Court File and Parties

Court of Appeal for Ontario Date: 20230620 Docket: C70203

Before: van Rensburg, Benotto and Copeland JJ.A.

Between: His Majesty the King Respondent

and

Ivan David Lira Appellant

Counsel: Ivan David Lira, acting in person Jessica Zita, appearing as duty counsel Erica Whitford, for the respondent

Heard: June 7, 2023

On appeal from the conviction entered on April 30, 2021, by Justice Nancy J. Spies of the Superior Court of Justice, with reasons reported at 2021 ONSC 2639, and the sentence imposed on December 17, 2021, with reasons reported at 2021 ONSC 8294.

Reasons for Decision

[1] The appellant was convicted of offences relating to the robbery of a pharmacy, for drugs and money, committed with an accomplice, during which the appellant was armed with a loaded prohibited firearm. He was also convicted of offences involving possession of the same prohibited firearm, with readily accessible ammunition, while prohibited by court order from possessing firearms. The latter set of offences was distinct from the robbery, committed the next day, when the appellant travelled in the community with the prohibited firearm and readily accessible ammunition, including on public transit. He appeals against both the convictions and sentence.

[2] For reasons we explain, we reject the grounds of appeal raised by the appellant and dismiss both the conviction and sentence appeal.

Conviction Appeal

[3] At trial, the appellant brought an application to exclude evidence seized when he was searched incident to arrest, including a cell phone, a prohibited firearm, and a magazine containing 17 rounds of ammunition. The application alleged that the appellant’s rights under ss. 8, 9, and 10(b) of the Charter had been infringed. The trial judge dismissed the application.

[4] On appeal, the appellant only maintains the s. 10(b) argument. He argues that the trial judge erred in finding that his s. 10(b) Charter rights were not infringed by the lengthy delay after his arrest in allowing him to contact counsel.

[5] When the appellant was arrested, he was immediately advised of his right to counsel. However, the lead investigating officers delayed allowing the appellant to contact counsel. The trial judge found that after the appellant’s arrest, the lead officers had considered the issue of delaying the appellant’s access to counsel and made a case-specific decision that the delay was justified due to concerns about police and public safety and preservation of evidence. The trial judge found that the exception allowing for delay in implementing the right to counsel, enunciated by this court in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, applied.

[6] The crux of the concerns for police and public safety and preservation of evidence accepted by the trial judge as reasonable justification for delaying implementation of the right to counsel focused on the fact that two firearms had been used in the robberies under investigation; that after the appellant’s arrest one of those firearms was still unaccounted for; that following the arrest, the police wanted to execute a search warrant at the appellant’s residence, but did not initially have confirmation of his address or yet have a search warrant; and that the circumstances of the appellant’s unplanned arrest gave rise to concerns that he may have been in a position to contact a third party regarding removal or destruction of evidence – in particular, the firearm.

[7] Although the trial judge did not find a Charter breach, she went on to find that, even if the appellant’s s. 10(b) rights had been infringed by the delay in implementing the right to counsel, considering all of the circumstances, she would not exclude the evidence seized at the time of the appellant’s arrest, which was prior to the delay in implementing the right to counsel.

[8] The appellant argues, with the assistance of duty counsel, that the trial judge erred in finding that the circumstances of this case fall within the exception, set out in Rover, to justify a delay in the implementation of the right to counsel based on police or public safety or the preservation of evidence.

[9] In Rover, this court held that in some circumstances, a delay in providing a detainee access to counsel may be justified. Circumstances where a delay may be justified often relate to police safety, public safety, or the preservation of evidence in the context of search warrants. Rover emphasized two requirements to delay implementing access to counsel. First, general or non-specific concerns applicable to virtually any search cannot justify delaying access to counsel. Rather, the police may only delay access to counsel after an assessment of the specific circumstances in the particular case that provide a reasonable basis to conclude that police safety, public safety, or the preservation of evidence justifies some delay in granting access to counsel. Second, even where case-specific circumstances exist that justify delay in granting access to counsel, the police must also take reasonable steps to minimize that delay.

[10] We see no error in the trial judge’s finding that the first branch of the Rover exception was satisfied in that the Crown had established a case-specific reasonable basis to conclude that police safety, public safety, and the preservation of evidence justified some delay in granting access to counsel. The findings of the trial judge were amply supported on the record before her.

[11] With respect to the second branch of Rover – the obligation to take reasonable steps to minimize the delay – it is arguable that the steps taken by police to minimize delay were insufficient. In particular, there was some weakness in the evidence regarding whether the officers heading the investigation considered “freezing” the residence of the appellant prior to obtaining the search warrant (i.e., taking control of the residence, removing any occupants, and stationing officers to prevent entry). The lead officers accepted that had this step been taken, it would have alleviated police concerns about safety and preservation of evidence. However, there was also some evidence raising questions about whether there was officer manpower available at the relevant time to take this step.

[12] The trial judge recognized that there was some weakness in the evidence on the issue of minimization of delay. Ultimately, she concluded that the delay in implementing the right to counsel in this case was “a close call”, but found that the appellant’s right to counsel had not been infringed.

[13] It is not necessary in the circumstances of this case to decide whether, given that some delay in implementing the right to counsel was justified, the police failed in their duty to minimize the amount of delay. Regardless of whether the police steps to minimize delay under the second branch of Rover fell short, we see no error in the trial judge’s conclusion that, even if there was a s. 10(b) breach, the evidence from the earlier search incident to arrest should not be excluded.

[14] We will not review all of the factors that led the trial judge to this conclusion. The most critical is that the evidence the appellant sought to have excluded was obtained at the time of the search incident to his arrest, prior to the delay in implementing the right to counsel. The trial judge found that the arrest was lawful and supported by reasonable and probable grounds, a finding which the appellant does not challenge. As the trial judge correctly noted, there was no causal link between the evidence the appellant sought to exclude, which had been found at the time of arrest, and the later delay in implementation of the right to counsel. Although a causal link is not a necessary condition for exclusion of evidence under s. 24(2), the absence of a causal link is a factor that may mitigate the impact of a Charter breach and reduce the need to exclude evidence: R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 71; R. v. O’Brien, 2023 ONCA 197, 424 C.C.C. (3d) 108, at para. 61.

Sentence Appeal

[15] The appellant argues that the trial judge did not give him credit for harsh conditions of confinement caused by lockdowns and the COVID-19 pandemic during his time in pre-sentence detention at the Toronto South Detention Centre (“TSDC”). As the appellant put the issue in his submissions, in the time period he was sentenced, he was aware that some inmates were given “2 for 1” or “2.5 for 1” credit for pre-sentence custody, but he was only given “1.5 to 1” credit.

[16] We see no error in the manner in which the trial judge addressed credit for pre-sentence custody and the related issue of mitigation for harsh conditions of confinement.

[17] With respect to credit for pre-sentence custody pursuant to s. 719(3) and (3.1) of the Criminal Code (“Summers credit”), the trial judge gave the appellant credit for pre-sentence custody at a rate of 1.5 days credit for each actual day of pre-sentence custody. This worked out to 5 years and eight-and-one-half months credit. Consistent with the decision in R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, this amount was deducted from the global sentence that the trial judge considered appropriate.

[18] The trial judge also gave credit for harsh conditions of confinement. However, in accordance with the decisions of this court, she treated harsh conditions of confinement as a mitigating factor to be considered in assessing the appropriate sentence, rather deducting it from the appropriate sentence: R. v. Marshall, 2021 ONCA 344, at paras. 50-53.

[19] That the trial judge proceeded this way is clear from her reasons. She accepted the appellant’s evidence regarding harsh conditions of confinement and lockdowns at the TSDC. She found that the appellant “was impacted by the exceptionally harsh conditions at the TSDC due to lockdowns and the pandemic.” She accepted that the impact of the harsh conditions at the TSDC was “a significant mitigating factor” to be considered in determining the appropriate sentence. However, in accordance with Marshall, she declined to do “a mathematical calculation” of the mitigating effect of harsh conditions of confinement.

[20] After considering the circumstances of the offences, the appellant’s circumstances, the aggravating and mitigating circumstances, and the principles of sentencing, the trial judge found that an appropriate sentence before considering the totality principle or mitigation for harsh conditions of confinement was 16 years imprisonment. [1] She then considered what would be a fit sentence, taking into account the totality principle and mitigation for harsh conditions of confinement, and concluded that a fit global sentence would be 10 years imprisonment. Thus, the sentence was adjusted downward by six years to account for totality and harsh conditions of confinement. The 5 years and eight-and-one-half months of Summers credit was then deducted from the 10 year sentence, leaving four years and three-and-one-half months remaining for the appellant to serve.

[21] Thus, the appellant did receive credit for harsh conditions of confinement in addition to the 1.5 to 1 Summers credit. The trial judge considered it as a mitigating factor, without quantifying it in a specific number of days. The manner in which the trial judge addressed mitigation for harsh conditions of pre-sentence confinement is consistent with the decisions of this court and reveals no error.

Disposition

[22] The appeal against conviction is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“K. van Rensburg J.A.” “M.L. Benotto J.A.” “J. Copeland J.A.”

[1] We do not summarize the details of why the trial judge was of the view that this sentence was appropriate, as the appellant did not take issue with this aspect of the sentence.