Court of Appeal for Ontario

Date: 2024-10-23 Docket: COA-23-CR-0828

Judges: MacPherson, Favreau and Dawe JJ.A.

Between: His Majesty the King, Respondent and Trian Vassel, Appellant

Counsel: Trian Vassel, acting in person Mark Halfyard, appearing as duty counsel Kevin Pitt, for the respondent

Heard: October 9, 2024

On appeal from: The conviction entered on February 9, 2023, and the sentence imposed on June 26, 2023 by Justice Katrina Mulligan of the Ontario Court of Justice.

Dawe J.A.:

[1] The appellant was convicted on charges of aggravated assault and robbery, and received a global effective sentence of five and a half years’ imprisonment, less credit for presentence custody. He appeals against his convictions and sentence, although he did not make any submissions in support of his sentence appeal.

A. Factual background

[2] In early February 2022, the victim met a man she knew only as “T” at the residence of a mutual friend. They entered into an arrangement in which T would bring powdered cocaine to the victim’s apartment, which she would cook into crack and resell to residents of her apartment building, and then pay T out of the proceeds. The first time T came to the victim’s apartment, the day after they first met, he stayed for about half an hour and they chatted while she cooked the drugs. Among other things, the victim learned that T drove a white or silver BMW that was recently damaged and had been in the shop for repairs.

[3] Over the next two weeks, T returned to the victim’s apartment four more times to drop off more drugs and pick up the money the victim owed him for the previous delivery. However, on these occasions he appears not to have stayed as long as the first time.

[4] On February 16, 2022, the victim was awakened by the sound of someone knocking at her door. She found a man she recognized as T in the hallway, and let him into her apartment. He asked for the money she owed for the last batch of drugs, and she replied that she would have to go to the bank to get it.

[5] The victim’s dog then began barking at T, and he threatened to kill the dog if it didn’t shut up. The victim responded by taking out her cell phone and saying that if T laid a hand on the dog, she would call the police. T’s reaction was to draw a knife, throw the victim to the floor, and begin slashing at her. She kicked back at him, suffering serious knife injuries to her feet, and eventually kicked the knife out of his hand. T then picked up a metal space heater and began smashing it down on the victim. He then left the apartment, taking the victim’s phone with him. She eventually made it to her neighbour’s apartment to get help.

[6] The victim was badly injured in the attack, suffering severed tendons in her feet, broken vertebrae in her back, broken ribs, and a broken leg. She was hospitalized for six days and left with likely permanent injuries.

[7] Security video from the victim’s apartment building showed that her assailant had been wearing track pants and a dark, spotted long-sleeved shirt, and carrying a satchel. However, in the video the man’s face is concealed by a COVID-19 face mask.

[8] The appellant was arrested three months later, in May 2022. At the time of the arrest, he was wearing track pants that appeared identical to those worn by the victim’s assailant. The vehicle he had been driving before his arrest was described by the trial judge as “a silver BMW sporting easily identifiable repair.” In the vehicle the police found an Adidas satchel resembling the one the victim’s assailant had been carrying on the day of the assault. Inside the satchel the police found a knife that the trial judge characterized as “not dissimilar” to the victim’s description of the knife her assailant had used during the attack.

[9] In September 2022, the victim was shown a photo lineup and identified the appellant as T, and as her assailant.

[10] The trial judge accepted the victim’s identification evidence and found the appellant guilty of aggravated assault and robbery (the latter charge based on the assailant having taken the victim’s cell phone when he left her apartment).

B. Analysis

[11] Mr. Halfyard, acting as duty counsel, advanced a single argument on behalf of the appellant, who did not present any additional grounds of appeal himself.

[12] The trial judge found that the police breached the appellant’s s. 10(b) Charter rights by unreasonably delaying his ability to speak to counsel after his arrest. Defence counsel at trial sought to have the satchel and knife that the police seized from the BMW excluded as a s. 24(2) Charter remedy. However, based on her analysis of the factors identified in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the trial judge found that this evidence should be admitted.

[13] Mr. Halfyard argues that the trial judge erred in her assessment of the second Grant line of inquiry, which focuses on the impact of the breach on the Charter-protected interests of the accused. He invites us to conduct our own reweighing of the Grant factors, exclude the evidence, and order a new trial.

[14] For the Crown, Mr. Pitt argues that the trial judge did not err by admitting the satchel and knife into evidence under s. 24(2). In the alternative, he invokes the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, arguing that even if the satchel and knife had been excluded, the result at trial would have been the same.

[15] For the following reasons, I agree with Mr. Halfyard that the trial judge erred in her Grant analysis. However, I also agree with Mr. Pitt that even if the satchel and knife had been excluded from evidence, the appellant would still inevitably have been convicted. I would accordingly dismiss the conviction appeal, and would also dismiss the sentence appeal as abandoned.

(1) The breach of the appellant’s s. 10(b) Charter rights

[16] When the victim first reported the assault, the police did not know the name of the man who had assaulted her. However, they knew from the victim that he went by the name T and drove a BMW, and knew from her description and from the security video footage from her building that he was a black male with chin-length dreadlocks.

[17] The lead investigator later received a tip that T would be visiting a particular location on May 12, 2022. Officers went there and found the appellant. He arrived in a silver BMW and his appearance matched the victim’s description of T, as well as the images from the security video. The police accordingly decided that they had grounds to arrest him.

[18] The appellant was arrested shortly after 2:00 p.m. He asserted his right to counsel and said he wanted to speak with his lawyer. The appellant also asked to speak with his parents and his girlfriend, and gave the police what he said was his home address on Kipling Avenue.

[19] However, the lead investigator, DC Rahim, then instructed the arresting officers that he was suspending the appellant’s right to counsel while the police sought a warrant to search the Kipling Avenue address. He directed that the appellant not be permitted to speak to anyone other than duty counsel.

[20] When the appellant was brought to the police station shortly after 3:00 p.m., he was again advised of his right to counsel, and again asked to speak with his lawyer, whom he named. However, following DC Rahim’s instructions, the officers at the station told the appellant that “because the investigation was still active, he could only speak to duty counsel.” A few minutes later, a phone call with duty counsel was arranged, even though this was not something the appellant had ever requested. The appellant was put in a room with a phone and connected with duty counsel. The appellant did not give any evidence about his ensuing conversation with duty counsel.

[21] By 7:20 p.m., the police determined that the appellant had no association with the Kipling Avenue address, and gave up their plan to apply for a search warrant. However, DC Rahim never rescinded his earlier order that the appellant’s right to counsel be suspended, and another four hours passed before any attempt was made to contact the appellant’s counsel of choice. This only happened shortly after 11:20 p.m., and occurred purely by happenstance, when an officer who was unaware of DC Rahim’s order was assigned the task of seizing the appellant’s pants. This officer decided that the appellant should be given a chance to speak to his lawyer first, and left two voicemails for the appellant’s counsel, who called back two hours later, at around 1:30 a.m.

(2) The trial judge’s Charter ruling

[22] The Crown conceded at trial that the delay in allowing the appellant to speak with his counsel of choice violated his s. 10(b) Charter rights. The trial judge agreed, finding that it was “abundantly clear” that there had been a breach. Citing this court’s decision in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, she explained:

[DC Rahim] was not able to articulate any specific concerns that [the appellant’s] arrest presented in terms of possible destruction of evidence or officer safety. Apart from giving lip service to the Court’s directives in Rover, [DC Rahim] did not turn his mind to the specifics of [the appellant’s] case. He most definitely did not take reasonable steps to minimize the delay in facilitating contact with [the appellant’s] lawyer. In fact, I find that [DC Rahim] took no steps whatsoever to minimize the delay nor did he even turn his mind to that duty.

[23] However, applying the three-part Grant test, the trial judge declined to exclude the seized satchel and knife as a s. 24(2) Charter remedy.

[24] The trial judge found that the first Grant inquiry, which considers the seriousness of the state conduct that led to the breach, weighed strongly in favour of exclusion. However, she concluded that the second Grant inquiry, which considers the impact of the breach on the Charter-protected interests of the accused, was “neutral”. She noted that although the appellant had been denied his right to speak to his counsel of choice for approximately eight hours, he was permitted to speak with duty counsel shortly after he arrived at the police station, and thus was not “held completely incommunicado without the benefit of any legal assistance.”

[25] With respect to the third Grant factor, which considers society’s interest in an adjudication on the merits, the trial judge concluded that although the satchel and knife were not critical to the Crown’s case, they were reliable evidence, and that this factor favoured admission. The trial judge found further that the overall balance of the Grant factors favoured admitting the satchel and knife into evidence.

(3) The trial judge erred by characterizing the impact of the breach on the appellant’s Charter-protected interests as “neutral”

[26] On behalf of the appellant, Mr. Halfyard argues that the trial judge erred in the second stage of her s. 24(2) Grant analysis by concluding that the impact of the breach on the appellant’s Charter-protected interests was “neutral”.

[27] The trial judge correctly identified the relevant factors that she had to consider in the second stage of the Grant analysis. She noted that the suspension of the appellant’s s. 10(b) rights caused him to spend “approximately 8 hours without the ability to speak with his own private and presumably, trusted counsel.” She noted further that even if the initial delay while the police checked out the Kipling Avenue address had been justified, the appellant was then “left for four more hours before he was finally put in touch with the counsel he requested.” However, the trial judge observed that:

[The appellant] did speak with duty counsel immediately after being paraded. Though not a substitute for conferring with his own counsel by any means, I can only assume that he did receive some legal advice and was not, as such, being held completely incommunicado without the benefit of any legal assistance.

[28] The trial judge concluded:

Given the very interests that s. 10(b) seeks to protect – correct information about the right to counsel and immediate ability to consult with a lawyer to assist detainees in regaining their liberty and to guard against the risk of self-incrimination, I am willing to presume that the failure to allow [the appellant] to confer with counsel of choice was more than merely trifling. I do note that the breach did not result in [the appellant] incriminating himself nor was there any evidence that it had any negative impact on his liberty interests in that it delayed his bail hearing in any way.

This factor is neutral in terms of the exclusion of the evidence.

[29] In my respectful opinion, the trial judge’s final characterization of the second Grant factor as “neutral” does not follow from her otherwise substantially correct analysis. While the impact of the breach on the appellant’s Charter-protected interests may have been attenuated, for the reasons the trial judge identified, I agree with Mr. Halfyard that it was not eliminated entirely. Even if the breach did not ultimately cause the appellant to suffer any lasting prejudice, the lengthy delay before he could speak with his counsel of choice can still be presumed to have caused him psychological stress that affected his security of the person: see Rover, at para. 46; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 52.

[30] As Doherty J.A. observed in Rover, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

See also R. v. Dussault, 2022 SCC 16, 468 D.L.R. (4th) 589, at para. 56. The psychological value of the appellant being allowed to speak with a lawyer he already knew, and presumably trusted, should also not be underestimated: see e.g., R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.), at p. 67. There were also practical reasons for the appellant to want to speak to his own lawyer, rather than merely to duty counsel. It is reasonable in the circumstances to assume that he would have wanted not simply to get legal advice about the bail process, but also to arrange for someone to represent him at his bail hearing. While the delay in putting the appellant in contact with his own lawyer may not have delayed his bail hearing, as the trial judge found, it still resulted in his spending more than eight hours in a state of greater uncertainty than he would have experienced if his s. 10(b) rights had been respected.

[31] I agree with the Mr. Halfyard that in these circumstances the second Grant factor cannot properly be characterized as “neutral”. While the impact of the s. 10(b) breach on the appellant’s Charter-protected interests could certainly have been even worse, the breach nevertheless still adversely affected his security of the person interest to at least some extent. Properly considered, the second Grant factor weighed in favour of exclusion, even if it did so less strongly than it might have in different circumstances.

(4) The verdicts would have been the same even if the evidence had been excluded

[32] In view of the trial judge’s error, it would ordinarily fall to us to conduct our own balancing of the Grant factors and reach our own conclusion about whether the satchel and the knife should have been excluded from evidence: see e.g., R. v. McGuffie, 2016 ONCA 365, at paras. 64-65. However, in the particular circumstances of this case I find it unnecessary to decide this question, since I agree with Mr. Pitt that even if the satchel and knife had been excluded, the result at trial would have been the same.

[33] Section 686(1)(b)(iii) of the Criminal Code permits this court to dismiss an appeal even after an error of law has been identified, if we are “of the opinion that no substantial wrong or miscarriage of justice has occurred”. This requires the Crown to establish that there is no “reasonable possibility that the verdict would have been different had the error . . . not been made”: R. v. Bevan, [1993] 2 S.C.R. 599, at pp. 616-17; see also R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28.

[34] In my view, the Crown has met its burden of demonstrating that the result at trial would inevitably have been the same even if the satchel and knife had been excluded from evidence.

[35] It was undisputed that the victim was assaulted and seriously injured by the man seen on the apartment building video. It was also not disputed at trial that the assailant was the man the victim knew as T. Although Mr. Halfyard suggested that the assailant could perhaps have been some different person sent by T to collect the drug debt, this possibility was not raised by defence counsel at trial. As he put it in his closing submissions:

[M]y position all along is this is an aggravated assault. The question became the identification of [the appellant]. Is he the gentleman? Is he T?

[36] The victim identified her assailant as T, and later picked the appellant’s photo out of a lineup. The trial judge recognized that the Crown’s case hinged on the reliability of this identification evidence, and instructed herself to assess it “with extreme caution”, even though she found the complainant to be a credible and otherwise reliable witness.

[37] The trial judge’s ultimate conclusion that the evidence as a whole established the reliability of the complainant’s identification evidence was based on multiple factors, including:

(i) The victim was not merely identifying a stranger, but explained how she was able to recognize T from their previous meetings. As the trial judge noted: “A witness's recognition of someone previously known to them is usually stronger than identification of a stranger”. (ii) The victim picked the appellant’s photo out of a lineup, and there was “nothing in the appearance of Mr. Vassel in the photo she selected that was inconsistent with the description of the attacker she had provided to the police previously.” (iii) Video of the appellant from the police station after his arrest showed that his hairstyle matched the victim’s description of T’s hair. (iv) At the time of the appellant’s arrest, he was wearing “Champion” brand track pants that looked identical to those worn by the victim’s assailant, as seen on the apartment video. His long-sleeved shirt was also similar-looking, albeit less distinctive. While Mr. Halfyard notes that “Champion” is a common sportswear brand, these particular track pants were distinctive because they had the brand name printed in large letters on the left leg, running from the knee to the ankle. (v) The victim recalled learning from T that he drove a white or silver BMW that had recently been in the shop for repairs. On the day of the appellant’s arrest, he was driving “a silver BMW sporting easily identifiable repair.” The fact that T made these statements was probative on the issue of identity as it narrowed the identity of T to the group of people in a position to make similar representations: see R. v. Evans, [1993] 3 S.C.R. 653, at pp. 661-64. (vi) The police found an Adidas satchel in the BMW that resembled the satchel the assailant can be seen carrying in the apartment building video. In the satchel they found a knife which the trial judge characterized as “not dissimilar to the knife the victim described being used to slash her”.

[38] Having regard to the trial judge’s reasons, and considering the entirety of the evidence, I conclude that she would inevitably have been satisfied that T was the appellant even if she had excluded the satchel and knife from evidence. The satchel and knife played only a minor role in the trial judge’s reasoning process, and its probative value was limited. As defence counsel at trial noted in his submissions, the satchel the assailant was carrying on the day of the assault cannot be seen clearly enough in the apartment building video to positively identify it as an Adidas bag. Likewise, Crown counsel at trial did not mention the knife in her closing submissions, and the trial judge merely noted parenthetically that the knife found in the satchel was “not dissimilar” to the weapon described by the victim.

[39] Even if the satchel and knife had been excluded, the remaining evidence that confirmed the victim’s identification of the appellant as T, and thus as her assailant, was overwhelming. It would have been an extraordinary coincidence if there was another man who (i) went by the nickname “T” – the first initial of the appellant’s first name; (ii) also had the same hairstyle as the appellant; (iii) drove a recently repaired silver BMW; (iv) owned an identical-looking and distinctive pair of pants; and (v) otherwise resembled the appellant so closely that the victim – who had met this man at least six times, and had extended dealings with him – could have mistakenly confused him with the appellant when she picked the appellant out of the photo lineup.

[40] I am accordingly satisfied that even if the trial judge made a legal error by not excluding the satchel and knife under s. 24(2) of the Charter – a question that I need not decide – the trial judge would inevitably have found the appellant guilty of aggravated assault and robbery.

C. Disposition

[41] I would accordingly dismiss the appellant’s conviction appeal. Since he did not make any argument in support of his sentence appeal, I would also dismiss his sentence appeal as abandoned.

Released: October 23, 2024 “J.C.M.” “J. Dawe J.A.” “I agree. J.C. MacPherson J.A.” “I agree. L. Favreau J.A.”