Court File and Parties

COURT FILE NO.: CR-23-55 DATE: 2024-01-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Marcus Akin Connell

BEFORE: Justice David A. Broad

COUNSEL: Anthony Minelli, for the Respondent/Crown Ian McCuaig, for the Applicant/Accused

HEARD: November 15, 16 and 27, 2023

Ruling on Application with Respect to ss. 8, 9, 10(a), 10(b) and 24(2) of the Charter of Rights and Freedoms

(Orally)

[1] The applicant Marcus Akin Connell is charged with eight weapons-related Criminal Code offences connected with him having been found in possession of a loaded Webley Mark IV Revolver Style handgun following a police search incident to his arrest for breach of a release order to which he was subject. He is also charged with one count of failure to comply with a condition of a release order contrary to section 145(5)(a) of the Criminal Code of Canada and one count of procuring to be made, possessing, transferring, selling or offering for sale an identity document that relates to another person contrary to section 56.1(1) of the Criminal Code of Canada.

[2] The respondent Crown has acknowledged that police breached the applicant’s Charter rights as recognized in the following sections of the Canadian Charter of Rights and Freedoms in detaining, arresting and searching the applicant incident to arrest:

Section 8 - the right to be secure against unreasonable search and seizure;

Section 9 - the right not to be arbitrarily detained or imprisoned;

Section 10(a) - the right on arrest or detention to be informed promptly of the reasons therefor; and

Section 10(b) - the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

[3] The applicant seeks to have all evidence obtained by police subsequent to his detention excluded from his trial pursuant to section 24(2) of the Charter on the basis that it was obtained in a manner that infringed or denied the foregoing rights or freedoms guaranteed by the Charter and that admitting the evidence at the trial of the proceeding would bring the administration of justice into disrepute.

[4] In short, the applicant submits that the evidence was obtained following a sequence of Charter-infringing conduct by police consisting of:

(a) unlawfully detaining him for investigative purposes;

(b) failing to inform him promptly of the reasons for his detention;

(c) requiring him to identify himself by production of his driver’s license prior to informing him of his rights to counsel and implementing those rights;

(d) conducting a search of the Canadian Police Information Centre (CPIC) database after obtaining his identifying document which disclosed an outstanding release order;

(e) unlawfully arresting him for breach of the release order, and

(f) searching him incident to an unlawful arrest.

[5] Although the Crown argues that the detention of the applicant was initially and briefly lawful, it does not dispute the sequence of the breaches listed above, nor that, but for the Charter breaches by police, the handgun would not have been found in the applicant’s possession. The evidence of the handgun was therefore obtained in manner which infringed the applicant’s Charter rights.

[6] The issue for determination is not whether the Crown breached sections 8, 9 or 10 of the Charter but whether the applicant has shown on a balance of probabilities that admission of the evidence in the proceeding would bring the administration of justice into disrepute and therefore must be excluded from his trial pursuant to section 24(2).

Factual Background

[7] Each of the Brantford Police Service officers, Adil Khalqi and Gabriel Bain, who were involved in the events leading up to and including the seizure of the firearm, initially received by radio dispatch a “compassionate to locate” call for service at the Royal Bank branch on Lynden Road in Brantford at approximately 4:45 AM on February 12, 2023.

[8] A taxi driver James Richard Stephenson had called police to report that a passenger (the applicant) who had requested to be driven from Brantford to Brampton Ontario had fallen asleep or passed out in the back seat of the taxicab on the way to the Royal Bank branch. The applicant had agreed to pay the cab fare to Brampton by cash in advance and requested Mr. Stephenson to drive him to the Royal Bank to withdraw funds from the automatic teller machine (ATM) for that purpose. Mr. Stephenson testified that the applicant appeared to be intoxicated but he did not consider him to be a safety hazard or a risk to himself or any other person.

[9] Based upon his previous experience in dealing with intoxicated and sleeping passengers, Mr. Stephenson was reluctant to attempt to rouse the applicant himself but sought the assistance of police to wake him and to conduct a wellness check.

[10] Constable Khalqi was the first officer to arrive on the scene. At the time Constable Khalqi had approximately two years experience as a police officer. Constable Bain who arrived shortly after Constable Khalqi had six years experience.

[11] Prior to his arrival at the Royal Bank location Constable Khalqi considered the potential for transportation fraud to have been committed, based upon his previous experience in dealing with taxi-related calls for service, although the dispatch operator had not mentioned anything related to the commission of a crime.

[12] Upon his arrival Constable Khalqi spoke with Mr. Stephenson who was seated in the driver seat of the cab. He observed the applicant laying in the rear seat area passed out. Constable Khalqi testified that his goals were to ensure that the applicant was fine and to facilitate payment by the applicant to Mr. Stephenson for transportation services. The potential for transportation fraud was still in his mind, although he had no knowledge of the applicant’s ability to pay, and Mr. Stephenson had expressed no concern about payment at that time.

[13] Constable Khalqi detected a strong odour of alcohol upon opening the rear passenger door. He was able to rouse the applicant who exited the vehicle and began to make his way towards the ATM. Constable Khalqi asked the applicant to withdraw funds from the ATM to pay Mr. Stephenson for the trip to Brampton. He described the applicant as “cooperative” as he was doing what he was being told to do. Constable Khalqi stated that if the applicant had failed to cooperate by refusing to do what he had agreed to do with Mr. Stephenson he would have arrested him for transportation fraud.

[14] Constable Khalqi testified that at this point the applicant was detained while he carried out his investigation for transportation fraud and was not free to leave.

[15] Constable Khalqi asked the applicant to produce his drivers license for identification purposes and he did so. He stated that he requested the applicant’s driver’s license to prepare to charge him with transportation fraud in the event that he failed to pay for the cab service.

[16] Constable Khalqi called in the applicant’s name and date of birth from his drivers license to dispatch with a request to carry out a CPIC inquiry. His stated purposes for doing so were two-fold, first, officer safety and second, to look for anything else of consequence in addition to what he was investigating. He stated that he was not at that point in a position to charge the applicant but was giving him an opportunity to satisfy the cab fare payment. If payment was completed, the investigation would end, provided no other information was revealed by the CPIC search.

[17] Constable Khalqi testified to his belief that it was only upon arrest and the laying of a charge that he was obliged to advise the applicant of the reason for his arrest and to read him his rights to counsel.

[18] Constable Khalqi maintained that prior to an arrest and the laying of a charge, any duty to advise the applicant of the reason for his detention and of his rights to counsel did not apply because he was being “cooperative” and was “moving forward” with his agreement with Mr. Stephenson to pay for a cab ride to Brampton.

[19] Following his arrival on the scene Constable Bain accompanied the applicant to the ATM located inside the vestibule to the bank building where he observed the applicant withdraw funds utilizing his bank card.

[20] Constable Khalqi received the results of the CPIC query shortly after the applicant had completed the cash withdrawal and exited the bank vestibule with Constable Bain. The CPIC query disclosed that the applicant was bound by a release order with a condition that he remain in his residence with his surety except in the case of a medical emergency. Constables Khalqi and Bain determined that the applicant was then arrestable for breach of the condition on the release order and placed him under arrest.

[21] The officers attempted to move the applicant’s hands behind his back to place him in handcuffs. He resisted moving his right hand and arm from his coat pocket. When the officers extracted his right hand, they observed a firearm in his right coat pocket. The handgun was seized by Constable Bain along with four additional rounds of ammunition from a satchel in the applicant’s possession. The handgun was found to be loaded with six rounds of .38 calibre ammunition.

[22] Shortly after his arrest, the applicant was read the primary and secondary caution and rights to counsel by one of the officers, placed in a police vehicle and transported to the Brantford Police Service station.

[23] On cross-examination Constable Khalqi confirmed that, from the moment he arrived at the scene following the dispatch, he believed he was investigating a possible transportation fraud. After the applicant was roused, Constable Khalqi would have stopped him if he had walked away. At that point Constable Khalqi believed that the applicant was detained for investigation of transportation fraud and that the investigation was still evolving.

[24] Constable Khalqi confirmed his understanding that so long as the applicant was cooperating there was no need to provide him with a caution or rights to counsel. In his mind, the police were there to facilitate the applicant making payment to Mr. Stephenson. He testified that, in the situation, the applicant demonstrated that he was willing to “move forward with what had been agreed to” and, as a result, he did not advise the applicant of his rights to counsel.

[25] Constable Khalqi also testified that, since he was being investigated for an offence, in this case transportation fraud, the applicant was required to provide identification to police. He understood police policy to dictate that, if the applicant chose not to identify himself, he would be subject to arrest for failure to do so in connection with an investigation for transportation fraud.

[26] Constable Bain testified on cross-examination that he was dispatched to the Royal Bank location to assist Constable Khalqi in connection with the “compassionate to locate” call received from the cab driver regarding a passenger who had passed out. He testified that, although he was attending to check on the individual’s well-being, in his experience there was the potential for a criminal offence having been committed respecting payment of the cab fare.

[27] When he learned following his arrival at the scene that the cab driver was willing to drive the applicant to Brampton if he was paid, he came to believe that he was there to see to it that payment was made, but without exercising any police authority. He continued to believe that the offence of transportation fraud could be committed.

[28] Constable Bain also testified that he believed that he had the authority to arrest the applicant for being drunk in a public place under the Liquor License Control Act. He also believed that, had the applicant attempted to leave without paying for the cost of the cab ride to the bank, he would be subject to arrest for transportation fraud. Since he and Constable Khalqi were investigating a criminal offence, the applicant was not free to leave.

[29] Constable Bain also testified that if he came to believe that the applicant felt he was being detained, he would have explained to him that he was being detained and given him a caution and rights to counsel. He did not advise the applicant that he was detained as it seemed that the call was going smoothly and that the applicant would withdraw money from the ATM and pay that cab driver.

[30] Constable Bain confirmed that Constable Khalqi identified the applicant by requiring production of his Ontario Driver’s Licence. From the commencement of the interaction Constable Bain believed that the applicant was required to identify himself in connection with the Liquor License Control Act and Criminal Code investigations. If the applicant had not provided his identification, Constable Bain believed that he had authority under the Criminal Code to arrest him.

[31] Constable Bain expressed the view that, although the applicant was detained and not free to leave, he was under no obligation to provide him with his rights to counsel and caution since he had not refused to identify himself and had not been arrested.

[32] As indicated, Constable Bain received a response to the CPIC query which disclosed that the applicant was in breach of a release order. He advised the applicant that he was under arrest for that breach. He instructed the applicant to take his hands out of his pockets. The applicant removed his left hand but left his right hand in the pocket. Constable Bain pulled his hand out and handcuffed him. He looked into the pocket and observed the handgun which he stated presented a risk to himself, Constable Khalqi and the cab driver.

[33] On cross-examination Constable Bain acknowledged that, although the applicant was clearly intoxicated when he arrived at the scene, he presented no apparent danger to other persons.

[34] Constable Bain accompanied the applicant into the bank vestibule and observed that he was able to insert his card and enter the information to the ATM to complete the cash withdrawal.

[35] Constable Bain confirmed his belief that, since the applicant was being investigated for possible transportation fraud, he was required to identify himself or be subject to arrest. However, once he withdrew the money from the ATM, transportation fraud was no longer a concern.

Discussion

Charter Breaches by Police

(a) Section 9 – arbitrary detention

[36] There is no issue between the parties that the applicant was detained when he was roused by Constable Khalqi and instructed to exit the parked taxicab and to withdraw sufficient monies from the ATM to pay the fare to Brampton. Constable Khalqi confirmed that the applicant was detained while he investigated him for transportation fraud.

[37] The Crown submits that Constable Khalqi had a reasonable suspicion that a transportation fraud was in process, providing sufficient grounds for an investigative detention upon his arrival at the scene. However, the Crown acknowledges that, once the applicant was roused and indicated his intent to withdraw sufficient funds from the ATM to pay the cab driver, the reasonable grounds for detention disappeared.

[38] I agree with the submission of the applicant that Constable Khalqi never possessed a reasonable suspicion to support an investigative detention of the applicant. As the Supreme Court of Canada stated in R. v. Chehil 2013 SCC 49, [2013] 3 S.C.R. 220 at para. 26 reasonable suspicion must be based on objectively discernible facts which can be subjected to independent judicial scrutiny and must account for the totality of the circumstances. At para. 28 Karakatsanis, J., writing for the court, noted that suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion that attaches to a particular activity or location rather than to a specific person.

[39] At para. 29, Karakatsanis, J. stated as follows:

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience.

[40] In the case at bar Constable Khalqi began to consider the possibility that a transportation fraud was in progress before he arrived at the scene. Upon arrival he spoke initially with the cab driver Mr. Stephenson who did not express any concern about obtaining payment for the cab ride to the bank location nor about obtaining advance payment from the applicant for the proposed trip to Brampton. Immediately upon being roused and stepping out of the cab the applicant demonstrated his intention to make payment to Mr. Stephenson by heading directly to the ATM. Constable Khalqi’s suspicion respecting commission of a possible transportation fraud was based solely on his generalized past experience in dealing with taxi-related calls for service, and not on objectively discernible facts to suspect that the applicant was engaged in transportation fraud.

[41] I find that investigative detention of the applicant by police was not based on reasonable suspicion that the applicant was involved in criminal activity. It was therefore arbitrary and in breach of section 9 of the Charter.

(b) Section 8 – unreasonable search and seizure

[42] The Crown acknowledges that that, given that his detention was unreasonable and in breach of section 9, the seizure of the applicant’s identification was also unreasonable and in breach of section 8.

[43] In R. v. Harris, 2007 ONCA 574 at para. 40 Doherty, J.A. stated as follows:

A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.). In the circumstances, Harris's identification in response to the officer's question constitutes a seizure and attracts s. 8 protection.

(c) Section 10(a) and 10(b) – Rights to counsel

[44] As stated previously, the Crown also acknowledges that the police officers breached the applicant’s rights under sections 10(a) and 10(b) of the Charter by failing to inform him promptly of the reasons for his detention and of his rights to counsel and to implement such rights.

[45] In the case of R. v. Chanmany, 2016 ONSC 3092 Campbell, J., sitting on appeal from a decision of the Ontario Court of Justice, made it clear at paras. 36-44 that police are constitutionally obliged to provide a detainee with his right to counsel immediately upon his or her detention for investigative purposes. In doing so, he relied upon the decision of the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33 in which the Court held that the “right to counsel” duties imposed upon the police by section 10(b) of the Charter are triggered immediately upon an arrest or detention.

[46] As Campbell, J. explained at para. 41 of Chanmany, it is at the very outset of a detainee’s investigative detention that they are in most need of wise counsel of a criminal lawyer who can advise them that they are not obliged to provide any information to the police, including any information concerning their identity.

(d) Search of the applicant incident to arrest

[47] As indicated, there is no dispute that the arrest of the applicant for alleged breach of the terms of his release order was unlawful, as they were obtained by police pursuant to an unlawful search.

[48] The police may search lawfully arrested individuals and their immediate surroundings to discover any object that may be a threat to the safety of the police, the accused or the public, that may facilitate an escape, or that may provide evidence against the accused for the crimes for which he or she was arrested.

(See R. v. St. Clair, 2018 ONSC 5173, aff’d 2021 ONCA 895, at 64-65).

[49] As acknowledged by the Crown, given that the applicant’s arrest was unlawful, it follows that the search carried out by police by which the handgun was discovered on his person was an unlawful warrantless search and therefore represented a breach of section 8 of the Charter.

Should the evidence obtained by police be excluded pursuant to section 24(2) of the Charter?

(a) Guiding Principles re s. 24(2)

[50] The purpose of s. 24(2) is to maintain the good repute of the administration of justice. The section does not focus on immediate reaction to an individual case, but rather looks to whether the overall repute of the justice system, viewed in the long-term, will be adversely affected by admission of the evidence. The inquiry is objective and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute (see R. v. Grant, 2009 SCC 32 at paras. 67–68).

[51] The Supreme Court in Grant at para. 71 outlined three avenues of inquiry, namely:

(a) the seriousness of the Charter-infringing state conduct;

(b) the impact of the breach on the Charter-protected interest of the accused; and

(c) society's interest in the adjudication of the case on its merits

[52] After considering all three stages of the Grant analysis the court is tasked with weighing the various indications. At para. 86 of Harrison, the Supreme Court described the balancing exercise as follows:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

Analysis re section 24(2)

(a) Stage One – seriousness of the Charter breaches

[53] The Crown submits that the Charter breaches by Constables Khalqi and Bain were at the “moderate” to “low” end of the spectrum of seriousness, such that the court should not be concerned with dissociating itself from their conduct. The Crown submitted further that the officers acted in good faith in their dealings with the applicant as they were genuinely motivated to assist Mr. Stephenson in getting paid his cab fare as well as the applicant in completing payment and being on his way back to Brampton.

[54] In support of this submission the Crown relies heavily on the case of R. v. Reid, [2019] ONCA 32.

[55] The fact pattern in Reid involved police attending a residential complex at the request of the landlord Toronto Community Housing Corporation which was concerned about trespassers on its properties. The landlord asked police to enforce the Trespass to Property Act.

[56] While on the premises, two adult males, including the accused, started walking towards the police officers. The officers engaged the males in conversation. One officer asked the accused a few questions including whether he lived at the property, his name, whether he had been in trouble in the past and his purpose for being on the property. The accused provided his name and volunteered his date of birth and home address. The officer used his radio to run a record check on the accused’s name. The officer testified that the purpose of the check was to determine whether the accused was subject to any court-imposed conditions forbidding him from being on the property. When information was received over the officer’s radio that the accused was subject to a weapons prohibition order, the accused turned, tapped a rectangular object on his hip and ran. As they ran after him, the police saw a firearm go flying and tackled the accused when he stopped to retrieve it.

[57] The trial judge found that the accused had not been psychologically detained, and this finding was upheld on appeal. Fairburn, J.A. (as she then was), writing for the panel, found that, if there had been a detention, it would have been justified as the officers had reasonable grounds to suspect that the accused was trespassing on the landlord’s property.

[58] Although it was not necessary to address section 24(2) in her Reasons, Fairburn, J.A. did so as the trial judge had. She upheld the trial judge’s conclusion that if he were wrong and the accused was arbitrarily detained, the evidence should not be excluded.

[59] At the first stage of her Grant analysis at para. 63 Fairburn J.A. agreed that, if there had been a section 9 breach, it was minor and fleeting in nature, deferring to the trial judge’s finding that the police acted in good faith when they dealt with the accused. There was no heavy handedness and the officers seemed genuinely motivated by their desire to fulfil the request of the landlord and the residents of the property to be present at the location and provide community policing, including enforcing the Trespass to Property Act.

[60] I am unable to accept the Crown’s submission that the section 24(2) analysis of Fairburn, J.A. in Reid is applicable or determinative to the case at bar and, in particular, that her Reasons support a finding that Constables Khalqi and Bain acted in good faith in their dealings with the applicant.

[61] It is noted, firstly, that the section 24(2) finding in Reid was obiter as there was no finding of a breach of section 9. More importantly, Fairburn, J.A. noted at para. 52 of her Reasons that the police were not involved in reactive functions of responding to and investigating crimes that had taken or were taking place, but rather were involved in important proactive police functions that served the greater public interest, including meeting the needs of a particular community, liaising with the public, and maintaining public order. In this respect the police were specifically invited by the landlord to address community problems faced by residents in relation to unauthorized trespassing.

[62] In the case at bar Constables Khalqi and Bain were not involved in the type of community policing described in Reid. Each of them had decided prior to their arrival at the scene to investigate a possible criminal offence of transportation fraud, although secondarily they were also attempting to facilitate the cab driver obtaining payment of his fare so that the applicant could be on his way to Brampton. Both officers were seriously mistaken with respect to the nature of their powers to detain and to demand identification, and their obligations to respect and implement detainees’ rights to remain silent, to be told the reason for their detention, and to be informed of their right to legal counsel, factors that were not present in Reid. As noted above, the Supreme Court of Canada in Grant stipulated that ignorance of Charter standards must not be rewarded or encouraged, and negligence or wilful blindness cannot be equated with good faith.

[63] I agree with the applicant that the officers’ shared belief that so long as the applicant was cooperating with their investigation while under detention they were under no obligation to respect his right to remain silent and inform him of and implement his right to consult counsel is very troubling and concerning.

[64] However, I am unable to find on the evidence that the officers’ shared lack of understanding of their Charter obligations was indicative of broader systemic training issues affecting the Brantford Police Service as a whole. In the case of R. v. Commisso, 2020 ONSC 957 Code, J. commented at para. 58 that a finding of systemic issues respecting Charter compliance by police would require a sophisticated body of evidence, likely including some expert analysis and evidence from police senior management.

[65] However, as observed by Doherty, J.A. in R. v. McGuffie, 2016 ONCA 365 at para. 67, relying on Harrison at para. 25, although systemic or institutional abuse of constitutional rights may be an aggravating factor rendering police misconduct more serious, the absence of evidence of systemic non-compliance with Charter requirements by the police is not a mitigating factor, as the police are expected to comply with the law, especially the Charter.

[66] I find the officers’ Charter-infringing conduct in failing to provide rights to counsel to the applicant immediately upon detention and demanding that he provide identification prior to doing so, thereby contravening his right to remain silent, to be at the very serious end of the spectrum. The officers’ mistaken belief in the nature of their powers carried with it the implication that a detainee’s silence and cooperation means that police are at liberty to violate his or her Charter rights. This is an attitude and approach by police from which the Court must dissociate itself. I therefore find the first Grant factor, the seriousness of the Charter breach, to pull strongly towards exclusion of the evidence.

(b) Stage Two – impact on the Charter-protected interests of the applicant

[67] The Crown agrees that the impact of the breaches on the Charter-protected interests of the applicant is at the higher end of seriousness and thus favours exclusion of the evidence of the firearm.

[68] I accept the applicant’s submission that the impact on the applicant’s Charter-protected interests approaches the highest end of the seriousness spectrum, save for police conduct involving abusive physical treatment. The actions of the officers in inducing the applicant to abandon his right to remain silent by self-identifying prior to advising him of his right to consult with legal counsel deprived him of his most important constitutional rights at the precise moment that he was most in need of the protection of those rights, particularly in his inebriated condition.

[69] The seriousness of the impact on the applicant was further manifested by his testimony respecting his prior experience in contacts with police as a racialized male, stating that, based upon those prior encounters, his attitude was “I had better do what [police] say or something bad will happen – that’s my experience.”

[70] In my view, the second prong of the Grant test pulls strongly towards exclusion of the evidence of the handgun.

(c) Stage Three - Society's interest in the adjudication of the case

[71] The applicant concedes that because the evidence of the handgun is real and reliable and is essential to the Crown’s case, the third inquiry of the Grant test favours admission of the evidence as it typically does. The truth-seeking function of the criminal trial process would be better served by the admission of the evidence than by its exclusion.

Balancing

[72] As noted above, on the authority of Harrison, the balancing exercise among the three factors mandated by s. 24(2) is a qualitative one and not capable of mathematical precision. However, the authorities establish that, if the first two inquiries together make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility (see R. v. Thompson 2020 ONCA 264 at para. 107 and the cases therein referred to).

[73] As I have found that the first and second lines of inquiry pull strongly towards exclusion, they together outweigh society’s interest in the adjudication of the case on the merits.

[74] The Crown points to the seriousness of the offence as exemplified by the pervasiveness of gun violence in the City of Brantford and its impact on the safety and well-being of the community.

[75] However, as noted above, the Supreme Court of Canada in Harrison cautioned that the seriousness of the charged offence must not take on disproportionate significance. While the public has a heightened interest in seeing a determination on the merits in a case such as this, involving a loaded handgun found in the possession of the applicant, it also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the applicant are high.

[76] I therefore conclude that, despite the reliability of the evidence and its importance to the Crown's case, the applicant has discharged his onus of showing, on a balance of probabilities, that the administration of justice would be brought into dispute by its admission.

Disposition

[77] The evidence obtained by police from the applicant subsequent to his detention is therefore excluded from the trial under s. 24(2) of the Charter.

David A. Broad, J.

Date: January 18, 2024