, as well as the preservation of evidence. He testified that, while he had no concern about counsel impropriety should the appellant and Mr. Ghousy have been permitted to speak with counsel, in his experience, things as simple as counsel contacting potential sureties or family members could “inadvertently cause [the] loss of evidence”. In this case, he was concerned that the “loss of evidence” meant the loss of firearms, something that was directly linked to his concerns over police and public safety.

[81] In my view, that is precisely the kind of case-specific evidence that Rover contemplates as justifying a delay in the implementational component of the right to counsel. The decision to suspend the right to counsel was not based on a routine practice or applied in a rote fashion in this case. The evidence was clear that the concerns over safety and over firearms going missing was rooted in the specifics of what the police had learned over the course of the lengthy investigation, which involved many moving parts. Yet, at no time did the trial judge deal with that evidence and, importantly, he did not reject that evidence. Instead, he simply assigned the term “generic” to what he found to be the officer’s “genuine” fears.

[82] Therefore, reading the reasons in their entire context and against the record in this case, I conclude that the trial judge erred in either his understanding of what Rover demands or in his understanding of Det. Sgt. Harris’ evidence. Either way, a proper application of the law to the facts of this case should have led to a different conclusion.

[83] In my view, just like this court’s decision in Griffith, the police evidence in this case justified the suspension of the right to counsel for a period of time. The question is, how much time?

(d) When did the Section 10(b) Breach Commence and When did it end?

[84] In the context of the second Charter ruling, given at the time of sentencing, the trial judge added a few factual findings that had not been made at the time of the original, omnibus ruling. One of those facts rests in the trial judge’s comment that the police “continuously sought to question [the appellant] knowing that he had not spoken to a lawyer”.

[85] Based upon that finding of fact, the appellant argues that, even if the trial judge erred in his Rover analysis, there was still a s. 10(b) breach because the police did not respect the command of Rover to cease all attempts to elicit information while the right to counsel remained in a suspended state. The appellant argues that this court must defer to that finding of fact.

[86] I accept that in the context of a s. 24(2) analysis, an appellate court must defer to a trial judge’s factual findings, except to the extent that they are unreasonable or tainted by “clear and palpable error”: Boutros, at para. 31; R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9. The difficulty with the finding of fact relied on by the appellant – that the police “continuously sought to question [the appellant] knowing he had not spoken to a lawyer” – is that the trial judge gave no explanation (six months after the original ruling) as to why he came to that conclusion. At a minimum, the record called for an explanation.

[87] The appellant testified that he was “interrogated” four to five times for between five and twenty minutes each time, by Det. Sgt. Harris and Det. Cst. Johnston, before he was given access to his phone. The police strongly denied that suggestion. The trial judge never performed a credibility assessment. Had he done so, he may have arrived at exactly the point where I have arrived: that the appellant’s evidence on the point could not be true.

[88] The officers who the appellant said repeatedly interrogated him for lengthy periods before he was given access to a phone, were in fact part of the search team. They did not even arrive back at the police Division until, at most, 30 minutes before the appellant used the phone. Therefore, the appellant’s evidence on this point cannot be reconciled with the other evidence.

[89] Accordingly, I do not accept that the police breached the command of Rover to refrain from questioning the detainee until the suspension of the right to counsel has been lifted.

[90] When did the actual s. 10(b) breach commence? In my view, it commenced when the police failed in their duty to implement the right to counsel at the earliest possible opportunity: as soon as the searches were complete. Until then, I see nothing to suggest that the police did not move as efficiently and expeditiously as possible.

[91] The police set about preparing applications for search warrants immediately after the arrests were made. A judge then made himself available to review those applications at night and the three search warrants were issued at 10:00 p.m. That was about four hours after the arrests had been made.

[92] I understand that four hours may seem like a lot of time to obtain three search warrants. But this had been a lengthy investigation involving many moving parts, a lot of surveillance, confidential informants, and unexpected, but necessary, arrests. Prior to the arrests, the police did not even know the appellant’s identity. The preparation of the Information to Obtain for the search warrants, requiring as it did, full, fair, and frank disclosure, was something that would have required the consolidation of a great deal of information, including sensitive information, arising from a substantial police investigation. In these circumstances, four hours from arrest to issuance was not a surprising amount of time.

[93] Two teams of police officers then executed the warrants, a process that was completed just under three hours later, at 12:45 a.m. At that point, the risks were alleviated because the police had cleared all of the search scenes and, therefore, the justification for delaying the implementational component of s. 10(b) had evaporated: see Griffith, at paras. 34-35, 61.

[94] Instead of contacting the police Division to communicate that the appellant should be provided a call, which should have occurred, the searching officers first travelled back to the Division where the appellant and Mr. Ghousy were detained. They arrived somewhere between 1:15 and 1:27 a.m. Det. Sgt. Harris then tasked Det. Cst. Johnston with facilitating the appellant’s access to his phone. Det. Cst. Johnston retrieved the phone and provided the appellant with a room where he could locate the number that he wanted to call from his phone and make a private call. At 1:44 a.m., the appellant chose to call a friend rather than a lawyer.

[95] In the end, it took about an hour from the time that the final search was completed to the time that the right to counsel was facilitated. That was too long. The police should have promptly facilitated the calls. The failure to do so triggered a s. 10(b) breach. Therefore, the s. 10(b) breach commenced at the point that the justification for the delay in facilitating calls was no longer operative: the completion of the searches at 12:45 a.m.

[96] This leaves the question as to when the breach ended.

[97] Despite having spoken with his friend at 1:44 a.m., the appellant maintains that the s. 10(b) violation continued until he was taken to his bail hearing the following day. He bases this claim on the suggestion that he was not offered the opportunity to speak with counsel or offered the ability to contact duty counsel. Indeed, at points he went so far as to suggest that he had not been informed about the existence of duty counsel. He says that, had that opportunity for contact arisen, he would have pursued it.

[98] The appellant also points to the trial judge’s finding of fact on this point, again a comment made by the trial judge at the time of sentencing, that “no police officers seemed to follow up with” the appellant, after he made contact with his friend, to “inquire whether he had been afforded his right to counsel or at the very least contact duty counsel.” Again, the trial judge’s bald statement is difficult to reconcile with the evidence in this case.

[99] The appellant’s evidence on this point was in direct conflict with that of Det. Cst. Johnston, who testified that he offered the appellant the right to speak with counsel and duty counsel, but that the appellant did not wish to do so. The trial judge did not address the conflict in the evidence or make any credibility findings that would have permitted a proper resolution of the matter. It therefore falls to this court to do so.

[100] While the appellant suggested that he wanted to contact counsel and would have contacted duty counsel had he been given that opportunity, he also acknowledged that: (1) he had the telephone numbers of numerous counsel in his phone, yet he chose not to call them because he “wanted a specific lawyer”; (2) he called his friend because he trusted him and he could not “really trust anyone beside [his] best friend, which [he] did at that point”; and (3) he believed that his friend was “going to put [him] towards a lawyer” that he could “trust” and, in “that situation, [he couldn’t] really trust anyone besides [his] best friend.” As for his claim that he had not been told about the availability of free legal advice, that evidence was contradicted in different ways, including by the fact that the appellant was confronted in cross-examination with the recording of an officer telling him (again) about his right to free legal advice.

[101] In contrast, Det. Cst. Johnston testified that he asked the appellant if he wanted to contact a lawyer and he declined. The officer also offered him duty counsel, but the appellant declined, “saying that his friend was going to facilitate that for him.” Importantly, Det. Cst. Johnston’s evidence was supported by the fact that, in relation to Mr. Ghousy, the officer did exactly what the appellant said he did not do. In other words, when Mr. Ghousy could not reach his counsel of choice, the officer offered him duty counsel and facilitated that contact.

[102] Quite simply, it makes no sense that the officer would facilitate duty counsel for Mr. Ghousy but not for the appellant. Therefore, to the extent that the officer and the appellant’s versions conflict as to what happened after the appellant spoke with his friend, I would accept the officer’s version.

[103] Accordingly, the breach ended under the appellant’s own terms, at 1:44 a.m. when he called his friend and chose not to call counsel or duty counsel. The time between when the right to counsel should have been facilitated and the appellant’s call to his friend was one hour.

(3) The Grant Analysis

(a) Overview

[104] Having determined the extent of the s. 10(b) breach, I can now engage with the Grant analysis.

(b) Seriousness of the Charter-Infringing State Conduct

[105] The first line of inquiry requires this court to assess the severity of the s. 10(b) breach. The more severe and deliberate the state conduct, the more serious the breach, and the more the court will be required to dissociate itself from the state conduct by excluding the evidence linked to that conduct: see Grant, at para. 72; Tim, at para. 82.

[106] I start with the appellant’s argument that in determining the seriousness of the state conduct, this court owes deference to the trial judge’s findings of fact, including how the trial judge described the breach as being “clear and serious”, the police as being “disinterested” in the appellant’s s. 10(b) rights, and their facilitation of that right only as an “afterthought.” The difficulty with these descriptors is that they are not factual findings, but adjectives arising from a flawed s. 10(b) analysis. In these circumstances, no deference is owed.

[107] Importantly, there is no evidence of a systemic problem in this case. Unlike cases such as Rover, the police in this case acknowledged the importance of the right to counsel, the extraordinary nature of suspending that right, and the need to operate on case-specific information.

[108] Nor was there a pattern of Charter misconduct in this case. While the appellant points to the trial judge’s finding that the search of the appellant’s home violated his s. 8 Charter rights, as I previously explained, that result cannot be reconciled with the information that was available to the trial judge.

[109] While that aspect of the trial judge’s Charter ruling is not before this court on review, for purposes of this admissibility analysis I do not accept the characterization of that search as demonstrating part of a pattern of misconduct. To the contrary, the police acted responsibly, going so far as to obtain a search warrant from a judge of concurrent jurisdiction to the trial judge. The fact that the issuing judge concluded that there were sufficient grounds to search surely lightens the blow of any pattern that could be said to arise from that finding of a breach.

[110] Even without a systemic problem or pattern of abusive police conduct in this case, though, this was undoubtedly a serious breach. While the police were justified in suspending the right to counsel during the execution of the warrants, along with the authority to temporarily suspend the implementational component of the right to counsel came the corresponding responsibility to appreciate the enormity of the situation and the implications for the appellant. He was entitled to be offered the opportunity to speak with counsel at the earliest opportunity. The fact that he chose not to in the end, instead choosing to speak to a friend, does not detract from the fact that he sat for many hours without a call. The police should have been on high alert, ready to facilitate the right to counsel at the earliest moment possible, which was when the searches were complete, and the risks had cleared. The police failed in that regard.

[111] Accordingly, while the Charter-infringing state conduct could have been more serious, especially if it had been part of a pattern of breaches or bad faith had been present, it was still serious indeed.

(c) Impact of the Breach on the Appellant’s Charter-Protected Interests

[112] This prong of the admissibility inquiry calls upon the court to evaluate the extent to which the Charter-infringing conduct undermined the interests protected by the right infringed. As noted by the Grant majority, “It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”: Grant, at para. 76; Tim, at para. 90. To make that determination, the court looks to the interests that are engaged by the subject Charter right and then considers the “degree to which the violation impacted those interests”: Grant, at para. 77.

[113] I do not see the actual impact of the breach on the appellant’s Charter-protected interests as being particularly serious.

[114] It is important to remember here that the predicate Charter breach was rooted in the right to counsel. As previously discussed, that right is directed at assisting detainees with regaining their liberty and protecting them against the risk of involuntary self-incrimination: see Suberu, at para. 40; Bartle, at p. 191; and R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at pp. 202-3. Yet at no point did the appellant incriminate himself and there is no indication that his liberty would have been obtained any earlier had the breach not occurred.

[115] Also, there was no causal connection between the breach and the discovery of the Glocks, which the trial judge found had been lawfully seized. Rather, the Glocks were seized hours before the s. 10(b) breach even occurred. In other words, not only were the Glocks discoverable without the breach, but they were actually discovered without the breach. This lessened the impact of the breach on the appellant’s Charter-protected interests, making “admission … more likely”: see Grant, at paras. 122-25. See also Pileggi, at para. 120; Rover, at para. 43; and R. v. Miller, 2018 ONCA 942, 368 C.C.C. (3d) 479, at para. 21. As in R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 87, it is entirely “appropriate” to consider the lack of a causal connection in calibrating seriousness under the second stage of the Grant analysis.

[116] Finally, the seriousness of the impact of the predicate s. 10(b) Charter breach on the interests protected by s. 10(b) was not compounded by interference with any other Charter-protected interests: see Mian, at para. 87. This is yet another factor for consideration under the second prong of the Grant analysis. Given the trial judge’s finding that the appellant had abandoned any expectation of privacy in the Glocks, the appellant had no remaining constitutional relationship with the Glocks at the point that they were lawfully seized. Therefore, his privacy and dignity interests were not impacted in any way, let alone by the subsequent s. 10(b) breach.

(d) Society’s Interest in Adjudication on the Merits

[117] The Glocks found in Mr. Ghousy’s vehicle were reliable evidence that was essential to the Crown’s case. The fentanyl had been excluded. The cash had been excluded. Seven firearms had been excluded. Exclusion of the two Glocks would have erased what little was left of the Crown’s case.

[118] While there is no doubt that the “public has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high”, the public also has “a heightened interest in seeing a determination on the merits where the offence charged is serious”: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 34. Trafficking in firearms is a very serious offence. The circumstances underlying this case were particularly serious, including the broad daylight exchange of two firearms in a public setting: a gas station parking lot.

[119] The safety of the community hangs in the balance. Like in Harrison, at para. 34, the third line of inquiry favours admission in this case because, without that admission, there would be no case to be adjudicated.

(e) Final Balance

[120] The appellant held and continues to hold the onus of establishing why exclusion should flow. In my view, while the first line of inquiry pushes toward exclusion, the second is somewhat neutral at best, and third pushes toward inclusion. I would not exclude the evidence.

[121] It is important to recall that exclusion of evidence is never automatic under s. 24(2). There are competing relevant factors and, importantly, the balancing exercise is a qualitative one, not at all conducive to “mathematical precision”: Harrison, at para. 36; Tim, at para. 98. Exclusion does not follow from the length of the breach per se. Indeed, there are cases where s. 10(b) breaches that are longer than the one hour in this case have not led to s. 24(2) exclusion: see R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 90; Griffith, at para. 80; and Pileggi, at paras. 4, 128.

[122] Some may wonder about the result for Mr. Ghousy in this case: he was acquitted because of a s. 24(2) exclusion and, therefore, shouldn’t the appellant receive the same benefit? No. Mr. Ghousy may well have been the lucky recipient of a flawed constitutional analysis. There is no constitutional right to having those flaws played forward.

[123] In this case, considering “all of the circumstances”, as s. 24(2) demands, I would not exclude the evidence. In my view, having regard to all of the circumstances, exclusion of the two Glocks in the LCBO bags would not vindicate the long-term repute of the criminal justice system but, rather, would bring it into disrepute.

F. CONCLUSION

[124] I would dismiss the appeal.

Released: “April 21, 2022 JMF”

“Fairburn A.C.J.O.”

“I agree Paul Rouleau J.A.”

“I agree Grant Huscroft J.A.”

[^1]: There is no Crown appeal from those acquittals.