Court of Appeal for Ontario
Date: September 5, 2025
Docket: COA-23-CR-0903
Judges: Paciocco, George and Wilson JJ.A.
Between
His Majesty the King Respondent
and
Darius Nguyen Appellant
Counsel
Samara Secter and Nikolas De Stefano, for the appellant
Christopher Walsh, for the respondent
Heard
May 12, 2025
On Appeal
On appeal from the convictions entered on May 18, 2023 by Justice John B. McMahon of the Superior Court of Justice.
Opinion of the Court
George J.A.:
Overview
[1] On August 6, 2020, Detective Constable ("DC") Swart of the Toronto Police ("TPS") Drug Squad received a tip from a confidential informant's police handler. The informant indicated that the appellant was involved in drug distribution (the specific type of drug was not mentioned), possibly resided near Front and Bathurst Streets, and his home might be used as a stash house. The tip also included the license plate of the appellant's vehicle.
[2] With this information the TPS searched Ministry of Transportation Ontario ("MTO") records, which revealed the appellant's date of birth, a registered address (not in the area of Front and Bathurst Streets), his eye colour, and the make of his vehicle. Based on this information the TPS commenced an investigation. Later that same day, the appellant and a co-accused were arrested. The police seized 18 kg of cocaine, 7 kg of methamphetamine, and $219,000 in cash.
[3] The appellant claimed that his Charter rights had been violated and sought to exclude the drugs seized by the police. The application judge determined that the police had violated the appellant's right to counsel under s. 10(b), but found no violation of his rights under ss. 8 or 9. After conducting a s. 24(2) analysis the application judge concluded that, despite the violation of s. 10(b), the evidence should be admitted. The trial judge convicted the appellant of possessing cocaine and methamphetamine for the purpose of trafficking and of possessing the proceeds of crime.
[4] The appellant appeals these convictions on the basis that the application judge:
erred in finding that the police did not violate his s. 8 Charter rights when they surveilled and filmed him in a fenced-off, residential parking lot;
erred in finding that the police had reasonable grounds to arrest him;
erred in finding that exigent circumstances entitled the police to enter his condominium unit after arrest; and
erred in admitting the evidence under s. 24(2).
[5] The appellant asks that we conduct the s. 24(2) analysis afresh, exclude the evidence, and enter acquittals.
Background Facts
[6] The tip received by the police did not specify the type or quantity of drugs being trafficked, nor did it suggest that the appellant had an accomplice. After conducting the MTO search, police officers were briefed before attending the area of Bathurst and Front Streets. No warrant was obtained and there was no plan to arrest the appellant that day.
[7] Upon arriving at the area of Front and Bathurst Streets DC DeSousa entered an underground parking garage that served two condominium buildings – 576 Front St. and 27 Bathurst St. The first level of the garage and part of its second level were designated for visitor parking; anyone could park in the visitor lot so long as they paid for and displayed a ticket. There was no physical barrier restricting entry into the visitor parking areas. The remaining spots on the second level were for condo residents and were separated from the visitor parking area by a gate and chain link fence. DC DeSousa testified that each level had about 50 public parking spots.
[8] Upon entering the parking garage DC DeSousa did not take a ticket or pay for entry. While in the visitor section on the second level he observed the appellant's vehicle on the residential side through the chain-link fence. DC DeSousa informed his fellow officers that he had located the suspect vehicle. He then sought consent from the condo's property manager, who advised that she needed to seek approval from the condo board.
[9] During the approximately six hours that followed several TPS officers entered the garage to monitor the appellant's vehicle from the visitor section. None of them took a ticket or otherwise paid for parking. No express permission to be on the premises was ever granted by the condo board.
[10] In the early afternoon, DC Chant assumed surveillance of the appellant's parking spot. He testified that he "understood" property management had granted the police permission to be there, even though he had no direct dealings with them. After about an hour DC Chant observed another vehicle enter the garage and park next to the appellant's vehicle. He saw the appellant and a then unknown person (later identified as the appellant's co-accused) exit the vehicle. DC Chant recorded an 18-second video of the two as they walked from the vehicle to the elevator.
[11] DC Swart arrived to continue observations in the garage. He did not enter the residential side of the second level but watched the appellant's vehicle through the fence. Later, he video-recorded the appellant pushing a dolly of luggage and gym bags across the residential lot and load them into the two vehicles parked beside each other. This recording lasted for 1 minute and 21 seconds. Later in the afternoon the appellant and the co-accused left the garage in one of the vehicles. They were observed driving around the neighbourhood for about 16 minutes. The officers testified that they took two different loops around the block and that the vehicle's occupants were looking into the rearview mirror and over their shoulders out the back window. The officers all believed this was a counter-surveillance technique. The vehicle returned to the garage and parked.
[12] Shortly after returning to the garage the appellant and his co-accused were observed by DC Cilia pushing another dolly from the elevator bank to their vehicles, where they loaded two gym bags and a reusable bag. When the appellant's co-accused got into his car and attempted to drive away DC Swart decided to arrest them both. The appellant was arrested on the second level of the parking garage inside the fenced-in area, while his co-accused was arrested on the first level as he was about to leave the garage. The police, after searching both vehicles as incident to the arrests, seized the cocaine, methamphetamine, and cash.
[13] The arrest of the appellant occurred around 3:30 p.m. Upon arrest the appellant informed the police that he wanted to call a lawyer. The police did not ask the appellant whether he had a lawyer or whether there was a specific lawyer he wanted to speak with, and no effort was made on scene to facilitate contact. The appellant was picked up from the scene by other officers at 4:14 p.m. and arrived at the police station at 4:33 p.m. At 5:33 p.m. the appellant was booked, paraded and strip-searched. After receiving a secondary caution the appellant asked again to speak with a lawyer. Then, instead of holding off with questioning, DC Chase asked the appellant if he wanted to discuss the charges against him. During cross-examination, DC Chase agreed that he continued to question the appellant even after the request for a lawyer. At 6:20 p.m. the appellant was placed in contact with duty counsel. He spoke to duty counsel twice while at the station.
[14] The officers seized a key to a unit at 27 Bathurst St. from the appellant's pocket when he was arrested. The appellant told them that he lived in that unit. DC Swart, DC Awad and another officer who was present at the scene used the appellant's key to enter the unit. Although they did not have a warrant, DC Swart testified at the preliminary inquiry that he believed exigent circumstances justified their entry: "[we] clearly didn't have a lot of information … there were civilians that were curious to know what was going on with the police being there, close proximity of the arrest and may have been tipped off. I didn't know if anyone was in the unit, if there was more evidence within the unit." During their initial entry the police did not search, or seize, anything from the unit. They returned later with a warrant and searched the unit, but nothing was seized.
Decision Below
[15] Before trial the appellant brought a Charter application seeking to exclude the evidence seized by the police. The appellant argued that 1) the police violated s. 8 of the Charter by surveilling and filming him in an area where he had a reasonable expectation of privacy; 2) the police violated s. 9 of the Charter by arresting him without reasonable and probable grounds; 3) the police violated his s. 10(b) right to counsel by failing to facilitate a call with a lawyer for three hours, directing him to duty counsel rather than a lawyer of his choice, and asking him if he wished to speak to the charges after indicating he wanted to speak with a lawyer; 4) the police committed a further s. 8 Charter breach by conducting a warrantless search of his dwelling house, and 5) the admission of the evidence would bring the administration of justice into disrepute.
[16] The application judge found that the police had violated s. 10(b) by asking the appellant if he had anything to say after expressing a desire to speak with counsel, and by their delayed implementation of the appellant's right to counsel by 1 hour and 32 minutes. The application judge characterized the former as an "institutional failure", concluding that the police likely invited the appellant to speak as part of their rote delivery of the "entire right to counsel package". The delay in facilitating access to counsel was attributed to a shift change and the absence of a senior officer at the station because of a reduced summer schedule.
[17] The application judge determined that there was no s. 8 breach as the appellant did not have a reasonable expectation of privacy in the parking garage, and because exigent circumstances justified the warrantless entry into his unit. The application judge found that the officers had reasonable and probable grounds to arrest the appellant and therefore rejected his s. 9 argument.
[18] Lastly, after conducting a s. 24(2) analysis the application judge admitted the evidence, concluding that to exclude "multiple kilograms of fentanyl and methamphetamine" after a lawful search would undermine the administration of justice. I pause here to note that no fentanyl was seized.
Discussion
Section 8 of the Charter – Surveillance of Appellant While in Fenced-Off Residential Parking Area
[19] Did the application judge err in finding that the appellant did not have a reasonable expectation of privacy in the underground parking garage?
[20] The appellant argues that the application judge's approach to this question was too narrow, as it did not consider the normative foundations of the right to privacy. According to the appellant, this narrow approach led the application judge to mischaracterize the subject matter of the search as the appellant's presence at the location and his movements and associations. The appellant contends that the police were conducting "extensive surveillance" that could have produced invasive information about him, including his routines and what he did at his home – information that he says went to his "biological core". The appellant argues that, by finding his expectation of privacy to be unreasonable, the application judge did what the Supreme Court in R. v. Bykovets, 2024 SCC 6, 489 D.L.R. (4th) 1, at para. 7 warned against, which is to provide an ex post facto justification for a police search.
[21] The appellant argues further that the application judge erred by referring to his argument that the police "trespassed" in the parking garage as a red herring, and by overlooking the significance of the police video-recording his movements.
[22] I am not persuaded by the appellant's arguments.
[23] In my view, the normative approach proposed by the appellant only gets him so far. That is to say, even if the appellant genuinely expected that his privacy would be protected while in the underground parking garage, this expectation must be reasonable in the circumstances. The application judge determined that it was not.
[24] It is important to remember that this parking garage served not just the appellant's building, but several condominium buildings. There are two parking levels, with a significant number of publicly accessible spots on both. And, from the public area on the second level one has a direct view into the private area where the appellant was parked. This is the case-specific context in which the appellant's expectation was assessed.
[25] There is a substantial body of case law on the reasonable expectation of privacy in shared areas of multi-unit dwellings. In R. v. Saciragic, 2017 ONCA 91, at paras. 32-34, leave to appeal refused, [2017] S.C.C.A. No. 106, this court concluded that the accused had no reasonable expectation that his movements to and from his unit – located in a relatively large apartment building equipped with video surveillance – would not be observed by others, including the police. In R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, leave to appeal refused, [2020] S.C.C.A. No. 38, when addressing an underground condominium parking garage, this court held at para. 79: "to put it in terms of the factors set out in R. v. Spencer, 2014 SCC 43, 375 D.L.R. (4th) 255, unit owners could not have an objectively reasonable expectation of privacy in a garage shared with so many other owners and over which they had very little control". And in R. v. Salmon, 2024 ONCA 697, 443 C.C.C. (3d) 110, at para. 39, this court reaffirmed the general principle that underground parking garages are common areas where a resident's right to a reasonable expectation of privacy would not ordinarily attach.
[26] In line with this jurisprudence, and after applying the guiding principles to the facts as he found them, the application judge concluded that 1) anyone could access the public parking area, and 2) from there, anyone could see into the residential parking area. There is nothing unique about this case that sets it apart from Salmon and Yu.
[27] In my view, we must resist the appellant's attempt to broaden the subject matter of this search to include intimate details of what was happening inside his apartment. The application judge found that the officers' objective in making observations from the public parking area was to confirm the appellant's presence at that location, his movements to and from that place, and who he was associating with. The police were not pursuing more intimate details, nor would what they were pursuing tend to reveal any.
[28] The appellant contends that observations in the parking area could reveal what was happening inside his home, and that the police specifically sought to determine whether his unit was being used as a stash house. While s. 8 requires us to consider what the subject matter of the search "tends to reveal" (Bykovets, at para. 53; Spencer, at para. 27), the analysis cannot rely on speculative inferences. In this case, it is difficult to see how observations in the underground parking area could be used to infer what goes on in an at-the-time unknown unit a considerable distance away. This court noted in Saciragic, at para. 30, that the use of an elevator did not yield any information about the nature of the activities inside a unit. Similarly, in this case, the use of an underground parking garage could not be expected to reveal much. I reject the appellant's suggestion that this appeal is analogous to R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, where the police attempted to eavesdrop by hiding in the stairwell near a unit: see also R. v. Roy, 2020 ONCA 18, 386 C.C.C. (3d) 183, at paras. 15-16.
[29] I also reject appellant counsel's characterization of the police activities in this case as "intensive scrutiny", "extensive surveillance", and "prolonged" tracking. The police activities did not reach this level. It appears as though the entire investigation lasted about six hours; of those six hours the appellant only appeared around the last two hours; and the video recordings were less than two minutes in total. As a comparison, in R. v. Hoang, 2024 ONCA 361, when confronted with a situation where the police recorded "everyone who came and went at all times of the day for a period of 8 days" (at para. 41), this court held that:
As a general proposition, it may well be that police camera surveillance could give rise to an objective expectation of privacy over the subject matter of the recording within the s. 8 Charter analysis, based on its duration, the scope and nature of its surveillance, the basis for its placement or because of other contextual or technological factors. This general proposition stems from the broad and functional view of the subject matter of such a recording, which could potentially capture information about an accused's comings and goings as well as who they associate with and what activities they take part in. In the circumstances of this case, however, where the pole camera captured only the public space that an individual police investigator would have seen from the same distance, without any additional capture of sound or close-up camera angles, and for a limited period of time, such broader concerns do not arise. [Emphasis added.]
[30] The act of video recording does not create an expectation of privacy where one does not already exist and many of the cases the appellant relies upon in this regard are not helpful. For example, in both R. v. Duarte (1990), 71 O.R. (2d) 575 (S.C.C.), and R. v. Wong (1990), 60 C.C.C. (3d) 460 (S.C.C.), where the Supreme Court held that the recording of private communications and activities was more intrusive than just listening or watching, the recordings engaged s. 8 because the communications and actions in question were private. Here, the investigators did not observe or record anything that was private. The appellant was simply observed walking back and forth between an elevator and his car in a parking lot and loading bags into vehicles.
[31] Finally, the appellant places undue emphasis on the fact the police did not pay for a parking ticket. I accept that, by not paying for and displaying a parking ticket, the officers were likely trespassing. In this regard, the application judge erred by finding that the police had "an implied licence … to be on private property for investigative purposes where the public has a general invitation to be present." The general invitation to the public was conditioned on the payment of a parking ticket, which the officers did not comply with. Nor does the doctrine of implied licence apply: The purpose of the officers' entry onto the premises was not to communicate with, or to protect the interests of, the owner or the occupant; rather, it was to surveil one of the occupants: White, at paras. 56-57; R. v. Mulligan (2000), 142 C.C.C. (3d) 14 (Ont. C.A.), at para. 24.
[32] Nevertheless, the police conduct did not result in a s. 8 breach. Although the requirement to purchase a ticket and the limited use of the space for parking could reduce foot traffic and the length of anyone's stay, the garage was shared with other buildings in a busy area of Toronto, with around 50 public parking spots on the same level. Given the nature of the space and the manner of the surveillance, what the officers observed while in the parking area could be observed by anyone who happened to be in the parking garage: see Roy, at paras. 15-18.
[33] In these circumstances, whether the observations were made after paying for a parking ticket or not has no material bearing on the reasonableness of the appellant's expectation of privacy. What is important at this stage of the analysis is not whether the police were trespassing on common property, but their access to the appellant's private activities and communications. Viewed in context, the physical intrusion or trespass by the police was peripheral to the s. 8 analysis: White, at para. 16; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 41-45.
[34] I see no error in the application judge's ultimate conclusion that the appellant did not have a reasonable expectation of privacy when in the multi-condominium parking garage; a finding that sits comfortably with this court's and the Supreme Court's guidance on how to assess the reasonableness of a subjective expectation of privacy in similar locations.
Section 9 of the Charter – The Arrest
[35] The appellant argues that his arrest was unlawful as it violated his s. 9 Charter right to not be arbitrarily detained. He submits that the police did not have sufficient grounds to arrest him. He highlights the fact that, at the time of arrest, he was in the fenced-in residential parking lot, the police did not have a warrant, and the officers' stated grounds were too vague to be meaningfully corroborated. The appellant points out that the police began their investigation without any details about the nature of the substances, how they were allegedly trafficked, or the quantities involved. The appellant refers to DC Swart's testimony, which, he claims, suggested that observing the appellant loading any kind and any number of bags would have been deemed suspicious. Essentially, the appellant argues that almost anything the officers observed would have confirmed, in their minds, that he was trafficking drugs.
[36] The appellant also challenges the officers' claim that he and his co-accused used a counter-surveillance technique by driving around the block and returning to their parking space. At the preliminary inquiry, DC Swart testified that counter-surveillance "could be anything", including driving around the block, driving or stopping on a highway, or going into residential areas and looking in the rear-view mirror. The appellant argues that almost any action he and his co-accused took during their drive, including "mundane and neutral" actions, would have been considered suspicious by the police. I am not persuaded. There was a rational basis for interpreting the conduct of the appellant and his accomplice as counter-surveillance. For no apparent purpose, they interrupted their loading process to drive around the area and return before resuming. The application judge was entitled to accept the judgment of the police that, in context, this conduct was consistent with counter-surveillance, increasing the probability that they were in possession of narcotics.
[37] An arrest is lawful when the arresting officer subjectively believes there are reasonable and probable grounds to arrest, and if those grounds are objectively reasonable. In my view, the application judge did not err in finding that the police had sufficient grounds to arrest the appellant when they did. The application judge accurately cited and properly applied the relevant principles. He thoroughly considered all of the information known to the police before making the arrest, including: i) the tip that the appellant was selling drugs, that he lived near Bathurst and Front Streets, and that the license plate described in the tip was connected to the appellant according to the MTO search; ii) the police partially confirmed this tip when they quickly located a vehicle matching that license plate upon arriving in the area; iii) the location matched the tip (even though it differed from the address registered with MTO); iv) soon after arriving the police observed activity they believed was consistent with drug trafficking, including the loading of numerous weighted bags and driving patterns that the application judge accepted was a counter-surveillance technique; and v) upon returning to the garage from their brief drive the appellant and his co-accused loaded more bags into their vehicles.
[38] While none of these factors, standing alone, would have given the police sufficient grounds to arrest, their cumulative effect amply supported the officers' decision to arrest the appellant when and where they did. When assessing the officers' evidence on these points, it was open to the application judge to consider that some of the officers involved were experienced drug investigators making observations and decisions in a rapidly evolving situation.
[39] The appellant attempts to isolate and undermine some of these factors on the basis that they are equally consistent with innocent behaviour. However, the application judge was not required to assess the sufficiency of each of the factors forming the grounds for arrest in isolation. The question before the application judge was not whether a finding of guilt was the only reasonable inference available on the evidence, but whether the totality of the circumstances known to the officers at the time supported the appellant's arrest: R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 24.
[40] The application judge, who critically examined all of the evidence and made findings of fact available to him on the record, correctly concluded that the police had sufficient grounds to arrest. There is no basis for appellate intervention.
Section 8 of the Charter – Entry into the Appellant's Condominium Unit
[41] Following the arrest, and without a warrant, the police used the appellant's key to enter his condominium unit. The police officers did not conduct a search; they merely confirmed that no one was inside. A warrant to search the premises was later obtained, but nothing was ever seized from the unit. The officers claimed that their initial entry was necessary because the appellant was arrested in a public place, information that could have been relayed to any co-conspirators inside the unit, leading to the destruction of evidence. The application judge accepted that exigent circumstances justified the police officers' entry without a warrant.
[42] The officers who entered the unit relied on s. 11(7) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 which permits entry into a dwelling house without a warrant when the conditions for obtaining a warrant exist but exigent circumstances make it impracticable to obtain one. The police must have reasonable and probable grounds to believe that immediate action is necessary to preserve evidence or ensure officer or public safety, and that obtaining a warrant would be impractical: R. v. Campbell, 2024 SCC 42, 498 D.L.R. (4th) 195, at paras. 113-14; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 37. The belief that such circumstances exist must be objectively grounded in the circumstances of the case: Campbell, at para. 114; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 45.
[43] The appellant contends that the police decision to enter his unit was based only on speculation. He argues that there was no evidence to suggest that anyone was inside the unit or that he and his co-accused had accomplices. According to the appellant, "the threat to evidence was imaginary". He points out that the number of people who could have observed the arrest was limited, meaning there was little risk that someone inside the unit would have learned of the arrest and discarded evidence.
[44] I agree that speculation would not have justified entry into the appellant's unit: Campbell, at para. 114, citing R. v. Pawar, 2020 BCCA 251, 393 C.C.C. (3d) 408, at para. 72. The question is whether these officers acted on a purely speculative basis. In my view, they did not. The facts, as found by the application judge, supported his conclusion that exigent circumstances existed and that police entry was justified.
[45] The finding of exigent circumstances is a highly case-specific conclusion. Here, it was informed by the tip alleging the potential use of the appellant's home as a stash house, the police observations in the parking garage (including the countersurveillance), the substantial amount of drugs and cash seized upon arrest, the presence of a previously unknown accomplice in the garage, and the fact that members of the public had observed the arrest: R. v. Phoummasak, 2016 ONCA 46, 346 O.A.C. 9, at paras. 19 and 20.
[46] While the ultimate question of whether exigent circumstances existed is a question of law reviewed on a standard of correctness, the application judge's underlying findings of fact are owed deference and reviewed on a standard of palpable and overriding error. In addition to accepting the officers' evidence about why they felt a need to enter the unit, the application judge found that the police had not anticipated arresting the appellant that day, and that events began to unfold in an unexpectedly quick and fluid manner.
[47] At the time the decision was made to enter the appellant's unit without a warrant, the police had already seized a significant amount of drugs. Furthermore, the officers could not have anticipated that any seizure would be as large as it turned out to be; the scale of the seizure heightened the seriousness of the situation and informed the officers' belief that the unit needed to be "cleared" immediately.
[48] The appellant relies on this court's decision in Hobeika to argue that the police cannot rely on exigent circumstances when these circumstances arise from their own tactical decisions. In advancing this argument, the appellant overlooks two key points: First, as previously discussed, the application judge found that police had no plan to arrest the appellant that day, did not know about the co-accused before arriving in the garage, and encountered an unexpected and rapidly unfolding situation. Second, the ratio in Hobeika only precludes exigency arising from police strategy and pre-existing plans where the exigencies were anticipated. As Doherty J.A. made clear, at para. 54, "[o]ften, police action will result in the urgency relied on to act without a warrant. The question is not whether there is some causative link between police action and the urgency, but rather whether that police action reflects a pre-existing plan, which included the creation of the circumstances said to justify acting without a warrant." There is simply no basis to conclude that the police anticipated exigent circumstances that would necessitate entry into the appellant's private dwelling.
[49] Based on all of the facts, as found by the application judge, exigent circumstances justified the warrantless entry into the appellant's unit.
[50] As for the reasonableness of the police conduct, I note that the police did not search the unit for evidence upon their initial entry. They only checked to see if anyone was inside, and once they confirmed the unit was empty they left and waited for a warrant before returning.
[51] For these reasons I reject this ground of appeal.
Section 24(2) of the Charter – Whether to Admit or Exclude the Evidence
[52] The appellant presents two arguments for excluding the evidence under s. 24(2). The first asks us to consider the s. 24(2) question afresh if he succeeds on any of the grounds of appeal in respect of ss. 8 and 9. However, since I have rejected all of those grounds, I am left to consider only the second argument, which is that the application judge erred in his s. 24(2) analysis and in admitting the evidence in light of the s. 10(b) breaches he identified.
[53] An application judge's decision to admit or exclude evidence under s. 24(2) of the Charter is owed deference. The question is whether the application judge erred in principle, failed to consider relevant factors, made a palpable and overriding factual error, or reached an unreasonable determination: R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 49.
[54] The application judge committed none of these errors. He acknowledged that the s. 10(b) breach was serious, as it was institutional in nature, but determined that this alone did not justify excluding the drugs seized. He also found that there was no causal link between the breaches and the discovery of evidence relied on by the Crown; that the breach had a negligible impact on the appellant's Charter protected interests since the Crown did not rely on any utterances by the appellant; and that the public interest in a trial on the merits, given the quantity and nature of drugs seized, weighed in favour of admission. That another judge might have decided differently is no basis to interfere.
[55] In terms of the seriousness of the breach, the first branch of the Grant test, the application judge found that while the breach was serious it was not at the highest end of the range as it was not the product of misconduct, bad faith, or the disregard for Charter rights. The appellant argues that the application judge erred in this characterization by effectively excusing an institutional breach, which should have heightened the seriousness of the breach and tipped the balance in favour of exclusion. The institutional nature of the breach that the appellant relies upon is D.C. Chase's recitation of the usual police caution, which invited the appellant to say something if he wished, after he had expressed a desire to speak with counsel: see R. v. G.T.D., 2018 SCC 7, [2018] 1 S.C.R. 220. The evidence was that DC Chase had been taught to recite this standard caution verbatim, the result of officer training not being updated after the Supreme Court's decision in G.T.D. was released.
[56] I see no error in the application judge's characterization of the seriousness of the breach. He reasonably concluded that DC Chase recited the caution as the appellant was attempting to say something to him and that his motivation was to ensure the appellant understood that he did not have to. It was clear to the application judge that the caution was read reflexively, not strategically, and that it was not DC Chase's intention to mislead the appellant or to improperly extract evidence from him.
[57] Lastly, while it was a palpable error of fact for the application judge to refer to "fentanyl", I am not persuaded that it had an overriding impact on the balancing exercise. The application judge was clearly concerned about the substantial quantity of drugs seized, and the drugs that were seized are insidious in and of themselves. In light of his conclusions on the first two Grant factors, it is difficult to see how misstating the nature of one of the substances could be material to the balancing exercise.
[58] There is no basis to disturb the application judge's decision to admit the evidence.
Conclusion
[59] For these reasons, I would dismiss the appeal.
Released: September 5, 2025
"D.M.P."
"J. George J.A."
"I agree. David M. Paciocco J.A."
"I agree. D.A. Wilson J.A."
Footnotes
[1] The Charter application, with reasons dated September 12, 2022, was decided by Justice Robert F. Goldstein of the Superior Court of Justice: 2022 ONSC 4994, 517 C.R.R. (2d) 215.
[2] The evidence is not clear about what exactly DC DeSousa sought consent for and whether that included any part of the underground parking garage.
[3] DC Chase claimed that he asked the appellant whether he had his own lawyer. This was not in his notes. The application judge found at para. 87 of his reasons that "DC Chase did not ask him if he had a particular lawyer in mind".
[4] The absence of a causal link is significant but not dispositive: see R. v. Thompson, 2025 ONCA 500, at paras. 106, 120-21.