COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Buonomo, 2025 ONCA 62
DATE: 20250124
DOCKET: M55682 (COA-25-CR-0009)
Lauwers J.A. (Motion Judge)
BETWEEN
His Majesty the King
Respondent
and
Mickey Buonomo
Applicant/Appellant
Bryan Badali, for the applicant/appellant
Kelvin Ramchand, for the respondent
Heard: January 16, 2025
ENDORSEMENT
[1] On April 22, 2024, the applicant was found guilty by a jury of the following offences:
• Possession of 465.87 grams of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”);
• Possession of methamphetamine, contrary to s. 4(1) of the CDSA; and
• Unlicensed possession of a prohibited weapon (a conductive energy weapon), contrary to s. 92(2) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] The applicant was sentenced to 8 years imprisonment. He applies for bail pending appeal.
(1) The Circumstances Giving Rise to the Convictions
[3] The charges arose from a police takedown of a vehicle in which the applicant was one of four occupants, sitting in the front passenger seat. Police searched the vehicle and discovered a bag containing 465.87 grams of fentanyl, a large quantity valued at $100,000, along with a conductive energy weapon on the floor of the passenger seat where the applicant was seated. After police conducted a strip search of the applicant at the station, they also discovered a small bag of cocaine. At the time, the applicant was on bail relating to charges of trafficking fentanyl and possession of a prohibited firearm from an arrest in July 2021.
[4] The “high-risk” takedown occurred at about 10 a.m. on November 4, 2021. A call was placed to the applicant’s choice of counsel at 12:17 p.m. The applicant was unable to reach his counsel of choice and did not leave a message with her office. He then spoke to an assistant at another lawyer’s office, but not to a lawyer. It is common ground that he never spoke to counsel on the day of the arrest.
[5] The applicant fairly summarizes the motion judge’s findings:
The motion judge found that the police had lawful authority to search the vehicle, and that their delay in providing the Applicant with his right to counsel was reasonable, but accepted that the manner of the strip search violated s. 8 of the Charter and that the police had breached the Applicant’s s. 10(b) rights by failing to facilitate his desired consultation with counsel.
The motion judge separately considered the admissibility of the evidence discovered in the vehicle and the evidence discovered on the Applicant’s person. He determined that the evidence seized during the strip search should be excluded, but that the s. 10(b) violation did not warrant excluding the narcotics and weapon discovered in the vehicle from evidence as all three Grant factors favoured admission.
The motion judge also noted that “[t]here was no connection between the s. 10 breach and the discovery of the evidence in the Dodge Charger vehicle”.
(2) The Issues
[6] The applicant advances four issues in this bail application related to the following errors made by the motion judge in concluding that,
The police did not violate s. 10(a) of the Charter;
The delay in providing the applicant with his rights to counsel did not violate s. 10(b) of the Charter;
The search of the vehicle complied with s. 8 of the Charter; and
The evidence discovered during the search of the vehicle was admissible under s. 24(2) of the Charter.
I address each ground after setting out the governing principles.
(3) The Governing Principles
[7] For bail pending a conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.
[8] I set out the governing principles at length in R. v. J.B., 2023 ONCA 264. As the Supreme Court observed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the public interest element must be tested under the framework set out by this court in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32, (Ont. C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability.
[9] Under s. 679(3)(c), there are two components to consider: public safety and public confidence in the administration of justice: Oland, at para. 23; Farinacci, at pp. 47-48. Consideration of the public confidence component involves striking the balance between enforceability and reviewability. In striking this balance, “appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public”, being, “someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values”: Oland, at para. 47.
(a) Enforceability
[10] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, at p. 48. In this case, there are significant factors that weigh in favour of enforceability.
[11] As noted in Oland, at para. 37, the seriousness of the crime figures in the assessment of the enforceability interest. These are undoubtedly very serious offences. The jurisprudence recognizes that “[d]rug trafficking offences such as these have been identified as being on the higher end of the gravity spectrum in the context of bail pending appeal applications”: R. v. Janisse, 2022 ONCA 756, at para. 9, per MacPherson J.A. He added: “This stance on drug trafficking offences is unsurprising, given the fentanyl and methamphetamine epidemic this country is currently experiencing”. See also R. v. Isaac, 2022 ONCA 156, at para. 9. The Crown is right to assert that “Fentanyl continues to plague Canadian communities.”
(b) Reviewability
[12] Reviewability acknowledges that the “justice system is not infallible” in its results, such that “persons who challenge the legality of their convictions should be entitled to a meaningful review process” that does not “require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful”: Oland, at para. 25, citing Farinacci, at pp. 47-49. The court noted in Oland that “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. The grounds of appeal must “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland, at para. 44. The applicant no longer benefits from the presumption of innocence: Oland, at para. 35.
(4) Application
[13] The Crown does not take the position that the grounds of appeal are frivolous but asserts that they are weak. Nor does the Crown argue that the applicant is a flight risk; he was out on bail after the conviction and before the sentence was imposed because the trial Crown did not seek to revoke bail. He remained on bail without incident.
[14] The Crown opposes bail pending appeal, arguing that the applicant does not satisfy the public interest criterion under s. 679(3)(c). Specifically, the Crown asserts that the seriousness of the crimes and the weakness of the grounds of appeal cause the public interest in enforceability to outweigh the reviewability interest. The Crown adds that the applicant also had a recent conviction for offences that took place just a few months before the offences under appeal: trafficking fentanyl, possessing a shotgun, and breaching court orders. The Crown expresses concern that this behaviour shows “similar conduct in such short duration.”
[15] In my view, as I will explain, the applicant’s Charter arguments “clearly surpass” the “not frivolous” standard. The applicant is not a flight risk; he complied with his bail restrictions without incident before and after he was convicted. Therefore, the public interest criterion drives much of this analysis.
(a) Public Safety
[16] Bail is denied under the public safety component only if the applicant poses “a ‘substantial likelihood’ of committing an offence or interfering with the administration of justice, where this ‘substantial likelihood’ endangers ‘the protection or safety of the public’ and when it is ‘necessary’ for public safety”: R. v. J.J., 2020 ONCA 280, at para. 12, citing R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 at p. 737.
[17] I do not see the applicant as a public safety risk and take reassurance in the fact that the trial Crown did not seek to revoke his bail after he was convicted and leading up to the sentencing on January 16, 2025. I am buttressed in that view by the applicant’s considerable progress in rehabilitation. While in custody, he completed several programs that taught him “core life skills.” While out on bail in March 2024, he attended a 35-day in-patient substance abuse recovery program at De Novo Treatment Centre in Huntsville, Ontario. He has been regularly engaged with a psychotherapist/social worker through the Métis Nation of Ontario Wellness and Wellbeing program. There are letters of support from these institutions. His release plan is solid and includes GPS monitoring conditions, which I believe attenuates any public safety concerns in this case: see J.J., at para. 27.
(b) Public Confidence in the Administration of Justice
[18] The application for bail pending appeal therefore turns on the analysis of the public confidence element. There is no doubt that these are very serious offences, which weigh heavily on the enforceability component in the public interest analysis.
[19] Public confidence in the administration of justice requires that judicial decision-making be reviewed and corrected, especially when an individual’s liberty is at stake: Farinacci, at p. 48; R. v. Manasseri, 2013 ONCA 647, at para. 42. I now turn to assess the grounds of appeal and their weight in balancing the reviewability interest.
[20] The applicant’s essential argument is that the motion judge did not address and gave no weight to the unexplained police failure to advise him promptly of the reason for his arrest, as required by s. 10(a) of the Charter.
[21] The motion judge dismissed the claim that the police violated the informational component of s. 10(b) when they failed to read the applicant his rights to counsel until 10:32 a.m. The motion judge found that “his rights to counsel were given roughly 11 minutes after his arrest, which is not an inordinate delay, in my view”: at para. 50. The applicant points to three problems with this assessment. First, it is factually incorrect, since the applicant was not informed of his right to counsel until about 20 minutes after his arrest. Second, without any explanation, the police failed to inform the applicant immediately of his right to counsel. Third, the applicant points out that “the motion judge failed to incorporate the fact that the Applicant never spoke to counsel into his analysis.”
[22] The applicant argues that the motion judge was obliged to take the s. 10 breaches more seriously, and to combine them with the strip search s. 8 breach, in deciding whether the drugs found in the car ought to have been excluded by the analysis under s. 24(2) of the Charter: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Instead, the applicant argues that the motion judge “improperly silo-ed the s. 10 breach from the s. 8 breach involving the manner of the strip search.” The applicant argues that the exclusion of the evidence obtained during the strip search “did not entitle the motion judge to ignore that conduct in assessing the admissibility of the evidence from the vehicle search.” The applicant submits that both the s. 8 and s. 10(b) Charter breaches were contextually connected to the discovery of that evidence. The motion judge’s requirement that there be a causal link is implicit in his statement that “[t]here was no connection between the s. 10 breach and the discovery of the evidence in the Dodge Charger vehicle”: at para. 79. The applicant argues that this requirement was improper, especially in view of Zarnett J.A.’s observation in R. v. Jarrett, 2021 ONCA 758, at para. 55, that the trial judge in that case “placed undue emphasis on the lack of a causal connection between the seizure and search of the fanny pack and the s. 10(b) breach.”
[23] The applicant’s argument that the s. 24(2) analysis is required to be more holistic has support in the jurisprudence. The panel hearing this appeal will have to decide whether the motion judge’s approach was deficient and whether the Charter breaches require that all of the evidence should be excluded, including the drugs found in the car. If that were to be the outcome of the appeal, then the applicant would have served part of his custodial sentence before this court determined that the conviction upon which it was based was unlawful.
(5) Disposition
[24] I must balance the grounds of appeal and their weight in the reviewability interest against the enforceability interest.
[25] A reasonable member of the public, one who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values, would recognize that neither the possibility of the applicant’s flight, nor his possible risk to public safety have any role to play in balancing the reviewability interest against the enforceability interest. I see this application for bail pending appeal as a close call. The grounds of appeal carry significant weight. They are not weak, as the Crown submits, but are moderate in strength and could realistically lead to an acquittal on appeal. This possibility engages the liberty interest, which guards against imprisonment for those whose conviction might be unlawful. Although the offences are very serious and fentanyl is a scourge, granting the applicant bail would be consistent with public confidence in the administration of justice, in ensuring that the law is respected.
[26] The bail order in the form agreed to by the Crown and the applicant may be issued with the highlighted GPS warning filed by the Crown appended.
“P. Lauwers J.A.”