Court File and Parties

Court File Nos.: CR-21-90000286, CR 24-90000092 Date: 2024-04-24 Superior Court of Justice – Ontario

Between: His Majesty The King – and – T. D.

Re: T. D., Applicant And: His Majesty The King, Respondent

Before: B. P. O’Marra J.

Counsel: R. Roots Gadhia, for the Applicant Victoria Rivers, for the Respondent

Heard: March 18-20 and April 3, 2024

Rulings on Charter Applications

Overview

[1] On September 16, 2019, members of the Toronto Police Service (“TPS”) were issued search warrants for a car and residence related to the applicant. The police were acting on information from a confidential informant (“CI”) that the applicant was trafficking in heroin. Based on that information, an undercover officer had communication and contact with the applicant.

[2] On September 17, 2019, the applicant was driving his car when he was stopped by police. He was detained and arrested. A search of his residence returned negative results. In the applicant’s car, the police found quantities of crack cocaine, fentanyl, and heroin, as well as a quantity of cash. The applicant now faces a five-count indictment alleging trafficking, possession of drugs for the purpose of trafficking, and possession of the proceeds of crime.

[3] The applicant was advised of his right to contact counsel upon his arrest. He indicated that he wished to do so but did not have his own counsel. He was advised that duty counsel would be contacted on his behalf when he arrived at the police station. The applicant was later permitted to speak to duty counsel in private at the station.

[4] The applicant filed an application to exclude the evidence found by police based on ss. 8, 9, 10(b), and 24(2) of the Canadian Charter of Rights and Freedoms.

Evidence on the Applications

[5] The evidence included the filing of the Information to Obtain (“ITO”) dated September 16, 2019. The document was redacted to shield the identification of the CI. Counsel for the applicant advised at the outset that she would seek leave to cross examine sub-affiants to the ITO. There was no application with supporting material on that aspect. That application was not pursued.

[6] There was also viva voce evidence from the following officers:

• P.C. Anthony Moffat of TPS, who transported the applicant from the scene of the arrest and later left messages for duty counsel.
• P.C. Victor Kovic, who advised the applicant of his Charter rights at the scene of the arrest and transported him to the station. He facilitated contact with duty counsel for the applicant.
• Detective Sgt. Daniel Hutchings, who was the officer in charge of the investigation.

[7] The Crown provided the following detailed summary of the ITO entitled “Factual Overview” in their response:

Factual Overview

1. In September 2019, Police Constable Lawson (the handler) received the following Confidential Informant (CHS) information: a. A male known as [redacted] is selling heroin, crack cocaine, and fentanyl; b. The male drives a white Acura with Ontario License plate CFAX 604 (a Ministry of Transportation Ontario search revealed this car belonged to T. D.); c. The CHS described the male as black, approximately 30 years old, 5'8 to 5'10, 240 pounds, chubby build, dark complexion, black beard (sometimes clean shaven) with short braids; d. The CHS viewed T. D.’s MTO photo and confirmed this was the male selling heroin, crack cocaine, and fentanyl; e. The CHS advised that he/she did not know if anyone else called T. D. [redacted] f. T. D. can be reached at 647.355.3878 to facilitate drug transactions; g. The CHS buys [redacted] from T. D. [redacted]; h. The CHS buys in quantities of$ [redacted]; i. The CHS usually meets with T. D. at [redacted].

2. The CHS had previously provided information to the handler about four drug dealers. The information previously provided was corroborated by police through investigation but had not yet resulted in arrests or charges.

3. The CHS sought financial consideration for the information provided to police.

4. Police conducted database searches in relation to the information received and learned that phone number 647.355.3878 was not in their system. The Applicant was however in the system – his address was listed as 114 Wayne Avenue, in Scarborough. Additionally, there was a Police Occurrence Report from October 18, 2018 where the Applicant was stopped by police pursuant to the Highway Traffic Act at which time he was noted as driving an Acura with the license plate CFAX 604.

5. The MTO database indicated the address on the Applicant’s Drivers License address as 114 Wayne Avenue in Scarborough.

6. The MTO database confirmed that a white Acura CFAX 604 was registered to the Applicant.

7. The Applicant had two criminal convictions – in 2009 for trafficking in a Schedule I substance and in 2010 for failing to comply with a recognizance. The Applicant also has a lifetime firearm prohibition.

8. On September 14, 2019, the CHS information was conveyed to Detective Constable Chaudhary who was deployed at that time to a street team at the Toronto Drug Squad.

9. Chaudhary was instructed to action the CHS information received in his capacity as an undercover operator. This meant that Chaudhary was tasked to call the number provided by the CHS and pretend to be a drug user seeking to purchase narcotics.

10. Chaudhary called the number provided by the CHS (647.355.3878) at 8:04 p.m. on September 14, 2019 at which time the following exchange occurred: 647.355.3878: yo Chaudhary: yo wud up T. D. [emphasis added] 647.355.3878: who’s this Chaudhary: Alex bro 647.355.3878: Alex who I don't know no Alex Chaudhary: Spanish Alex 647.355.3878: where I know you from? Chaudhary: I drove “Mikey” to come check you 647.355.3878: what's he look like? Chaudhary: white boy, skinny gots T2’s [tattoos] on his arms 647.355.3878: so whats up man what u want Chaudhary: just gonna see if ur around 647.355.3878: ya when u need to meet up? Chaudhary : I'm just waiting on my dads truck, still not home from work, once he's home I can reach 647.355.3878: Well what you need Chaudhary : can u link a ½ ball of down [heroin]? 647.355.3878: how much you got? Chaudhary : 220 647.355.3878: it's 240, I usually do it for 250, but ill do it for 240, k where are you Chaudhary: I'm at my dad’s Birchmount and Eglinton 647.355.3878: I’ll come to Pharmacy / Lawrence Tim Hortons. Call me when you get there, actually me when ur leaving Chaudhary: kk

11. Following this conversation, Chaudhary and his team had a briefing where the details of the undercover operation were discussed. The following briefing sheet was viewed by all members of the team:

12. At 9:04 p.m., police saw a black male exit 114 Wayne Street, enter the white Acura CFAX 604, and drive to Howarth Avenue.

13. At 9:13 p.m. Chaudhary called 647.355.3878 and the same male (who had previously responded to the name T. D.) redirected Chaudhary to Howarth Avenue to complete the planned drug transaction.

14. Prior to arriving at the meet location, the same male (who had previously responded to the name T. D.) using phone number 647.355.3878 called Chaudhary and told him to hurry up.

15. Other members of Chaudhary’s team were following him, conducting mobile surveillance.

16. At 9:25 p.m. Chaudhary arrived on Howarth Avenue and placed a call to T. D. at 647.355.3878 providing his location. Chaudhary observed a white Acura driving towards him and eventually parking beside him. Chaudhary got out of his car and approached the driver side door of the white Acura. The surveillance team again confirmed the Acura's license plate was CFAX 604.

17. Chaudhary approached the driver of the white Acura, who was alone in the car and the male said “Yo wrong guy, I don't know you” after which he argued with Chaudhary about their prior relationship and made repeated utterances about the “feds” and “undies” in the area (presumably referring to undercover police officers investigating drugs.)

18. Chaudhary confirmed that the male in the Acura was the same man depicted in the photo on the briefing sheet – the Applicant, T. D.

19. The white Acura CFAX 604 left the area and was not followed by police.

20. At 9:46 p.m., police returned to 114 Wayne Avenue and observed the white Acura CFAX 604 park across the street from 114 Wayne Avenue. Police observed T. D. exit the driver seat, walk up the driveway of the residence, and lock his car from his position under the house's carport.

21. After their meeting, Chaudhary called 647.355.3878 and spoke to the same male (who had previously responded to the name T. D.), discussing Chaudhary’s backstory, and arguing about whether Chaudhary was followed by police.

22. On September 16, 2019, Detective Constable Nickerson submitted an Information to Obtain search warrants sworn that same day for the Applicant's car (the white Acura CFAX 604) and home (114 Wayne Avenue where he was seen returning after the failed drug transaction with Chaudhary.)

23. Justice of the Peace Brihi granted the requests to search both locations.

24. […]

25. On September 17, 2019, the police surveillance team set up in the area of 114 Wayne Street. Police observed significant foot traffic by way of short visits to the residence, behaviour which police considered to be consistent with drug trafficking.

26. After the warrants were issued, the Applicant was observed leaving 114 Wayne Avenue driving the white Acura CFAX 604. The Drug Squad followed him and decided to arrest the Applicant while he was driving so they requested the assistance of the Emergency Task Force.

27. At 4:47 p.m. the ETF began the process of stopping and arresting the Applicant. Once he was secured, he was turned over to Police Constable Kovic. At approximately 4:49 p.m. Kovic advised the Applicant he was under arrest for offering to traffic heroin and searched the Applicant incident to his arrest and a cell phone was in his right front pocket, which phone was turned over to the Drug Squad.

28. At 4:53 Police Constable Kovic gave the Applicant his rights to counsel from his police issued memo book script. The Applicant told Kovic he did not have his own lawyer and Kovic advised they would connect him with Duty Counsel at the station. When Kovic asked the Applicant whether he understood his right to speak to counsel, he responded “absolutely”.

29. A member of the Drug Squad called 647.355.3878 and the phone seized from the Applicant's right front pocket rang.

30. Kovic and the Applicant left the arrest scene at 4:59 enroute to 41 Division.

31. Kovic and the Applicant arrived at the sallyport of 41 Division at 5:11 p.m.

32. The Applicant was paraded at 5:21 p.m.

33. Prisoner processing of the Applicant was complete at 5:30 p.m.

[8] The testimony of P.C. Moffat included the following further information:

• He and P.C. Kovic were working in uniform when they were assigned to transport the applicant to the station after his arrest.
• They arrived at the station by 5:11 p.m. There was a delay of approximately ten minutes in the sally port before the applicant was brought before the booking officer. At 5:21 p.m., P.C. Moffat and P.C. Kovic conducted a level three body search of the applicant before he was placed in a cell.
• The booking process was recorded on video. At one point after the level three search, the applicant asked, “when do I get my call?” He was told that duty counsel would be contacted on his behalf. The applicant appeared to be satisfied with that response.
• Phone calls to duty counsel are recorded on an automated system. P.C. Moffat left a message for duty counsel at 6:04 p.m. He left a follow up message at 6:34 p.m. since there had been no response to the first call. Duty counsel did call back at 5:52 p.m., and the applicant was allowed to speak to him in private.

[9] In cross examination, P.C. Moffat confirmed that it took 12 minutes to transport the applicant from the scene of the arrest to the station. He was aware from prior experience that there are sometimes delays in duty counsel returning calls. He did not consider calling ahead before arriving at the station for duty counsel to be contacted. He had never done that before. He agreed that on request (as here) contact with counsel for someone under arrest should be facilitated as soon as possible. He said it was not the practice in TPS to call ahead in such circumstances.

[10] P.C. Moffat recalled that the applicant was concerned about access to some personal medication. The booking video also shows the applicant requesting his medication. The police did arrange for that medication to be brought in for the applicant.

[11] P.C. Moffat said he could not answer why a call to duty counsel was not made when the applicant was being booked.

[12] P.C. Kovic’s testimony included the following further information:

• When he and P.C. Moffat first saw the applicant, he was lying face down on the ground with his hands cuffed behind him. P.C. Kovic performed a cursory search of the applicant when he was standing. P.C. Kovic found items including a cell phone. He is not sure what he eventually did with the phone. He performed a further search of the applicant before he was placed in the cruiser. He viewed the two searches as authorized as incident to arrest.

[13] P.C. Kovic recalls that the cuffs on the applicant were loosened somewhat before he was transported from the scene.

[14] In cross examination, P.C. Kovic confirmed that Detective Sgt. Hutchings told him at 5:43 p.m. that the applicant could be allowed to speak to duty counsel, as the search of the residence of the applicant was complete. P.C. Kovic was not aware of any exigent circumstances to delay contact with duty counsel. He is aware of a subsequent change in TPS policy that permitted officers to begin the process of contacting duty counsel from the roadside scene of arrest, especially if there might otherwise be a significant delay.

[15] Detective Sgt, Hutchings’s testimony provided the following further information:

• He was the officer in charge of the investigative team. The plan for the first meeting of the undercover officer and the target was to “buy and let go”. There would be a meeting with the target to purchase heroin, but they did not plan to arrest him at that time. The plan was to see if drug dealers higher up the chain could be located and identified before any arrests would be made.

[16] In cross examination, Detective Sgt. Hutchings said he had no notes of any interaction with the applicant after the arrest. He said he may have seen the applicant later at the station. He has no note of it.

[17] He reviewed the search warrants after they were issued and had no concerns about the terms.

[18] Detective Sgt. Hutchings was asked if any member of the investigative team spoke to the applicant in an interview room at any point. He responded “mostly likely … members of the team would have spoken to him” to gather information for the bail sheet and facilitate contact with counsel. It was “highly likely” that members of the team did speak to him. It would have been after the booking process.

[19] Detective Sgt. Hutchings left the residence where one of the search warrants was executed at 6:21 p.m. He was not sure what time he arrived back at the station, but it would have been reflected in the central notes. He believes that he or one of the team members would have spoken to the applicant upon their arrival back at the station.

[20] In cross examination, Detective Sgt. Hutchings was asked about the police seeking additional information in “buy and let go” situations. The following excerpts from the March 19, 2024 transcript detail how those questions and answers led to a Crown objection: Q. And you believe you or one of your team members would’ve spoke to T. D. on your arrival back at the station at some point. A. Yes. MS. GADHIA: Court’s brief indulgence. THE COURT: Sure. MS. GADHIA: We talked yesterday about the purpose of doing these buy and releases to secure additional information. A. Correct. Q. Did this investigation result in any type of additional information other than what we’ve hearing about, which is the arrest of T. D. A. The surveillance confirmed that he was driving the Acura, the vehicle that we had in our briefing. We also corroborated the address that he was in and out of and had access to at 114 Wayne Avenue, this was the address that was registered in our TPS data bases, we corroborated that through physical surveillance. The buy and let go, ideally, we would've tried another buy, but unfortunately the first one didn't happen, so our intention at the initial September 14th briefing was that a buy would happen and then we would do additional buys to further our investigation, possibly, you know, buy bigger weights that would push our suspect to reach out to his suppliers. This investigation didn't transpire that way because the first deal didn't happen, so after that didn't happen, we just needed to corroborate where T. D. is residing and at that point I felt that we were not going to push this investigation any further with regards to not being able to infiltrate through an undercover operator. Q. Right. So in other words, you didn’t get any supplier or anybody else higher up in the food chain. A. It didn't happen, no. That’s right. Q. Right and I mean obviously a disappointment for the drug team not getting that type of information because that’s the purpose of setting up these buy operations, right? A. It's just the way some investigations happen, right. You try to, you know, investigate it further, but sometimes you just take what you got, right. I mean, we have identified a drug trafficker, we are trying to stop the flow of heroin within our city. We have identified somebody who we believed to be trafficking in heroin and we are going to effect that arrest. Q. So it’s not as if you went into a room with T. D. and asked him questions about... MS. RIVERS: I am going to rise. I think perhaps the witness should step out, Your Honour. THE COURT: Could you step out for a minute, Officer, please.

[21] At this point, the Crown rose to assert confidential informant privilege. This related to potential questioning about a possible debrief where police attempted to have the applicant become an informant.

[22] Counsel for the applicant advised that she did not seek to elicit any reference to possible informer status for her client. In the context of the s. 10(b) application, she sought to explore the temporal parameters of any discussions between any member of the investigative team and the applicant before duty counsel became involved. This questioning was relevant to the s. 10(b) application because it related to (i) a delay in facilitating access to counsel; and (ii) a failure to hold off by interviewing the applicant after the applicant clearly asserted a desire to speak to counsel and before he in fact spoke with duty counsel.

[23] After hearing counsel submissions, I gave a brief oral ruling that there could not be any further questions put to Detective Sgt. Hutchings or any other member of the investigative team that might relate to possible informer privilege issues. That order included any questions related to the times of any such interaction, if an interaction took place, and whether a record was made of possible interactions. This broad order was made to recognize and protect the possible reference to any evidence touching on the informer issue: R. v. Leipert, [1997] 1 S.C.R. 281; R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493.

Issues

[24] The Charter challenges in this case can conveniently be addressed in two categories:

1. Sections 8 and 9 of the Charter: This relates to the sufficiency of the two search warrants and the grounds to arrest the applicant.
2. Section 10(b) of the Charter: This relates to a delay in facilitating access to duty counsel and a failure to hold off on asking the applicant questions before he was able to speak to counsel.

Analysis

Sections 8 and 9 of the Charter

[25] For the brief reasons that follow, I find that there were no Charter breaches relating to the two search warrants or the arrest of the applicant.

[26] Counsel for applicant pointed out that the search warrant for the applicant’s car authorized execution “between 13:00 on the 16th day of September 2016 [sic] and 21:00 on the 17th day of September 2019”. This was clearly a clerical error as to the start date and does not vitiate the validity of the search warrant.

[27] The applicant challenged the validity of the search warrants on the following bases:

1. The ITO failed to disclose reasonable grounds for the searches of the residence and car; and
2. The affiant to the ITO did not provide full, frank, and fair disclosure relating to the identification of the applicant as the person who offered to sell heroin to the undercover officer on September 16, 2019.

[28] The viva voce evidence on the application included reference to the police surveillance team losing sight of the target car at various times. The evidence also referred to “a black man” entering and getting out of the target car at various times. A careful review of the detailed ITO provides a clear and reasonable basis to believe that at all material times it was the applicant who had the cell phone and personal contact with the undercover officer in regard to the offer to sell heroin.

[29] The ITO’s contents clearly support the issuance of both search warrants as well as grounds to arrest the applicant. The searches of the applicant when he was first detained were lawful, as they were incident to a lawful arrest.

[30] The applications based on ss. 8 and 9 of the Charter are dismissed.

Section 10(b) of the Charter

Delay in Facilitating Access to Counsel

[31] Any unreasonable delay in facilitating access to counsel, regardless of length, likely leads to a breach of s. 10(b) of the Charter: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 2; R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 2; R. v. Shchogolyev, 2024 ONSC 584, at para. 27.

[32] The police are not obliged to facilitate access to counsel until after the arrestee is in a safe and secure location where private contact with counsel can be facilitated. That would be after the booking process: Keshavarz, at para. 67. The booking process in this case includes a level three search to ensure the safety of the arrestee and of those who may have contact with him before he is placed in a cell or left in a private room to speak to counsel.

[33] In R. v. Hassan, 2020 ONSC 6354, the accused testified that the police spoke to him about becoming a police informant before he was put in contact with counsel. The officer in question had no memory or notes of such a conversation. The court found that the Crown did not establish that access to counsel was facilitated at the earliest, reasonable opportunity: at paras. 8, 85, and 94-99.

[34] In R. v. Palmer, 2021 ONSC 1675, the court found that there was an unreasonable delay of 40 minutes when the officer tried to enlist the accused as an informant. The Crown did not prove that the delay was justified in the circumstances: at paras. 40-41. The court went on to find that the fact the accused did not provide incriminating evidence was relevant to the s. 24(2) analysis: at para. 33.

[35] There was an unacceptable delay in facilitating the applicant’s access to duty counsel. He asserted his right from the outset of his arrest at 4:49 p.m. The police were well aware that there was a routine delay in duty counsel responding to voice messages left on the system. The booking and level three search were completed by shortly after 5:21 p.m. The first call to duty counsel was at 6:04 p.m. It was not until 6:52 p.m. that duty counsel returned the call after a follow up by the police at 6:34 p.m.

Duty to “Hold Off”

[36] Once a detainee has indicated a desire to contact counsel, the police may not elicit incriminatory evidence from the detainee until after contact with counsel has been facilitated. This is the obligation to “hold off”: R. v. Prosper, [1994] 3 S.C.R. 236.

[37] The duty to “hold off” relates to questioning or otherwise attempting to elicit evidence from the detainee: R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 17; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 26. This duty also prevents the police from interacting with an accused, short of questioning, in a manner that triggers a response from the accused i.e., a “functional equivalent” of an interrogation: R. v. McKenzie (2002), 167 C.C.C. (3d) 530 (Ont. C.A.), at para. 36; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 71.

[38] There is at least circumstantial evidence that one or more members of the investigative team spoke to the applicant about matters unrelated to the booking process. If there was such a discussion, there is no direct evidence as to who initiated it. It may well be that the police initiated it. This would be consistent with their initial plan to “buy and let go” the target at the first contact involving the purchase of heroin.

[39] A person under arrest may provide information about other sources for their own interests. They may also benefit from the advice of counsel before doing so.

[40] The obligation to “hold off” is not directed exclusively at attempts to elicit incriminatory evidence related to the offences currently under investigation. Questions related to whether the detainee will provide source information on broader issues may have significant implications for the detainee. If the detainee has asserted his right to contact counsel, the obligation to “hold off” also relates to questions related to providing source information beyond the specific matters under investigation.

[41] Based on the circumstantial evidence, I find that the police likely continued to ask investigative questions of the applicant before the applicant spoke to duty counsel at 6:52 p.m. Thus, they breached their obligation to “hold off” on such questions.

[42] I am satisfied that there were two breaches of the applicant’s rights under s. 10(b) of the Charter. Those were a delay in facilitating contact with counsel and a failure to “hold off” investigative questions before the applicant could speak to counsel. I will turn now to whether the advice should be excluded under s. 24(2) of the Charter.

Section 24 of the Charter

Evidence “Obtained in a Manner”

[43] In R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21, the court found that it is unnecessary to establish a strict causal relationship between a Charter breach and a subsequent statement:

In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three: R. v. Plaha (2004), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.

[44] Where there is no causal connection between a breach and the discovery of evidence, there may be a temporal connection: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 35. The accused’s arrest may be the link between the discovery of the evidence and the breach: Pino, at para. 73. That is the case here.

[45] A temporal connection may also be sufficient to meet the threshold requirement, even where the evidence was discovered prior to the breach: Pino, at para. 49; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at paras. 32, 44.

Grant Analysis

[46] Where a court finds that there have been Charter breaches, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, there are three factors to consider:

1. The seriousness of the Charter-infringing conduct;
2. The impact of the breach on the Charter–protected interests of the accused; and
3. Society’s interest in an adjudication of the case on the merits.

[47] The two breaches of s. 10(b) are related, and their cumulative effect must be considered in the analysis under s. 24(2) of the Charter.

[48] In Palmer, at para. 57, the court weighed the legitimate police conduct in seeking further sources about criminal activity against the rights of a detainee:

I would add parenthetically, obtaining of information of ongoing criminal activity and cultivating informants and developing information concerning criminal activity in the community is an appropriate and necessary police investigative activity in advancing the duty of the police to serve and protect the community, but it must be done when dealing with an accused in full compliance with their duties and obligations to protect the accused’s rights.

[49] In this case, the impact of the Charter breaches was serious and had a significant impact on the Charter-protected interests of the applicant. From the outset of his arrest, the applicant asserted his desire to speak to counsel. The police were aware that there would likely be a delay in hearing back from duty counsel. Yet, it was not until approximately 25 minutes after the booking and search at the station that the police placed the first call to duty counsel.

[50] During the unacceptable delay in contacting counsel and facilitating access, the applicant was questioned further by the investigators. Whether or not the applicant would provide source information would have significant implications for him. He would have benefitted from the advice of counsel before making a decision. The delay and failure to “hold off” had a serious negative impact on his Charter-protected rights.

[51] The items recovered in the applicant’s car were very dangerous drugs. That factor in isolation would favour inclusion of the evidence and a trial on the merits. This is usually the case with real evidence. However, where the first and second grounds under Grant favour exclusion of the evidence, the evidence should most often be excluded: R. v. McGuffie, 2016 ONCA 365 at para. 63.

[52] The first and second grounds in Grant favour exclusion of that evidence. In considering and balancing all three grounds, there should be exclusion of the evidence found in the applicant’s car. To admit the evidence in light of the breaches would reflect negatively on the public confidence in the justice system.

Result

[53] The applications under ss. 8 and 9 of the Charter are dismissed. The applications ss. 10(b) and 24(2) of the Charter are allowed, and the evidence is excluded.

B.P. O’Marra J. Released: April 24, 2024