Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240514 DOCKET: COA-23-CR-0767

Pepall, Thorburn and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Randy Laughlin Appellant

Counsel: Randy Laughlin, acting in person Chris Rudnicki, appearing as duty counsel Erica Whitford, for the respondent

Heard and released orally: May 9, 2024

On appeal from the convictions entered on March 29, 2023 and the sentence imposed on June 1, 2023 by Justice Mark Moorcroft of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of possession of a loaded prohibited firearm, unauthorized possession of a prohibited weapon, and possession of a firearm while prohibited. He appeals from his sentence of time served (683 days following credit for presentence custody) plus four years.

[2] He also claims that he did not understand that his guilty plea would preclude him from appealing the trial judge’s decision in respect of his s. 8 and 9 Charter application. He claims for the first time on appeal that his s. 10(b) right to counsel was also breached. The Crown agrees that he may address these issues today, although she notes that his delay has prevented this court from having a full record including evidence of the officers’ intentions.

[3] Dealing first with the sentence appeal, the sentencing judge imposed an effective sentence of approximately 5 years and 10 1/2 months. This was just over a year short of the sentence requested by the Crown. The appellant claims that in so doing, he failed to give the appellant credit for the harsh conditions of his presentence custody. The sentencing judge stated that he would not be giving the appellant any specific mathematical credit for those conditions but instead had simply considered this issue in determining his ultimate sentence. We see no error in this regard.

[4] We also note the sentencing judge’s consideration of the appellant’s criminal record, which was extensive and included a prior firearm offence and multiple failures to comply with court orders and prohibitions. In short, we see no error and the sentence is fit.

[5] The appellant also argues that the trial judge erred by finding that his rights under s. 8 and 9 of the Charter were not violated. Further, he argues that his s. 10(b) Charter rights were violated on the basis that he was not given his right to counsel immediately upon detention.

[6] We are not persuaded by these arguments.

[7] There was a basis to detain the appellant. The officers had received information that a person matching the appellant’s description was believed to have recently stolen something from a nearby dollar store, and one of the officers had previously received information that the appellant may be carrying a firearm. Both the subjective and objective reasons for the detention were reasonable. The detention was lawful and, given the officers’ reasonably held safety concerns about the bulge in the appellant’s hoodie pocket, the search incident to that detention was lawful. As such there is no basis to interfere with the trial judge’s determination that there was no s. 8 or 9 Charter violation.

[8] Turning to the s. 10(b) issue, it is clear that there were exigent circumstances that justified the delay in giving the appellant his s. 10(b) right to counsel. This was a brief encounter in which the appellant, immediately upon being detained, emptied his pockets. The officers observed a bulge in his hoodie, one suspected that he might be carrying a firearm, and they both saw the butt of a gun. Under these exigent circumstances there was simply no time to read him his right to counsel.

[9] For these reasons, we find no breach of the appellant’s s. 10(b) Charter rights.

[10] Even if there were, given the exigent circumstances, the minimal impact upon the appellant’s rights, the need for adjudication on the merits, and the fact that there were no systemic issues or bad faith, the evidence would have been admissible pursuant to s. 24(2) of the Charter: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67-71.

[11] The appeal is therefore dismissed.

“S.E. Pepall J.A.” “Thorburn J.A.” “J. George J.A.”