COURT FILE NO.: CR-20-40000386-0000
DATE: 20210924
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAMIAN GUERRERO
applicant/Defendant
Glen Orr, for the Applicant/Defendant
Paul Alexander, for the Respondent Her Majesty the Queen
HEARD: September 14 to 17, 21 and 22, 2021
REASONS ON CHARTER APPLICATIONS
Low J.
[1] The applicant is charged with, inter alia, possession of a loaded handgun. The handgun was seized from the car that the applicant was driving on the night of October 16, 2018. The applicant seeks to exclude all evidence uncovered the night of October 16-17, 2018, including two utterances that he made. The applicant seeks also a stay of the prosecution. The applicant alleges infringement of his rights under s. 7, s. 8, s. 9, s. 10(a) and (b), and s. 11(d) of the Charter of Rights and Freedoms. In the course of hearing, the applicant appeared not to rely on s. 10(a); no argument was made in respect of this section of the Charter. No reference was made to s. 11(d) of the Charter. In cross-examination, however, and in argument, counsel for the applicant relied on s. 12 of the Charter. For the reasons that follow, the application is dismissed.
[2] The Crown gave notice that it intends to lead evidence at trial of an utterance made by the applicant while seated alone in the scout car used to transport him to a police division. In the course of the evidence on the application, it came to light that there was an earlier utterance. The Crown intends to adduce evidence of that utterance as well, also on the basis that it was a spontaneous utterance and not requiring proof of voluntariness. For the reasons that follow, the utterances will be admissible at trial.
[3] On October 16, 2019 at approximately 23:12, Detective Constable Ho and Detective Harris were separately on duty. Both heard a police radio report of a 911 call concerning a male with a gun. The report included the following information: the male had threatened the complainant caller’s daughter with a gun; the male was described as Portuguese, 24 years old, wearing a black hoodie with the hood up and shorts; the male was in an SUV with a licence plate of BVLS063; the SUV, a white BMW, was initially at the side of a building at 23 Flemington Road, but drove away heading onto Blossomfield Drive. The gun call followed one concerning a disturbance involving a knife at the same location.
[4] D.C. Ho, was near Allen Road and Highway 401 at the time of the call. At approximately 23:20, while approaching Dufferin Street, he saw a white BMW and was able to confirm its licence plate as BVLS063. He followed the BMW until it pulled into the driveway of 9 Ridge Point Crescent.
[5] Det. Harris had also been responding to the call and saw D.C. Ho’s cruiser and the BMW ahead of the cruiser. He followed them to 9 Ridge Point Crescent. He was in an unmarked car but activated its lights to make the police presence known.
[6] Det. Harris approached the driver door of the BMW and D.C. Ho approached the passenger side. They saw one person in the car. They identified themselves as police. Det. Ho ordered the male to show his hands. Det. Harris ordered the male to stay in the car. The male exited the car. Det. Harris saw a knife at the side of the driver’s seat. The male fit the description that the officers had received over the radio call as the male with the gun. The car fit the description given over the call as the car carrying the male with the gun. Det. Harris told the male, hereafter “the applicant”, that he was under arrest. D.C. Ho made his way to the driver side to assist Det. Harris in making the arrest. The male was belligerent and resistive to the officers’ attempts to control his arms and cuff him.
[7] The officers walked him to the hood of Det. Harris’s police car, manoeuvered his upper body forward over the hood and managed to handcuff him. The applicant was still resistive and the officers used force to control him. At that time, the applicant’s face may have struck the hood of the car.
[8] Once the applicant was handcuffed, Det. Harris told him that he was under arrest for possession of a firearm, advised him of his rights to counsel in brief and cautioned that anything he said could be used in evidence. Det. Harris did not have his notebook on his person and could not at that time read or recite the full text of the advice as to rights to counsel which includes the information as to rights to duty counsel and the telephone number. This was at approximately 23:23.The applicant was walked to the side of the driveway and a pat down search was done which did not disclose weapons on his person.
P.C. Nguyen and his escort, P.C. Getty, also responded to the radio call. At 23:21, they were making their way to the scene of the arrest in their cruiser. At 23:28 they had arrived. The applicant was handed over to them. They were to transport the applicant to 32 Division, the Division in which the alleged offence of threatening with a firearm took place. Officer Getty told the applicant that he was under arrest for possession of a firearm. He told him that he had a right to counsel and that his full rights would be read to him at the scout car.
[9] The applicant having been handed over to Officers Getty and Nguyen, Det. Harris and D.C. Ho searched for the gun in the car. Det. Harris searched the passenger area, and D.C. Ho pressed the trunk button to open it. D.C. Ho located a handgun gun in a Louis Vuitton bag. The gun was loaded but there was no round in the chamber. D.C. Ho made the weapon safe.
[10] Det. Harris and D. C. Ho overheard the applicant utter the single word “Fuck” from the side of the driveway.
[11] Officers Getty and Nguyen walked the applicant over to their scout car for transport to the Division. The in-car camera in their cruiser shows that at approximately 23:32 the applicant had been placed in the back seat and was being told that everything in the car would be video and audiotaped. While Officer Nguyen held the flashlight over Officer Getty’s notebook, Officer Getty read the full text of the advice of rights to counsel to the applicant and the caution that anything he said may be used in evidence. The applicant understood and when asked if he wished to speak to a lawyer, he answered that he did. The officers left the applicant alone in the scout car with the doors closed while they went to the other officers on scene to see if they could give any other assistance.
[12] While the applicant was alone in the scout car, he made an utterance. The words he said will be in dispute at trial. To the extent that I am able to make them out, the utterance was: “Fuck. Got caught with the fuckin’ hammer, bro. I’m fucked.” No officer was within hearing when he made the utterance.
[13] The applicant was driven to 32 Division by Officers Getty and Nguyen. They left at 23:41. The ride was uneventful and there was no conversation between the applicant and the officers. At 00:08, the applicant was paraded before the staff sergeant. He was then escorted to an office and a level 3 search was performed by Officers Getty and Nguyen. Thereafter he was placed in a holding cell at about 00:30.
[14] Neither Officer Getty nor Officer Nguyen made a call to duty counsel for the applicant. At 32 Division of the Toronto Police Service, the protocol for making the call to duty counsel is that the investigating officer is to make the call. Different divisions have different protocols. Officers Getty and Nguyen did not consider it their task to make the call as D.C. Ho was the investigating officer. There is no explanation for the 17 minute delay between the completion of the level 3 search and the placing of the call to duty counsel. A call to duty counsel was made by D.C. Ho at 00:47.
[15] Duty counsel called back a half hour later and spoke with the applicant.
[16] I make the following findings: other than the inquiry by Officer Getty at the scout car of the applicant’s name and age, and the staff sergeant’s intake questions which are all recorded on video and audio and which concern the applicant’s health, none of the officers having contact with applicant made any attempt to elicit any information or statements from the applicant. The applicant’s two utterances were spontaneous and arose only from the applicant’s internal impulse. Neither utterance was made to a person in authority or to anyone else. Both utterances were made after having been cautioned that anything he said could be used in evidence, and the applicant was made aware that anything occurring in the car was being video and audiotaped. I am satisfied that when the applicant made the utterances, he was speaking only to himself.
[17] I agree with the Crown’s submission that the utterances are not subject to the voluntariness analysis required of statements made to persons in authority. I am referred to R. v. Van Osselaer, [1999] B.C.J. No. 3138 and I follow it.
[18] I turn now to the allegation that the arrest infringed the applicant’s s. 9 rights and the argument that the arrest was made with no reasonable grounds. I do not accept this argument.
[19] There is no dispute that Det. Harris and D.C. Ho were acting on a subjective belief that they had reasonable grounds for arrest. The applicant’s position is that the subjective belief was formed in error and that there were objectively no reasonable grounds for arrest. The applicant’s position is that the police did not have reasonable grounds for an arrest because the officers had not adequately investigated and confirmed the reliability of the 911 caller conveying the information that the applicant had earlier been carrying a gun. The complainant who made the 911 call was the mother of a woman who was in a romantic relationship with the applicant’s sister. It is said that the complainant had a motive to fabricate against the applicant because she strongly disapproved of the same sex romantic relationship between her daughter and the applicant’s sister.
[20] I do not comment on the logic or absence of logic in the argument.
[21] As a matter of common sense and of legal precedent, I find that the officers had reasonable grounds for arrest. The descriptors of both the suspect and the automobile matched the evidence on the ground. The offence was being reported as it happened. The context was a 911 call. It was an event in the course of being played out, the alleged offender making his departure from the scene of offence at a time when it is known that police have been called and are on their way. The information is inherently reliable as it is being tested visually by the officers. There is accountability with respect to the source as it is a call that is traceable to a specific telephone and a physical location. There is no evidence as to whether or not the caller self-identified to the 911 call taker. There is thus no basis for concluding that it was an anonymous call.
[22] While it was argued on behalf of the applicant that this situation was no different from an anonymous tipster giving information to the police that forms the basis for an information to obtain a search warrant, I am of the view that there is no similarity in the two types of situations.
[23] R. v. M.R., Carlese-Brown, [2016] O.J. No. 6564 (ONCA) per Gillese J.A. is instructive in setting out the extent of the officer’s ambit of reasonable subjective belief on information available:
45 … Everything that the Officers saw was consistent with the information that the 911 callers had given. There was no reason to discount that information. Based on that information, the Officers had every reason to believe that the occupants of the suspect vehicle were in possession of handguns.
46 The grounds to arrest depended on the plausibility of the 911 callers' report of unlawful possession of a firearm. In these circumstances, the Officers had no reason to doubt the bona fides of the callers. In my view, not only were they justified in acting on that information, they would have been derelict in their duty had they not acted on it.
47 I reject the appellant's submission that the Officers were limited to an investigative detention because they had not taken steps to confirm the 911 callers' information. In Golub, this court squarely rejected the proposition that an arrest could not be made based on information provided by an unknown source, absent confirmation of that information -- information that may itself be less than exact and complete. In this regard, the words of Doherty J.A., at para. 18 of Golub, bear repeating:
In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.
[24] In the context of a 911 call, and in particular where, as here, the facts on the ground line up with the information received, I am satisfied that the arresting officers had reasonable grounds to believe that the applicant was the person about whom the 911 caller had called alleging a threat with a gun.
[25] I therefore find that there was no infringement of the applicant’s s. 9 rights under the Charter.
[26] As I have found the arrest to be lawful, I also find the search of the applicant’s car lawful. The search was properly incidental to arrest. A warrant was not required. The information received was that the male with the gun entered the particular car with the gun. I am satisfied that the officers’ search of the car for a gun did not exceed the proper bounds of a search incident to arrest. The onus in this regard lies on the applicant to show that the search was unreasonable. The applicants relies, inter alia, on the assertion that because the search took place on the driveway of a private home, the officers were trespassers and required a warrant to effect the search. This position is untenable as the officers were on the driveway, carrying out their lawful duty. (See R. v. Lotozky, 2006 CanLII 21041 (ON CA), [2006] O.J. No. 2516 (per Rosenberg J.A.) at 32). The applicant has not met the onus of showing that the search was unreasonable.
[27] I therefore find that there was no infringement of the applicant’s s. 8 rights.
[28] The applicant has alleged cruel and unusual punishment and an infringement of his s. 12 rights under the Charter. In my view, the allegation is not aptly made. If the allegation is that there was an undue or excessive use of force in effecting the arrest, there was no evidence of it. The applicant did not testify. While there was much cross-examination about the tightness of handcuffs and the possibility that the applicant’s head made contact with the hood of the officer’s car in the process of being subdued, there is no material upon which I can make a finding that the force used was excessive in the circumstances. There is no evidence of need for medical attention, and no evidence of any complaint about the tightness of handcuffs until the applicant was being paraded before the staff sergeant at which time he asked for loosening. There is no evidence of marks or injury to the applicant’s wrists.
[29] I find that there is no s. 12 infringement and no use of excessive force in effecting the arrest in the circumstances.
[30] I turn now to s. 10 of the Charter.
[31] While s. 10(a) of the Charter was clearly complied with, there is room for reasonable debate as to whether the police fully complied with their obligations under s. 10(b).
[32] There are two aspects of the accused’s rights and the police’s corresponding obligations under that section. Although set out in reverse order in the language of s. 10(b), the first is the informational aspect – the accused’s right to know, without delay, that he has a right to counsel, and that duty counsel is available to him if he has no lawyer of his own. The second is the implementational aspect, which requires the police to facilitate, without delay, a private communication between the accused and a lawyer.
[33] As I have set out above, although he was not given the detailed information about right to duty counsel if he had no lawyer of his own and the telephone number, the applicant was advised immediately upon arrest that he had a right to counsel. The provision of advice that he had right to counsel was again given by the transporting officer upon the applicant being turned over to his custody. At approximately 7 minutes following the arrest, the full text of the advice of rights to counsel was read to him as he was seated in the back seat of P.C. Nguyen and P.C. Getty’s cruiser.
[34] There are cases that hold that the term without delay means immediately. In my view, the term without delay must be interpreted contextually. If, for example, there is a physical struggle, if there is serious injury, if there are exigent circumstances involving officer or public safety, or the safety of the suspect that make immediate delivery of the information impossible or impracticable, the lack of literally immediate delivery ought not to be construed as a breach of the s. 10(b) right. In this, I am in agreement with my brother K. Campbell J. in R. v. Grant, 2015 ONSC 1646, [2015] O.J. 1229.
[35] In the case at bar however, there was both an immediate advice of rights to counsel upon arrest, and a second advice by the transporting officers a few minutes later although neither comprised the full contents of the text that officers are trained to deliver to arrested persons. It is apparent that the officers were alive to their obligations.
[36] At the same time, it appears that the concept of immediacy was of less prominence to Officers Getty and Nguyen than that of undeniability. Officers Getty and Nguyen wanted to wait until they got the applicant to the scout car before reading his rights in full to him so that it would subsequently be undeniable that they did so. Given the frequency with which a dispute over whether the advice was ever given, it is perhaps not surprising that the recording of the event as opposed to the immediacy of giving it assumes an importance that was never contemplated before the advent of videotape. Nevertheless, I am not persuaded that the passage of 7 minutes from the time of arrest to the full reading of rights to counsel with two earlier though abbreviated statements of the rights to counsel failed to meet the requirement of advice “without delay” in the present context.
[37] I turn now to the implementational aspect of the s. 10(b) right.
[38] It has been argued on behalf of the applicant that the police had a duty not only to advise the applicant immediately of his rights to counsel, but also to implement it by immediately putting him in touch with a duty counsel who, because the duty counsel program is a creature of the provincial government, should be immediately available for consultation, regardless of the hour.
[39] It is said that the police should have made a cell phone available to the applicant and turned off the video and sound equipment in the scout car to afford privacy.
[40] I find the applicant’s proposal unrealistic and not in accord with the need of the officers to ensure their own safety, the safety of the public, and the preservation of evidence. This was a gun call. At the moment of arrest, there was an unaccounted for firearm. While a handgun was located in his car before the applicant was taken to the cruiser, the officers would be remiss in not ensuring that it was the only one. As well, the location was not known to and was not secured by police.
[41] There are reasonable evidentiary and security reasons for the presence of video and audio equipment in scout cars and while it is physically possible to disable the equipment, doing so would defeat those purposes. As there was no practicable way on the street or in the scout car to afford privacy for a consultation with a lawyer, when was it first reasonably practicable to implement the applicant’s right to counsel? As acknowledged in R v Rover, [2018] O.J. No. 4646, 2018 ONCA 745, at para. 26:
The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258, C.C.C. (3d) 68, at paras. 71-75.
[42] It was argued that the implementation of rights to counsel should have been done before the level 3 search. Again, the context is important. This was an accused who had been found in connection with a loaded gun and a knife in his car, in the context of an alleged threat with the gun on a member of the public. A level 3 search was not unwarranted. In my view, in the context of this accused, waiting until after the level 3 search was completed and the officers being satisfied that there was no security threat concealed on his person was not an unreasonable delay.
[43] There is no reason in principle or logic, however, in further delay after the search was completed. Nor was there any practical or logical impediment to Officer Getty or Officer Nguyen placing the call at that time to duty counsel on behalf of the applicant.
[44] While the 32 Division protocol that the investigating officer is to make the call may make operational sense from the viewpoint of ensuring that every player knows his obligations and duties, the protocol as to who does what does not, in my view, derogate from the requirement as to when it is to be done .
[45] The 17 minute delay is not explained. There is no explanation as to how or why it was not reasonably practicable to have placed the call upon the level 3 search being finished.
[46] Accordingly, I find that there was a breach of the implementational aspect of the applicant’s s. 10(b) rights.
[47] It is argued that the breach of the applicant’s s. 10(b) rights was flagrant and egregious and the applicant seeks a stay of the prosecution, or an exclusion of all evidence.
[48] With respect to the applicant’s request for a stay of the prosecution, I am not persuaded that a s. 10(b) breach consisting of a 17 minute delay in placing a call to duty counsel comes even close to warranting a stay. A stay is the nuclear remedy, warranted only in the most extreme cases of abuse of an accused’s charter rights.
[49] Should evidence be excluded under s. 24(2) of the Charter?
[50] No evidence was elicited, discovered, created or disclosed as a result of the 17 minute delay in placing the call to duty counsel. There is no causal nexus between the discovery of the firearm or the spontaneous utterances and that delay. Nevertheless, as the absence of causal connection is not determinative of whether a Charter breach warrants exclusion of evidence, I undertake the analysis under the framework of R. v. Grant, 2009 SCC 32, [2009] S.C.J. No 32 at paras 128 - 138.
[51] The breach under s. 10(b) consisted of a 17 minute delay between the time when it first became reasonably practicable to implement the applicant’s rights to counsel and the time when the call was placed. I do not consider the time taken by duty counsel to return the call, about 30 minutes, to be a part of the breach. Had the applicant had a lawyer of his own, there is no assurance that the wait for a return call would have been any different.
[52] The breach was, in my view, a delay of brief duration during which nothing happened. The delay was not used to obtain evidence, to buy time or to gain strategic advantage. There was no bad faith, no evidence of systemic disregard for Charter rights and no evidence of animus. The officers followed an internal protocol that was not inherently disrespectful of an accused’s Charter rights although in the instant case, the implementation of the protocol put the police offside in their obligations to facilitate contact with a lawyer without delay. In my view, on the spectrum of seriousness of a Charter breach under s. 10(b), this falls on the more technical and less serious end.
[53] In the event that I am in error in my conclusion that the 7 minutes that passed between the arrest and the full reading of rights to counsel in the scout car did not constitute a breach, I would make the same assessment as to the seriousness of such a breach as I have made in the paragraph above in relation to the 17 minute delay in placing the call to duty counsel.
[54] The breach did not, in my view, have a serious impact on the applicant’s Charter protected interests. Nothing resulted from the 17 minute delay. There is no relationship between the delay and the discovery of the gun or the applicant’s making of the utterances. No attempt was made to elicit information from the applicant and there were no fruits of the breach.
[55] Again, if I am in error in my conclusion with respect to the 7 minute time span to the full reading of rights, I would make the same assessment as to the seriousness of the impact on the applicant’s protected interests as in the paragraph above.
[56] As for the societal interest in adjudication of the case on its merits, the offence is a very serious one and engages issues of public safety and an orderly society. The gun is reliable and essential evidence. Its exclusion would likely cause the prosecution to fall. The utterances, while not a sine qua non of the case, are, at least in the case of the longer utterance, highly reliable in that the content is captured and preserved electronically and available to the fact finders to examine and interpret as they may see fit.
[57] In R. v. Harrison, [2009] S.C.J. No. 34, 2009 SCC 34, the court stated at para. 36 that
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[58] The applicant argues that the breaches in the instant case merit the same outcome as in R. v. Rover.
[59] In Rover, the police deliberately and strategically held the accused in a cell for almost 6 hours without giving him access to counsel so that they could seek, obtain and execute a search warrant for his home. The Court of Appeal held that the fruits of the execution of the search warrant should have been excluded, quashed the convictions, and entered acquittals. At para. 39 – 40 the court noted:
[39] The trial judge described the state misconduct as "serious" and reflective of the police disinterest in the appellant's rights. Those observations are fully justified. Apart entirely from never turning their mind to the actual need to delay the appellant's access to counsel, the officers showed no interest in mitigating the delay. For example, there is no evidence that the police considered obtaining a search warrant before arresting the appellant. I see nothing in the circumstances that would have prevented the police from obtaining the warrant first. This would have avoided, or at least substantially minimized, any delay in affording the appellant his constitutional right to speak with counsel. Even if the police wanted the appellant out of the residence before executing the warrant, they could have obtained the warrant, watched the residence, arrested the appellant when he left, and proceeded to execute the warrant. Had the police followed that procedure, they could have allowed the appellant immediate access to counsel. Instead, by arresting the appellant before obtaining the warrant, the police ensured that he would be held without access to his lawyer for hours.
[40] Although the trial judge recognized that the police misconduct was serious, he understated its seriousness by failing to connect it to a police practice that routinely denied detainees access to counsel in situations in which the police were intending to apply for search warrants. Constitutional breaches that are the direct result of systemic or institutional police practices must render the police conduct more serious for the purposes of the s. 24(2) analysis. A police practice that is inconsistent with the demands of the Charter produces repeated and ongoing constitutional violations that must, in the long run, negatively impact the due administration of justice. This is so even if many of the breaches are never exposed in a criminal court. As noted in Grant, at para. 75:
It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[60] The applicant relies also on the court’s statement in Rover at para. 45 et seq.:
[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.
[46] In this case, instead of providing the appellant with the lifeline to counsel when he requested it, the police put him in the cells. The appellant was held for several hours without any explanation for the police refusal of access to counsel, and without any indication of when he might be allowed to speak to someone. His right to security of the person was clearly compromised. The significant psychological pressure brought to bear on the appellant by holding him without explanation and access to counsel for hours must be considered in evaluating the harm done to his Charter-protected interests.
[47] Having regard to the security of the person interest protected by s. 10(b), and the risk posed by the police practice to the maintaining of the appellant's right against self-incrimination, I would hold that the s.10(b) breach had a significant negative impact on the appellant's Charter-protected rights. While that impact was certainly not as serious as it would have been had there been a causal connection between the breach and the obtaining of the evidence, it was nonetheless significant.
[50] I would allow the appeal, quash the convictions and enter acquittals.
[61] It is said in this case that the delay was a serious infringement on the applicant’s rights to security of the person.
[62] The applicant did not testify and there is no evidence before me as to the psychological impact, if any, he experienced as a result of the 17 minute delay before Officer Ho placed the call to duty counsel for him. The onus is on the applicant and I do not decide the issue on any presumption. I would not conclude that any hiatus, regardless of how minimal, would constitute a substantial infringement of an accused person’s s. 7 rights. I would observe also that there is a significant difference between the hiatus here, and that of 6 hours in Rover. Additionally, there is no evidence of oblique motive or of deliberate strategic delay, as in Rover, of withholding access to counsel. In the case at bar, the police had a protocol for facilitating access to counsel and had the intention to afford counsel under the protocol.
[63] In the final consideration of whether the long term repute of the administration of justice would be brought into disrepute by the admission of the firearm and the utterances, I am of the view that it would not. Where the breach of a Charter right has been relatively minor and technical, where it was done in good faith because officers were following a police protocol that was not inherently disrespectful of Charter rights, where the breach was not causally connected to the discovery of the evidence, where the impact on the accused’s Charter protected interests was relatively low and where the evidence (the gun) is reliable and vital to the prosecution, members of the public would be more likely, in my view, to have diminished respect for the administration of justice if the evidence were excluded.
___________________________ Low J.
Released: September 24, 2021
COURT FILE NO.: CR-20-40000386-0000
DATE: 20210924
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAMIAN GUERRERO
applicant/Defendant
REASONS ON CHARTER APPLICATIONS
Low J.
Released: September 24, 2021