Ontario Court of Justice

Date: 2024 08 08 Court File No.: Toronto Region 4810-998-22-10005992-00 4810-998-24-48110213-00 4810-999-22-10000736-00

Between:

HIS MAJESTY THE KING

— AND —

Ashton BELL

Before: Justice S. Chapman

Hearing on: May 27, 28 and 29, 2024 Reasons for Judgment on the Charter Application released on: August 8, 2024

Counsel: T. Di Muzio, for the Crown D. Sarikaya, for the accused Ashton BELL

CHAPMAN, J.:

I. Introduction

[1] Mr. Bell stands charged with a number of serious firearms related offences. The critical evidence against Mr. Bell was obtained because of a search that was incidental to his arrest following a stop for a traffic offence.

[2] At the outset of trial, he brought an application seeking the exclusion of evidence, namely the firearm found on his person, pursuant to section 24(2) of the Charter, based on alleged breaches of sections 8, 9, 10(a) and 10(b). The Applicant submits that all of his interactions with police, from the decision to initially investigate and stop him to the decision to search and arrest him, were tainted by racial profiling.

[3] The Crown submits that there was no breach of the Applicant’s sections 8 and 9 Charter rights. The Crown rejects the idea that the police interactions with Mr. Bell were motivated, either consciously or subconsciously, by race or racial stereotyping. The Crown does concede that there was a breach of the implementational component of section 10(b) of the Charter on the basis of a delay in facilitating Mr. Bell’s call to counsel but submits that the administration of justice is best served by the admission of the firearm into evidence.

[4] Both parties agree that the determination of the section 24(2) Charter application is determinative of the outcome of the case; it will lead to either a conviction or an acquittal.

II. Overview of the Evidence

[5] In the early afternoon of October 11, 2022, Mr. Ashton Bell, the Applicant, was downtown Toronto driving a black Nissan car on Queen Street when PC Proctor asked his partner to do a database search of his license plate. Mr. Bell was then stopped by PC Proctor and PC Slatter, pursuant to section 216(1) of the Highway Traffic Act (HTA), after the officer received information through the police database that a person associated to the Nissan had a ticket issued in that car and had an “unlicensed” driving status. PC Proctor received a further caution through police database checks that the person associated to the car was “armed and dangerous” and possibly in possession of a firearm.

[6] At the time of the stop, the Applicant was in the driver’s seat of the Nissan and had a satchel slung over his left shoulder. There were two female passengers in the car. When PC Proctor asked the Applicant to produce his driver’s license, he initially motioned with his right hand toward the area of the glove compartment, as if he was going to retrieve it, but then stopped. When PC Proctor asked again, the Applicant advised the officer that he did not have a driver’s license. Further, he declined to identify himself.

[7] The Applicant was subsequently arrested pursuant to the HTA. A search of his satchel incident to arrest revealed that he was in possession of a prohibited weapon, a loaded semi-automatic firearm with the serial numbers altered, while in a car and while bound by a lifetime weapons ban. The Applicant was arrested on scene for driving without a license and possession of a firearm and was given his rights to counsel within three minutes of his arrest. However, approximately two and a half hours passed before a call was made to his lawyer.

[8] As a result of being found in possession of a firearm, he stands charged with nine Criminal Code offences including: possession of a firearm without being the holder of a licence (section 91(1)); unauthorized possession of a firearm, knowing it is unauthorized (section 92(1)); unauthorized possession of a firearm in a motor vehicle (section 94(1)); possession of a loaded firearm (section 95(1)); possession of a firearm knowing that the firearm has been obtained by the commission of an offence (section 96(1)); careless storage of a firearm (section 86(1)); possession of a firearm knowing the serial number has been defaced (section 108(1)(b)); possession of a firearm contrary to a prohibition order (section 117.01(1)); and, possession of ammunition contrary to a prohibition order (section 117.01(1)). The Applicant was also charged with driving while his license was suspended contrary to section 53(1) of the HTA.

III. The Legal Principles that Govern

A. Section 9 of the Charter: Arbitrary Detention

Overview

[9] Section 9 of the Charter guarantees to everyone “the right not to be arbitrarily detained or imprisoned”. The police need articulable cause, meaning a reason legitimately connected to highway safety concerns, in order to stop a motorist: R v. Gonzales, 2017 ONCA 543 at para. 55. Articulable cause exists where the grounds for stopping the motorist are reasonable and can be clearly expressed: R. v. Wilson, [1990] 1 S.C.R. 816, 1990 SCC 109, 56 C.C.C. (3d) 142.

[10] If a police officer stops a person based on the colour of their skin (or on any other discriminatory basis) the purpose is improper and not an articulable cause: Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 (C.A.), 1998 ONCA 7198 at p. 238. An otherwise lawful detention or arrest is rendered arbitrary whenever the police conduct is “tainted by any degree of racial profiling”: R. v. Sitladeen, 2021 ONCA 303 at para. 52; R. v. Dudhi, 2019 ONCA 665 at paras. 62-63; R. v. Le, 2019 SCC 34 at para. 78. This then requires a consideration of what is meant by racial profiling particularly in the context of section 9 of the Charter.

Racial Profiling

[11] Racial profiling in policing, and its implications in a Charter analysis, has been the subject of study and comment on many occasions: see for instance, D.M. Tanovich, “Applying the Racial Profiling Correspondence Test” (2017), 64 C.L.Q. 359; Margaret Gittens & David Cole, co-chairs, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen’s Printer, 1995) and A.C. Hamilton & C.M. Sinclair, Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, Vol. 1 (Winnipeg: Queen’s Printer, 1991).

[12] In its decision in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court recognized that, in a section 9 Charter detention case, the legal standard on which detention is measured must account for the diverse realities of those who are subject to police actions: “A growing body of evidence and opinion suggests that visible minorities and marginalized individuals are at particular risk from unjustified ‘low visibility’ police interventions in their lives”. (at para.154)

[13] Similarly, in Peart v. Peel Regional Police Services (2006), 2006 ONCA 37566, leave to appeal to SCC refused, , Doherty J.A. commented on “an acceptance by the courts that racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it”. (at para. 94)

[14] Racial profiling is “primarily concerned with the motivation of the police”: Le, supra. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment”: Le, supra. In R. v. Parks (1993), 1993 ONCA 3383, 15 O.R. (3d) 324 (C.A.), at p. 342, Doherty J.A. provided the following guidance:

Racism, an in particular anti-black racism, is a part of our community’s psyche. A significant segment of our community hold overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate these negative stereotypes.

[15] The reasons in Le make clear that racial profiling may be unconscious, meaning implicit attitudes or stereotypes that affect decisions without awareness. However, the jurisprudence in this area also refers to racial profiling that is subconscious, which is a broader notion and involves processes beneath the level of conscious awareness that influence perceptions and judgments. Subconscious racial profiling describes biases operating outside of conscious control: R. v. Ali, 2023 SKCA 127 (Ali) at para. 52.

[16] Significantly, in Le Brown and Martin JJ. distinguished between racial profiling, which concerns the motivation of the police, and “the place and purpose of race as a consideration in the detention analysis” under section 9 of the Charter, which calls for an analysis of the interaction from the contextualized perspective of the private citizen. The majority of the highest court described the detention-stage analysis as a wide-ranging inquiry involving factors drawn from outside the objective interaction between the police and a private citizen:

[75] At the detention stage of the analysis, the question is how a reasonable person of a similar racial background would perceive the interaction with the police. The focus is on how the combination of a racialized context and minority status would affect the perception of a reasonable person in the shoes of the accused as to whether they were free to leave or compelled to remain. The section 9 detention analysis is thus contextual in nature and involves a wide-ranging inquiry. It takes into consideration the larger, historic, and social context of race relations between the police and the various racial groups and individuals in our society. The reasonable person in Mr. Le’s shoes is presumed to be aware of this broader racial context.

[76] In contrast, the concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or subconsciously, to any degree in suspect selection or subject treatment (Ottawa Police Service, Racial Profiling (June 27, 2011), Policy No, 5.39, at p. 2).

[17] In R. v. Sitladeen, supra, the Court of Appeal for Ontario remarked at paragraph 53, that:

“It is the role of the trial judge in such cases to consider all the circumstances that led to an accused’s detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law. The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer”.

[18] The onus in a Charter application such as this one, is on the Applicant who must establish, on a balance of probabilities, that racial profiling occurred in their interaction with police. In Peart v. Peel Regional Police Services (2006) 2006 ONCA 37566 (Peart) Doherty J.A. explained that an applicant seeking to meet this onus may be assisted by “social” facts alongside the evidence of the police interaction:

[95] Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding the police action that is said to be the product of racial profiling. The courts, assisted by various studies, academic writings, and expert evidence have come to recognize a variety of factual indicators that can support the inference that the police conduct was racially motivated despite the existence of an apparent justification for that conduct: [R. v. Brown (2003), 2003 ONCA 52142, 173 CCC (3d) 23 (Ont.CA) at paras. 44-46]

[96] The indicators of racial profiling recognized in the literature by experts and in the caselaw can assist a trier of fact in deciding what inferences should or should not be drawn and what testimony should or should not be accepted in a particular case. Those indicators, sometimes referred to as “social” facts, however, cannot dictate the findings that a trier of fact will make in any given case. Findings of adjudicative facts, that is the “who”, “what”, “why”, “when” and “where” of any given case, grow out the trier of fact’s assessment of the evidence adduced in the particular case. Findings of adjudicative facts cannot be preordained by evidence that is intended to provide the appropriate social context in which to assess the evidence and make findings of the relevant adjudicative facts: see R. v. Spence (2005), 2005 SCC 71, 202 CCC (3d) 1 at paras. 56-58 (SCC).

[19] The Applicant, Mr. Bell, has the onus of establishing, on a balance of probabilities, that the police had either consciously or subconsciously used race as an indicator of potential unlawful conduct on his part by attributing a propensity for criminality to him due to his race. There is no presumption of racial profiling. To draw the inference, the trial court must be persuaded that the evidence of the police action that is said to be the product of racial profiling, and the evidence of the circumstances surrounding it, establish that it is more probable than not that that action was racially motivated in some way: Ali, supra, at para. 55.

[20] In terms of what must be shown to establish a claim of racial profiling, in R. v. Brown (2003), 170 O.A.C., the Court articulated the following test at paras. 7 and 44:

Where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling. I accept that this is a way in which racial profiling could be proven.

B. Section 8 of the Charter: Unreasonable Search and Seizure

[21] Section 8 of the Charter protects individuals against unreasonable search and seizure. The purpose of section 8 is to protect the property and privacy rights of persons against unwarranted incursions by the state. The reasonable expectation of privacy protected varies with the circumstances of each case.

[22] Once an Applicant has established that a warrantless search took place, the onus shifts to the Crown to demonstrate that the search was reasonable and justified in the circumstances. A pat down search pursuant to a lawful detention is itself lawful for safety purposes. During an arrest, a search incident to arrest including one’s belongings is lawful if carried out in a lawful manner and public or police safety issues exist.

[23] In this case, if there was no section 9 breach in arresting Mr. Bell then the officers were lawfully empowered to search the Applicant incident to arrest. However, if there was a breach of section 9 in the initial detention and arrest then the lawful basis for the search disappears. Further, even if there was authority to conduct the search, if the exercise of the police discretion was tainted by racial profiling, or if the manner of the execution of the search is excessive, then there could still be a breach of the Applicant’s section 8 Charter rights.

C. Section 10(a) and (b) of the Charter: The Right to Counsel

[24] Section 10(b) of the Charter guarantees that everyone arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right. When, after being informed of that right, a detained person seeks to exercise it, subject to few exceptions, such as concerns for officer safety or public safety, the police must immediately provide them with a reasonable opportunity to speak with counsel: R. v. Suberu, 2009 SCC 33 at para 42.

[25] The implementational duty requires police to provide an arrestee with the opportunity to contact counsel “as soon as practicable”; however, they are not ordinarily required to provide a cellphone to an arrestee while inside a police cruiser. The right to counsel requires privacy, which is not necessarily compatible with the use of a cellphone in the back of a police cruiser: R. v. Stafford, [2014] S.J. No. 772 at para. 47.

IV. Analysis

A. Overview

[26] In R. v. Nolet, 2010 SCC 24 the Supreme Court of Canada recognized that it is necessary for a court “to proceed step by step through the interactions of the police and [a private citizen] from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry” (at para. 4).

[27] At their core the Charter claims of the Applicant is the submission that the police investigation and subsequent interactions with Mr. Bell were racially motivated. This necessarily involves answering a number of questions including: Were the police justified in deciding to investigate the Applicant?; Were the police justified in stopping the Applicant?; Did the police act reasonably in directing the Applicant to get out of his car?; Was the subsequent arrest lawful?; Were any of these decisions made by police during the course of this investigation in part due to conscious, unconscious or subconscious racial bias?

[28] Traffic stops involving young black men are precisely the kind of police interactions that require careful scrutiny. Whether the facts correspond to the phenomenon of racial profiling the court must consider a cluster of factors as identified in the jurisprudence, including but not limited to: when the officer became aware of the suspects’ race or skin colour; the area where the suspect was investigated including it notoriety, if any, for criminal activity; the suspect’s behaviour before the officers’ decision to investigate; whether the officer was, at the time of the decision to investigate and/or detain was made, engaged in general patrol or whether they were investigating a specific offence that already occurred or was in the midst of occurring; any comments made by the officer during the course of the investigation which reflect stereotyping based on race or skin colour; the officers articulated basis for the decision to investigate and any other aspects of the officer’s testimony that may shed light on what was happening at the time that they made the decision to investigate; and, the absence of objective grounds to investigate, and even if there are objective grounds that support the decision to investigate any other evidence that might point to the decision to investigate being tainted by racial profiling.

B. Was the Decision to Investigate the Applicant Racially Motivated?

Overview of The Issue

[29] The Applicant submits that the police decision to do a database search of the licence plate of the car he was driving was a random search and racially motivated. There was no reason to suspect anything wrong with the licence plate on the car the Applicant was driving. The Applicant suggests that this is an illustration of the well-known racial profiling factor of “driving while black”.

[30] It is the initial decision to investigate the Applicant’s car plates that has caused me the greatest pause in assessing the claim of racial profiling in this case. Once the officers were in possession of the information obtained through the police database search, there was a definite bona fides to how they approached the situation for reasons elaborated upon below.

[31] The arresting officers gave evidence as to why they made the initial decision to run the plates on Mr. Bell’s car. If I were to reject their explanation as untrue or inaccurate or even un-insightful that finding could, by inference, lay the foundation for a claim of racial profiling. After much anxious consideration I have determined that though I am suspicious of the reason for PC Proctor’s decision to ask his partner to run the plate on Mr. Bell’s car, I am not convinced on a balance of probabilities that it was racially motivated, either consciously, unconsciously or subconsciously.

The Facts

[32] PC Proctor testified that he and his partner PC Slatter were on general patrol in the Parkdale neighbourhood of Toronto on October 11, 2022. They were driving on Queen Street West near Fuller Street at approximately 11:58 a.m. when they saw a Nissan Altima with a blue license plate marked CMDS 201 headed westbound. PC Proctor was driving and noticed the blue plate, having encountered one the day before that turned out to be fake. He asked his partner to “run” the plate.

[33] After conducting a police database check on the license plate, the officers’ received information that the Nissan was registered to a numbered Ontario company. In addition, they received information that Daishon Campbell is associated to the car and had a ticket issued while in it. The status of Mr. Campbell’s driver’s license was noted as “unlicensed”. A CPIC or Versadex caution indicated that Mr. Campbell was armed and dangerous and possibly in possession of a firearm.

Analysis

[34] The police don’t need a reason to run a motorist’s license plate. They are at liberty to do so as part of their routine patrol of the streets. That being said, they aren’t at liberty to do so for some improper reason, such as due to the skin colour of the driver.

[35] PC Proctor testified that he first noticed the Applicant’s car because it had a blue license plate. The day before he and his partner, again PC Slatter, had stopped a car with a blue license plate and found it to be a fake. He testified that this was why blue license plates were top of mind.

[36] However, I would note that the day before the officers stopped a driver with a blue plate that started with CF whereas the officers knew blue plates start with the letters CM. It was the letters associated with the blue plate and not just the color of the plate that lead to their justified suspicions the day before. The plate on Mr. Bell’s car started with CM and was therefore not suspicious for that reason. However, PC Proctor also testified that the subdued colour of blue plate makes it easier to fake. Again, this is why blue plates were top of mind.

[37] Though the officer’s testimony as to why he decided to investigate the Applicant’s plate is weak it does have an air of reality to it. Disclosure confirms that they did indeed deal with a fraudulent blue plate the day before and this could explain why blue plates were top of mind for Officers Proctor and Slatter.

[38] Officer Proctor testified that he did not initially see the driver of the car with the blue plates, just the car and the blue plates. It may have been due to the glare of the sun that he did not see the driver. He was focused on reading out the marker to his partner so that his partner could run them on the police database which is what he did. It was at that point the officer received information that was relevant to their subsequent dealings with the Applicant. The officer was unsure if his partner had reported back to him the results of the database search before or after Mr. Bell drove by and he got a glimpse of him through the side window. It was then that he noted a description. It was the results of the database search of the car marker, and not the colour of Mr. Bell’s skin, that caused him to investigate further.

[39] As the case law has made plain, if a claim of racial profiling has merit it will most often be proven by inferences drawn from all of the circumstances of the interactions between the police and the target. For example, in the case of R. v. Brown (2003), 2003 ONCA 52142 Morden J.A. observed, at para 44, that racial profiling can seldom be proven by direct evidence. Most officers would admit to being influenced by racial stereotyping in exercising their discretion to stop a motorist. As a result, racial profiling must usually be proved based on inferences from circumstantial evidence. The “absence of objective grounds for detention, or the fabrication of grounds, can lead to an inference that the detention was racially-motivated.”

[40] I take this to mean that where the circumstantial evidence provides a basis for a court to infer that the police officer is lying or even truthful but un-insightful about why he or she singled out the accused person for attention this fact alone could support a finding that the stop was based on racial profiling. In applications such as this one it is most often the suggestion that the stop itself was a pretext. In this case, I am considering the earlier decision to run the plate. Similar considerations apply.

[41] The officer has provided an explanation for why he asked his partner to do a database search of the blue plate. He also testified that he had not yet seen the driver when he was reading out the plate marker. I accept his testimony in this regard. He was unshaken in cross-examination and there is nothing in the circumstances of the interaction that undermine or contradict his testimony. Nor is it inherently implausible. It was a very short time that the officer had to read out the plates to his partner and once he had done so further investigation was warranted.

[42] A factor that initially caused me some concern that there might be a racial aspect to the investigation in this case was PC Proctor’s testimony in cross-examination that he works with black officers. On its face this seems to be the “some of my best friends are black” defence, so often relied upon by those facing accusations of racism. Indeed, it can be a shorthand for a weak denial of bigotry. At the very least it demonstrates the absence of thoughtfulness and rigor in conversations about racism. Afterall, it’s a myth that proximity to blackness immunizes white people from doing racist things. The fact that there are some black police officers on a police force does not mean that other members of the force, who may work with them, are thereby unlikely to be racist. It may be that routine exposure can help reveal and even alleviate one’s stereotypical thinking about members of another race. But it by no means immunizes one against bias. And to think that it does shows a lack of insight. That being said, however unsophisticated the officer’s comment might be, it does not on its own or in conjunction with other evidence in this case, lead to the inference that there was a racial motivation in this investigation. I find that the officer was simply becoming defensive in cross-examination and said something inane.

[43] I am not convinced on a balance of probabilities that the decision to investigate the Applicant was tainted by racial discrimination.

C. Was the Initial Stop Authorized by Law?

The Issue

[44] Was the initial stop authorized by law? Even if it was apparently authorized by law, was it nonetheless tainted and rendered arbitrary by virtue of racial profiling?

The Evidence

[45] After having received the information from the police database search, including the caution that a driver associated with the car was unlicensed, PC Proctor turned his scout car around to follow the Nissan to determine whether Mr. Campbell was driving. However, they briefly lost sight of the car. After a few minutes, and at approximately 12:05 p.m., the officers saw the Nissan again, at first behind, then beside and finally in front of their marked police car. The Nissan was stopped in the left turning lane at a red light at the intersection of Windermere and the Queensway. A traffic stop was initiated.

[46] PC Proctor got out of his car and approached the driver of the Nissan. The officer told the driver of the car that he stopped the car because he has information that a person associated to this car may not have a license. PC Proctor asked the driver for his license. Mr. Bell then reached for the glove box as if to retrieve his license but didn’t actually do so. PC Proctor asks the driver if it’s his car and the driver told him that it’s a rental. When PC Proctor asked the driver if he had his driver’s license on him, he said “yes”. PC Proctor again asked the driver for his driver’s license and eventually the driver admitted that he did not have a driver’s license. During this interaction, Mr. Bell said something about moving his car and appeared to be looking around for a way to maneuver out from behind the police cars. The officer told him to remain where he was. This is clear on the BWC as well as in the testimony of the officers.

[47] At that point, PC Proctor told the driver to get out of the car and directed him to stand at the rear of the car. The Applicant complied and when he stepped out of the car he had a satchel strapped to his left shoulder. PC Proctor directed him to the rear of the Nissan and asked him to remove the satchel. When the Applicant asked “Why?” the officer responded, “because you’re going to be arrested if you don’t, for driving without a license.” The officer further stated, “you’re a big man, I don’t want to fool around with a big man…”. PC Proctor testified that this comment reflected a human moment; he had already decided to arrest the driver because he had no license and was not identifying himself. The Applicant removed the satchel and handed it to PC Proctor who placed it on the hood of his scout car. The Applicant was arrested for driving without a license at approximately 12:07 p.m.

[48] At the time of the arrest, PC Proctor asked the Applicant to turn around and proceeded to perform a pat down search. Following this search, PC Proctor asked the Applicant to put his hands in front of him, at which point the Applicant attempted to walk away from the officer toward the passenger side of the Nissan. PC Proctor and Slatter then pushed the driver into the rear of the car with their tasers out and told him to stop resisting arrest. Again, this interaction is captured on the BWC.

[49] At approximately 12:08 p.m., PC Proctor sat the Applicant on the curb and advised other officers that the remaining two occupants of the Nissan would have to be investigated. PC Proctor produced his memo book as if about to provide the Applicant with his right to counsel, but he did not do so. When the officer asked the Applicant his first name is, he shook his head and a made a “blowing off sound”. PC Proctor then took the Applicant to his scout car and placed him inside shortly before 12:10 p.m. PC Proctor then searched the Applicant’s satchel, which was still resting on the hood of the scout car, looking for identification, and immediately found a firearm and yelled “gun” to alert those nearby.

[50] PC Proctor returned to the scout car to advise the Applicant that he was under arrest for possession of a firearm. At this point, the officer still did not know the Applicant’s name. Shortly after 12:10 p.m. the Applicant was again advised of the reason for his arrest and was provided with his rights to counsel and cautioned. The Applicant indicated that he understood and gave the officer the name of his lawyer.

[51] At 12:12 p.m. PC Proctor continued to search the satchel and found Mr. Bell’s identification. It wasn’t until PC Proctor further searched the Applicant’s satchel and found an Ontario health card in the name of Ashton Bell, that he learned the identity of the Applicant. The officer testified that he was concerned that Mr. Bell was refusing to identify himself and thereby obstructing the police in their investigation.

Analysis

[52] Pursuant to section 216(1) of the HTA, “a police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.” This section permits an officer to stop a car, even if the stop is random and the officer lacks reasonable and probable ground or reasonable suspicion. In conducting a vehicle stop pursuant to section 216, an officer may require a driver to produce the documents drivers are legally required to have and to check those documents against information contained in police databases. The police are entitled to detain the car and its occupants while performing these checks. See R. v. Gonzales, 2017 ONCA 543 at para. 55. In assessing the lawfulness of the execution of this authority, the trial judge must decide whether the officer formed a “legitimate intention” to make the detention for road safety purposes: R. v. Bzezi, 2022 ONSC 1041 at paras. 17-18.

[53] Further, the police are permitted to arrest without warrant a person who, on reasonable and probable grounds, they believe has contravened various listed sections of the Act: section 217.

[54] It is submitted in this case, by the Crown, that the police conducted a lawful and proper traffic stop of the Applicant’s car pursuant to section 216 of the HTA. Specifically, PC Proctor received the following information prior to stopping the car the Applicant was driving:

• The person associated to the black four door Nissan with Ontario licence plate CMDS 201 had a ticked issued to him while using that car;
• The driving statutes of the person associated to that vehicle was “unlicenced”;
• The person associated to that car was shown on CPIC or Versadex as being armed and dangerous, that extreme caution should be used when dealing with the person and that they are possibly in possession of a firearm.

[55] PC Proctor’s stated purpose for stopping the Applicant’s car was to check the license of the driver, as he was authorized to do so under section 216 of the HTA. I would note that all of the officer’s questions to the Applicant were regarding his license. On some occasions the officer used interchangeably the language of driving without a license and driving suspended. I would note that he went back and forth between these two expressions the day before when dealing with Mr. Hubley who is a white man. I don’t attach any real significance to this fact. It is a colloquial way to refer to the offence.

[56] The officers new that this was a rental car and that it is not uncommon for people with suspended licenses to rent cars. This is a way of concealing their suspended status. The database did not include a photograph of Mr. Campbell and when the Applicant refused to identify himself they had no basis upon which to determine that this was not Mr. Campbell.

[57] The Applicant points to the fact that PC Proctor turned his scout car around on a busy street in Downtown Toronto to follow the Nissan to determine whether Mr. Campbell was driving. The Nissan was eventually stopped in the left turning lane at a red light at the intersection of Windermere and the Queensway. Further, the Applicant points to the fact that PC Proctor made statements that they say are inconsistent with his purported purpose in stopping Mr. Bell. I have considered his evidence as a whole and I do not accept that submission.

[58] I am concerned that PC Proctor frequently muted his Body Worn Camera (BWC). He testified that these events took place not long after the issuing of BWC to officers and it was his initial understanding that it was acceptable to mute the audio when discussing the case with other officers. I would note that he followed the same practice the day before with Mr. Hubley. He doesn’t do this anymore. Though we can’t hear what PC Proctor is saying during large portions of the BWC video of his roadside investigation, we can see him on his phone googling the question: Can you go to jail for driving without a license? The question he was searching on google could be viewed as shorthand for – do I have authority to arrest an unlicenced driver? PC Proctor did not have an explanation for why he was doing this google search as he couldn’t recall doing it. However, I do not think it is a fact from which I can draw an inference that he was making up a reason to arrest the Applicant. He is an experienced officer that testified he is absolutely aware of his ability to arrest a suspended driver and/or someone that is obstructing the investigation by refusing to identify himself. He made his reasons for the arrest clear during his interactions with Mr. Bell and over the radio.

[59] I find that the search of the police database did provide a bona fides reason for the stop of Mr. Bell and it was because of the information revealed that the police pursued this investigation. It also provided the police with a good faith basis for exercising caution in doing so.

D. Was the Request to Leave the Car and/or the Subsequent Arrest Lawful and Justified?

The Issue

[60] Did the police violate Mr. Bell’s section 9 rights when they asked him to get out of the car? Or was the request justified in all of the circumstances as reasonably necessary? Was the decision to ask him to leave the car either on its own, or in conjunction with the use of handcuffs and subsequent arrest, an example of an “over-reaction” and sudden intensification of the investigation as evidence of racial profiling?

[61] In R. v. Aucoin, 2012 SCC 66, [2012] 3 SCR 408 the highest court provides the following direction:

[35] To be clear, I do not see this case as turning on whether Constable Burke had the authority to detain the appellant in the rear of his police cruiser, having lawfully stopped him for a regulatory infraction. Rather, the question is whether he was justified in exercising it as he did in the circumstances of this case.

[36] The existence of a general common law power to detain where it is reasonably necessary in the totality of the circumstances was settled in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725. That case moved our jurisprudence from debating the existence of such a power to considering whether its exercise was reasonably necessary in the circumstances of a particular case. As Abella J., for the majority, observed:

The determination will focus on the nature of the situation, including the seriousness of the offences, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk. [Emphasis added; para. 31]

[62] In order to determine whether or not the police were justified in requiring the Applicant to first get out of his car and then to subsequently arrest him, it is necessary to consider their evidence and the information known to them at that time.

The Facts

[63] The facts relevant to this legal issue are set out in paragraphs 46 to 49 above.

The Analysis

[64] The Applicant submits that the decision to direct him out of the car and his subsequent arrest were unjustified and tainted by racial profiling. They point to the fact that Daishon Campbell’s alleged association with the car was unclear. Most importantly, the Applicant is not Daishon Campbell and doesn’t look like him. Further, the fact that it was a rental car only served to call into question the idea that any one person would be associated with it.

[65] I find that the police decision to ask Mr. Bell to get out of the car was done in order to assist in the traffic offence investigation and not for some other purpose. The request was justified. Mr. Bell declined to provide any licensing documentation and refused to identify himself orally. It wasn’t until PC Proctor further searched the Applicant’s satchel and found an Ontario health card in the name of Ashton Bell, that he learned the identity of the Applicant.

[66] More importantly, he was being deceptive with the officers. He acted as if he was reaching for a license in the glove compartment and only eventually admitted that he didn’t have one. He also told PC Proctor that he was just going to move the car and started looking around for an opening. PC Proctor told him to remain where he was. PC Proctor referred to this as possible “target planning”, ie when a suspect is looking for a way to flee.

[67] The Applicant brought the window on the driver’s side up part way and the officers were having some difficulty seeing inside the car. There was a caution associated with the driver of the car. The officers observed Mr. Bell to be using his right arm to pin the cross body satchel against his waist as if he was protecting it. The officer testified that he wanted to deal with the driver in a more sterile environment than in the obscured interior of his car. These factors motivated the officer to first ask him to get out of his car and then to handcuff Mr. Bell in the front. When Mr. Bell resisted being handcuffed and started to walk away that caused the officers to handcuff him to the rear instead.

[68] The Applicant seeks to compare and contrast the police officers’ interactions with Mr. Bell on October 11 with their interactions with Mr. Hubley the day before. I find the two scenarios very different in some important respects, most significantly the content of the database information and caution associated with the car being driven by the Applicant. The information the police learned from the database search clearly distinguished this case from the one they had dealt with the day before.

[69] The police were justified in asking Mr. Bell to step out of his car, and then subsequently arresting him, based on the information known to them at the time of the arrest and their interactions with Mr. Bell. The factors identified by PC Proctor were rationally capable of supporting the logical inference that Mr. Bell was arrestable pursuant to the HTA and/or for obstructing the investigation by refusing to identify himself. I do not think those reasons were tainted by racial profiling.

D. Was the Search Incident to Arrest Lawful?

The Issue

[70] The Applicant argues that the search of his person, conducted incident to his arrest, was unlawful. In addition to the allegation of a section 9 Charter breach, the Applicant submits that the search was not necessary and done for a discriminatory purpose.

The Evidence

[71] The Applicant’s satchel was strapped over his shoulder from the moment the officer commenced his interaction with him. Officer Proctor asked the Applicant to remove the satchel and he was reluctant to do so, asking the officer “Why”. Officer safety was clearly an issue given the police caution. Further, PC Proctor can be heard on the BWC expressing his concern about the physical size of the Applicant. I would note that the Applicant is a large man. The Applicant also started to walk away as PC Proctor attempted to place handcuffs on him, which required the intervention of other officers. In the context of this arrest it was reasonable for PC Proctor to search the satchel.

[72] At the time of the initial arrest, that is at approximately 12:07 p.m., PC Proctor asked the Applicant to turn around and proceeded to perform a pat down search. Following this search, PC Proctor asked the Applicant to put his hand in front of him, at which point the Applicant attempted to walk away from the officer and toward the passenger side of the Nissan. PC Proctor and Slatter then pushed the driver into the rear of the car with their tasers out.

[73] At approximately 12:08 p.m., PC Proctor sat the Applicant on the curb and advised other officers that the remaining two occupants of the Nissan would have to be investigated. PC Proctor produced his memo book as if about to provide the Applicant with his right to counsel, but he did not do so. When the officer asked the Applicant his first name is, he shook his head and did not respond. PC Proctor then took the Applicant to his scout car and placed him inside shortly before 12:10 p.m.

[74] At approximately 12:10 p.m., PC Proctor returned to the front of his scout car and looked in the Applicant’s satchel, which was still resting on the hood of the scout car. Immediately after opening the satchel, PC Proctor observed a handgun and yelled “gun” to alert those nearby. The officer returned to the scout car to advise the Applicant that he was now also under arrest for possession of a firearm. At this point, the officer still did not know the Applicant’s name. Shortly after 12:10 p.m. the Applicant was again advised of the reason for his arrest and was provided with his rights to counsel and cautioned.

The Analysis

[75] The search incident to arrest was lawful and justified. Mr. Bell was being evasive with the police. He deliberately sought to mislead PC Proctor with respect to the status of his license. He told the officer he was going to move his car and started looking around for an exit strategy. He steadfastly refused to identify himself, either orally of by documentation, throughout his interactions with police. He is a very large man and when he started resisting being handcuffed, the police were understandably concerned for public safety and justified in using a greater show of force. The police were entirely justified in asking him to remove his cross-body satchel as part of the pat down search done incident to arrest. They were also justified in looking into that satchel for identification when Mr. Bell refused to identify himself. There was no breach of Mr. Bell’s section 8 Charter rights.

F. The Breach of s. 10(b) of the Charter

The Issue

[76] Was the Applicant’s section 10(b) Charter right violated and if so in what manner? Was the roadside delay in implementation justified? Was the subsequent delay of 2.5 hours at the station justified? In this case, though the Applicant asked to speak with counsel, he was not given the opportunity to do so prior to 3:39 p.m.. The police therefore breached the Applicant’s rights under s.10(b). This is properly conceded by the Crown.

[77] However, the Applicant suggests that the breach was more significant than that conceded by the Crown. He submits that his detention was not a traffic stop, that was a mere pretext, thereby violating his section 10(a) rights. Further, they submit that both the information and implementational components of s.10(b) of the Charter have not been complied with.

The Evidence

[78] Mr. Bell was detained when his car was stopped at 12:05 p.m. PC Proctor testified, and I accept, that he arrested Mr. Bell pursuant to the HTA at 12:07 pm. After sitting the Applicant on the curb, PC Proctor’s BWC captures him taking out his memo book as if to provide the Applicant with his rights to counsel at 12:08 p.m. However, when the Applicant failed to identify himself when asked, PC Proctor placed him in the back of the police cruiser shortly at 12:10 pm.

[79] PC Proctor then returned to the front of his scout car and looked in the Applicant’s satchel for his identification. He observed a firearm. The officer immediately returned to advise the Applicant that he was under arrest for possession of a firearm. A few seconds later PC Proctor again advised the Applicant that he was under arrest for driving without a licence and possession of a firearm and read him his rights to counsel. They delay between the Applicant’s arrest and the reading of the rights to counsel was approximately three minutes.

[80] After being informed of his right to counsel at 12:10 p.m. Mr. Bell asked to speak to counsel and provided the name of his lawyer. While at the scene the officers attended to a number of tasks including clearing the firearm. PC Proctor and PC Slatter left the scene with the Applicant at approximately 12:45 p.m. and arrived at the sallyport area of 11 Division at approximately 1:02 p.m. The officers permitted the Applicant to smoke a cigarette and he was then brought inside where the booking process began at approximately 1:12 p.m.

[81] At approximately 3:39 p.m., PC Proctor left a voicemail message for Kim Scofield’s office requesting that someone call back to speak with the Applicant. Prior to making this call, PC Proctor was waiting for information from the Major Crime Unit regarding public safety issues with respect to the Applicant. The officer was also completing the paperwork.

[82] At 4:09 p.m. counsel of choice returned the call, and the Applicant was placed in an interview room to have a private conversation with his lawyer. The Applicant finished the call with his lawyer at 4:34 p.m.

The Analysis

[83] I do not accept the Applicant’s submission that the three or four minute delay from the time Mr. Bell was detained to the time he was provided with the rights to counsel violated the immediacy requirement of the informational component of sections 10(a) or 10(b). The arrest was made on a busy public thorough fare. The arrest was dynamic and with the finding of a firearm the police were rightly concerned about their safety and the safety of the public. The short delay at the roadside was warranted.

[84] After being provided with the right to counsel at 12:10 p.m., a call was not made to his lawyer until 3:39 p.m. The police were justified in holding off until after their arrival at the police division. Clearly the subsequent delay of nearly 2 hours and 18 minutes at the station [1:11 to 3:39 p.m.] does violate the implementational component of s.10(b). There is no satisfactory explanation for this delay.

[85] PC Proctor testified he was advised that he should have a conversation with a member of the Major Crime Unit prior to facilitating Mr. Bell’s call to counsel. During this discussion he was told to hold off on the call for public safety reasons, though he wasn’t sure specifically why. Then at 3:39 he was given the green light to make the call and he did. PC Proctor testified that he has never been asked to delay a call before. I accept PC Proctor’s evidence on this point, but it does not provide a satisfactory explanation for the delay in implementing the right to counsel. Accordingly, there is a clear breach of section 10(b) of the Charter.

G. Section 24(2): Remedy

[86] Section 24(2) is not an automatic exclusionary rule that mandates the exclusion of evidence whenever it is collected in an unconstitutional manner. The question is whether the admission of the evidence would bring the administration of justice into disrepute. The answer to this question is to be determined by the balancing of three factors: the seriousness of the Charter-infringing conduct, its impact on the Charter-protected interests of the accused, and on society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32 (Grant), at paras. 71, 102-103.

[87] The nature and impact of Charter breaching conduct varies on a spectrum of seriousness. Part of the exercise under section 24(2) is positioning the seriousness of the breach, and the extent to which the breach undetermined the interests of the protected right, along a continuum. The more likely the seriousness of the breach and its impact, the more likely the evidence will be excluded.

[88] Some of the general principles gleaned from the post – Grant case law include the following:

• The objective [of section 24(2)] is not to assign blame, punish the police, or even deter future Charter breaches, but rather to “preserve public confidence in the rule of law and its processes”: Grant at paras. 70-73; R. v. Whittaker, 2024 ONCA 182 (Whittaker), at para. 29;
• The focus of the section 24(2) analysis must focus on the “broad impact [the] admission of the evidence [would have] on the long-term repute of the justice system: Grant, at paras. 70–73;
• In relation to the first set of factors, the more serious the Charter breach the more it will point towards the exclusion of the evidence: R. v. Beaver, 2022 SCC 54 (Beaver), at para. 120; Whittaker at para. 30;
• Even in circumstances where the second factor does not pull strongly towards exclusion, admission of the evidence may still bring the administration of justice into disrepute: R. v. Le, 2019 SCC 34 (Le) at para 141.
• If the breach is systemic in nature, that renders it more serious. On the other hand, the absence of a systemic problem is not a truly “mitigating” factor: R. v. Jarrett, 2021 ONCA 758 (Jarrett) at paras. 47-48; Whittaker, at paras. 46 and 47;
• As with the first set of factors, the more serious the impact of the breach on Charter protected interests, the more likely vit will pull towards the exclusion of the evidence: Beaver, at para 123; Whittaker, at para 31
• The presence or absence of a causal connection between the violation and the evidence sought to be excluded, while not determinative, is a factor to consider: Whittaker at paras. 50;
• The third factor concerns itself with society’s interest in the adjudication of a case on its merits and asks whether the truth-seeking function of the criminal trial process would be better served by the admission or the exclusion of the evidence. This factor almost always favours admission of the evidence.
• The third Grant factor almost always favours the admission of the evidence. Its pull towards admission is particularly strong where the evidence is reliable and critical to the Crown’s case: R. v. McGuffie, 2016 ONCA 365, at paras. 62 and 62;
• Where the two first lines of inquiry “make a strong case for exclusion”, the third line “will seldom tip the scale in favour of admissibility”; Beaver at para 134. On the other hand, “where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence the administration of justice will not be brought into disrepute by its admission”: Beaver at paras. 117, 133-4; R v. McGuffie, 2016 ONCA 365;
• The third Grant factor should not be subordinated to a position whether it play not practical role in the balancing exercise. Firearms should not be treated as fungible with other pieces of evidence given the lethal threat they present to public safety. On the other hand, there is no firearms exception requiring the automatic admission of guns into evidence: Whittaker at paras. 59 and 60;
• All the factors must be weighed together to assess whether, in all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute.

The Principles Applied

[89] The question to determine is whether the admission of the evidence would bring the administration of justice into disrepute. The test requires a balancing of three prongs: the seriousness of the Charter-infringing state conduct; its impact on the Charter protected interests of the defendant; and society’s interest in the adjudication of the case on its merits: R. v. Whittaker, 2024 ONCA 182.

Seriousness of the Breach

[90] The Crown properly concedes, and I have found, a breach of the implementational component of the section 10(b) Charter right, occasioned by an unexplained delay of 2.5 hours at the station. This is not an insignificant breach. The right to counsel is extremely important for any person under investigation. Some of the delay in this case is attributable to PC Proctor liaising with the Major Crime Unit and looking into additional public safety issues as well as completing paperwork. This is not a satisfactory reason to explain the delay but nor does it demonstrate bad faith or systemic failure.

[91] In the context of a section 24(2) analysis it is important to appreciate the nature and importance of the infringed Charter right. Justice Doherty on behalf of the Court of Appeal for Ontario in R. v. Rover, 2018 ONCA 745, [2018] O.J. No. 4646 was concerned with the police followed a practice that routinely prevented arrested persons from accessing counsel if the police intended to obtain a warrant to search a place for drugs and believed that the place had a connection to the arrested person. The rationale behind that practice was that there is always a possibility that allowing an arrested person to speak to their lawyer could put the officers executing the warrant at risk or jeopardize the preservation of evidence. Under that practice, Mr. Rover, as the occupier of the place to be searched, was prevented from contacting his lawyer, as were two women who had been arrested after seen leaving the premises earlier in the evening. This police practice was found to have replaced the narrow, case-specific exception to the constitutional right to speak to counsel without delay upon arrest with a protocol that routinely delays an arrested person’s access to counsel for an indeterminate period, usually hours, whenever the police, for whatever reason, deem it appropriate to arrest them before applying for a search warrant. The systemic nature of the breach was a factor the court considered in its s.24(2) analysis.

[92] In R. v. Noel, 2019 ONCA 860, [2019] O.J. No. 5612 the Court of Appeal set aside a convictions for drug related offences, having found that the trial Judge erred in her s. 24(2) analysis by diminishing the nature and extent of the impact of a s. 10(b) implementation breach on the Charter applicant. In that case the police executed a dynamic entry into a residence armed with a search warrant. Mr. Noel was present in the home and brought to a certain place in the house within five minutes of the police entry. He was read his right to counsel and asked to speak to a lawyer but no steps were taken to facilitate his right to counsel at that time. Then after he was taken to the station it would seem that no officer took charge of facilitating his right to counsel, though there was some evidence that duty counsel was eventually called and the trial judge inferred that Mr. Noel had spoken to counsel eventually.

[93] The Court of Appeal found that the trial judge committed errors in principle in her s. 24(2) Charter ruling one of which was in relation to her evaluation of the impact of the breach on Mr. Noel. In particular, the court found that the trial judge had misunderstood the relevant protected Charter interest which was not that the right to counsel was denied, but rather that it was delayed. The nature of the right is explained at paras. 23 to 27 as follows:

The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of the detention: R v. Bartle, [1994] 3 S.C.R. 173, 1994 SCC 64, at p. 191; R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41; R. v. Rover 2018 ONCA 745, 143 O.T. (3d) 135 at para. 34.

For example, an arrest and the search of one’s home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity of the search warrant and the scope of the authority that the search warrant gives police. Such information could be useful in preventing an unjustified search, before it happens: R. v. Debot, [1989] 2 S.C.R. 1140, 1989 SCC 13, at p. 1144.

Detention also raises questions of immediate importance relating to the detainee’s rights during detention, including the right against self-incrimination: Bartle, at p. 191; R v. T.G.H., 2014 ONCA 460, 120 O.R. (3d) 581, at para. 4.

Beyond this, the right to counsel is also important in providing “reassurance” and advice, on such questions as to how long the detention is apt to last, and what can or should be done to regain liberty: Debot, at p. 1144; Suberu, at para. 41. As Doherty J.A. said in R. v. Rover, 2018 ONCA 745, 143 O.R. (ed) 135, 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.

[94] Further, the Court in Noel makes clear that the Charter applicant was not required to testify or offer direct evidence why he required access to counsel. He asked to speak to counsel promptly but that right was denied. The Court makes clear at para. 27 that:

In assessing the impact of such breaches, it is not appropriate for courts to plumb the content and significance of the conversations a detainee would have had, if his right to consult counsel without delay had been respected, or to treat such breaches as “quite neutral” in the absence of such evidence. The impact of the loss of the right to consult counsel without delay can be evaluated base on the interests it is meant to protect along with the length of the delay.

[95] In Noel the Court of Appeal determined that the s. 10(b) violation in that case was serious. Three hours passed between the time of arrest and the first confirmed attempt by the police to secure counsel for Mr. Noel. The appellate court was also concerned that no one officer took charge of ensuring that Mr. Noel could speak to counsel as he had requested. The Court was concerned that “from the beginning, the police appear to have had a somewhat cavalier attitude about a fundamental, important, and long-settled charter right to consult counsel without delay” and found the breach in the case “significant” not neutral, as Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance and advice that counsel would provide.

[96] On the other hand, in R v. Hobeika, 2020 ONCA 750, the police offered no real explanation for delaying the implementation of the defendant’s right to counsel when he was held for over four hours before the police took steps to put him in touch with counsel. The trial judge found no breach of s.10(b) in these circumstances but the Court of Appeal reversed that ruling and found it to be a significant breach of the Charter right. Afterall, there could be no suggestion that the police were operating in an area of constitutional uncertainty. However, the Court of Appeal conducted a de novo s.24(2) analysis and decided not to exclude the evidence. The Court makes clear that there is no automatic exclusion rule, upon the finding of a breach of the right to counsel, as the inquiry is specific to the circumstances of the case.

[97] The conduct in this case cannot be characterized as the type of flagrant and deliberate conduct from which courts ought to dissociate themselves. Nor is there a pattern of Charter misconduct in this case. The Charter infringing conduct in this case falls at the less serious end of the spectrum.

Impact of the Breaches on the Charter-Protected Interests of Mr. Bell

[98] The delay in implementing the right to counsel was unexplained in this case. It does not appear to be the product of a systemic failure, such as the policy police adopted in the search warrant context that was disapproved of in Rover. Nonetheless, there are other important constitutional interests protected by section 10(b) beyond the principle of self-incrimination or systemic failing. As observed by George JA, on behalf of the Court in Whittaker, at para. 51:

In addition to providing a safeguard against self-incrimination, contact with counsel also provides a detained person with information about the procedures they will be subject to, advice on questions about how long their detention is likely to be, and guidance on what can and should be done to regain liberty: Noel, at para. 26; Rover, at para. 45; and Suberu, at para. 41.

[99] The right to counsel is very important for any person under investigation. However, there was very little impact on the Applicant in this case. No incriminating utterances were made by the Applicant during this period of time. The right to counsel is geared towards assisting detainees with regaining their liberty and protecting them against the risk of involuntary self-incrimination. In this case, the Applicant did not incriminate himself and his liberty was not jeopardized.

[100] There is no causal connection between any s. 10(b) breach and the firearm in the Applicant’s satchel. This is mitigating, though by no means determinative. The firearm would inevitably have been discovered even if there was no s.10(b) breach: R v. Keshavarz, 2022 ONCA 1839 at para. 115. Overall, the actual impact on the Applicant’s Charter rights was not particularly serious.

Society’s Interest in an Adjudication on the Merits

[101] As is usually the case, this particular factor points towards admission. It in fact points strongly towards admission in this case involving as it does the possession of a loaded firearm by a man that is on a lifetime weapons prohibition. The courts caution against permitting this factor to overwhelm the other two factors relevant to the analysis. Nonetheless, the loaded firearm found in the Applicant’s satchel is highly reliable, real evidence, unaffected by the breach. Society’s interest in including the evidence is enhanced with it is real evidence. Failing to admit the evidence leads to the termination of the prosecution in relation to serious offences: Grant, supra, at para. 79; R v. Campbell, 2012 ONCA 394, [2012] O.J. No. 2602 (C.A.) at para. 18; R. v. Allen, 2017 ONCA 991, [2017] O.J. No. 991 (C.A.) at para 4–9; R v. Omar, 2018 ONCA 975, [2018] O.J. No. 6346 (C.A.); 2019 SCC 32, [2019] S.C.J. No. 32.

[102] The exclusion of the highly reliable real evidence would be more likely to cause the public to lose confidence in the administration of justice, than would its inclusion. Society’s interest in a trial on the merits in the circumstances of this case is very high.

Balancing

[103] Though the first line of inquiry may point towards exclusion, the second and third lines pull toward inclusion. While there was clearly a breach of s.10(b), it was not sufficiently serious to justify the exclusion of the evidence, particularly given the minimal impact on the Applicant’s rights. The breach was not deliberate, wilful or flagrant. The impact on the Applicant was relatively minimal. There was no self-incrimination. After balancing all of the considerations, I find that the Applicant has not met his onus and the evidence will be admitted under section 24(2) of the Charter.

V. Conclusion

[104] In conclusion, I admit the evidence pursuant to section 24(2) of the Charter, and as agreed to by the parties, this leads to Mr. Bell’s conviction on all charges.

Released: August 8, 2024 Signed: Justice S. Chapman