COURT FILE NO.: CR-22-10000025-0000

DATE: 20230929

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

JANSON JEYAKANTHAN and JAYSON JEYAKANTHAN

Defendants/Applicants

Marnie Goldenberg, for the Crown/Responding Party

Kim Schofield and Akash Singh, for the Defendant/Applicant Janson Jeyakanthan

Seth Weinstein and Christopher Lutes, for the Defendant/Applicant Jayson Jeyakanthan

HEARD: June 12, 13, 14 and 15, 2023 and written submissions

MOLLOY J.:

REASONS FOR DECISION

A. INTRODUCTION

[1] The McDonald’s at the corner of Queen St. and Spadina Ave. in Toronto was a busy place in the early morning hours of September 8, 2019. Leighton Edwards arrived there at about 4:00 a.m. after spending a few hours “clubbing” in the nightclub district, smoking marijuana near the CN Tower, and riding his skateboard around downtown. While waiting for his food and chatting with other people in the restaurant, he became involved in a verbal altercation with two men who had just arrived. This evolved into a physical altercation after one of the men lifted his shirt to show Mr. Edwards that he had a firearm. The other man punched Mr. Edwards in the head, whereupon Mr. Edwards ran out of the McDonald’s, pursued by the two men. While running, he called 911.

[2] Two police officers in a cruiser on patrol nearby heard the dispatch call and saw two men on Spadina who matched the description of the suspects. The two men ducked briefly into an alley and then continued north on Spadina. They were detained by the two officers while other officers searched the alleyway. Under a car parked in the alley, the officers found two loaded handguns. The two men were then arrested.

[3] Both men provided false identification to the arresting officers, but eventually admitted their real names at the police station. They are brothers: Jayson and Janson Jeyakanthan. Both are jointly charged with various offences in relation to the two firearms. Jayson Jeyakanthan (“Jayson”) is individually charged with pointing a firearm at Mr. Edwards. Janson Jeyakanthan (“Janson”) is also individually charged with assaulting Mr. Edwards at McDonald’s and with two counts of breaching a recognizance (one for being out of his residence and the other for being in possession of a weapon).

[4] Janson applied for a stay of proceedings, or alternatively an order excluding all evidence at trial, based on alleged violations of his rights under the Canadian Charter of Rights and Freedoms because the police: failed to advise him of the grounds for his detention; failed to advise him of his right to counsel upon detention; delayed his access to counsel for nearly six hours; and failed to bring him to court within 24 hours of his arrest.

[5] Jayson applied for the same remedies, alleging similar Charter violations as his brother: failure to advise him of the grounds for his detention or of his right to counsel upon detention; failure to implement his rights to counsel; and failure to bring him to court within 24 hours of his arrest. In addition, he alleged that the police used excessive force in effecting his arrest.

[6] Both accused pleaded not guilty on all counts and elected to be tried before me without a jury. The matter proceeded as a blended voir dire on the Charter applications and trial on the merits. At the conclusion of the evidence, counsel agreed to submit their final arguments in writing and I adjourned the trial to September 29, 2023 for decision. Counsel agreed on a schedule for filing their written submissions, with the last date being July 28. I reserved a two-hour slot for a Zoom hearing on August 17, 2023 in the event I had any questions or required further submissions on any points. After timely receipt of all the written submissions, I determined that no further submissions were required and vacated the August 17th date.

[7] For the reasons that follow, the Charter applications are dismissed. There was a breach of the Charter in failing to bring both accused before the court within 24 hours of their arrest. However, in the circumstances a remedy under s. 24(2) of the Charter is not available, and a stay of proceedings is not appropriate. I found no other breaches with respect to Janson. There were breaches of Jayson’s rights to counsel under s. 10 of the Charter, but I have decided not to exclude the evidence from trial under s. 24(2) of the Charter, applying the test from R. v. Grant.[^1]

[8] I am satisfied beyond a reasonable doubt that Jayson Jeyakanthan had a real firearm in his possession at McDonald’s and that he subsequently threw it under the red van in the alleyway off Spadina, where it was retrieved by the police. His brother Janson was a party to Jayson’s possession of the gun from the period of time after they left McDonald’s and up to and including the discarding of the gun under the red van. Jayson knew the gun he had was loaded, but I am not satisfied beyond a reasonable doubt that Janson knew that. I am also satisfied beyond a reasonable doubt that both brothers acted jointly in discarding the second firearm found under the red van, but I cannot be sure which of them was carrying that weapon that night. The assault charge against Janson is dismissed, as I cannot be satisfied that he did not act in self-defence. Likewise, I am not satisfied beyond a reasonable doubt that Jayson ever pointed the firearm at Mr. Edwards, so he is acquitted on that charge.

[9] In these reasons, I deal first with my factual findings as to the events involving Leighton Edwards inside McDonald’s and his flight from there. I then turn to the various Charter issues raised, including the remedies for any breaches found. Finally, I turn to the substantive charges against the two accused. The reasons are organized under the following headings:

A. INTRODUCTION (paras. 1-9)

B. FACTUAL FINDINGS: THE EVENTS INVOLVING LEIGHTON EDWARDS (paras. 10-31)

C. CHARTER BREACHES

(i) The Position of the Parties (paras. 32-36)

(ii) Factual Findings: The Events on Spadina Avenue (paras. 37-57)

(iii) Analysis: No Breach of Jayson’s s.7 Rights (paras. 58-65)

(iv) Analysis: No Breach of ss. 10(a) and 10(b) Upon Detention or at the Scene of the Arrest (paras.66-76)

(v) Breach of s. 10 Rights at the Police Station – Jayson Jeyakanthan (paras. 77-93)

(vi) Implementation of Rights to Counsel at the Police Station – Janson Jeyakanthan (paras. 94-100)

(vii) Breach of Right to be Brought Before the Court within 24 Hours (paras. 101-108)

D. REMEDIES FOR CHARTER BREACHES

(i) The Breaches (para. 109)

(ii) Availability of a Remedy Under s. 24 of the Charter (paras. 110-113)

(iii) Remedies for Breach of s. 10 Charter Rights

(a) Eligibility for s. 24(2) Remedy (paras.114-116)

(b) Should the Evidence be Excluded Applying the Test in Grant?

(paras.117-127)

(iv) Remedies for Breach of s. 9 Charter Rights

(a) Eligibility for s. 24(2) Remedy (paras. 128-130)

(b) Stay of Proceedings Remedy (paras. 131-139)

E. CHARGES RELATING TO THE TWO GUNS FOUND IN THE ALLEYWAY

(i) Factual Context (paras. 140-144)

(ii) The Position of the Parties (paras. 145-146)

(iii) Possession and Parties to an Offence: Legal Principles (paras.147-153)

(iv) Circumstantial Evidence: Legal Principles (paras. 154-159)

(v) Analysis: Jayson’s Possession of the Firearm at McDonalds (paras. 160-166)

(vi) Analysis: Jayson’s Criminal Responsibility for the Second Gun under the Car (paras. 167-175)

(vii) Analysis: Janson’s Criminal Responsibility for the Guns (paras. 176-178)

F. CONCLUSIONS (paras. 179-187)

B. FACTUAL FINDINGS: THE EVENTS INVOLVING LEIGHTON EDWARDS

[10] Leighton Edwards testified that on the night of September 7, 2019 he went out alone to have some fun, planning to hang out in the downtown Toronto area clubbing and riding his skateboard. He went to a bar where he had three to four drinks and a marijuana joint, leaving at about 2:30 a.m. He then skateboarded around the downtown area including in the area of the Rogers Center and CN Tower where he met some students and smoked a marijuana joint. He continued skateboarding and then felt hungry, so he went to the McDonald’s at Queen and Spadina to get something to eat. There were a lot of people there and he had to wait in line to place his order, and then wait again for his food to be ready. He said that, while waiting, he was “chitchatting” with various people there about the traditional African garb he was wearing, and how things about his culture are not being taught in schools. At one point he was doing tricks on his skateboard until a McDonald’s’ security person asked him to stop. He acknowledged being a little intoxicated and high.

[11] As Mr. Edwards was chatting to some people, Jayson and Janson Jeyakanthan entered. In his evidence, Mr. Edwards referred to them as “the guy in the yellow top” and “the guy in the red top.” From various sources of video footage (surveillance cameras at McDonald’s, surveillance cameras capturing the arrest on Spadina, and video from the police station), it is clear that the man in the yellow top was the accused Jayson Jeyakanthan and the other man was his brother Janson. Jayson interrupted the conversation Mr. Edwards was having and spoke in an intimidating manner to the person with whom he had been interacting. There was some verbal sparring, mostly between Jayson and Mr. Edwards. Jayson then lifted his top and showed Mr. Edwards a firearm tucked into his pants. Mr. Edwards said he could see 60% of the gun and believed it to be a Glock or Smith & Wesson, based on his 10 years of experience in the military reserves. He said Jayson’s right hand was moving towards the gun and he therefore lunged forward to try to grab the gun before Jayson got to it. He described this as a “Jason Bourne” move, referring to a fictional character in a popular action movie series. Mr. Edwards said he believed that if he did not act quickly, Jayson was going to shoot him. As Mr. Edwards was reaching forward and Jayson was pushing him away, Janson punched him in the side of the head, hitting him in the earlobe, and he fell to the ground. He said that prior to this, Janson had not said anything and had simply been standing to Jayson’s left. Mr. Edwards testified that before he was punched, he actually had his hand on the gun and his wrist was grazed by what he thought must be the safety.

[12] Mr. Edwards said that he knew from his military training that it is easier to hit a target on the ground, so he rolled to his feet and ran out the door and west down Queen Street. Mr. Edwards described himself as being in panic mode. He said he looked back and could see Jayson and Janson were both chasing him. He said he could see Jayson pointing the gun at him. He threw a recycling bin across the sidewalk behind him, hoping to interrupt their progress. Then he jumped over a construction fence and kept running. He was calling 911 as he ran, and gave a description of the two men.

[13] After running for a while, he circled back to Spadina and saw police with both Jayson and Janson on the ground in handcuffs. He said those were the same men he had seen at McDonald’s. This would not be a reliable identification on its own. However, based on the whole of the evidence, particularly the surveillance video evidence, I am fully satisfied with respect to identity. Jayson and Janson were the two men involved with Mr. Edwards in the incident at McDonald’s.

[14] I found Mr. Edwards to be an honest witness. He did appear, however, to be somewhat suggestible. For example, he testified at one point that he saw both men with guns outside McDonald’s, and another time said he saw Janson with a gun. However, in the information he provided to the 911 operator he clearly described only Jayson as having a gun. When cross-examined on this point at trial, he readily agreed that he had only seen one gun and that Jayson had it. He explained the discrepancy by saying that the 911 operator had told him the police had recovered two guns. I am therefore cautious about accepting his evidence on key points without some corroboration of the details he reported.

[15] I find that the video surveillance footage from McDonald’s corroborates Mr. Edwards’ evidence as to the essence of the interaction between him and the Jeyakanthan brothers inside McDonald’s. Jayson can be seen pulling up his yellow sweater on the right side and reaching in, whereupon Mr. Edwards lunged towards that area and Janson punched Mr. Edwards in the head. Mr. Edwards scrambled quickly and fled with Janson in pursuit, followed by Jayson with the gun in his hand. There is clear footage of Jayson with the handgun in his right hand down by his side as Mr. Edwards is fleeing the building.

[16] I do not accept the submission of the defence that the video footage contradicts Mr. Edwards’ evidence about seeing a gun tucked into Jayson’s pants. The video shows Jayson lifting his sweater, Mr. Edwards reacting, Mr. Edwards lunging forward towards Jayson, Jayson pushing him away, and Janson punching Mr. Edwards in the head. Immediately afterwards, a firearm can be seen in Jayson’s right hand. All of this happened in a matter of about two to four seconds. However, I find this was ample time for Mr. Edwards to see the gun and remember what it looked like. I accept his evidence that he saw the gun and tried to grab it. It is not necessary for me to make a finding about whether Mr. Edwards actually touched the gun, or whether he scratched his wrist on the gun, and I refrain from doing so. At the precise moment when this could have happened, the view of what is happening with Mr. Edwards’ right arm is blocked by two people moving between the camera and the two men. One of the two people blocking the view is Janson and the other just a random person in the restaurant.

[17] I do not draw anything from the reactions of the people in the restaurant. Their attention was drawn to the scuffle, but the whole thing was over in a few seconds and Jayson did not point the gun at anyone, or even raise it in the air, during the time he was inside McDonald’s.

[18] I am satisfied beyond a reasonable doubt that Jayson lifted his top to show Mr. Edwards what appeared to be a firearm tucked into his pants and that Mr. Edwards’ description of what he saw is reliable.

[19] However, Mr. Edwards is mistaken in his recollection as to how far and for how long he was being pursued by these two men. Both brothers can be seen following Mr. Edwards as he ran out the door. However, Jayson was back inside the restaurant after about 16 seconds. Further, upon his return, he grabbed the skateboard Mr. Edwards had abandoned when he fled. At that point, Jayson no longer had the firearm in his right hand. He went out the door again only briefly and then both he and Janson returned inside. They lingered for a few seconds inside the restaurant and then, at Janson’s urging, they both left with Jayson still carrying the skateboard.

[20] It is quite likely that Jayson pointed the gun at Mr. Edwards as he was running. He did come out of McDonald’s carrying it in his right hand. However, as they were leaving McDonald’s, Janson was moving faster than Jayson and was in front of him. Jayson was also back inside McDonald’s within 16 seconds of leaving. Further, it appears from the McDonald’s’ video footage that for most of those 16 seconds, Jayson was hovering in the area immediately outside the door. Mr. Edwards was running for his life and would have had only a fleeting glance of what was happening behind him. Mr. Edwards had seen the gun inside the restaurant, believed Jayson was going to shoot him, and now was being chased. Given the understandable panic Mr. Edwards was feeling and what I have noted to be the suggestible nature of his recollections, I cannot be sure that he actually saw Jayson point the gun at him in the street.

[21] Count 1 on the indictment charges Jayson Jeyakanthan with pointing a firearm at Leighton Edwards. The only time this could have occurred was during Mr. Edwards’ flight from the restaurant. For the reasons stated above, on the evidence before me I cannot be satisfied beyond a reasonable doubt of Jayson’s guilt on this charge.

[22] I have no hesitation in accepting Mr. Edwards’ evidence about the nature of the confrontation in the McDonald’s and that Jayson lifted his sweater and showed him a gun. I am also completely satisfied that Janson punched Mr. Edwards in the head and chased him out of McDonald’s. Jayson followed them out with the gun in his right hand down by his side. All of this is confirmed by the video surveillance.

[23] Assuming for the moment that the gun Jayson had at McDonald’s is one of the guns found in the alleyway off Spadina, then I am satisfied beyond a reasonable doubt that he was carrying a concealed weapon when he entered McDonald’s. However, I cannot be satisfied that this was a real gun based solely on the evidence of Mr. Edwards. He had only a brief glance at the firearm. It is almost impossible for anyone, even an expert, to tell the difference between a real gun and a good imitation or replica merely by looking at it for a few seconds. Mr. Edwards was not an expert. He had some familiarity with firearms from his militia training, but not with a Glock or a Smith & Wesson, and he certainly was not qualified to give an opinion on the matter. The most he could say was what the gun looked like from its outer appearance. I accept his evidence on this point, including as to the resemblance between what he saw and the two makes of firearms he named. However, that is not sufficient to make a finding of guilt for possession of a prohibited firearm.

[24] The Crown argued that I should accept the evidence of Mr. Edwards that this was a real gun because the defence did not call an expert witness to testify as to how realistic an imitation weapon may appear. I disagree. I have been a trial judge in Toronto for 27 ½ years. I have seen enough imitation and replica firearms to know that nobody, on a fleeting glance, could tell whether or not a particular gun was a real, functioning firearm. With respect to this count, guilt depends on whether I find Jayson later put the gun from his pants under the red van in the alleyway. As I will develop later in these reasons, I am satisfied that Jayson did that, and this was, therefore, a real firearm. However, it is not possible to draw that conclusion based solely on the evidence of Mr. Edwards.

[25] I cannot be satisfied that Mr. Edwards saw Janson with a firearm. His evidence flip-flopped on that point and, ultimately, he said that he had only seen Jayson with a firearm. However, the Crown contends that Janson had actual knowledge that his brother had a firearm because he had to have seen it inside McDonald’s and also when Jayson pointed it at Mr. Edwards out on the street. As I have already noted, I am not satisfied that Jayson pointed the firearm at Mr. Edwards. It follows that Janson cannot be fixed with knowledge of the firearm from what happened outside the restaurant while pursuing Mr. Edwards.

[26] I also agree with the submission of counsel for Janson that at the time Jayson is shown on video with the firearm in his right hand, down by his side, Janson was chasing after Mr. Edwards and Jayson was behind him. Janson could not have seen the gun at that point.

[27] However, I do not agree with the defence submission that Janson could not have seen the firearm at the same time Mr. Edwards did, when Jayson lifted his sweater. At that point, Jayson and Mr. Edwards were standing face to face and Janson had moved away from behind his brother and was standing between the two men and looking directly at the space between them. He was barely an arm’s length away. Jayson deliberately lifted his sweater. It is an inescapable inference that Janson would have seen what Mr. Edwards saw. If he was not surprised by that sight, it can only be because he already knew the gun was there. That is not to say that I am making a positive finding that Janson was not surprised. I do not think that can be seen from the video. However, I also do not accept that his head and gaze were fixed directly in front of him or on Mr. Edwards. He was looking in the direction of the space between the two men and would clearly have been able to see the gun deliberately displayed by his brother. I find that, at least as of that point in time, Janson had knowledge of what appeared to be a firearm in his brother’s possession. I reject the defence argument that Janson had no knowledge of the gun based on the fact that, as he approached his brother and Mr. Edwards, he asked what was going on. This question was asked before Janson shifted his position to the side of his brother and Mr. Edwards and before the gun was displayed by Jayson.

[28] Mr. Edwards reached for the gun and Jayson put up his arm to fend him off. Almost at that same moment, Janson punched Mr. Edwards in the side of the head. He is charged with assault in relation to that attack on Mr. Edwards. The defence submits that Janson acted in self defence.

[29] Mr. Edwards testified that when he reached for the gun, Jayson elbowed him away and Janson punched him in the ear lobe. He said he went down to the ground and then rolled to a standing position and fled. The Crown alleges that Janson first punched Mr. Edwards in the side of the head and then delivered another blow when Mr. Edwards was on the floor. The Crown relies on the surveillance video from McDonald’s to establish the second punch. I do not accept that the video clearly shows a second blow being delivered. The first strike is clear, and then there is some flailing about as Mr. Edwards is on the ground, gets to standing, and runs. Janson does chase him out the door, but it is unclear what happened after that. Given that Mr. Edwards had no recollection of being struck a second time, I am only satisfied on the evidence that Janson delivered a single punch to the side of Mr. Edwards’ head.

[30] It is clear that Janson did not deliver that blow until after Mr. Edwards attempted to grab the gun. Janson had a fraction of a second to react. I find that in these circumstances, Janson was reacting in protection of his brother. In my view, the single punch to Mr. Edwards’ head was a reasonable force to prevent Mr. Edwards from doing serious harm. The threat of Mr. Edwards grabbing the gun was imminent and could have had deadly consequences for any number of people, including Jayson, Mr. Edwards, and innocent bystanders in the restaurant. Although Janson had seen the weapon at the same time Mr. Edwards did, he was not involved in the altercation between his brother and Mr. Edwards prior to that point in time, nor in Jayson’s threatening gesture of displaying the gun. The amount of force he used was minimal and did not involve a weapon. Janson and Mr. Edwards were comparable in terms of age, size, and physical ability. This is readily discernible simply by looking at them in court and on the video. I do not need additional evidence to make that finding. No serious injury was caused. I appreciate that there are subjective elements required to establish self-defence and that the defence presented no evidence as to what was going through Janson’s mind when he threw that punch. Nevertheless, the burden is on the Crown to disprove self-defence. The Crown alleges, and I have found as a fact, that Janson saw the gun in his brother’s waistband, Mr. Edwards reached out to grab the gun, and Janson immediately punched him in the head. In these circumstances, I find all the elements required under s. 34(1) and (2) of the Criminal Code have been met. Janson acted reasonably in defence of his brother and others with respect to the initial punch. It follows that he is not guilty on the charge of assault.

[31] Thus, my analysis of the evidence in relation to the incident at McDonald’s results in two charges being dismissed: the assault charge against Janson; and the pointing a firearm charge against Jayson.

C. CHARTER BREACHES

(i) The Position of the Parties

[32] The defendants seek a stay of proceedings, or alternatively the exclusion of all evidence obtained against them, based on various breaches of their Charter rights.

[33] Janson submits that the police breached his Charter rights by: failing to advise him of the grounds for his detention and then arrest; delaying the implementation of his rights to counsel by over six hours, including strip-searching him before he had the opportunity to speak to counsel; and holding him in custody for more than 24 hours before bringing him to court.

[34] Jayson similarly alleges Charter breaches based on the police: failing to advise him of the basis for his detention and arrest, and in particular failing to tell him it was connected to the McDonald’s incident; delaying the implementation of his Charter rights and making insufficient efforts to connect him with his counsel of choice; and holding him in custody for more than 24 hours before taking him to court. In addition, he alleges that P.C. Poirier used excessive violence in the course of arresting him, in breach of his rights under s. 7 of the Charter.[^2]

[35] Both defendants argue that these breaches of the Charter are proximate in time and part of the same chain of events as the discovery of the firearms in the alley and that the evidence was therefore “obtained in a manner” that breached the Charter. Janson also argues that the evidence that he was in breach of the terms of a recognizance was obtained as part of that same sequence of events in which his Charter rights were breached and should be excluded from the evidence at trial.

[36] The Crown submits that the police complied with s. 10(a) and (b) of the Charter by advising the defendants of the reasons for their arrest and their rights to counsel. Any brief delay was due to the dynamic situation involved and justified for officer safety. With respect to delays in implementing the rights to counsel, the Crown argues that the first possible and safe opportunity to connect either of the detainees with a lawyer was at the police station after booking and strip searches, and that delays to accomplish that process were reasonable. Officers did attempt to contact Jayson’s counsel of choice, but those lawyers did not return the calls and Jayson refused to speak to duty counsel. Janson was eventually connected with duty counsel. The Crown submits that any delay in implementing rights or getting the two defendants to court was reasonable or, alternatively, was not serious and had little impact so should not result in any exclusion of evidence. With respect to the firearms found under the red van, the Crown argues that these were abandoned by the defendants and are therefore not connected to any subsequent Charter breaches there might have been in respect of either accused. Finally, the Crown’s position is that the test for a stay of proceedings has not been met.

(ii) Factual Findings: The Events on Spadina Avenue

[37] After leaving McDonald’s, Jayson and Janson walked north on the west-side sidewalk of Spadina, strolling at a leisurely pace. Jayson was carrying the skateboard in his left hand, down by his side. He was closer to the road; Janson was on his left.

[38] At 4:31 a.m. an emergency call was broadcast on the police radio to be on the lookout for two suspects, one with a gun, in the vicinity of the McDonald’s restaurant at Queen and Spadina. Physical descriptions and clothing descriptions were provided.

[39] A short time earlier, at some point after 4:17 a.m., P.C. Hain and his partner were in a marked police cruiser on their way to a call at Fort York. Enroute, they passed the corner of Spadina and Queen and P.C. Hain’s attention was drawn to a couple of people outside the McDonald’s, one of whom was wearing a bright yellow hoodie. The officer noticed him putting something into his pocket. At the time, it struck P.C. Hain that this action was in response to the police presence, but he did not think much of it, as he thought it was likely alcohol. He looked back as they passed and noticed the man in the yellow hoodie watching them leave. The officers then proceeded to the Fort York call. P.C. Hain could not recall if they were still at Fort York, or had already left there, when the emergency call about the gun at McDonald’s came over the police radio. After hearing the 4:31 a.m. broadcast, P.C. Hain and his partner headed back to Spadina Avenue. As they were driving, they heard a broadcast that officers from 52 Division had two suspects in custody. When they arrived on scene, P.C. Hain recognized one of the individuals in custody (Jayson) as the individual in the yellow hoodie he had noticed outside McDonald’s putting something in his pocket.

[40] Divisions 14 and 52 are both in downtown Toronto and adjacent to each other, with Spadina being one of their boundaries. Given the nature of this call, it was sent out to officers in both Divisions. P.C. Sean Poirier and P.C. Sevro Deane were officers from 52 Division on patrol that night in a marked police car. When they heard the call at 4:31 a.m., they were at the corner of Dundas and Spadina. They headed south on Spadina and spotted two men coming towards them on the sidewalk who matched the descriptions of the suspects. P.C. Poirier was driving, and he had activated his emergency flashing lights. P.C. Deane was in the front passenger seat.

[41] According to P.C. Deane, the front windows of their scout car were rolled all the way down. He said that as they passed these two men, he yelled out of his window for them to stop, but that the men continued going north and ducked into an alleyway. He said he then heard the sound of metal hitting pavement, which he described as sounding like a metal wrench being dropped from about waist high. He immediately thought the sound might be firearms, given the nature of the call. P.C. Poirier turned the car around and went back north in the southbound lanes, bringing the car to a stop with the front of the car pointing towards the alleyway. He said both men then came out of the alley and the two officers proceeded to arrest them.

[42] P.C. Poirier, who was the driver, could not recall if the windows were open or closed, but noted that the back windows were incapable of being rolled down. He also did not recall hearing his partner call out to the two men to stop, and thought it unlikely that he would have done so. He did see the two men who matched the description and saw them go into the alley as they passed by. He did not hear the sound of anything being tossed in the alley, although it must be noted that P.C. Deane (who was in the passenger seat) would have been closer and therefore better placed to hear it. P.C. Poirier did remember his partner saying he heard something being tossed. He made a U-Turn or 3-point turn and came back north in the southbound lane, pointing the car at the area where the two men were now emerging from the alleyway. He said that both officers then got out of the car with their weapons drawn, identified themselves as police, and ordered the two men to stop moving and raise their hands.

[43] Video surveillance footage was obtained of the view facing north on the west sidewalk of Spadina. This video was an exhibit at trial. Jayson and Janson can be seen walking north as the police car approaches them with its lights flashing. Both Jayson and Janson turned their heads toward the police car. They clearly saw it. They then speeded up and ducked immediately into an alleyway on the left side of the sidewalk. The alley is a dead-end. They were in the alley for about 20 seconds. When they emerged, the police car was parked diagonally across the Spadina southbound lanes, pointing into the alley. Janson emerged first and immediately raised his hands, followed by Jayson. They were arrested a short while later.

[44] It is unclear whether both officers saw the two suspects enter the alley while the police car was still heading south, while the car was in the process of turning around, or when the car was heading back north. On my view of the video footage, Jayson and Janson turn their heads to look at the police car passing by at the 2:34 point on the video counter. At that point, the car is already going by them. They turn their heads more sharply a couple of seconds later. They then pick up their pace at 2:38, head for the alley entrance, and are gone from view at 2:42. The police car is back and pointing towards the entrance to the alley at 2:57 and stops at 2:59. Janson emerges from the alley at 3:03, followed by Jayson at 3:05. It is possible that Jayson and Janson picked up their pace after noticing that the police car was turning around, but that is not an inevitable conclusion. Likewise, it is possible they could be seen going into the alley while the car was still southbound, or at some point after that. By my count there are about 15 seconds from when the two men disappear into the alley and when the police car is back to that spot. Everything was happening so fast that perceptions about what was seen at what time may well be mistaken. Nothing turns on this. The point is that the officers saw the suspects react to their presence, saw them hurry into the alley, and then saw them come out. The precise timing of it does not matter.

[45] Initially, the only officers on scene were Deane and Poirier. However, P.C. Hain arrived not long after the two accused were under control and P.C. Deane instructed him to check the alley to search for anything that had been discarded. There was a red van parked in the alleyway. Underneath it, P.C. Hain found two firearms. They were later retrieved and discovered to be loaded. One was a Glock and the other a Smith & Wesson.

[46] The video footage, and a still photo taken from that video, show that there is a light reflection across the passenger side windows of the scout car, crossing both front and rear windows. This is compelling evidence that, as the police car was passing the two accused, the windows were up. They were not all the way down as described by P.C. Deane. When confronted with this, P.C. Deane suggested that maybe his window was partway down. I accept that this is possible, but it was not his memory of it and I do find it to be reliable in all the circumstances. I find it unlikely that P.C. Deane shouted out to the two men to stop, and also unlikely that he could have heard the sound of guns being thrown under a car in the alley, from a moving car that was already past the alleyway when the two men went in there and which had its windows closed. Further, P.C. Deane was very specific about the nature of the sound he heard – like a wrench being dropped to pavement from waist high. That sound is not consistent with the sound of one or two guns being thrown under a car, which would likely yield more of a skidding sound. It is quite likely that P.C. Deane heard something, but it is unlikely to have been the noise of guns being thrown under the red van. These discrepancies do not mean I find that P.C. Deane lied about these details, but it does cause me to be cautious of accepting his uncorroborated evidence on other details, as the reliability of his memory is suspect, to say the least.

[47] I do not agree with the Crown’s submission that the video showing both Jayson and Janson looking towards the police car as it passed is corroboration of P.C. Deane’s evidence that he yelled at them to stop. The police car passed them with its lights flashing, slowed down as it passed them, and both officers were looking at them. Both brothers had good reason to be wary of police cars with flashing lights. Jayson, mere minutes before, had a gun with him at McDonald’s. After leaving McDonald’s he appeared vigilant as Officer Hain’s police car passed by. Janson was in clear breach of a house arrest provision on a recognizance with respect to other charges. Their apprehensiveness at seeing the police car could simply have flowed from these circumstances, rather than from hearing any directives from P.C. Deane.

[48] I do not accept that these two men had been ordered to stop before they went into the alleyway. There was no detention prior to that side trip into the alley. However, there is no question that the two accused were detained from the moment the police car pulled up to the sidewalk and the officers, with guns drawn, ordered them to stop. When a police officer points a firearm at you and tells you to stop and raise your hands, you are detained within the meaning of s. 9 of the Charter. Although not challenged by the defence, I note there were ample grounds to detain these two men. The issue here, is not whether there was a lawful detention, but rather how things evolved from there.

[49] I take no issue with the officers’ decision to draw their firearms before approaching these two men. Although it was 4:30 a.m., this was a busy area of the city and a busy street. There were only two officers to cover two suspects. In these circumstances, and in particular given the nature of the call and the reasonable belief these men might be armed, it was appropriate for the police to approach them with weapons drawn and to put handcuffs on them immediately. This was reasonable for the safety of the police and the protection of the public.

[50] Although ordered to stop, neither accused actually stopped, but rather kept walking north. Janson did raise both his arms in the air almost immediately after coming out of the alley, but continued to walk north away from the officers. At first, Jayson did not raise his arms; he simply continued walking. The skateboard was in his right hand, but his left hand was not visible. He then turned around with both arms extended so that he was facing the officers, but he continued to walk backwards, away from the officers.

[51] P.C. Deane dealt with Janson. The video footage shows that Janson came out of the alley at 3:03 on the video counter, as the officers were getting out of the car and approaching. He immediately raised his hands as directed, but despite repeated directions to stop, he kept walking north. P.C. Deane testified that it was clear Janson could hear what he was being told to do because he responded, “Whatever, fuck off,” and still kept walking north. P.C. Deane was not able to take hold of him until 3:12 on the video. At that point, Janson was relatively compliant. He struggled a little when P.C. Deane attempted to cuff him, but the officer was able to control him with minimal effort. P.C. Deane testified that Janson appeared to be intoxicated. He smelled of alcohol, his eyes were glossy and bloodshot, and he seemed unsteady on his feet.

[52] Meanwhile, P.C. Poirier was having considerably more difficulty with Jayson. Initially, Jayson did not raise his hands at all. Like his brother, he continued moving north although told to stop. P.C. Poirier testified that Jayson had his left hand in his pocket and failed to remove it when told to do so. This is not apparent from the video. Although there are four or five seconds where his left hand is not visible, it looks as though it may have been in front of his body rather than in his pocket. However, it would certainly be a legitimate concern for the officer that a suspect, believed to be armed, refused to show his hands when ordered to do so at gunpoint. Eventually, Jayson did raise both his arms straight out, but did so only after he turned around and continued walking backwards. He was holding the skateboard in his extended right arm. This was potentially a weapon and could have had dire consequences if used in that manner, particularly given that there were only two officers to deal with two suspects. P.C. Poirier made the decision to take Jayson to the ground.

[53] I do not accept the defence arguments about the untruthfulness of this officer’s testimony. P.C. Poirier knew there was video of the arrest and there would be no point in deliberately lying. I find that he genuinely believed that Jayson had his hand in his pocket and that is the way he remembered it. Given how fast things were evolving and the dangerousness of the situation, I do not find it particularly surprising that P.C. Poirier mistakenly believed Jayson’s left hand was in his pocket because he was unable to see it.

[54] Once on the ground, Jayson continued to struggle and resist being handcuffed. P.C. Poirier testified that he was able to get the cuffs on one of Jayson’s hands, but the other hand was under his body and Jayson would not stop struggling so that he could safely remove it. This was a particular problem due to the officer’s legitimate concern that Jayson could have a weapon. P.C. Poirier further testified that he was on top of Jayson and in order to get control he delivered one distractionary punch to the side of Jayson’s head and also pushed his head to the ground. I accept that evidence. Although the defence alleges that P.C. Poirier used excessive force to effect this arrest and that he “smashed” Jayson’s head to the ground, there is no evidence to support that proposition. Jayson did not testify. P.C. Poirier acknowledged “placing” Jayson’s head on the sidewalk, but denied “smashing” his head to the sidewalk. The defence provided an excerpt of the arrest with a close-up view of this part of the arrest. Even with this enhancement, it is difficult to see on the video precisely what is happening. The punch and the head being forced to the sidewalk can be seen quite clearly. However, I do not find that the video supports the contention that Jayson’s head was “smashed” forcefully to the sidewalk. That allegation is also not consistent with the minimal injuries Jayson sustained, consisting of a minor cut on his lip.

[55] While P.C. Poirier was struggling to control Jayson, the two brothers were communicating with each other in a language neither officer could understand. Janson was becoming agitated about the struggle and was yelling at the officers to leave his brother alone. P.C. Deane was trying to assist P.C. Poirier with Jayson, which was difficult given that he also had to maintain control over Janson. I accept the evidence of P.C. Poirier and P.C. Deane that Jayson was also yelling and swearing at them, including calling them “fucking pussies” and “fucking assholes.” After this had been going on for several minutes, a firetruck passed by, and firefighters came out to assist. It was only with their help that Jayson was finally cuffed and under control. This was before other police officers had arrived on scene.

[56] P.C. Poirier testified that in his opinion Jayson was “very intoxicated.” He was unsteady on his feet, swaying, slurring his words, and threw up in a garbage can when they got to the police station.

[57] Other officers who arrived on scene later noted that Jayson was still struggling and resisting. Sgt. Ferko testified that when he arrived Jason was already cuffed and was ready for transport to the station. He described him as being belligerent, cursing and swearing, and being uncooperative. Jayson refused to walk to the police cruiser assigned to take him to the station and officers had to physically carry him to the car. Because of his conduct, he was placed in leg restraints when put in the cruiser. One of the transporting officers, P.C. Crosby, also described Jayson as being aggressive, swearing, and making homophobic remarks.

(iii) Analysis: No Breach of Jayson’s s. 7 Rights

[58] Jayson alleges that P.C. Poirier used excessive force when detaining and handcuffing him on Spadina Avenue in breach of his rights under s. 7 of the Charter.[^2] Section 7 of the Charter provides that everyone has “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of natural justice.” Jayson submits that there was no need for the force used by P.C. Poirier – taking him to the ground, kneeling on his back, punching him forcefully in the head, and repeatedly slamming his head to the sidewalk.

[59] The onus is on the defence to establish on a balance of probabilities that the police used excessive force in breach of his rights under s. 7 of the Charter. Jayson did not testify. My decision in this case is therefore based on the testimony of the police officers who were there and on the video surveillance evidence from a camera looking north on Spadina Avenue.

[60] A police officer is entitled to use “such force as may be necessary” to arrest or detain an individual and to ensure that their detention is secured.[^3] However, the degree of force must be “no more than is necessary.”[^4] In assessing whether police used excessive force the trial judge must consider subjective and objective components: (a) whether the officer or officers involved subjectively believed they used only the degree of force that was necessary and appropriate; and (b) whether those views were objectively reasonable in the whole of the circumstances.

[61] The Supreme Court of Canada held in R. v. Nasogalauk:

[P]olice officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.[^5]

[62] Police officers must make quick decisions in difficult and dangerous circumstances. Officer safety and the protection of the public are important factors to keep at the forefront of any analysis of reasonableness. The Supreme Court in Nasogaluak cautioned against judging police action without taking context into account, stating:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218] [^6]

[63] P.C. Poirier had a split second to decide whether to take Jayson to the ground. Jayson was not complying with demands, was holding a potential weapon in one hand, and had his other hand hidden for several seconds before turning around. At this point in time, P.C. Poirier was alone, did not know the identity of the suspect, and needed to get control of him immediately. In all the circumstances, and in particular because of the suspected presence of a firearm, I find taking Jayson to the ground was an appropriate course of action in the interests of safety for the officers and general public. Making the wrong decision in these circumstances could have had potentially fatal consequences. It is not for me to second-guess the decision made by that officer, at that time, and in that situation. What I can say is that I accept the officer’s evidence that he believed it to be necessary and that, in my view, it was an objectively reasonable approach in the context of the situation before the officer.

[64] Based on the evidence before me, I also find no basis for the defence claim that the police used excessive force against Jayson after taking him to the ground. Jayson was struggling violently and trying to get up, despite being told to hold still. The officer was able to get handcuffs on one wrist, but Jayson’s other hand was under his body, leading the officer to fear he might have access to a gun. The officer was alone in dangerous circumstances. Placing his knee on Jayson’s back was a completely reasonable tactic as was the single blow to the side of the head. As I have already noted above, I believe the video supports the officer’s evidence that he “placed” Jayson’s head on the ground repeatedly, not that he “slammed” it against the ground. In my opinion, the police used only the degree of force necessary to effect Jayson’s arrest. To the extent there was a minor injury to Jayson during the arrest, this was entirely due to his own belligerent, violent, and noncompliant actions.

[65] There was no breach of Jayson’s rights under s. 7 of the Charter.

(iv) Analysis: No Breach of ss. 10(a) and 10(b) Upon Detention or at the Scene of the Arrest

[66] As I have already stated, both Jayson and Janson were detained when the police pointed firearms at them and told them not to move.

[67] Under s. 10(a) of the Charter a person under arrest or detention has the right to be told “promptly” of the reasons for his arrest or detention. In normal circumstances, “promptly” means “immediately.”[^7] However, context is important. Police officers cannot be expected to advise detainees of their rights until it is safe to do so, both with respect to the safety of the officers involved and for any members of the public who might be nearby.[^8]

[68] The two accused were not told the grounds for their detention until after the firearms were discovered and they were arrested. In this case, it was theoretically possible for P.C. Deane to advise Janson of the reason for his detention and rights to counsel immediately upon handcuffing him. However, this was not practically possible in the circumstances because of what was happening with Jayson and P.C. Poirier. As soon as Janson was secure, P.C. Deane went to where P.C. Poirier was still struggling to control Jayson and assisted him as best he could, while still managing Janson. It was vital for officer safety, and the protection of the many people out and about, that this situation be brought under control before either officer was in a position to address the requirements of s. 10(a) of the Charter. This was an extremely dynamic and potentially dangerous situation. Stability was not restored until mere moments before the guns were found under the red van. At that point, both accused were told they were under arrest. In these circumstances, I find it was not possible to advise the accused of the reasons for their detention immediately. The detention situation merged quickly into the arrest. The officers had no safe opportunity to advise the detainees of their rights upon detention. However, since the arrests followed immediately on the heels of securing the detainees after their initial detention, this was a very minor delay in any event and had no real impact on either detainee.

[69] At 4:45 a.m., P.C. Deane advised Janson that he was under arrest for possession of a firearm and assault. He then took him to a cruiser parked nearby so that he could do a proper pat down search. He obtained a driver’s license from Janson that identified him as Mayuran Spiranganathan. Janson did not provide his real name to the officer. At 4:49 a.m., P.C. Deane advised Janson of his rights to counsel, reading from the back of his memo book. When asked if he understood, Janson replied, “Yes.” When asked if he wanted to contact a lawyer, he said “I guess so, fuck, whatever.” He was then placed in the cruiser for transport to the station. The officers on scene did not consider it feasible to put either of the accused in touch with counsel prior to arriving at the station.

[70] P.C. Poirier testified that he advised Jayson that he was under arrest for possession of a firearm immediately upon learning that the firearms had been found under the red van. He then did a pat down search to ensure there were no other weapons. He obtained a health care card from Jayson bearing the name Mithuram Nimalakanthan. P.C. Poirier had some concerns about the ID because the photograph on the card was of a person with no tattoos, whereas Jayson had visible tattoos near his eye and on his neck. P.C. Poirier asked Jayson if this was his card, to which Jayson responded, “Fuck off. Talk to my lawyer.” At that time, he did not say who his lawyer was. He was then put in a cruiser for transport to 14 Division.

[71] When a person is detained or arrested, s. 10(b) of the Charter imposes three duties on police officers:

(1) The police must inform the accused persons of their right to retain and instruct counsel without delay and of the availability of legal aid and duty counsel;

(2) If an accused expresses a wish to speak to a lawyer, the police must provide them with a reasonable opportunity to exercise that right; and

(3) The police must hold off eliciting any evidence from an accused until there has been a reasonable opportunity for that accused to speak to a lawyer.[^9]

[72] In this case, the accused were not advised of their rights to counsel until after their arrest. There was no opportunity to do so at the time of their detention, for the same reasons I stated above with respect to their rights on detention under s. 10(a) of the Charter. However, upon being advised of their rights to counsel at the time of their arrest, both accused (to some extent) indicated a wish to speak to a lawyer. The police held off asking any questions until the two accused had an opportunity to speak to a lawyer, but they did not take any steps to permit the accused to speak to counsel until after they were at the police station.

[73] Sometimes it is possible to facilitate the right to speak to counsel at the scene of an arrest or detention. This was not such a case.

[74] In R. v. Devries, Doherty J.A. noted that there can be insurmountable practical problems in connecting an accused with a lawyer from the scene of an arrest or detention, such as the lack “of a telephone that was useable in circumstances that would permit the detainee to speak with a lawyer for the purpose of obtaining legal advice.”[^10] In R. v. MacDonald, Labrosse J. noted a number of practical problems with facilitating a call to counsel from the scene of an arrest, as follows:

I accept the evidence heard from various officers who testified in these proceedings that there are security issues surrounding a practice of providing an accused person with a police cell phone for use at the scene of an arrest. There are also evidentiary issues that surround giving an accused person their own cell phone and allowing them to tamper with what may be evidence, particularly in a drug trafficking case. There is also the issue of a lack of privacy for the accused to properly exercise his rights to counsel and control of who an accused is calling if a cell phone is given to him. In these circumstances, there was a pending entry into the residence and there is no evidence of the availability of a payphone.[^11]

[75] In this case, it was not possible to provide a safe and private location from which either accused could call a lawyer at 4:30 a.m. on Spadina Avenue. The belligerence and abusive behaviour exhibited by Jayson at the scene was another obstacle.

[76] Accordingly, I find no breach of the s. 10(a) or 10(b) rights of either accused upon either arrest or detention. There is one small caveat with respect to the rights under 10(a) to be told the grounds upon which a person is arrested. Counsel for Jayson argues that the failure to tell him that the basis for his arrest also included the incident at McDonald’s is also a breach of s. 10(a) of the Charter. I do not find a breach at the time of the arrest. The officers involved at that time had limited information about what happened at McDonald’s. They arrested both accused in connection with the firearms under the red van and advised them only that they were under arrest for possession of prohibited firearms. As at the time of the arrest, this was sufficient. I will deal with this issue again with respect to what happened at the police station.

(v) Breach of s. 10 Rights at the Police Station – Jayson Jeyakanthan

[77] Jayson was brought to 14 Division by police cruiser, arriving at approximately 5:01 a.m. Only one person under arrest can be paraded for booking at a time. There were others ahead of Jayson, so there was a delay of about an hour in bringing him before the booking sergeant.

[78] Throughout the booking process, Jayson was uncooperative and for the most part uncommunicative. At the outset, he refused to acknowledge whether he understood anything the officers were explaining to him, nor would be provide his name or say whether the identification found on him was his. The officers parading him advised the sergeant that he had been told he was under arrest for possession of a prohibited firearm and read his rights, but that he had not responded with the name of a lawyer or expressed a wish to speak to duty counsel. The booking sergeant repeated these questions, and Jayson was again uncooperative. The sergeant explained that Jayson could use the private booth in the booking hall to speak to a lawyer if he wished to do that. To the extent Jayson said anything, it was to complain a couple of times that the officers had beat him up. He did not identify any injuries other than the cut on his lip. Eventually, he started nodding when asked again if he wanted to speak to a lawyer, and provided two names: David Locke and Brian Greenspan. When asked if he wanted to speak to duty counsel if these two lawyers did not call back, he appeared to refuse. However, the sergeant told him that duty counsel was always an option if they could not get hold of one of these lawyers. At the very end, when specifically requested, Jayson provided a number for David Locke, although he stated he wasn’t sure about the number. The sergeant advised that they would look for it on Google if necessary. A strip search was conducted between 6:06 a.m. and 6:13 a.m., and Jayson was then taken to the cells at 6:16 a.m.

[79] D.C. Michael Spence reported for duty that Sunday morning at 7:00 a.m. He was asked to make calls to counsel on behalf of both accused. Meanwhile, Mr. Edwards was at the police station, still waiting to provide his statement about what had happened at McDonald’s. D.C. Spence decided to interview Mr. Edwards first as he had been up all night, and he wanted to get his statement before determining the full extent of the charges to be laid against Jayson and Janson. He conducted that interview, along with D.C. Silvino Pinto, from 7:49 a.m. to 8:29 a.m.

[80] At 9:20 a.m., D.C. Spence placed a call to the number provided by Jayson (which was the correct phone number for David Locke). Unsurprisingly, nobody answered the phone at the lawyer’s office at 9:20 a.m. that Sunday morning, but the officer left information about the reason for the call, the person he was calling for, and the telephone number to call back to the station. At this point, he did not have Jayson’s real name. The name he provided in the telephone message was the name on the fake identification Jayson had on his person. Mr. Locke did not return the call. At this time, D.C. Spence did not attempt to contact Jayson’s other choice of counsel, Brian Greenspan.

[81] At 10:15 a.m., without first checking with Jayson, D.C. Spence placed a call to duty counsel for him. Jayson refused to speak to duty counsel because he was waiting for his chosen lawyer, David Locke, to call him back. At this point, D.C. Spence took no other steps to reach David Locke, nor did he make any efforts at all to contact Brian Greenspan. He simply waited for Mr. Locke to call back.

[82] At some time after 10:00 a.m., D.C. Silvino Pinto went to the cells to speak to Jayson. He had received information from the arresting officers that the identification for Jayson might be suspect. D.C. Pinto asked Jayson to spell his last name. Jason refused to do so, telling the officer he could read it himself on the identification card. D.C. Pinto persisted that he was suspicious this was not his real name. Jayson then relented and told D.C. Pinto his real name. After discovering Jayson’s true identity, the officers were also then able to identify the other accused as his brother Janson and to discover that Janson was in breach of a prior recognizance.

[83] By 10:47 a.m., there was still no call from Mr. Locke in response to the message left, so D.C. Pinto placed a call to duty counsel on behalf of Jayson. Jayson again refused to speak to duty counsel, insisting that he only wanted to speak to one of the two lawyers he had chosen.

[84] At 9:16 p.m., D.C. Josephs, at the specific request of Jayson, placed another call to David Locke, again leaving a message to call back. At 9:21 p.m., he also called Brian Greenspan for Jayson. He got an answering machine and left a message for Mr. Greenspan to call the station to speak to Jayson. At that time, Jayson said he did not want calls placed to anyone else. Neither Mr. Locke nor Mr. Greenspan ever returned those calls.

[85] I do not consider the time taken to do the routine processing and booking of these two accused to be inordinately long, nor would I count it as part of the delay in the police duty to implement the rights to counsel. The delay in providing rights to counsel started from the time Jayson’s booking procedure was completed at 6:16 a.m.

[86] The police delayed from 6:16 a.m. to 9:20 a.m. before making any attempt to call either of the lawyers requested by Jayson. I recognize that the officers were busy doing other things. However, three hours is an unacceptable delay before placing that first call. I have no difficulty with the officers first calling the number given to them by Jayson, which was the number for Mr. Locke. However, the delay of another 12 hours before following up with Mr. Locke is not acceptable. Further, waiting for 12 hours after the first call to Mr. Locke before attempting to reach Mr. Greenspan is also an unreasonable delay. The onus is on the Crown to explain why these delays occurred and no acceptable explanation was provided. The officers were simply lackadaisical in carrying out this duty and no one officer had an assigned responsibility to ensure that the s. 10(b) rights were implemented. This was a violation of the implementational component of Jayson’s rights under s. 10(b) of the Charter.

[87] The call to duty counsel on behalf of Jayson at 10:15 a.m. was well-intentioned, but inappropriate. Jayson had already given the names of two lawyers. When the first one had not called back in an hour, the appropriate next step was to call the other one. This should have been done as a matter of course by the officer charged with that responsibility. There would certainly have been no problem speaking with Jayson to see if he wanted to try duty counsel, which was always an available option, even on Sundays. The difficulty with having private counsel call back on Sunday could also have been explained to Jayson. However, simply presenting him with duty counsel on the line was improper and constituted inappropriate channeling of Jayson towards duty counsel and away from his counsel of choice.

[88] For reasons I set out in considerable detail in my recent decision in R. v. Beckles,[^12] in my view, the police have no obligation to provide an accused person in custody with lists of lawyers from which they might choose someone other than duty counsel. Neither is there anything improper with providing access to duty counsel for any accused who does not have a counsel of choice. However, where a person in custody has clearly stated a counsel of choice, putting a call through to duty counsel for him is improper, no matter how well-intentioned. I found in Beckles that, based on the facts of that case, there had been no improper steering of the accused towards duty counsel.[^13] That is not the situation here. Jayson was steered towards duty counsel within an hour of the first call to one of his lawyers of choice, and long before any attempt was made to contact the other lawyer he chose.

[89] On the other hand, I note that Jayson was given the opportunity to speak to duty counsel, which he refused. That was absolutely his right. However, the reality of the situation is that this was a Sunday. It is understandable that lawyers were not returning calls to police stations. If Jayson had an urgent or pressing need to speak to a lawyer, he knew he had the opportunity to speak to duty counsel. It was his own choice to wait.

[90] I also note that no attempt was made to elicit a statement from Jayson during this time, except with respect to his true identity. His statement about his real name is acknowledged by the defence to be voluntary and admissible.

[91] The Ontario Court of Appeal in R. v. McGuffie held that a strip-search at the police station prior to the accused being advised of his rights to counsel was unconstitutional, as were his detention, and two earlier searches at the scene.[^14] In R. v. Tonkin, my colleague Bawden J. referred to this finding in McGuffie as binding on him (with which I agree) but distinguished the circumstances in that case from the one before him. In McGuffie, the strip-search was conducted for the purpose of looking for evidence, whereas the purpose of the strip-search in Tonkin (and in this case) was for the safety of the accused and others with whom he might come into contact. Accordingly, while I acknowledge the potential breach in strip-searching Jayson before he had an opportunity to speak to counsel, I recognize it was appropriate for such a search to be done as Jayson had been found in close proximity to a loaded firearm and he was quite inebriated. He was going to be held in circumstances where he could not be constantly observed while waiting for his lawyer of choice to call back. I note as well, that Bawden J. recognized that there are some important reasons why a detainee ought to be able to have legal advice before undergoing a strip-search including:

• Counsel can advise the detainee of the guidelines set out in Golden to ensure that the search is conducted in a reasonable manner;

• Counsel can advise the detainee to challenge the grounds for the strip search and request that the authorizing officer provide a full account of his or her reasons on the booking hall video;

• A detainee who has a chance to speak to counsel may elect to disclose the presence of hidden contraband which could obviate the need to conduct a strip search: McGuffie at para. 81.

• A detainee who is hiding drugs in a body cavity may disclose that fact to counsel within a privileged conversation and obtain advice as to how to protect his or her right to challenge the strip search while ensuring that the hidden drugs are extracted with minimal health risks.[^15]

[92] None of these factors are of any moment in the case now before me. I therefore find that if there was a Charter breach in doing the strip-search before attempting to call counsel, it was done in good faith and had no impact on Jayson.

[93] At some point at the police station, Jayson was made aware of the fact that the charges against him include what happened at McDonald’s. There was no evidence before me as to when that happened. As stated above, I have no concerns about the failure of the police officers at the scene to advise Jayson that he was under arrest for possession of a firearm not just on Spadina Avenue, but also inside the restaurant. The officers who made the arrest would not have been fully apprised of all the facts. The information provided to Jayson at the scene with respect to the reasons for his arrest were sufficient. However, the aspect of the charges involving what happened at McDonalds did increase the jeopardy Jayson was facing and he should have been told this as soon as the police decided to include those charges. For all I know, this may have happened promptly, but there is no evidence that it did. However, this had no impact on Jayson as he did not speak to a lawyer for advice about the charges against him and did not provide a statement to the police.

(vi) Implementation of Rights to Counsel at the Police Station - Janson Jeyakanthan

[94] After the booking sergeant finished the process for Jayson, the next accused brought in was Janson, which was at approximately 6:30 a.m. At the outset, the officers advised the booking sergeant that Janson had been told about his right to a lawyer, and also that he was being charged with assault, possession of a Schedule 1 substance, and possession of a prohibited firearm. They said that Janson told them he understood his rights, but that he did not have a lawyer and they advised him they would call duty counsel for him. The booking sergeant tried to ask Janson some general questions, but he said repeatedly that he needed to use the washroom immediately, so he was taken to a nearby washroom under the supervision of officers.

[95] Upon his return with the two officers, Janson was noticeably unsteady on his feet and swaying back and forth. He did not answer some of the questions directed to him, and for other questions, he gave an answer that was unintelligible. He appeared to be paying no attention to what the sergeant was saying, including when the sergeant was explaining to him how he could speak to counsel. He continued to be belligerent and non-responsive to questions asked of him. He was asked multiple times if he wanted to speak to a lawyer. At one point, he shook his head to indicate “no.” Another time, he said something that sounded like “what’s that?” and the explanation was given to him again. Again, he appeared to respond negatively, although he was mumbling and it was difficult to tell what he was saying. The sergeant authorized a strip search, which took place from 6:39 a.m. to 6:48 a.m. Upon his return before the booking sergeant, he was again belligerent and unfocused. He refused to provide his name and address. He was again repeatedly asked if he wanted to call a lawyer. He eventually said, “Yes. Where is the lawyer?” The sergeant explained again how the phone call procedure would be carried out, Janson remained unresponsive. He accused the officers of lying to him. Ultimately, the sergeant concluded, reasonably in my view, that Janson was not asking to speak to a lawyer and told him that if he changed his mind about that, he should let an officer know and they would arrange the call. The booking process concluded at 6:53 a.m.

[96] I do not agree with the submission of Janson’s counsel that Janson expressed an “enthusiastic” response about wanting to speak to a lawyer. He was uncooperative and largely unresponsive when asked simple questions and I find it completely understandable that the booking sergeant took from his answers that he did not wish to speak to a lawyer. The sergeant told this to Janson (who did not correct him), and also told Janson that if he changed his mind, they would contact counsel for him. In my view, the sergeant acted appropriately.

[97] Notwithstanding that Janson had not expressed a clear wish to speak to a lawyer, at 9:27 a.m., D.C. Spence placed a call to duty counsel on his behalf. Duty counsel called back at 9:36 a.m., but Janson was on the toilet at that time. D.C. Spence placed another call to duty counsel for Janson at 10:15 a.m., and at 10:26 a.m. Janson spoke privately with duty counsel. Later that day, Janson asked to speak with David Locke. In response to that request, D.C. Pinto placed a call to David Locke at 9:16 p.m. and left information for him to call back for Janson (as well as for his brother Jayson). Mr. Locke did not return that call.

[98] If Janson had expressed a clear indication that he wanted to speak to a lawyer, I would find the delay from 7:00 a.m. to 9:27 a.m. to be too long, but not egregiously so. However, in my view Janson did not express a clear wish to speak to a lawyer, notwithstanding multiple attempts by the booking sergeant to get an answer from him on this point. It is to the officer’s credit that notwithstanding Janson’s equivocal (at best) expression about wanting to speak to a lawyer, the officer independently placed a call to duty counsel. As a result, Janson did speak to a lawyer and obtained legal advice. Further, when Janson later said he wanted to call a specific lawyer, an officer facilitated that request by placing a call to Mr. Locke and leaving a message. Mr. Locke did not return the call. Nothing more was required of the police.

[99] I also find the delay from the point of arrest to the completion of booking to be reasonable in light of the logistics involved in processing multiple accused persons. Further, the strip search prior Janson speaking to a lawyer was reasonable in all the circumstances, including that: Janson did not clearly express a wish to speak to a lawyer; he was inebriated; he had drugs in his pocket when arrested; he was detained in close proximity to two loaded prohibited firearms; and he was going to be placed in a cell and held for a show cause hearing. He could easily have been in possession of something that would be a threat to his own safety or the safety of others. A thorough search was necessary before he could be placed anywhere without constant supervision.

[100] Accordingly, I find no breach of Janson’s rights under s. 10(b) of the Charter.

(vii) Breach of Right to be Brought Before the Court Within 24 Hours

[101] Both accused were arrested at approximately 4:35 a.m. on Sunday, September 8, 2019. The booking procedure was completed for Jayson at 6:17 a.m. and for Jayson at 6:52 a.m. The booking sergeant advised one of the accused that they would be taken to court that morning. That did not happen. They were not brought to court until Monday, September 9, 2019, approximately 29.5 hours after their arrest.

[102] Section 503 of the Criminal Code states:

503 (1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law:

(a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and

(b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible.

[103] It must be noted that s. 503, by its own terms, recognizes that it will not always be possible to bring a person under arrest before the court within 24 hours, due to the unavailability of a justice to hear the matter. Section 503(b) contemplates that if there is no justice available within 24 hours of the arrest, the accused must be brought to court “as soon as possible.” There is no requirement to have judges or justices of the peace available 24 hours a day, seven days a week. Limited access to the courts on nights and weekends is therefore not a systemic failure.

[104] In Toronto, there is a court available on the weekends to which accused persons can be brought in order to comply with s. 503. However, the cut-off for Sunday mornings is 12:45 p.m. If an accused person is not at the courthouse by that time, his case will not be heard until the following day, unless special arrangements can be made.

[105] The Crown points out that the police were not able to complete all the paperwork necessary for bail court before 12:45 p.m. that Sunday and by the time the case was ready, there was no justice of the peace available. Therefore, Jayson and Janson were brought to court Monday morning, which was as soon as possible after the Sunday deadline was missed. The Crown submits that in these circumstances, there was no breach of s. 503.

[106] I disagree. Section 503 makes no mention of preparing paperwork as an exception to the requirement for bringing an accused before the court. It may well be the case that there was no unreasonable delay by the police in this case. However, the section requires that an accused in custody be brought before the court “without unreasonable delay and in any event within that [24-hour] period.” The reason the police did not bring the accused to court within the 24-hour window will be highly relevant to whether a remedy is appropriate, and if so, what remedy. However, it does not provide an exemption from the requirements of the section.

[107] In this case, there was a justice of the peace available on the morning of Sunday, September 9, which is within 24 hours after Jayson and Janson were arrested. The failure by the police to bring Jayson and Janson to the court was a breach of s. 503 of the Criminal Code and rendered their continued detention arbitrary, contrary to s. 9 of the Charter. Most of the cases dealing with this issue have simply accepted, without analysis, that a breach of s. 503 of the Criminal Code is also a breach of s. 9 of the Charter. I have considered whether a breach of s. 503 in the absence of unreasonable delay by the police must necessarily be considered to result in an arbitrary detention within the meaning of s. 9. In R. v. Simpson, the Court of Appeal for Newfoundland and Labrador confronted this issue squarely and determined that once there is a breach of s. 503, the accused person “must be considered to have been arbitrarily detained and to be entitled to apply for a remedy under s. 24(1) of the Charter.”[^16] That reasoning was specifically adopted by the Ontario Court of Appeal in R. v. Poirier, in which Weiler J.A. held:

As the Court of Appeal for Newfoundland and Labrador stated in Simpson, a violation of s. 503 must be viewed as an arbitrary detention whether the failure to comply with s. 503 was deliberate or simply neglectful. I agree with that conclusion.[^17]

[108] Accordingly, I conclude that Jayson and Janson were arbitrarily detained in breach of their rights under s. 9 of the Charter as of approximately 4:35 a.m. on September 9 and continuing for a period of approximately 5.5 hours.

D. REMEDIES FOR CHARTER BREACHES

(i) The Breaches

[109] I have found both Janson and Jayson were arbitrarily detained in breach of s. 9 of the Charter when the police failed to bring them to court within 24 hours of their arrest. I have not found any other Charter breaches with respect to Janson. However, Jayson’s rights under s. 10(b) were violated at the police station by the inadequacy of the police efforts to implement his rights to counsel, and also possibly with respect to the strip-search prior to any opportunity to speak to a lawyer. In addition, there may have been a delay in advising Jayson of the full extent of the charges against him, in violation of his rights under s. 10(a) of the Charter.

(ii) Availability of a Remedy Under s. 24 of the Charter

[110] Section 24 of the Charter provides:

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[111] Section 24(1) of the Charter provides that the court may provide such remedy as it considers “appropriate and just in the circumstances” upon finding that a person’s rights under the Charter have been breached. Included in the remedies that could be provided under s. 24(1) is a stay of the proceedings against the accused. Section 24(2) of the Charter provides for the more specific remedy of excluding evidence from a trial, but is subject to certain conditions, including that the evidence must have been “obtained in a manner” that breached a Charter right.

[112] For the reasons that follow, I am satisfied that the threshold issue of whether the evidence was “obtained in a manner” that breached the Charter is met with respect to the breaches of s. 10 of the Charter. However, upon applying the Grant test for whether the remedy sought should be granted, I have determined that the evidence should not be excluded.

[113] With respect to the s. 9 breach as a result of the accused not being brought before the court within 24 hours of their arrest, I find that there is no entitlement to an exclusion of evidence remedy under s. 24(2) because there is no connection between that breach and the manner in which the evidence was obtained. Other remedies for that breach may be available. However, the only other remedy sought was a stay of proceedings, and the requirements for granting that remedy are not met. My reasons for those conclusions are set out below.

(iii) Remedies for Breach of s. 10 Charter Rights

(a) Eligibility for s. 24(2) Remedy

[114] Jayson seeks an order excluding the firearms found under the red van from the evidence in this case because they were “obtained in a manner” that violated his rights under s. 10 of the Charter. The Crown argues that the guns were abandoned, rather than seized from Jayson, and that they were therefore not “obtained in a manner” that infringed the Charter. The Crown points out that even if the two accused had run away and not been arrested by the police, the guns would have been seized. I recognize that is the case. However, in that eventuality the Crown might never have been able to identify the two men who were at McDonald’s and who went into the alleyway where the guns were found. I also note that it is clear to me that Jayson went into the alleyway and abandoned the firearm(s) in order to avoid being detained or arrested while in possession of a firearm. It was finding these two individuals in close proximity to the firearms that led to the arrest and the charges against them. The breaches that occurred at the police station took place over the course of several hours after the guns were seized. Nevertheless, I find the breaches were sufficiently connected to the discovery of the guns and the arrest to satisfy the eligibility requirements of s. 24(2) of the Charter.

[115] The Ontario Court of Appeal held in R. v. Pino[^18] that evidence obtained prior to Charter breaches and not causally related to the breaches may still be excluded from evidence as “obtained in a manner” that offended the Charter. Laskin J.A. listed the following considerations as relevant guides for a court’s approach to this issue:

• the approach should be generous, consistent with the purpose of s. 24(2);

• the court should consider the entire “chain of events” between the accused and the police;

• the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;

• the connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;

• but the connection cannot be either too tenuous or too remote.[^19]

[116] The implementation of rights to counsel following an arrest for possession of these firearms is, in my view, part of the same chain of events and course of conduct as contemplated in Pino. It also meets the temporal connection test. Thus, all three factors are present, notwithstanding that the seizure of the firearms preceded the various breaches, the common link being the arrest. Provided that the test for exclusion of evidence under s. 24(2) is otherwise met I find that, Jayson is eligible for a remedy under s. 24(2) for all breaches of his s. 10 Charter rights.

(b) Should the Evidence be Excluded Applying the Test in Grant?

[117] As I have found above, the Charter breaches with respect to the rights to counsel are sufficiently connected to the seizure of the firearms to be eligible for a remedy under s. 24(2) of the Charter. Notwithstanding the availability of such a remedy, I find it is not appropriate on the facts of this case.

[118] Section 24(2) of the Charter provides that evidence obtained in breach of Charter rights shall be excluded “if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” The Supreme Court of Canada held in Grant that this analysis requires the trial judge to consider and weigh in the balance, the following three factors: (1) the seriousness of the Charter-infringing state conduct; the impact of the breach on the Charter protected rights of the accused; and (3) society’s interest in the adjudication of the case on its merits.[^20]

[119] I have found that there was likely some delay at the police station in fully informing Jayson of the reasons for his arrest. There is no specific evidence as to when he became aware that the charges against him went beyond possession of the guns found under the van and included possession of a gun in McDonald’s and other conduct there. However, he eventually did learn the full extent of the charges. I find that this breach was minor in nature given the circumstances. Jayson knew that he was facing a charge of possession of a loaded prohibited weapon. He was arrested as soon as the firearms were found and told why. When the full extent of his jeopardy was known to the police is not clear from the evidence, nor is there any evidence as to when Jayson was specifically informed. However, this had no impact whatsoever on Jayson. He was not interviewed by the police, he gave no statement, and he never did speak to a lawyer while in custody at the police station. There was no situation in which he received legal advice believing he was facing one charge and then altered his position without knowing the full extent of his jeopardy. If there was a Charter breach at all, it was minor and had no impact on his rights. Society’s interest in an adjudication on the merits is at the high end of the spectrum given the nature of the charges. Therefore, all three parts of the Grant test point to refusing the remedy sought.

[120] However, the police conduct with respect to implementing Jayson’s right to counsel is far more serious. There can be no excuse for the delays in attempting to contact either of Jayson’s lawyers of choice. The initial delay in placing the first call was too long and the failure to place a second call was even worse. Further, the failure to attempt to contact the second named lawyer until 15 hours after booking was outrageous. I recognize that the officers attempted to put Jayson in touch with duty counsel, but even those attempts were inappropriately handled. Instead of telling him that Mr. Locke had not returned the call and giving him the option of duty counsel given that it was a Sunday morning, they simply placed the call to duty counsel without any explanation or consultation with him. The conduct of the officers was not deliberate, nor was it for an ulterior purpose. That would have been worse. Neither was there a systemic cause, apart from the general disorganization that flowed from no specific person being responsible for ensuring the rights to counsel were implemented. However, the overall conduct was very serious, albeit not at the very top of the spectrum. Therefore, the first of the Grant factors points towards excluding the evidence.

[121] The delay in having access to counsel had minimal impact on the accused. The police made no attempt to obtain a statement from Jayson, and he did not volunteer anything. Although there was unacceptable delay in placing the calls, the lawyers never called back in any event. Further, Jayson was aware he could have talked to duty counsel if he felt an urgent need to get advice, but he elected to wait until he could talk to his own lawyer, which was his right.

[122] The second factor under Grant does not support the exclusion of the evidence.

[123] As is typically the case, the third factor favours admitting the evidence. There is a strong public interest in determining cases of this nature on their merits. Two loaded firearms tossed under a car in an alleyway accessible by members of the public is an enormous threat to public safety. It is also horribly dangerous to carry loaded firearms around in the city, particularly in a crowded McDonald’s. Even worse, displaying the firearm in a threatening manner inside the McDonald’s could easily have led to bloodshed, if not death to innocent members of the public.

[124] There is nothing about the police conduct in this case that cries out for the court to distance itself for fear of being taken as condoning it. Mistakes were made. The police could have done a better job. However, given the minor impact on any Charter rights of the accused and the strong public interest in a trial on the merits, the balancing of the Grant factors is strongly weighted towards admitting the evidence. I am confident that admitting the evidence in these circumstances is in the interests of justice and would not cause an informed member of the public to lose respect for the justice system.

[125] I have also taken into account the cumulative nature of the s. 10 breaches, including what I have found to be the minor breach with respect to the delay in fully advising Mr. Jayson of the jeopardy he was facing. I remain of the view that when everything is weighed in the balance, the interests of justice support a trial on its merits and that excluding the evidence of the guns from this case would bring the administration of justice into disrepute.

[126] I have also considered the strip search that was done prior to implementing the rights to counsel. As I have already indicated, it was reasonable to have done the strip search in the interests of safety for the accused as well as anyone with whom he might come into contact. Even if the officers had tried to connect him with counsel before doing the search, given his insistence on speaking to counsel of his choice, that was not going to happen at 6:16 on a Sunday morning. In the circumstances, it would not have been reasonable for the officers to wait until Jayson had spoken to counsel before doing the search. I have found that, in these circumstances, there was no breach of the Charter in conducting the strip search. However, if I have erred in that regard, I find that the officers were motivated by concerns about safety, which were objectively reasonable. There was virtually no impact on Jayson. Therefore, if this did constitute a Charter breach, I would still find the evidence to be admissible under the Grant test. Further, I would reach that conclusion when all the breaches are viewed cumulatively.

[127] I found that there had been no breach of Janson’s Charter rights. However, if I had found a breach with respect to the implementation of his rights to counsel, I would nevertheless have admitted the evidence for the same reasons stated above.

(iv) Remedies for Breach of s. 9 Charter Rights

(a) Eligibility for s. 24(2) Remedy

[128] I have found that failing to bring both accused before the court within 24 hours of their arrest not only breached s. 503 of the Criminal Code, but was also a breach of s. 9 of the Charter. There is no question that the arbitrary detention resulting from Jayson and Janson being held beyond the 24-hour limit in s. 503 of the Charter is a breach that falls within s. 24(1) of the Charter, entitling them to apply to the court for a remedy. However, I find its connection to the seized evidence in this case to be too tenuous and too remote to meet the eligibility requirements for exclusion of evidence under s. 24(2) of the Charter.

[129] The overholding of these two accused was long after the evidence had been found and was completely unconnected to anything else in the case. Most of the case authorities relied upon by the defence are distinguishable on that basis. They involved situations in which the police deliberately did not bring the accused to court because they wanted to continue gathering evidence from the accused.

• R. v. Holmes (2002 O.CA.): The accused was deliberately not taken to court because officers were taking a statement from him. The Court of Appeal held that the trial judge erred in admitting the statement and ordered a new trial in part for this (and for other reasons).[^21]

• R. v. Mendez (2014 Ont. S.C.J.): Officers made a deliberate decision to keep Mr. Mendez at the station for the purposes of interviewing him after his arrest, knowing that in doing so they would go past the cut-off period at the courthouse and Mr. Mendez would be in custody for more than 24 hours before going to court the next day. Forestell J. held that the statement was “obtained in a manner” that violated the Charter and excluded the statement from evidence.[^22]

• R. v. Poirier (2016 O.C.A.): Based on information from confidential informants that the accused had drugs stored in his rectum, the police obtained a warrant authorizing his detention until he voluntarily removed the drugs or had a bowel movement. This “bedpan vigil” went on for 30 hours, with the last excretion occurring at 8:30 p.m. He was brought to court the next morning, with the total period of detention to that point being 43 hours. The trial judge found no Charter breach because the detention was authorized by the general warrant. The Court of Appeal held that the general warrant cannot override the 24-hour limit in s. 503 of the Criminal Code and that the accused’s Charter rights were infringed by the overholding. The court concluded that the evidence was obtained in a manner that infringed the Charter, excluded the evidence obtained, and ordered an acquittal on all charges.[^23]

• R. v. Rodgerson (2016 Ont. S.C.J.): Police officers continued to interview a suspect in their custody past the 24-hour period. Bird J. held that statements obtained earlier were voluntary and admissible, but the portion of the statement that was taken after the 24-hour period had passed was inadmissible because it was obtained in a manner that infringed the Charter.[^24]

• R. v. Salehi (2019 B.C.S.C.): A police officer deliberately did not bring the accused into the courthouse from the police vehicle until 21 minutes after the 24-hour period had passed so that he could continue a discussion with him in the hopes of eliciting a confession. The statement obtained was excluded from the evidence at trial.[^25]

• R. v. Al Zaharna (2021 Ont. S.C.J.): The police kept the accused at the station past the cut-off time for bringing him to court on a Saturday afternoon because they wanted to interview him about the sexual assault allegations against him. Garton J. excluded the statement.[^26]

• R. v. Raios (2023 Ont. S.C.J.): The accused was arrested at 4:40 a.m. on December 26. By 9:45 p.m. the police had completed their investigation and decided to charge Mr. Raios. There were two bail courts operating from 10:00 a.m. that morning, but they closed at about 12:45. The police wanted to interview Mr. Raios before taking him to court, but did not start that interview until 1:01 p.m. As a result, he was not brought before the court until the next day, past the 24-hour period. Faieta J. excluded the statement because it was obtained in breach of the Charter.

[130] In the case before me, no statements were taken from the accused and no evidence was obtained as a result of the delay in bringing them to court. It must be noted that both accused lied to the police about their identity and provided false identification. Jayson’s true identity was not disclosed until about 10:30 a.m., following which police made inquiries and determined Janson’s true identity. Further preparation for bail court was then required as Janson was found to be in breach of a recognizance. The police then needed to search for records of firearm permits and registrations under these two new names. There was no evidence before me indicating that but for the delay caused by these misrepresentations, the accused would have been brought to the courthouse within 24-four hours. However, the misrepresentations must have contributed to the delay. In any event, there was certainly no deliberate overholding so that police could obtain evidence from the accused, such as was done in the cases I have referred to above. There was no evidence obtained as a result of the breach, nor was the breach in any sense connected to the evidence that was obtained in this case. The delay in bringing the accused to court was not causally related to the seizure of the firearms and was separated in time by about 30 hours. There is no contextual connection. I therefore find that this situation does not fall within s. 24(2) of the Charter. The only remedy available for this breach lies under s. 24(1), and the only remedy sought is a stay of proceedings.

(b) Stay of Proceedings Remedy

[131] The breach in this case does not have any impact on trial fairness. Therefore, a stay of proceedings is only appropriate if the defence establishes that proceeding to trial in all the circumstances would undermine the integrity of the judicial process.[^27] In R. v. Babos, the Supreme Court of Canada reiterated that a stay of proceedings is the most drastic remedy a court can order and is only appropriate on “rare occasions” and in the “clearest of cases.” That is because “the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits.”[^28]

[132] In determining the appropriateness of a stay, I am required to apply a three-part test:

(1) There must be prejudice to the integrity of the justice system that will be “manifested, perpetrated or aggravated through the conduct of the trial, or by its outcome;”

(2) There must be no other remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after the first two steps, I must balance the interests of granting a stay against the interests of society in an adjudication on the merits.[^29]

[133] In this case, the defence fails at every stage of the test. The first stage requires a consideration of the extent to which the impugned conduct is offensive to societal notions of fair play. As stated by the Supreme Court in Babos, “there are limits on the type of conduct society will tolerate in the prosecution of offences.” The question is whether the police conduct in this case falls within that categorization, such that continuing with a trial would undermine the integrity of the system and amount to condoning the offensive conduct.

[134] I do not minimize the importance of the rights guaranteed under s. 503 of the Criminal Code and I adopt the analysis of my colleague Forestell J in Mendez in that regard. Being brought before the court within 24 hours not only protects the liberty interest of the person in custody, but transfers oversight of any continued detention to the courts. It is an important protection for every person arrested by the police.

[135] However, there was no improper purpose in the overholding of the accused in this case. Perhaps the police could have been more diligent in preparing the bail brief so that the two accused could get to the courthouse before the deadline, or perhaps they could have tried to find some other way to accomplish this. I do note, however, that this was pre-COVID and before courthouses and police stations were equipped and well-versed in dealing with such matters remotely. In this situation, both accused hid their identities for six hours and now complain that within the remaining two hours the police did not get everything done that was necessary before the matter could be brought before a justice of the peace.

[136] I do not consider the police conduct in this case to be so egregious as to impugn the integrity of the justice system. There were no improper motives and minimal impact on the accused. Although they were certainly entitled to be brought before court within the 24 hours, when they were brought to court the matter was adjourned at their request and a bail hearing was not brought until October 16, 2019. That does not excuse the delay by the police, but it diminishes the extent to which a remedy is called for because the delay did not result in any additional detention for either accused.

[137] This is also not a case in which no other remedy is available. As I have already indicated, and will develop further below, I am finding both accused guilty of various offences. At the time of sentencing, it is open to them to raise this Charter breach as a factor that might reduce the sentence I might otherwise impose.

[138] Finally, if I had reached the third step in the analysis, I would still refuse to grant a stay of proceedings. These charges involve carrying a loaded weapon in a busy fast-food restaurant, then carrying it in a concealed fashion along a downtown Toronto street, and then discarding two loaded firearms under a car in an alleyway. This conduct represents a grave danger to the public. The public interest in this case being decided on its merits greatly outweighs the seriousness of the Charter breach relating to the delay in bringing these two men to court.

[139] Accordingly, the test for a stay of proceedings has not been met.

E. CHARGES RELATING TO THE TWO GUNS FOUND IN THE ALLEYWAY

(i) Factual Context

[140] I turn then to the two guns found under the red van, any connections between the two accused and those guns, and their criminal responsibility for any of the offences charged in relation to those firearms.

[141] I have made some relevant factual findings in earlier portions of these reasons, but it is useful to set them out here for context. I rely on the following facts:

(i) Mr. Edwards saw what appeared to be a firearm in Jayson’s possession at McDonald’s, and described it as looking like a Glock or Smith & Wesson;

(ii) At some time between 4:17 a.m. and 4:31 a.m., P.C. Hain saw Jayson outside the McDonald’s putting something into his pocket and appearing to watch the police car as it went by;

(iii) Upon leaving McDonald’s Jayson and Janson headed north on the west sidewalk of Spadina, with Jayson carrying Mr. Edwards’ skateboard in one hand;

(iv) Officers Poirier and Deane were in a patrol car at the corner of Queen and Spadina at 4:31 a.m. when they received the call with the description of the two suspects. They immediately headed south on Spadina and came upon Jayson and Janson very shortly thereafter.

(v) Jayson and Janson looked at the police car as it approached them, and then looked even more closely and pointedly at the police two seconds after that. Within two seconds of that second look, they picked up their pace and headed in concert towards the alleyway;

(vi) Jayson and Janson were inside the alleyway for about 20 seconds, at which point they were immediately detained;

(vii) After leaving the alleyway, Jayson no longer had a firearm or anything that looked like a firearm on his person;

(viii) When P.C. Hain arrived on scene at 4:38 a.m., P.C. Deane told him to search the alleyway to see if anything was discarded there. He found two firearms under a red van parked in the alleyway, close to the entrance onto Spadina: a Smith & Wesson and a Glock, both loaded, and both with one in the chamber.

[142] There were no fingerprints on the weapons, and they were not tested for DNA.

[143] There are two other pieces of evidence relied on by the defence as raising some doubt on the origin of the two guns under the red van. In cross-examination of police witnesses, defence counsel attempted to confirm that this alley is adjacent to a notorious after-hours club or “booze can.” None of the officers who testified had knowledge of that. However, an Agreed Statement of Facts was filed on consent which included a police occurrence report from March 10, 2018. In that document, the investigating officer reported that there had been a stabbing in the area of 202 Spadina which is “listed on Facebook as a medical cannabis dispensary” and which “was/is still occasionally run as an illegal booze can.” When the officers investigated the area (which is the same alleyway Jayson and Janson ducked into) they found a large quantity of blood. A witness said he saw a man throw a knife under a red van parked in the alley. The police searched under the van and found a switchblade with blood on it. This is the same van under which the two guns were found on September 8, 2019.

[144] The other fact relied on by the defence is that after both Jayson and Janson were handcuffed on the ground, with many police officers and a firetruck on scene, a man can be seen walking south along the sidewalk, passing the officers and the two accused, fidgeting with something in his pocket, and then turning into the alleyway. The video footage ends 23 seconds later so it is not known where the man went. This was prior to the search conducted by P.C. Hain at 4:38 a.m., at which point there was nobody else in the alley.

(ii) The Position of the Parties

[145] The Crown argues that I should draw an inference that both guns under the red van were thrown there by the accused together and both are guilty of possession of both guns. The Crown’s position is that both brothers can be found to be in possession of both firearms based on principles of joint or constructive possession or as parties under s. 24 of the Criminal Code.

[146] The defence argues that there are other rational inferences as to the source of the guns under the car and that it is therefore not possible to be satisfied of the guilt of either accused with respect to either of the guns.

(iii) Possession and Parties to an Offence: Legal Principles

[147] [Section