COURT FILE NO.: CR-19-70000006
DATE: 20210709
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Rajindra Becessar
Erin Pancer, for the Respondent
Craig Zeeh, for the Applicant
HEARD: May 17-18, 2021
RULING ON CHARTER APPLICATION
NISHIKAWA j.
Overview
[1] On July 19, 2018, officers of the Toronto Police Service executed a search warrant at the Applicant’s residence on Botavia Downs Drive, Brampton, Ontario. The police located one firearm, $1,880 in Canadian currency and approximately 500 rounds of ammunition.
[2] The Applicant, Rajindra Becessar, is charged with the following firearms offences: trafficking a firearm, unauthorized possession of a firearm, unauthorized possession of a restricted firearm, defacing or removing a serial number on a firearm, and seven counts of possession of a firearm for the purposes of trafficking.
[3] The Applicant, Rajindra Becessar, is charged with the following firearms offences: trafficking a firearm, unauthorized possession of a firearm, unauthorized possession of a restricted firearm, defacing or removing a serial number on a firearm, and seven counts of possession of a firearm for the purposes of trafficking.
[3] Mr. Becessar brings an application under s. 24(2) of the Charter to exclude the firearm, ammunition and Canadian currency seized from his residence, as well as his statement to police, on the basis that his rights under ss. 8, 9 and 10(b) of the Charter were infringed.
[4] The search warrant was obtained based on information provided by Horace Thomas, an individual who knew Mr. Becessar. Mr. Thomas advised police that over the course of a number of months, he had loaned Mr. Becessar seven of his firearms.
[5] The defence’s position is that the police did not have reasonable and probable grounds to believe that Mr. Becessar committed an offence and that evidence of an offence would be found at Mr. Becessar’s residence. The defence’s main contention is that the Information to Obtain (ITO) was misleading because it implied that Mr. Thomas had transferred firearms to Mr. Becessar a few months earlier, when Mr. Thomas stated that he last loaned a firearm to Mr. Becessar over nine months earlier. The defence further submits that the police breached Mr. Becessar’s right to counsel because of a delay of over four hours before Mr. Becessar was able to speak to his counsel. The defence’s position is that the seriousness of the breaches and the impact on Mr. Becessar’s Charter-protected interests outweigh society’s interest in an adjudication of the case on its merits.
[6] The Crown disputes that Mr. Becessar’s Charter rights were breached, and maintains that even if there was a breach, the evidence ought not be excluded because the breach was not serious, the impact on Mr. Becessar’s Charter-protected interests was not significant, and society’s interest in an adjudication on the merits is high.
[7] At the application hearing, the Crown called as witnesses the two Toronto police officers, Detective Constables Lester Rosete and Mark Tan, and two Peel police officers, Police Constables Kevin Wise and Stephanie Paterson. At the hearing, I granted the defence’s application for leave to cross-examine the affiant of the ITO, Detective Constable Bryan Mantle.
Issues
[8] The issues on this Application are as follows:
(a) Were the Applicant’s rights under s. 8 of the Charter breached because the police lacked reasonable and probable grounds that the Applicant committed an offence and that evidence would be located in his residence?
(b) Were the Applicant’s rights under s. 9 of the Charter breached because the police lacked reasonable and probable grounds to arrest the Applicant?
(c) Were the Applicant’s rights under s. 10(b) of the Charter breached because his right to counsel was not implemented immediately upon his arrest?
(d) If the Applicant’s Charter rights were breached, should this court exclude the evidence seized from the Applicant’s residence and/or his statement to police?
The Factual Context
[9] The following provides the background leading to the execution of the search warrant at Mr. Becessar’s residence.
The Investigation
[10] On June 1, 2018, Toronto police arrested an individual named Nicholas Baksh, whom they had been investigating for drug trafficking. During the arrest, police located and seized a Glock 17 handgun from which the serial number had been removed. Police also executed a search warrant at Mr. Baksh’s residence in Brampton.
[11] On July 6, 2018, police recovered two serial numbers for the firearm seized from Mr. Baksh, one serial number for the slide and a different serial number for the receiver/frame and barrel. The firearm database showed the serial numbers belonged to an individual named Horace Thomas, who also resided in Brampton. At the time, Mr. Thomas had not reported any firearms lost or stolen.
[12] On July 10, 2018, the police obtained a search warrant for Mr. Thomas’s residence and his vehicle. The search warrants were executed the following day. Three handguns and one rifle were located in Mr. Thomas’s gun safe. Eight firearms were unaccounted for, including the firearm seized from Mr. Baksh.
[13] Mr. Thomas was charged with eight counts of weapons trafficking. At the police station, Mr. Thomas provided a videotaped statement in which he stated that he had loaned the missing firearms to his friend, Andrew, the name used by Mr. Becessar. Mr. Thomas stated that he believed that Mr. Becessar had a firearms licence and that he had said that he wanted to try to shoot some of his guns at a range.
[14] Background checks on Mr. Becessar revealed two residential addresses associated with him, the Botavia Downs address in Brampton and another address in Mississauga. In addition, Mr. Becessar has two business registered to his name. One is a landscaping business and the other is the Cabana restaurant, which has an address in Mississauga.
[15] On July 12, 2018, police conducted surveillance at the two residential addresses. They noted an unknown female and two vehicles at the Botavia Downs address but no pertinent observations at the second residential address in Mississauga.
[16] The following day, police conducted surveillance at the Botavia Downs address only. They observed two known vehicles parked near the residence. At 7:35 a.m., the police observed Mr. Becessar exit the residence and meet with an unknown male who had parked in the driveway. They unloaded items from the truck and placed them inside the house. No surveillance was conducted at the Cabana restaurant.
The Information to Obtain
[17] On July 16, 2018, Detective Constable Bryan Mantle applied for a search warrant for the Botavia Downs address. The search warrant was authorized by Brownstone J. of the Ontario Court of Justice.
[18] Appendix “C” to the ITO contains the following statements, which I quote verbatim:
• “It’s been at least a year since Horace Thomas gave Andrew Bessessar [sic] the firearms” (para. 34(n));
• “Horace Thomas was last at Andrew Bessessar’s [sic] house maybe before Christmas and didn’t see firearms at that time” (para. 34(o));
• “Horace Thomas last spoke with Andrew Bessessar [sic] about the firearms at the beginning of the year” (para. 34(w));
• “Andrew Bessessar [sic] came to Horace Thomas’s house approximately a year ago and took 2 firearms – a Smith and Wesson .40 calibre handgun and a Keckler and Koch .45 calibre handgun. Andrew Bessessar put them in his car and he went on his way.” (para. 34(x));
• “Two months later, Andrew Bessessar asked Horace Thomas to try two more firearms – Andrew Bessessar came over to Horace Thomas’s house. Horace Thomas gave Andrew Bessessar two more handguns. Andrew Bessessar also asked for .40 calibre ammunition. Horace Thomas gave him two ten round clips loaded with .40 calibre ammunition” (para. 34(y));
• “Andrew Bessessar took 3 more handguns on three separate occasions – last one being in November last year” (para. 34(z));
• “Although Horace Thomas advised investigators that the last guns given to Rajindra Becessar were a few months ago, I believe that Rajindra Becessar is still currently in possession of at least one handgun” (para. 71);
• “It is fair to assume that with all the handguns given to Rajindra Becessar that he would still be in possession of at least one. It is my belief that persons who traffic firearms will arm themselves just due to the mere nature of their criminal activities” (para. 72); and
• “I believe that the police have an obligation and that it’s in the best interest of public safety to search the residence of Rajindra Becessar to try and recover any or all of the seven outstanding handguns given to him from Horace Thomas. (para. 73).
[19] Under the sub-heading “How current are the grounds” is a lengthy paragraph about how, based on the affiant’s training and experience, criminals who make the effort and expense to arm themselves with illegal firearms “are seldom without one.” (Para. 59). The paragraph is general and provides no information as to the currency of the grounds in this case.
The Execution of the Search Warrant
[20] On July 19, 2018, at approximately 2:28 p.m., four officers of the Toronto police service executed the search warrant at the Botavia Downs address. The police had conducted surveillance for 1.5 to 2 hours before executing the warrant.
[21] Mr. Becessar, who was in his garage with an unknown male, was placed under arrest. Detective Constable Lester Rosete, who arrested Mr. Becessar, testified that he gave Mr. Becessar his rights to counsel immediately upon his arrest. Mr. Becessar stated that he wanted to speak with a lawyer.
[22] Before searching the residence, the police had to organize the occupants and ensure their safety. DC Rosete remained with Mr. Becessar while the other officers went to clear the residence. There were a total of four adults and six children at the residence at the time. One adult was the basement tenant, who had an infant and two small children. Mr. Becessar’s three children, ages 18, 16, and 10, were also there.
[23] At approximately 3:00 p.m., the officers contacted Peel police for back-up. Two Peel police officers, Police Constables Stephanie Paterson and Kevin Wise, arrived at approximately 3:15 p.m. DC Rosete testified that PC Wise was asked to remain with Mr. Becessar in the garage and PC Paterson was asked to remain with the children in the living room. The male who was in the garage and the basement tenant and her children were eventually permitted to leave.
[24] Toronto police located a Smith and Wesson .40 calibre handgun in a jacket pocket of a man’s coat in the master bedroom. The serial number was defaced. Police also located $1,880 in Canadian currency in the same jacket. Police also located nine boxes of .40 calibre ammunition, or a total of 500 rounds, hidden in a shop-vac vacuum cleaner in the garage.
Analysis
Were the Applicant’s Section 8 Rights Breached?
The Applicable Principles
[25] Section 8 of the Charter states that “everyone has the right against unlawful search and seizure.” The purpose of s. 8 is to protect the property and privacy rights of persons against unwarranted incursions by the state: R. v. Hassan, 2020 ONSC 6354, at para. 56.
[26] A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278. A search warrant is presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. The applicant bears the burden of demonstrating that the warrant was not validly issued, that is, that the minimum standard required for authorizing the search was not established by the ITO: R. v. Crevier, 2015 ONCA 619, 24 C.R. (7th) 63, at para. 66.
[27] The standard for the issuance of a search warrant is that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, at p. 168. “Reasonable and probable grounds” means a “credibly based probability” and does not mean proof beyond a reasonable doubt or even a prima facie case: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 127-28; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, 73 C.R. (3d) 129, at p. 1166. A credibly based probability requires that the grounds provided demonstrate a probability, as opposed to a suspicion, that the relevant facts could be true, and assuming the information to be true, that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant facts exist: R. v. Floyd, 2012 ONCJ 417, at para. 9.
[28] The reviewing judge must not substitute their view for that of the issuing justice. If, based on the record before the issuing justice, as amplified by the evidence adduced at the application hearing, the issuing justice could have issued the warrant, the reviewing judge should not interfere: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, 80 C.R. (3d) 317, at p. 1452.
[29] As stated in Garofoli, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant but their sole impact is to determine whether there continues to be any basis for the decision of the issuing judge.
[30] In R. v. Debot, at para. 60, the Supreme Court of Canada articulated the following considerations when evaluating whether a tip provides a reasonable basis for a detention:
• Is the information predicting the criminal offence compelling?
• Was the source of the information credible?
• Was the information corroborated by police investigation?
[31] It is not necessary, however, that a tip satisfy every element before it can be relied upon as a basis for an arrest: Debot, at para. 60. Weakness in one factor may be offset by the strength of another factor.
Application to the Facts
[32] The defence submits that the information provided by Mr. Thomas fails to satisfy the Debot factors for the following reasons:
• The information was not compelling because it was stale, in that over eight months had passed since Mr. Thomas last lent a firearm to Becessar;
• The information provided no grounds to believe that the firearms would be located at the Botavia Downs address. Mr. Thomas had been there twice since lending Mr. Becessar the firearms but did not see them;
• The information was not credible because Mr. Thomas’s account as to when he gave the firearms to Mr. Becessar was inconsistent;
• Mr. Thomas was an unproven source who had never previously provided information to police and who had an interest in exonerating himself; and
• The police failed to corroborate the information provided by Mr. Becessar.
[33] The defence also seeks to have the following paragraphs in the ITO excised on the basis that they are misleading: (i) paragraph 34(a) to (ee); (ii) the reference to “a few months ago” in paragraph 71; (iii) paragraph 72; and (iv) paragraph 73. The Crown consents to the excision of paragraph 73.
[34] The defence submits that the ITO omitted certain relevant information as follows: (i) there is no known relationship between the first individual who was arrested, Nicholas Baksh, and Mr. Becessar; and (ii) that Mr. Baksh and Mr. Thomas and live within 2.5 kilometres of each other. The proximity between Mr. Baksh’s and Mr. Thomas’s residences was included in the ITO for a search warrant of Mr. Thomas’s residence and vehicle.
Was the information compelling?
[35] In this case, Mr. Thomas provided detailed and specific, first-hand information about Mr. Becessar. Mr. Thomas knew Mr. Becessar for over eight years. They initially worked together and then became friends. Mr. Thomas had been to Mr. Becessar’s home on a number of occasions. Mr. Becessar also went to Mr. Thomas’s home, including on the occasion when the firearms were transferred. Mr. Thomas was able to provide detailed information about Mr. Becessar’s family, their nicknames, and their residence and vehicles, most of which proved to be accurate.
[36] Certain information that Mr. Thomas provided was inaccurate. For example, police searches revealed that Mr. Becessar had three children, not two. Mr. Thomas stated that he believed Mr. Becessar had a Cadillac when they worked together. Police checks and surveillance revealed a Lincoln registered to Ms. Becessar. This is not necessarily inconsistent, because Mr. Thomas did not state that Mr. Becessar currently owned a Cadillac. Contrary to the defence’s submissions, Mr. Thomas provided details beyond what any neighbour could provide.
[37] Mr. Thomas also gave detailed information about providing Mr. Becessar seven of his firearms. On the first occasion, which was over a year earlier, he gave Mr. Becessar two handguns. On the second occasion, he gave him two more firearms. He then provided three more handguns to Mr. Becessar on three separate occasions. Mr. Thomas advised police that the last occasion on which he gave Mr. Becessar a firearm was November 2017. Mr. Thomas advised police that he gave Mr. Becessar the guns in gun boxes with trigger locks, and that Mr. Becessar put them in his vehicle.
[38] Mr. Thomas believed that Mr. Becessar still had possession of the firearms based on a conversation between them in January 2018. However, Mr. Thomas stated that when he went to Mr. Becessar’s home before Christmas 2017, he did not see the firearms.
[39] Mr. Thomas appeared to know Mr. Becessar well enough to entrust him with his firearms. He does not appear to have questioned what Mr. Becessar was going to do with them. Given the level of detail about Mr. Becessar personally and the transfer of the firearms, Mr. Thomas provided compelling information that gave police reasonable and probable grounds to believe that the firearms had been transferred to Mr. Becessar.
[40] While the information provided by Mr. Thomas was compelling in that it raised grounds to believe that Mr. Becessar had committed an offence, it was far less compelling as to whether there were grounds to believe that the firearms, or other evidence of the alleged offences, would be found in Mr. Becessar’s residence. Mr. Thomas did not state that he saw Mr. Becessar take the guns home or that he saw them there. Mr. Thomas’s information drew no connection between the Botavia Downs address and the firearms, other than that Mr. Becessar lived there with his family.
Was the information credible?
[41] The defence submits that the information provided by Mr. Thomas was not credible because he was not a known informant with a track record and because he had a clear motive to lie in order to exculpate himself. The defence further submits that Mr. Thomas’s information was not credible because he gave inconsistent information about when he loaned the firearms and because it was inconsistent with the known evidence that eight, as opposed to seven, firearms were missing.
[42] While Mr. Thomas was an unproven source, he has no criminal record, and the circumstances were such that the information he provided was highly credible. Mr. Thomas and Mr. Becessar were friends. He had detailed information about Mr. Becessar’s personal circumstances. When Mr. Thomas told police that he loaned the firearms to Mr. Becessar, he was admitting that he had transferred firearms to someone who had no licence. Even though Mr. Thomas believed Mr. Becessar had a licence, this was no more than an assumption. In providing the information, Mr. Thomas incriminated himself. In my view, the information provided by Mr. Thomas was generally credible.
[43] In respect of the purportedly inconsistent statements made by Mr. Thomas about when he transferred firearms to Mr. Becessar, DC Mantle’s notes reflect that he and Mr. Thomas had the following exchange when he was arrested:
Where are the other firearms that are registered to you?
My friend Andrew has them he took them to a range
How long ago?
A few months ago
[44] However, in his videotaped statement, Mr. Thomas stated: “it’s been at least a year” since the transfer of the firearms. He also said that he last loaned a firearm to Mr. Becessar in November 2017.
[45] The defence submits that the discrepancy as to whether Mr. Thomas last lent Mr. Becessar firearms “a few months ago” or over a year ago is significant. They further submit that the ITO is misleading because: (i) it fails to disclose that Mr. Thomas made inconsistent statements; and (ii) at paragraph 71, it states that firearms were transferred to Mr. Becessar “a few months ago” when this was not accurate.
[46] In my view, the credibility of the information provided by Mr. Thomas is not undermined because he said “a few months ago” when he was arrested and then said he last gave Mr. Becessar firearms in November 2017 when he gave his statement. The statement that he made upon his arrest was given in response to the ambiguous question “How long ago?”, which could have been, based on the context, “how long ago did he last have a firearm?” or “how long ago did he go to the range?” Mr. Thomas did not necessarily give an inconsistent statement when he later stated that the last time he lent a firearm to Mr. Becessar was in November 2017. That statement was made, not in the heat of the moment of arrest, but after he spoke to counsel and had an opportunity to think about it.
[47] This was the explanation given by DC Mantle on cross-examination. He testified that he did not think it necessary to disclose a discrepancy in Mr. Thomas’s statements about when he last transferred firearms to Mr. Becessar because he did not believe that the statements were inconsistent. DC Mantle placed greater reliance on the full videotaped statement provided by Mr. Thomas because it was the best representation of the facts, after he had an opportunity to speak to counsel and to reflect.[^1] As a result, I reject the defence’s argument that DC Mantle ought to have but failed to refer to the earlier statement as raising an issue about Mr. Thomas’s credibility.
[48] However, on the second point, DC Mantle’s inclusion of “a few months ago” in paragraph 71 of the ITO is more problematic. Paragraph 71 of the ITO states: “Although Horace Thomas advised investigators that the last guns given to Rajindra Becessar were a few months ago, I believe that Rajindra Becessar is still currently in possession of at least one handgun.” By his own explanation, DC Mantle discounted Mr. Thomas’s immediate response of “a few months ago” on arrest and thought the November 2017 timeline Mr. Thomas gave in his statement more accurate. It is questionable why he would then choose to use “a few months ago” in paragraph 71.
[49] On cross-examination, DC Mantle testified that “a few months ago” simply meant “earlier than July.” When challenged that November 2017 was not a few months ago, DC Mantle responded that it was “just the terminology I put in” but that the affidavit included the November 2017 date elsewhere. DC Mantle’s explanation for including “a few months ago” in paragraph 71 of the ITO is not convincing. DC Mantle admitted that he could have used different words but disagreed that paragraph 71 was potentially misleading as a result of his reference to “a few months ago.”
[50] The Crown argues that the issuing judge would not have been misled by the reference to “a few months ago” in paragraph 71 when the ITO stated elsewhere that the last transfer of firearms was in November 2017.
[51] In R. v. Ferreira, 2016 ONSC 2039, at para. 44, Forestell J. found that the affiant “subtly mischaracterizes the timing and sequence of events in a manner that tends to suggest a greater connection to the residence than was actually provided by the detailed account of the CI.”
[52] In my view, paragraph 71 is misleading and is not made any less misleading because November 2017 is referred to earlier in the ITO. The inclusion of “a few months ago,” which is clearly inaccurate, sought to draw a connection between the last transfer of firearms and the likelihood that Mr. Becessar was still in possession of a firearm by making it seem closer in time. Moreover, paragraph 71 is in the “Conclusion” section at the end of the ITO, where DC Mantle gives the basis for the search warrant. The reference to November 2017 in paragraph 34(z), in the portion of the “Background to the investigation” section recounting Mr. Thomas’s statement. Based on the context, paragraph 71 would draw greater attention and significance than paragraph 34(z). While the issuing judge reviewed the ITO in its entirety and would not easily be misled, it should not be necessary to verify whether a later summary statement is accurate, especially in a lengthy and detailed ITO.
[53] As a result, while I find no credibility issue with the information provided by Mr. Thomas, I find that the disclosure in the ITO was not full, frank and fair. The words “a few months ago” in paragraph 71 of the ITO are misleading and ought to be excised. I find that because Mr. Thomas had stated “a few months” to DC Mantle, who swore the ITO, the reference to “a few months was careless as opposed to intentionally misleading or in bad faith.
[54] At paragraph 72 of the ITO, DC Mantle states that based on the number of firearms given to Mr. Becessar, it was fair to assume that he would still be in possession of one. DC Mantle does not provide a basis for the statement, whether his own experience or otherwise. Without any such basis, the statement is entirely speculative and cannot be based on a credibly-based probability. Paragraph 72 ought to be excised from the ITO, because DC Mantle provides no basis for the statement.
[55] Paragraph 34(a) to (ee) of the ITO contains the detailed information provided by Mr. Thomas. I see no basis to excise them from the ITO.
[56] In respect of the omissions, I find that DC Mantle was not required to include the fact that the there was no known connection between Mr. Baksh and Mr. Becessar. Had there been a relation between Mr. Baksh and Mr. Becessar, it would have been stated in the ITO. The absence of a reference to something would lead to the inference that it does not exist: R. v. Nguyen, 2011 ONCA 465, at paras. 50-51. Similarly, it was not necessary to state that Mr. Baksh and Mr. Thomas lived within 2.5 kilometres of each other. While that was a relevant fact to obtaining the search warrant for Mr. Thomas’s residence, it was not necessarily relevant here.
Was the information corroborated?
[57] I am satisfied that there was some independent investigative corroboration supporting the biographical information provided by Mr. Thomas: his address, cell phone number, his alias and the name his spouse goes by. In addition, although Mr. Becessar has another address in Mississauga, police verified that he was at the Botavia Downs address a few days before seeking the search warrant.
[58] The fact that police are not able to corroborate or confirm the criminal act is not a lack of corroboration for the purposes of issuing a search warrant: R. v. Rocha, 2012 ONCA 707, at para. 22.
[59] The defence submits that the police could have tried to corroborate the information provided by Mr. Thomas, by getting him to contact Mr. Becessar and asking where the guns were. However, this could potentially have resulted in Mr. Becessar disposing of the firearms, if he had them, before a search warrant could be obtained. I am not inclined to second guess the investigative steps taken by the police and decline to find that the police could have, but did not, further corroborate the information through Mr. Thomas.
[60] Based on the foregoing, I find that the police had reasonable and probable grounds to believe that Mr. Becessar committed an offence.
Were there grounds to believe the items sought would be located at the Botavia Downs address?
[61] The information relied on in an ITO must establish not only reasonable and probable grounds to believe that an offence has been committed, but also that there are grounds to believe that evidence of the offence would be located in the location to be searched: R. v. Donaldson, 2020 ONSC 4611, at para. 20. Relatedly, there must also be grounds to believe that evidence of the offences would be found at the time the warrant is executed: R. v. Woo, 2017 ONSC 7655, at para. 60.
[62] To demonstrate reasonable and probable grounds to believe that evidence of the offence will be located at the place to be searched, it is insufficient for the ITO to state that an individual who has a gun will always have it with them or that they would store it at home: R. v. Morelli, at para. 40; R. v. Coluccio, 2019 ONSC 4559, at para. 61.
[63] While the Crown relies on R. v. Wilson, 2020 ONSC 4600, and R. v. Latchmana, 2015 ONSC 4812, in both of those cases, police had observed drug transactions and had reason to believe that drugs or proceeds from the drug transactions would be located at the applicant’s residence. In Wilson, Schreck J. further noted that the alleged transactions were proximate in time to the issuance of the warrant: at para. 32.
[64] In this case, the information provided reasonable and probable grounds to believe that Mr. Becessar committed an offence. There was also information linking Mr. Becessar to the Botavia Downs address, which was corroborated. However, the information did not provide reasonable and probable grounds to believe that in July 2018, evidence of the offences would be located at his residence. As noted by the defence, nowhere in the ITO does DC Mantle state that he believes that the firearms were at the Botavia Downs address. He states only that he believes that Mr. Becessar would still be in possession of a firearm. There is an absence of information demonstrating a connection the firearms to the Botavia Downs address. See: Donaldson, at para. 28; R. v. Ferreira, 2016 ONSC 2039, at para. 48.
[65] Not only were there insufficient grounds to believe that firearms or other evidence would be located at the Botavia Downs address, the information lacked currency. After the last transfer of firearms, which was in November 2017, Mr. Thomas last spoke to Mr. Becessar about the firearms in January 2018, six months before the search warrant was obtained. There was no information as to what happened to the firearms during that period. Mr. Thomas also stated that when he was at Mr. Becessar’s residence before Christmas 2017, he had not seen the firearms. I do not place any significance on this statement, however, because it is unlikely that the firearms would have been left in the open.
[66] There is an inconsistency in the Crown’s position that: (i) there were grounds to believe that Mr. Becessar still had possession of Mr. Thomas’s firearms, because he said Mr. Becessar borrowed them to take them to a shooting range and (ii) that Mr. Becessar borrowed the guns, one to two at a time, to traffic them and that is how Mr. Baksh came to be in possession of one of Mr. Thomas’s firearms. If the theory is that Mr. Becessar is trafficking in firearms, it is unlikely that the firearms would be found at his residence nine months after the last transfer.
[67] The Crown submits that even if the firearms were no longer at Mr. Becessar’s residence, there would nonetheless have been gun boxes and locks, as well as documents relating to the firearms, which were also sought under the search warrant.
[68] The main difficulty with the Crown’s argument is that, as stated above, Mr. Thomas provided no information to link the firearms to the Botavia Downs address. As a result, there would be no reason to believe that the gun boxes and locks would be there. Moreover, Mr. Thomas did not mention giving Mr. Becessar documents. In Coluccio, at para. 78, DiLuca J. rejected as bald assertions the officer’s belief that ammunition, documentation and other items relating to the firearm would be found in the residence simply because the accused was known to carry around a firearm.
[69] Moreover, in this case, Mr. Becessar had a nexus to another residential address and a business address, both in Mississauga. The Mississauga address was the address to which Mr. Becessar’s driver’s licence was registered. The only individual connected to the Botavia Downs address was Mr. Becessar’s spouse. The police conducted surveillance at the Mississauga address on only one day. No surveillance was conducted at the business address.
[70] Based on the totality of the circumstances, and assessing the record taking into account the excisions, I find that the issuing judge could not have issued the search warrant because the police lacked reasonable and probable grounds to believe that the evidence sought would be located at the Botavia Downs address.
[71] Accordingly, I find that Mr. Becessar’s rights under s. 8 of the Charter were breached.
Were the Applicant’s Rights under Section 9 Breached?
[72] Section 9 of the Charter states that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” The purpose of s. 9 is to protect the individual from unjustified state interference. Section 9 limits the state’s ability to impose intimidating and coercive pressure on citizens without justification: R. v. Le, 2019 SCC 34, at para. 25.
[73] In order for an arrest to be lawful, police must have reasonable grounds to believe that an offence is being or has been committed. The reasonable grounds inquiry has both a subjective and objective component. The officer must hold an honest belief that the person committed an offence. In addition, the belief must be objectively reasonable in the circumstances known to the officer at the time of the arrest: R. v. Canary, 2018 ONCA 304, at para. 21.
[74] The defence submits that the onus is on the Crown to demonstrate on a balance of probabilities that the police had reasonable and probable grounds to arrest Mr. Becessar. However, in this case, because, at the time, the police acted in accordance with a lawful judicial authorization, Mr. Becessar bears the onus of establishing on a balance of probabilities that his s. 9 rights were breached: R. v. Bush, 2010 ONCA 554, at para. 74; R. v. Haye, 2013 ONSC 1208, at para. 46.
[75] Both parties agree that the reasonable and probable grounds that formed the basis for the search warrant were the same as the ones that formed the basis for Mr. Becessar’s arrest. The defence submits that because the search warrant was not validly obtained, the police lacked reasonable and probable grounds to arrest Mr. Becessar. The Crown submits that because the search warrant was valid, the police had reasonable and probable grounds to arrest Mr. Becessar.
[76] I have found above that although the police did not have grounds to believe that evidence relating to the alleged offences would be found at the Botavia Downs address, they did have reasonable and probable grounds to believe that Mr. Becessar committed an offence. Therefore, based on the information provided by Mr. Thomas regarding the transfer of the firearms, the police had reasonable and probable grounds to arrest Mr. Becessar.
[77] Accordingly, I am satisfied that Mr. Becessar’s rights under s. 9 of the Charter were not breached.
Were Mr. Becessar’s Section 10(b) Rights Breached?
The Applicable Principles
[78] Section 10(b) of the Charter guarantees that any person arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right. In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 25, Doherty J.A. stated:
Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak with counsel.
[79] The purpose of the s. 10(b) right is to “allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights…”: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21. In Taylor, the Supreme Court of Canada stated that the right is meant “to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.”
[80] Where an accused person requests to speak to counsel, the arresting officer is “under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity”: Taylor, at para. 24. This includes providing access to a telephone: Taylor, at para. 28. The burden is on the Crown to show that a given delay was reasonable in the circumstances. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
[81] Courts have recognized that in specific circumstances, some delay is justifiable to ensure officer safety, public safety, the preservation of evidence, and the safety of others by securing the scene of an arrest or search: R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, 56 D.L.R. (4th) 673, at para. 42. Such concerns must be case-specific as opposed to general: Rover, at para. 27. Even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel: Rover, at para. 27.
[82] In R. v. Griffith, 2021 ONCA 302, at para. 41, the Court of Appeal recently clarified the analytical approach to be taken in relation to s. 10(b), as reflected in Rover and R. v. Leonard, 2020 ONCA 802. A reasonable delay in the implementation of an accused person’s right to counsel based on justifiable case-specific concerns, as supported by the evidence, does not violate s. 10(b). In determining whether there has been a violation of s. 10(b), the court must consider the evidence of case-specific concerns to determine whether they justified delaying access to counsel.
Application to the Facts
[83] In this case, there is no dispute that Mr. Becessar was advised of his right to counsel upon arrest and that he stated that he wished to speak with his counsel. He was again advised of his right to counsel when the firearm was located.
[84] A call to Mr. Becessar’s counsel of choice, Jason Ramsay, was made after he arrived at 23 Division, at approximately 5:45 p.m. The officers did not attempt to question Mr. Becessar before he was able to speak to counsel.
[85] The defence’s position is that Mr. Becessar’s s. 10(b) rights were breached because of the delay of four hours and six minutes before he was able to speak to counsel. The defence submits that the police were required to facilitate a call to counsel shortly after his arrest and that the delay in implementing Mr. Becessar’s right to counsel was not justified.
[86] The Crown’s position is that Mr. Becessar’s s. 10(b) rights were not violated because he was able to speak to counsel as soon as practicable in the circumstances.
[87] In this case, while there were distinct periods of time during which the police were justified in delaying access to counsel, this was not the case for the entire four-hour period.
[88] The evidence reflects that when the Toronto police first arrived at the Botavia Downs address and arrested Mr. Becessar, there were four adults and six children in the home. There were potentially seven firearms in the home. DC Rosete testified that there were only four police officers on the team, and that they were not expecting the number of occupants they encountered. Mr. Becessar was in the garage with another adult, but the other adults and children were in the backyard and swimming pool. Among the occupants was the basement tenant, who had three very young children. As a result of the combination of the number of occupants and the possibility of multiple firearms, the police were concerned about their own and the occupants’ safety.
[89] At 3:00 p.m., approximately 30 minutes after the Toronto police first arrived, they called Peel police for backup. DC Rosete testified that it took that long to organize the occupants. PCs Paterson and Wise of the Peel police service arrived approximately 15 minutes later. It was only then that the Toronto police began to execute the search warrant.
[90] DC Rosete testified that because the team was short-staffed, it was not possible to allow Mr. Becessar to make a phone call while the search warrant was being executed. He testified that he could not give Mr. Becessar a phone or provide him with the privacy necessary to make a call to counsel. DC Rosete stated that he did not want to let Mr. Becessar use his own cell phone, because of the risk that he would delete information from it, and he was not comfortable allowing Mr. Becessar to use his personal cell phone. He further testified that in any event, he could not leave Mr. Becessar in a powder room or in one of the unmarked Toronto police vehicles. On cross-examination, DC Rosete admitted that officers now bring a dedicated phone when executing a search warrant but that in 2018, that was not a common practice.
[91] Defence counsel put to DC Rosete various other options, such as obtaining one of his teenaged children’s cell phones and putting Mr. Becessar in a powder room or in the Peel police car. DC Rosete responded that it would not have been practical to do so because they were short-staffed. DC Rosete admitted, however, that he did not ask one of Mr. Becessar’s children for a phone. Moreover, while DC Rosete asked Mr. Becessar who his counsel was, he did not note the name in his notes. He admitted that he did not call 23 Division in advance to advise of Mr. Becessar’s choice of counsel, which could have expedited facilitating contact. DC Rosete denied that his intention was to wait until Mr. Becessar was at the station before facilitating a call to counsel.
[92] Once the ammunition was located in the garage, DC Rosete asked PCs Paterson and Wise to transport Mr. Becessar to 23 Division. DC Rosete testified that he had to ask the Peel police officers to transport Mr. Becessar because he could not be transported in one of the unmarked Toronto vehicles. DC Rosete testified that he was unable to get back-up from 22 or 23 Division and it would have taken longer to wait for transport by Toronto police.
[93] When asked why Mr. Becessar was not taken to 23 Division sooner, DC Rosete stated that it was out of courtesy to Mr. Becessar. He testified that they were waiting for Ms. Becessar to arrive to be there with the children. Ms. Becessar was located and brought home. The search warrant was still in progress when Mr. Becessar was transported to 23 Division.
[94] DC Rosete was asked why Mr. Becessar was taken to 23 Division, which took over 50 minutes during rush hour, as opposed to a closer police station. He testified that it would have taken longer to process Mr. Becessar at a Peel police station, given that the investigation was out of 23 Division. The investigations into Nicholas Baksh and Horace Thomas were also being conducted from 23 Division.
[95] PC Wise left the residence with Mr. Becessar at approximately 4:10 p.m. and arrived at 23 Division at 5:00 p.m. PC Paterson accompanied them in a separate vehicle. Mr. Becessar was transferred to DC Mark Tan and was then paraded before the Sergeant between 5:08 p.m. to 5:14 p.m. Mr. Becessar was then searched, which was completed at 5:22 p.m.
[96] DC Tan then searched the internet for a telephone number for Mr. Becessar’s counsel, Jason Ramsay, and left a message for Mr. Ramsay at 5:47 p.m. Sometime after that call, Mr. Becessar was given access to his cell phone to find an alternate telephone number for Mr. Ramsay. At 6:22 p.m., police left a message on Mr. Ramsay’s cell phone. Mr. Ramsay called the station at 6:32 p.m. Mr. Becessar was able to speak to Mr. Ramsay at 6:34 p.m. The call was completed at 6:49 p.m. After speaking with counsel, at 7:47 p.m., Mr. Becessar provided a videotaped statement.
[97] In my view, under the circumstances, it was impracticable to facilitate Mr. Becessar’s right to counsel as soon as he was arrested. It was appropriate for the police to delay until they had organized and accounted for all of the occupants and had backup to properly deal with them to ensure their safety and the safety of the occupants. The initial delay was therefore justifiable.
[98] Once PCs Paterson and Wise had arrived, however, both Mr. Becessar and the children were properly supervised. The tenant and her children, as well as the other adult in the garage, were all released. At that stage, the officers could have turned their minds to facilitating a call to counsel.
[99] In my view, the lack of a telephone that Mr. Becessar could use does not strike me as a sufficient basis for delaying his right to counsel. DC Rosete admitted that they did not ask anyone for a phone. Had the police asked, they would at least have known if one was available. Given the number of individuals in the house, including Mr. Becessar’s teenaged children, it is likely that another cell phone could have been obtained.
[100] Similarly, I do not accept that the officers could not provide Mr. Becessar with privacy to make a phone call to counsel once the situation was under control. I accept DC Rosete’s testimony that he could not put Mr. Becessar in one of the unmarked Toronto police vehicles. However, there was no impediment to putting him in one of the Peel police vehicles, which PC Wise advised are equipped with a protective screen and do not have cameras. It is undisputed that Mr. Becessar was cooperative.
[101] While the Crown submits that the officers were all occupied searching the residence or supervising the occupants, PC Wise testified that his sole task was to supervise Mr. Becessar. PC Wise did not have a cell phone that Mr. Becessar could have used. PC Wise testified that he did not think it was his role to facilitate a call to counsel because it was not his investigation. PC Wise further testified that he did not call 23 Division to advise that Mr. Becessar was on his way because he thought that one of the Toronto officers would have done that.
[102] While the defence argues that all the officers had a duty to ensure that Mr. Becessar could exercise his rights, the situation was complicated by the circumstances. It is clear from their testimony that PCs Paterson and Wise viewed themselves as assisting the Toronto police as directed. In my view, it was up to DC Rosete or one of his colleagues to ask PC Paterson to obtain a cell phone from one of the children or for PC Wise to put Mr. Becessar in a Peel police vehicle.
[103] In Rover, at paras. 32-33, Doherty J.A. found that the police must have case-specific evidence that they turned their minds to the circumstances of the case before delaying access to counsel. Based on the officers’ testimony, other than when they first arrived, they do not appear to have turned their minds to facilitating a call to counsel because they intended to do so once Mr. Becessar was taken into the police station. Had they done so, it would have been clear at some point that it would take longer than initially anticipated because of the circumstances, including an insufficient number of Toronto police, the number of individuals in the house, and because it was getting closer to rush hour.
[104] Moreover, while the police did not expect so many adults and children in the residence, that does not justify their attending with insufficient resources to properly execute the search and facilitate Mr. Becessar’s right to counsel. They attended despite knowing that they were short-staffed that day. The police knew that Mr. Becessar had three children. Had they conducted additional surveillance, they might have known about the basement tenant. Given that the information that Mr. Thomas provided was dated, there was no urgency to executing the warrant that day. The officers were unable to get additional resources and had to rely on Peel police for backup and transport. The evidence betrays a certain degree of disorganization that negatively impacted Mr. Becessar’s exercise of his right to counsel.
[105] Further, I note that the fact that none of the officers tried to speak to Mr. Becessar until he had spoken to counsel does not excuse a failure to facilitate access. It means only that there was not an additional breach: R. v. Noel, 2019 ONCA 860, at para. 19.
[106] I find that the delay in facilitating a call to counsel from the time the scene became stable, after Peel police arrived at 3:14 p.m., to Mr. Becessar’s departure for 23 Division at 4:10 p.m., was not justified.
[107] In respect of the period after Mr. Becessar was transported from his residence, while it took over 50 minutes to get to 23 Division, I do not think the police were required to take him to a Peel police station or to a closer Toronto division to facilitate an earlier call to counsel. The evidence is that this would have made a difference of 20-30 minutes. DC Rosete testified that it would have taken longer to process him at a different station.
[108] However, given the earlier delay, steps could have been taken to ensure the implementation of Mr. Becessar’s right to counsel upon his arrival at 23 Division. Although Mr. Becessar had provided the name of his counsel, Jason Ramsay, upon his arrest, the information was not conveyed to 23 Division or to DC Mark Tan, another member of the team, in advance of Mr. Becessar’s arrival.
[109] While DC Tan could have asked Mr. Becessar if he had his lawyer’s phone number initially, rather than searching for it on the internet, he testified that it did not occur to him to do so. He did not recall whether there was an emergency line when he first called. DC Tan exercised some diligence in locating a phone number and looking for an alternate number when Mr. Ramsay did not return the initial message.
[110] Mr. Becessar was able to speak to counsel approximately 1.5 hours after he arrived at 23 Division. Given how quickly Mr. Ramsay called back after the message was left on his cell phone, Mr. Becessar could potentially have spoken to his counsel sooner, had the number been provided earlier. In my view, there was an additional delay of approximately 45 minutes to one hour after Mr. Becessar arrived at 23 Division.
[111] In summary, the initial delay of 45 minutes to one hour when the police were securing the residence and the 50 minutes it took to transport Mr. Becessar to 23 Division were justifiable in the circumstances. There was an unjustified delay of just under one hour in facilitating a call to counsel while Mr. Becessar was at his home and a further delay of approximately 45 minutes to one hour after he arrived at 23 Division. The failure to implement Mr. Becessar’s right to counsel during those periods constitutes a breach of s. 10(b).
Should the Evidence be Excluded?
The Applicable Principles
[112] The first issue to address under s. 24(2) is whether the evidence sought to be excluded was “obtained in a manner” that infringed on a right guaranteed by the Charter. For the purpose of s. 24(2) of the Charter, Mr. Becessar need only establish a temporal, contextual or causal connection between the breach and the discovery of evidence that is not too remote to satisfy the requirement that the evidence was “obtained in a manner” that violates his Charter rights: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 54. If the Charter breach and the discovery of evidence are part of the same transaction, the evidence will have been “obtained in a manner” that violates the accused’s Charter rights.
[113] The second issue is whether the admission of the evidence would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada held that in determining whether the admission of evidence would bring the administration of justice into disrepute, the court must balance the following three factors:
(i) The seriousness of the Charter-infringing state conduct;
(ii) The impact of the breach on the Charter-protected interests of the accused; and
(iii) Society’s interest in the adjudication of the case on its merits.
[114] In assessing the seriousness of the breach, the court is required to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct: Grant, at para. 72. The main concern is to maintain public confidence in the rule of law and its processes.
Application to the Facts
[115] In this case, the firearm, ammunition, and cash were seized pursuant to a search warrant that ought not to have issued, and were thus clearly obtained in a manner that violated Mr. Becessar’s s. 8 rights. There was also a contextual and temporal connection between the breach of Mr. Becessar’s s. 10(b) rights to counsel and both the seized evidence and his statement.
Seriousness of the Charter-infringing state conduct
[116] On the first Grant factor, the police believed they were acting pursuant to a valid prior judicial authorization. However, the search warrant ought not to have issued because there was an absence of reasonable and probable grounds to believe that evidence of an offence would be located at the Botavia Downs address. The necessity of demonstrating reasonable and probable grounds that evidence would be located at the residence is fundamental.
[117] This is compounded by the misleading statement in the ITO that firearms were last transferred to Mr. Becessar “a few months ago.” While I have found that the misstatement was due to carelessness as opposed to bad faith or an intent to mislead, in R. v. Dhillon, 2019 ONCA 582, at para. 51, the Court of Appeal found that while “not at the extreme end of the spectrum of state misconduct, significant carelessness on the part of the police that leads to the issuance of an invalid warrant must nonetheless be placed on the serious side of the spectrum.” In the circumstances of this case, where the ITO contained a misleading statement and the information lacked both currency and a sufficient connection to the residence, the s. 8 breach is serious.
[118] In respect of the s. 10(b) breach, I have found that there was an unreasonable delay of, at most, two hours in facilitating Mr. Becessar’s access to counsel. The police could have taken additional steps to facilitate a call to Mr. Becessar’s lawyer, such as permitting a call at his residence and/or obtaining the phone number sooner. They also failed to revisit the situation as time went on: R. v. Wu, 2017 ONSC 1003, at para. 95. However, I find that their failure was not deliberate or in bad faith. In addition, no statement was elicited from Mr. Becessar until he had the opportunity to speak to his counsel. Under the circumstances, the seriousness of the state conduct in relation to the s. 10(b) breach is moderate.
The impact of the breach on the Charter-protected interests of the accused
[119] On the second Grant factor, the impact of the s. 8 breach on Mr. Becessar’s Charter-protected rights is significant. Mr. Becessar was in his home, with his children playing in the backyard, when the search warrant was executed. Mr. Becessar’s reasonable expectation of privacy is at its highest in his home: R. v. Soto, 2011 ONCA 828, at para. 4.
[120] In this case, there is no evidence to suggest that the search warrant was executed in an abusive or high-handed manner. There were circumstances that made the execution of the search warrant more complicated than anticipated. The execution was poorly planned, given that the police knew that Mr. Becessar had three children and the warrant was executed on a day when the team was short-staffed. Despite the challenges, the officers took care to ensure the safety of the other occupants, to release uninvolved individuals as soon as practicable, and to avoid having the children see Mr. Becessar being arrested. Efforts were also made to bring Mr. Becessar’s spouse home to be with the children.
[121] Regarding the impact of the s. 10(b) breach on Mr. Becessar, the delay was a maximum of two hours. As noted above, there were case-specific concerns that resulted in some justifiable delay. Once Mr. Becessar was at 23 Division, efforts were made to put him in contact with his counsel of choice. It is unclear from the evidence whether Mr. Becessar was given any reason for the delay. Nonetheless, Mr. Becessar was not left alone for any lengthy period, nor did the officers try to question him. Mr. Becessar provided a statement approximately one hour after he spoke to his counsel. He thus had sufficient time to consider his counsel’s advice before deciding to give the statement.
[122] In Griffith, the delay of one hour and 20 minutes, after a previous delay of two hours and 25 minutes was found to be of moderate impact as compared to other cases: at para. 75. In this case, as well, I find that the impact of the two-hour delay was moderate. When Mr. Becessar decided to give the statement, he had the benefit of legal advice and sufficient time to consider it.
Society’s interest in an adjudication on the merits
[123] In respect of the third line of inquiry, there is a strong public interest in having the charges, which involve trafficking in firearms, adjudicated on their merits. Given the nature of the seized evidence, it is reliable, thus supporting its admission. There is no evidence as to the content of Mr. Becessar’s statement. While the defence submits that the Crown can proceed to trial even if the seized evidence is excluded, the Crown disputes this.
[124] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, Doherty J.A. held that “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.” (Internal citations omitted.)
[125] In R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 135, Brown J.A. (dissenting) found that the inherent dangerousness of illegal firearms and society’s “desire to live free from the lethal threat” posed by them should inform whether the exclusion of a firearm obtained in violation of the Charter will undermine public confidence in the administration of justice. The Supreme Court of Canada, without further comment, agreed substantially with Brown J.A.’s reasons: 2019 SCC 32, [2019] 2 S.C.R. 576. However, in Le, at para. 142, the Court reiterated the principle stated in McGuffie and found that public confidence in the administration of justice is better served by requiring compliance with the Charter: at para. 165.
(a) The seized evidence
[126] In respect of the seized evidence, the unconstitutional search of Mr. Becessar’s residence constitutes a significant intrusion on his Charter-protected rights and his privacy interests and favours the exclusion of the evidence. In addition, the s. 10(b) violation prevented Mr. Becessar from obtaining legal advice at a critical time, when the search warrant was to be executed. As the Court of Appeal noted in Noel, at para. 24, an arrest and 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 and scope of the search warrant.
[127] Based on my balancing of the Grant factors, I am of the view that the court should dissociate itself from evidence obtained through a negligent breach of the Charter: Le, at para. 143. A reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute.
(b) The Statement
[128] My balancing of the Grant factors leads me to a different result in respect of Mr. Becessar’s statement. While the breach of Mr. Becessar’s s. 8 rights was serious and the impact significant, the delay in implementing his s. 10(b) right to counsel was not lengthy and the impact of the breach was moderate. The impact on Mr. Becessar’s Charter protected rights is mitigated because he spoke to counsel before giving the statement. In my view, public confidence in the administration of justice would not be undermined by the inclusion of the statement in evidence.
Conclusion
[129] For the foregoing reasons, the application is granted in part. I find that Mr. Becessar’s rights under ss. 8 and s. 10(b) of the Charter were infringed. Mr. Becessar’s s. 9 rights were not breached. Pursuant to s. 24(2) of the Charter, the seized evidence, namely, the firearm, ammunition, and cash, is excluded.
Nishikawa J.
Released: July 9, 2021
COURT FILE NO.: CR-20-70000006
DATE: 20210709
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Rajindra Becessar
REASONS FOR JUDGMENT
Nishikawa J.
Released: July 9, 2021
[^1]: DC Mantle relied on the summary of Mr. Thomas’s videorecorded statement provided by DCs Tan and Sukumaran, who conducted the interview. He did not independently review the video.