Court File and Parties
Court File No.: CR-23-70000672 Date: 2024-06-20 Superior Court of Justice – Ontario
Re: His Majesty the King And: Andre Pyne and Sadri Zorjani, Defendants/Applicants
Before: S.F. Dunphy J.
Counsel: M. Izadi, for the Defendant Andre Pyne A. Sobcuff, for the Defendant Sadri Zorjani D. Balchandran, for the Respondent Crown
Heard at Toronto: June 11-18, 2024
Reasons for Decision – Applications under s. 8, 9, 10(a) and (b) and s. 24(2) Charter
[1] The defendants Mr. Andre Pyne and Mr. Sadri Zorjani have each brought applications seeking the exclusion of certain evidence pursuant to s. 24(2) of the Charter of Rights and Freedoms for alleged violations of their rights under s. 8, 9, and s.10(a) and (b) of the Charter. Mr. Zorjani also asks for a stay of proceedings under s. 24(1) of the Charter on substantially the same grounds.
[2] Their applications were heard as part of a blended voir dire and trial. Mr. Pyne and Mr. Zorjani are each charged with reckless discharge of a firearm (s. 244.2(1)), one count of unlawful possession of a restricted firearm and one count of unlawful possession of a prohibited firearm (s. 92(1)), one count of possession of a loaded restricted firearm and one count of possession of a loaded prohibited firearm (s. 95(1)) and one count of possession of property (a motor vehicle) valued over $5,000 knowing it was obtained by an indictable offence (s. 354(1)).
[3] For the reasons that follow, I am dismissing these applications. There is no merit to the allegation of lack of reasonable grounds for the arrest of the defendants. The police had reasonable grounds to conclude that the defendants were occupants of the white pick-up truck that had been associated to a shooting incident minutes earlier at nearby Parma Court. The circumstances of its abandonment, their behaviour upon seeing police and their clothing justified the reasonable inference that the white truck and the defendants had been actively involved in the Parma Court shooting. There was no s. 10(a) breach related to change of jeopardy and at all events this is not a case where a stay of proceedings could reasonably be contemplated. The admitted breach of both defendant’s s. 10(b) rights was a serious one but I find that the balancing of factors does not favour exclusion of this evidence that was obtained in a manner entirely unrelated to the serious failing to implement the s. 10(b) rights of the defendants. The failing appears to have been the result of a degree of negligence but it cannot be attributed to any deliberate or callous disregard of the defendants rights. A good faith effort to implement the right was made, the failure of that effort to bear fruit was not detected until a few hours later. As soon as detected – and I do not excuse the failure to do so – the error was repaired and access to counsel immediately facilitated. No advantage was obtained by the state nor was there any effort to gain one. These circumstances do not favour exclusion of the evidence.
Background Facts
[4] This case arises out of a shooting incident that occurred shortly before 1 am on June 21, 2021 in a residential area on Parma Court near the Victoria Park and O’Connor area of Toronto.
[5] At approximately 12:56 am police received multiple calls reporting gunshots heard at or near 40 Parma Court. Reports varied of between 5 and 18 gun shots being heard in this dense residential neighbourhood. A caller reported seeing a white pick-up truck leaving Parma Court towards Victoria Park. A high priority police call was sent out and numerous squad cars were dispatched to the area including squad car 5512 driven by P.C. Folkes with his partner P.C. Lam and car 5411 driven by P.C. De Guzman and her partner P.C. McDonald.
[6] By the time police arrived at Parma Court (approximately 1:02 am) there was no further activity apparent in the immediate area of Parma Court and no victims were discovered. Shell casings were discovered and reported over the police band at 1:05 am. Officer Folkes recalled hearing that. Also at 1:05 am a 911 caller reported seeing a white pick-up truck in a suspicious collision near the intersection of O’Connor and Yardley – approximately eight blocks away from Parma Court. The caller reported seeing three males exit the pick-up truck who then ran towards a parking laneway parallel to O’Connor. All three were described as wearing blue latex gloves, two were dressed in black with black caps while the third was wearing a grey hoodie. The caller reported that the males appeared to be changing clothes as the grey hoodie had been removed when they were next seen emerging from the laneway. Another caller described seeing the white pick-up truck mount the sidewalk and collide with a parked car with the engine still running and nobody inside the truck.
[7] The two police cruisers mentioned arrived at the corner of Yardley and O’Connor at approximately 1:08 am. The white pick-up truck was visible on the far side of the intersection. One of the 911 callers – Ms. Castro – had observed the males emerge from the pick-up truck and continued observing from the balcony of her apartment and reporting live to the 911 operator. She advised the operator that the police cruisers had just passed the place where she saw the three males enter the laneway. Cruiser 5512 saw three figures running southbound in the laneway (which runs parallel to O’Connor) and immediately gave chase in their car. They lost sight of the figures about halfway to the next block (Dohme Ave) when the three figures ducked to the right between two buildings and headed towards O’Connor Ave and they reported that the suspects were now heading southbound on O’Connor. Instead of proceeding to investigate the pick-up truck, the second squad car (5411) turned southbound on O’Connor and spotted the figures running into a parking lot behind a Harvey’s Restaurant at 1100 O’Connor at the corner of Dohme Ave. They pursued the running figures there. Meanwhile, car 5512 continued to the end of the block in the laneway, then headed briefly north on O’Connor where a pedestrian they saw indicated the direction that “they” had headed, pointing across the street to the area of a Harvey’s restaurant, squad car 5411 passing them as they did so. By 1:09 am both squad cars had converged in the parking lot where the trailers were parked and within seconds, the two defendants were found together hiding under one of the trailers. They were frisked and placed in handcuffs by 1:10 am, brought over to the squad car, informed of their arrest and read their rights to counsel which both defendants indicated they wished to exercise. A third male – a youth – was found a couple of minutes later. By 1:12 am all three males were in custody and by 1:15 am the two defendants before me had been placed under arrest with one placed in each of the two squad cars. Other police cars began arriving as this unfolded but they play no material role in this application.
[8] Mr. Pyne and Mr. Zorjani were both dressed in dark clothing at the time of their arrest. They were not then wearing blue latex gloves. Black ski masks were found in the pockets of each while they were being searched prior to being placed in the cruiser.
[9] While the arrests of the two were being processed on the scene additional reports over the police channel confirmed that two firearms had been found in the white pick-up truck (at 1:11 am). The arresting officers have no present recollection of having heard that information at the time. Officer Folkes recalled an officer announcing the discovery of the grey sweater near the trailers at about this time. While he could not presently recall hearing of the discovery of the firearms when this was announced on the radio, he had the police radio band playing in his earpiece the entire time.
[10] Mr. Pyne was informed that he was under arrest for discharging a firearm and read his rights to counsel at 1:15 am. He advised that he wished to speak with Duty Counsel. He was placed in the back of car 5512 with P.C. Folkes and P.C. Lam. Mr. Zorjani was informed that he was under arrest for possession of a firearm at 1:10 am and the advised of his rights to counsel at 1:15 am following a delay arising from the discovery of the third suspect behind another trailer. He too indicated that he wished to speak to Duty Counsel and was placed in car 5411 with P.C. McDonald and P.C. De Guzman.
[11] Car 5411 left the area to transport Mr. Zorjani to 55 division for processing at 1:21 am while car 5512 left the area to transport Mr. Pyne one minute later.
[12] The drive to 55 Division took approximately 15 minutes. At the time, 55 Division had the capacity to parade one detainee at a time. When Car 5411 arrived, there was a wait of about twenty minutes to begin parading Mr. Zorjani before the booking officer. Mr. Zorjani was paraded at 1:50 am, confirmed his desire to speak to Duty Counsel and was taken to the holding cell at 2:04 am. A call to Duty Counsel was made at 3:51 am for Mr. Zorjani and a message was left to call back. There is no evidence as to whether Duty Counsel returned the call or what if any follow-up efforts were made by police.
[13] Mr. Pyne was not paraded until after Mr. Zorjani. His booking parade began at 2:25 am, the pending charge (discharge firearm with intent) was read out to him along with his rights to counsel which he re-confirmed that he wished to exercise. He was taken to be transferred to the holding cell at 2:38 am. After completing paperwork relative to the seized property of Mr. Pyne, P.C. Lam placed a call to duty counsel at 3:01 am and, after connecting with Duty Counsel (Murphy) he transferred the call to the holding cells where arrangements should have been made to connect Duty Counsel to Mr. Pyne. There is no evidence as to why this did not occur.
[14] Mr. Pyne was interviewed at 8:55 am and advised that he had not yet spoken to counsel. The interviewing officers were clearly surprised by this news and asked him if he had not spoken to a lawyer named Murphy. Upon being advised that he had not, the interview was immediately halted and a call placed to Duty Counsel on his behalf at 9:13 am. Mr. Pyne was connected to Duty Counsel at 9:27 am for the first time. A call to Duty Counsel was placed on behalf of Mr. Zorjani at 9:16 am when it was learned that he had not spoken to counsel either and he was connected with such counsel at 9:35 am and was not questioned until after this occurred.
[15] It is an agreed fact that neither defendant was actually provided with access to counsel until the two calls mentioned prior to their respective interviews in the morning. Both defendants were advised of all of the charges they presently face at that time and given a repeated caution and a repeated reading of their rights to counsel. Neither of them made any statement to police about the incident before or after speaking to Duty Counsel.
Issues to be Decided
[16] The issues to be determined on this application are:
a. Did police violate the s. 10(a) rights of the defendants to be informed of the cause of their arrest and detention? b. Did police violate the s. 10(b) rights of the defendants to be afforded their right to retain and instruct counsel without delay? c. If any of the alleged Charter breaches occurred, ought the proceedings to be stayed pursuant to s. 24(1) of the Charter? d. If any of the alleged Charter breaches occurred, ought some or all of the evidence obtained by police to be excluded pursuant to s. 24(2) of the Charter?
Factual Background
(a) Did police have reasonable grounds to arrest the defendants?
[17] It bears underlining that “reasonable grounds” to undertake an arrest by a peace officer without a warrant under s. 495(1)(a) of the Criminal Code is quite a different standard than “beyond reasonable doubt” or even proof to the civil standard of balance of probabilities. I shall not repeat the rather complete discussion of the parameters of reasonable grounds set forth in R. v. Beaver, 2022 SCC 54 at para. 72. The grounds must be subjectively and objectively reasonable and must be assessed in light of the information then known.
[18] In the present case, the totality of the circumstances known to police at the time of the two arrests satisfied the objective and subjective criterion of reasonable grounds to arrest both defendants for discharging a firearm or its included offence of possession of a firearm at the time.
[19] The four officers from the two involved squad cars were acting together and cooperatively at the time they pursued and discovered the two defendants attempting to conceal themselves underneath the trailers in the parking lot behind the Harvey’s restaurant at approximately 1:09 am.
[20] Prior to arriving at the intersection of Yardley and O’Connor at approximately 1:08 am, the officers in both cars had received the following information about the reported shooting at Parma Court and the suspicious collision of a white pick-up truck just beyond the Yardley and O’Connor intersection:
a. The Parma Court shooting incident reportedly involved somewhere between five to eighteen gunshots being heard; b. A caller described two vehicles “peeling off” after the shooting; c. A white pick-up truck was suspected of being involved in the shooting incident; d. The white pick-up truck was last seen heading towards the Victoria Park Avenue exit from Parma Court; e. By 1:02 am there did not appear to be any further activity on Parma Court in relation to the shooting – neither eye witnesses nor victims were discovered; f. By 1:05 am a report of a white pick-up truck being involved in a suspicious incident/crash at O’Conner and Yardley (about eight blocks away from Parma Court) arrived; g. A 911 caller indicated that three males had been seen running from the vehicle, one wearing a grey hoodie, two wearing black caps and all three wearing blue latex gloves; h. The three males had run into a nearby laneway (running parallel to O”Connor and intersecting with Yardley Ave.). The caller saw them emerge on one occasion having changed their appearance and were no longer wearing blue latex gloves;
[21] By 1:08 am car 5411 was stopped at the Yardley and O’Connor traffic light waiting for it to change to investigate the pick-up truck visible on the far side of the intersection. Car 5512 was approaching it from behind when the dispatcher relayed the information that the caller reported that the police cars had just passed the spot where the three males had run to. P.C. Folkes saw three figures running southbound down the lane and, upon being alerted to his, P.C. Lam saw them as well. They backed up the car and chased them down the lane, honking their horn at car 55411 to alert them.
[22] There was clearly enough continuity between the observations of the 911 caller relayed through dispatch, the figures seen by P.C. Lam and P.C. Folkes in the laneway and seen by P.C. De Guzman and P.C. McDonald in the area of the parking lot behind the Harvey’s for all four officers to conclude reasonably that the three males apprehended hiding under and behind the parked trailers were the same three males as had been reported running away from the abandoned white pick-up truck minutes earlier. It was late at night, the three were spotted in the very place a witness had seen them run to and this was the only grouping of pedestrians seen. Further, the two defendants were visibly winded when apprehended consistent with having run. The latter observation was not consistently recorded in the notes of any of the officers but is plainly and audibly confirmed by the audio recordings inside the squad cars.
[23] When a safety pat-down search was conducted on the defendants, each was found to possess a black balaclava-like ski mask in his pocket.
[24] These combined circumstances, in particular the circumstances of the abandonment of an expensive pick-up truck with the engine running, the wearing and then discarding of blue latex gloves by all three, the presence of ski caps and their panicked flight from police provided reasonable grounds to infer that the pick-up truck the defendants had run away from was the same white pick-up suspected of being involved in the Parma Court shooting incident and to suspect that each had been actively involved in the shooting and were acting together throughout. The combination of all of this information in the dynamic situation then unfolding clearly provided objectively and subjectively reasonable grounds to arrest both for discharging a firearm or for its included offence of possession of a firearm. As it turned out, the arresting officer in the one case announced the charge as possession of a firearm (P.C. McDonald arresting Mr. Zorjani) while the other (P.C. Lam arresting Mr. Pyne) described it as reckless discharge of a firearm.
[25] There is information from which it might be inferred that at least one of the officers (Folkes) had heard broadcast information about the finding of shell casings on the street at Parma Court and the finding of two handguns inside the white pick-up truck which had actually been reported slightly before the defendants were apprehended. As the four were acting as a team assisting each other in securing the two suspects in a high-risk takedown where there was initially a reasonable fear of another suspect being at large with a gun it is reasonable to refer to the information known to them collectively. The situation was dynamic and it was reasonable for the four to act in concert. While only two of the four (McDonald and Lam) actually conducted the arrest, it was effectively a team decision and action.
[26] The analysis of reasonable grounds is not a fine frame-by-frame combing through of the facts and evidence in hindsight to determine where the counsel of perfection lies. It is a common-sense and pragmatic assessment of a decision undertaken by four officers applying their experience and training to a dynamic and evolving situation. Their notes were assembled more than an hour after an adrenaline-laced confrontation with potentially armed suspects only two of whom were initially discovered in what was clearly a high risk and potentially dangerous situation.
[27] Not every scrap of information observed or heard will necessarily find its way into such notes nor is it reasonable to expect this to be the case. Details may not appear important initially and may acquire importance later. The issue about the winded status of the two defendants – who had been running a distance of two or more blocks at high speed evading officers in scout cars moments earlier – is a case in point. Doubts were cast as to the sincerity of officers testifying about the winded state of the defendants upon their apprehension when this was incompletely reported in their notes. The state of the defendants was plainly visible and audible on the in-car recordings. The only relevance of this detail was as an additional piece of information to confirm the identity of the suspects apprehended with the suspects chased – a fact which the officers all appear to have taken as plain and obvious given the circumstances. While the subjective grounds for the arrests as described by the officers at hearings months and years after the fact are clearly relevant, one cannot expect encyclopedic recall of each and every input into a rapid decision made in such a dynamic environment.
[28] Further, even if one were to disagree about the sufficiency of the reasonable grounds at the moment of the arrest, it was conceded that there were certainly grounds an investigative detention to permit further inquiries or investigation to be undertaken. The additional information of the shell casings and the two guns found inside the pick-up truck was both broadcast and present on the I/CAD display in the squad cars. It was easily and rapidly available if asked for were an investigative detention instead of an arrest to have been decided upon. This evidence – readily available at their fingertips within mere moments - would have added considerable weight to the reasonable grounds for arrest that already existed and would have been an obvious and natural inquiry to make in the circumstances had the more conservative course of action been decided upon. In such a case, any investigative detention would have been immediately converted to the arrest that in fact occurred within two or three minutes at most. There was no material difference between the two types of detention in the circumstances, the two caps having been found during a routine safety pat-down search at all events.
[29] The Grant analysis in these circumstances would render the application moot at all events given the additional information available virtually at their fingertips and that some may have heard broadcast even if the information was not imprinted on their memories sufficiently to have been listed as grounds for their decision after the fact.
[30] There is also no merit to the allegation of change in jeopardy advanced by Mr. Zorjani. While there is some difference in jeopardy between the charge of simple possession of a firearm and reckless discharge of one, they are both clearly of the same type and refer to the same incident. Mr. Zorjani was specifically advised of each charge he currently faces later that same morning and then re-read his rights to counsel and a caution. Neither defendant was questioned by police as regards the incident prior to being advised of all of the charges they currently face, being read their rights to counsel anew and being given a fresh caution.
[31] The applications in relation to s. 10(a) must be dismissed.
(b) Did police violate the s. 10(b) rights of the defendants to be afforded their right to retain and instruct counsel without delay?
[32] The Crown has conceded that there was a breach of the s. 10(b) rights of both Mr. Zorjani and Mr. Pyne. The chronology of their arrest, the reading to them of their rights to counsel and the implementation of that right is set forth at the beginning of these reasons. The delay in implementation – a constitutional responsibility of police – was clearly far too long.
[33] In summary, both defendants communicated their desire to consult counsel when asked after the reading of the caution and their rights to counsel at the time of their arrest. Both were transported to 55 Division for processing promptly after their arrest. There was a small bottleneck in the parading process due in part to the additional protocols in effect during Covid and in part to the design of the station what permits only one prisoner to be paraded at a time. Both repeated their desire to consult duty counsel to the booking sergeant when paraded.
[34] The booking process of the two defendants was completed as swiftly as reasonably practical after which both defendants were lodged in their cells (Mr. Pyne shortly after 2:38 am and Mr. Zorjani shortly after 2:04 am). This was just under two hours following his arrest in the case of Mr. Zorjani and just over 2 hours following his arrest in the case of Mr. Pyne.
[35] It was not reasonable or practical to give effect to the s. 10(b) rights of either defendant prior to completing the parading and booking process and this process was completed as soon as reasonably practicable for both. It is fair to observe that the approximately two hours that elapsed between the arrest and subsequent booking of the two defendants ought to have generated an additional degree of vigilance and diligence in implementing their rights to counsel swiftly after the booking process was finsihed that was not brought to bear here.
[36] Mr. Pyne was a youthful (19-year-old) first-time offender with no record of prior arrests. There were some difficulties in confirming his identity at first, but these had been sorted by the time the booking process began. Those circumstances ought to have imparted an additional degree of urgency to police fulfilling their constitutional obligations.
[37] In fact, a good faith effort to implement his rights to counsel was made at 3:01 am. Officer Lam placed the call, connected with Duty Counsel and transferred the call to the holding cells in accordance with the protocol in effect at the time during Covid and recorded the name of the lawyer he spoke to. He believed that he had done all that needed doing and went about his other duties without following up to ensure that Mr. Pyne in fact connected with Duty Counsel.
[38] I find that the delay between Mr. Pyne being placed in the cell and that call being made – about twenty minutes – has been reasonably explained by P.C. Lam having attended to logging the personal property of Mr. Pyne that had been seized and identified during the booking process. Hindsight might suggest demonstrating a greater sense of urgency as more than two hours since they arrest had then passed, but I would not characterize that judgment call made as being gravely wrong or patently unreasonable and the incremental prejudice arising from this 20 minutes of additional delay would have been minimal.
[39] The record is entirely blank as to why Duty Counsel did not in fact speak to Mr. Pyne. There is no evidence before me of there being a chronic or frequent problem in transferring calls from the CIB to the holding cells in accordance with the Covid-driven protocols that would have been in place at that point for about a year or more. I have no reasonable explanation for why a delay of this order of magnitude occurred and was not noticed until it was, but I have no basis to infer that anything systemic, deliberate or bad faith was in play.
[40] Mr. Pyne was brought up for an interview at 8:55 am. The interviewing officers were clearly surprised by this information and asked him if he had not spoken with a lawyer named Murphy. Within moments it was confirmed that he had not yet spoken to Duty Counsel and the information officers had that he had done so was in error. The interview was immediately halted and a call was placed to Duty Counsel at 9:13 am. Mr. Pyne was connected to Duty Counsel at 9:27 am just over eight hours after his initial arrest and 6.5 hours after P.C. Lam first attempted to facilitate this right.
[41] There is no suggestion that anyone attempted to take advantage of Mr. Pyne’s isolation from counsel. No questions other than administrative questions were put to him. The delay was obviously far, far too long. However, I cannot attribute it to anything either systemic or deliberate.
[42] In the case of Mr. Zorjani he too was a youthful offender – he was then 18 years of age. There is no evidence that he had never been arrested before so that additional factor of vulnerability attaching to Mr. Pyne cannot be added to Mr. Zorjani (who was, it must also be said, a year younger). A call to duty counsel was made at 3:51 am. This was almost 50 minutes after he was lodged in his cell waiting to be connected to Duty Counsel. The phone was not immediately answered and a call back message left.
[43] Officer McDonald had no explanation apart from the adrenaline of a high-risk situation involving firearms for why he forgot to make the call earlier than he did. He and his partner both went up to the CIB and began preparing their notes after escorting him to the holding cells. At some point he realized that he had not called Duty Counsel. He did so at 3:51 am. He did not get a live voice but left a message for Duty Counsel to call the holding cells. He did not check to see if any follow up call was received.
[44] It was discovered that Mr. Zorjani had not in fact spoken to Duty Counsel apparently soon after the same discovery was made in relation to Mr. Pyne. A call was placed at 9:16 am and Mr. Zorjani was connected with Duty Counsel at 9:35 am. He was not interviewed prior to having that call and was read his rights to counsel and given a repeated caution after being informed of all of the charges he now faces before the interview began.
[45] The breach of the s. 10(b) rights of both Mr. Pyne and Mr. Zorjani having been conceded, the question before me is what remedy if any under s. 24(1) or s. 24(2) of the Charter is appropriate.
[46] Mr. Zorjani alone has sought to invoke s. 24(1) of the Charter to seek a stay. I agree with the Crown that the facts of this case are a far cry from “the clearest of cases” and does not meet the test in R. v. Babos, 2014 SCC 16, [2014] 1 SCR 309. There is no suggestion that the fairness of the trial has been compromised as a result of either breach in any manner shape or form. No evidence was sought or obtained from Mr. Zorjani during the delay in implementation. The delay was indeed a lengthy one but there is nothing to suggest that it was intentional or systemic and the residual category in Babos is reserved for the rare cases where the state conduct is offensive to societal norms of fair play and decency. That is simply not the case here.
[47] I would reject his application in relation s. 24(1).
[48] Mr. Zorjani also seeks exclusion of virtually all of the evidence of the crimes with which he is charged pursuant to s. 24(2) and in this he is joined by Mr. Pyne. While there are slight differences in the factual matrix of the breach in relation to Mr. Pyne relative to Mr. Zorjani, the s. 24(1) Charter analysis for both is substantially the same.
[49] In my view, the first Grant factor – seriousness of the breach – favours exclusion but does not do so decisively. The delay was long – quite a bit longer than many other cases where evidence has been excluded. However, it is clear that the delay was neither the result of an identified systemic problem nor did it have an impact in fact upon the court process or the reputation of the justice system more broadly. There was no advantage conferred upon the Crown. Further, there is evidence of good faith – police attempted to call duty counsel and left a message in Mr. Zorjani’s case and spoke to an identified Duty Counsel and took the usual steps required to transfer the call in the case of Mr. Pyne.
[50] While there is little in the way of explanation for the delay in either case, it was clearly the result of a failure in due diligence and follow up. While not an excuse, the fact that the failure occurred in the middle of the night and while police were still applying unfamiliar Covid-related procedures to the booking process is a factor in assessing the good faith of police. The failure was grave in terms of the length of the delay and its largely unexplained nature, but I cannot attribute any intentions that suggest the administration of justice was thereby brought into disrepute. The error was discovered first thing in the morning on the same day. The evident surprise of the interviewing officers at learning of this failure confirms its inadvertent nature. Immediate steps were taken to address the error swiftly and no attempt to take advantage of the error occurred.
[51] This first Grant factor leans towards exclusion but does not do so decisively in the case of both Mr. Pyne and Mr. Zorjani. The breach was a grave one, but it was neither deliberate nor systemic in nature and good faith efforts – however inadequate in hindsight – were undertaken.
[52] The second Grant criterion requires me to assess the impact of the breach on the Charter-protected interests. I do not in any way minimize the benefits to detainees in general and youthful detainees such as Mr. Pyne and Mr. Zorjani in particular that derive from swift access to counsel when confronted with the stressful process of an arrest. They were both promised access to counsel and that promise was left unfulfilled for many hours when it should have been fulfilled. There is no evidence of anyone following up with either of them prior to the 8:55 am meeting with Mr. Pyne. They acted swiftly and decisively once the realized Mr. Pyne had not spoken to counsel. The interview was terminated and a call immediately arranged.
[53] It must be recalled that this balancing of factors under s. 24(2) is intended to be at a societal level in the sense that the Court’s task is neither to punish police nor compensate detainees. Our task is to supervise the administration of a fair trial that is both fair in fact and seen to be fair by a reasonably informed and dispassionate member of the public.
[54] There is no evidence that was obtained that can be traced to the breach in a causal way. The two guns in the white pick-up truck and the shell casings found on Parma Court were both discovered by other police officers prior to the apprehension and arrest of both defendants. The evidence was not only independently discoverable, it had almost all been discovered in fact before any question of implementing rights to counsel arose.
[55] The evidence was neither spatially nor consequentially related to the arrest of the defendants. There was no effort made in the case of either defendant to question them about substantive matters relating to the investigation. There is no evidence that the delay has had any identifiable impact on the ability of either defendant to make full answer and defence. There is no suggestion that the Crown has derived or attempted to derive any advantage whatsoever.
[56] The Court of Appeal in R. v. Pino, 2016 ONCA 389 has directed that a broader inquiry into “obtained in a manner” in s. 24(2) of the Charter should include a more generous and broad reading of the phrase to encompass a temporal and contextual link between the evidence and the breach. However, the lack of any causal connection between the breach and the discovery of the evidence remains a significant factor all the same. The breaches were serious ones with impacts some aspects of which can reasonably be inferred by the circumstances even absent direct evidence from the defendants, but they were not of a sort to cause reasonable persons to view the long-term integrity of the administration of justice to have been placed in jeopardy. This is particularly so in light of the lack of any causal connection between the discovery of the evidence and the breach and given the lack of evidence of any systemic issues in implementing s. 10(b) rights that have been ignored and need to be addressed.
[57] Pino has not purported to call into question the analysis of discoverability of the evidence mandated by Grant. In R. v. Bailey, 2021 ONSC 8089, Nakatsuru J. found that “[w]hile the temporal and contextual connection permits the application of s. 24(2), the lack of a causal connection mitigates the impact on Mr. Bailey’s Charter-protected interests” (at para. 62). The same observation applies here.
[58] The evidence was not only discoverable, it was discovered for the most part and discovered in locations over which the defendants had no privacy interests whatsoever. All the evidence confirms the good faith intentions of police even if there was a significant degree of negligence in allowing this important constitutional duty to slip between the cracks.
[59] The second Grant factor is thus relatively evenly balanced but does not favour exclusion. The breach is clearly a grave one but the connection between the breach and the evidence sought to be excluded is effectively non-existent beyond the simple fact of the calendar day. Pino permits the exclusion of the evidence under s. 24(2) but the circumstances do not favour doing so under this second Grant factor.
[60] The third Grant factor very strongly favours inclusion. The evidence sought to be excluded is probative and decisive. The exclusion of the evidence would end the case. Given the utter lack of connection between the breach and the independent discovery of the evidence by other officers, the public interest in not excluding this evidence is very high and the ability to justify its exclusion by reference to the long-term reputation of the justice system particularly weak.
[61] The high public interest in prosecuting gun crimes in particular warrants the attribution of significant weight to this third Grant factor: R. v. Sahal, 2020 ONSC 6924 at para 151 and R. v. Omar, 2018 ONCA 975 (dissent) at paras 122-136 aff’d 2019 SCC 32. The Grant analysis cannot be undertaken in a “rarefied or detached manner but must consider and give adequate weight to the interests of the community in which we live.
[62] There is no evidence that a “message needs to be sent here” to deter future breaches whereas the overwhelming interest of society in prosecuting gun crime is undeniably present and strong. There were some slips made in the small hours of the morning that were detected and remedied swiftly during the day. There is no evidence that this is more than a one-off slip up. This does not undo the harm inflicted but the exclusion of evidence independently obtained absent any semblance of an “advantage” having been obtained by the Crown as a result of the admitted failing of police would be an extreme remedy for the harm inflicted that would bring the administration of justice into disrepute rather than preserve it.
[63] For the foregoing reasons I find that none of the evidence should be excluded pursuant to s. 24(2) of the Charter. A reasonable person, dispassionate and fully apprised of the circumstances, would not conclude that the admission of the evidence sought to be excluded here could bring the administration of justice into disrepute.
[64] The applications are both accordingly dismissed.
S.F. Dunphy J. Date: June 21, 2024