Court File and Parties
Court File No.: CR-24-90000653-0000 Date: 2025-06-26 Ontario Superior Court of Justice
Between: His Majesty the King, Respondent – and – Jasi Malcolm Edwards, Applicant
Counsel: Sarah Virani, for the Respondent Tobias Okada-Phillips, for the Applicant
Heard: April 14-15, 2025
Reasons for Judgment on Application Pursuant to Sections 7, 8, 9, 10(a), 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms
Vermette J.
1The Applicant, Jasi Malcolm Edwards, was charged with one count of possession of a controlled substance, cocaine, for the purpose of trafficking, and one count of possession of proceeds of crime of a value not exceeding $5,000.00.
2Mr. Edwards brought an application for an order excluding evidence under section 24(2) of the Canadian Charter of Rights and Freedoms ("Charter") on the basis that his rights under sections 7, 8, 9, 10(a) and 10(b) of the Charter have been breached. The evidence sought to be excluded is the drugs found on or near Mr. Edwards on September 7, 2023.
A. BACKGROUND
3The evidence before me on this application included the following:
a. the viva voce evidence of the following police officers who, at the relevant time, were all members of the Toronto Police Service ("TPS"), more specifically members of the Primary Response Unit at 14 Division: Police Constable ("PC") Giovanni Di Tommaso, PC Richard Akiki, PC Paul Millar, and PC Krista Balachorek (now Detective Constable); and
b. four exhibits, including footage from the body-worn cameras of PC Di Tommaso, PC Akiki and PC Millar, and a TPS document entitled: "15-01 Incident Response (Use of Force/De-Escalation)", which was issued on January 9, 2024.
4The following is a summary of the relevant facts based on the evidence of the police officers and the body-worn camera footage.
1. 911 call and first sighting of Mr. Edwards
5In the evening of September 7, 2023, PC Di Tommaso, PC Akiki, PC Millar and PC Balachorek were on general patrol. PC Di Tommaso was working with his escort, PC Akiki, and PC Millar was working with his escort, PC Balachorek.
6At approximately 10:48 p.m., the police officers received a radio call about a 911 call regarding a person with a gun. The call was received from an anonymous person who called from a pay phone on the southwest corner of Dovercourt and Bloor, around 983 Bloor Street West. The information received was that:
a. There was a person with a gun in a park or a parking lot. The exact location or name of the park or parking lot was not disclosed.
b. The suspect was a Black male who was wearing all black clothing, had dreadlocks, was of medium build, and was approximately 5'10" in height.
c. The firearm was described as a black pistol.
7After receiving this information, PC Di Tommaso and PC Akiki attended the scene in their scout car to attempt to locate the complainant and the suspect. They arrived on scene, i.e., at the intersection of Dovercourt and Bloor, at 10:51 p.m. They were driving northbound on Dovercourt. At that time of the night, there was medium vehicular traffic on Bloor Street and light pedestrian traffic. It was dark outside, but there was street lighting.
8PC Di Tommaso and PC Akiki drove through the intersection and were not flagged down by any complainant. They continued driving northbound slowly, looking for the same people. When they were approximately 30 or 40 meters north of the intersection, they received a radio transmission from another unit advising them that the suspect was running towards them.
9PC Di Tommaso then looked over his left shoulder. He testified that he observed a Black male, approximately 5'7" to 6', wearing all black clothing, with long dreadlocks, running from an alleyway north of Bloor and west of Dovercourt. PC Di Tommaso knew that the alleyway in question was connecting Dovercourt to a park. He does not believe that that park has a parking lot. However, he said that there was an ambulance station adjacent to the park which has a parking lot. PC Akiki also testified that the alleyway that the suspect was running out of led to a parkette.
10PC Di Tommaso stated that he could see the man's dreadlocks flowing as the man was running. PC Di Tommaso said that he does not remember when he first saw the dreadlocks. Because of the low quality of the body-worn camera video footage, one cannot tell, based on the footage, whether dreadlocks were visible or not when the suspect exited from the alleyway north of Bloor.
11PC Akiki also saw that the man who was running in the alleyway was a Black male, with dreadlocks, wearing all black, about 5'10" in height, and very similar to the description that was received. PC Akiki testified that as they were driving, he was scanning the area and there was no one else in the area matching this description. In his notes, PC Akiki only referred to a male who fitted the description running with a black satchel. He did not specifically mention dreadlocks.
12The body-worn camera footage shows that Mr. Edwards had his hood on when he was arrested. He very likely had his hood on for the entire period of time in issue. However, at the relevant time, Mr. Edwards had very long hair, that went down almost to his chest. Mr. Edwards was wearing his hair loose on September 7, 2023. Given that he was running fast in the alleyway, I find it very unlikely that his long hair would have remained neatly tucked in the back of his hood while he was running. I note that PC Di Tommaso and PC Akiki saw Mr. Edwards from the front while he was running in the alleyway and before he turned right on Dovercourt. They also saw him from his side when he turned on Dovercourt. In light of the foregoing, I accept the evidence of PC Di Tommaso and PC Akiki that they saw that the man who was running out of the alleyway north of Bloor had dreadlocks, and I find that the dreadlocks were visible to both PC Di Tommaso and PC Akiki.
2. Foot pursuit on Dovercourt Street
13When PC Di Tommaso and PC Akiki first saw Mr. Edwards running in the alleyway, they were still in their car. PC Di Tommaso was driving. He put the car in park, and got out of the car with PC Akiki at 10:51:45 p.m. They started running towards the suspect, who was still in the alleyway at that time. PC Di Tommaso yelled at Mr. Edwards to stop and get on the ground. Mr. Edwards did not comply, continued running and turned right on Dovercourt from the alleyway, going southbound. PC Di Tommaso had his firearm drawn at this point and he told Mr. Edwards to get on the ground and that he was under arrest. Mr. Edwards again did not comply and continued running southbound on Dovercourt.
14PC Akiki testified that at the time that Mr. Edwards came out of the alleyway, he did not believe that he had grounds to arrest him, but he had grounds to detain him.
15In contrast, PC Di Tommaso testified that he believed that Mr. Edwards was arrestable at that point. He stated that Mr. Edwards had a very similar description as the suspect described in the radio call, he was coming from an area where he knew to be a park, and he was running. PC Di Tommaso believes that most people tend to stop when the police tell them to unless they have something to hide. This led him to believe that Mr. Edwards had a gun on him and that he was arrestable for possession of a firearm. If Mr. Edwards had not been running, PC Di Tommaso said that he would only have had grounds to detain him at that time in order to obtain more information from him to find out if he was related to the crime that they were investigating.
16PC Di Tommaso's evidence is that he believed that he had to draw his firearm because Mr. Edwards was running away from the police and there was information that he may have a firearm. PC Di Tommaso believed that Mr. Edwards had a firearm on him and that he was the person described in the radio call. PC Di Tommaso also believed that Mr. Edwards did not want them to find the firearm on him, and he was concerned that Mr. Edwards might use the firearm against them at that point. At the time, PC Di Tommaso did not consider any other options than drawing his firearm because of his concern for his and the public's safety. He believed that there was a threat of serious bodily harm and death. He felt that drawing his firearm was the best option.
17As stated above, PC Di Tommaso said during his testimony that at the time that he drew his firearm, he believed that he had reasonable grounds to arrest Mr. Edwards. However, during the preliminary inquiry on September 20, 2024, PC Di Tommaso stated that he did not believe that he had reasonable grounds to arrest Mr. Edwards at that time, and that he told Mr. Edwards that he was under arrest just to get his attention. Before me, PC Di Tommaso said that the evidence that he had given at the preliminary inquiry had changed because he had had the time to think about what he believed at the time of the offence (i.e., on September 7, 2023), during a stressful moment. Upon reflection, PC Di Tommaso realized that he did have grounds to arrest Mr. Edwards. He pointed out that he yelled that Mr. Edwards was under arrest at the time because he believed that he had grounds to arrest him. PC Di Tommaso stated that he second-guessed himself at the time of the preliminary inquiry, and he must have overthought it.
18I accept PC Di Tommaso's evidence on this point and how he came to change his mind since the preliminary inquiry. I found PC Di Tommaso to be a very credible witness. He was honest, straightforward and responsive when answering questions. He also conceded that a number of mistakes were made in this case.
19PC Di Tommaso had his firearm out for approximately five seconds. He reholstered his firearm when he realized that Mr. Edwards was continuing to run. PC Di Tommaso said that it made no sense to run with his firearm out.
20PC Di Tommaso and PC Akiki ran south on Dovercourt after Mr. Edwards. While chasing Mr. Edwards, PC Akiki screamed "don't move". As stated above, PC Di Tommaso yelled to Mr. Edwards to get on the ground and that he was under arrest. PC Akiki saw that Mr. Edwards had a satchel and he was very concerned that there was a firearm in the satchel. He said that while Mr. Edwards was running, he appeared to be concerned about his satchel and he was fumbling with it.
21Mr. Edwards ran straight through the intersection at Dovercourt and Bloor at 10:51:55 p.m. and continued running southbound on Dovercourt. PC Di Tommaso and PC Akiki briefly stopped at the intersection because there were cars driving through the intersection. When it was safe to do so, they went through the intersection at 10:52:00 p.m. PC Akiki and PC Di Tommaso put over the air that they were involved in a foot pursuit on Dovercourt.
22As PC Di Tommaso and PC Akiki started chasing Mr. Edwards, PC Millar and PC Balachorek were driving north on Dovercourt in a scout car, searching the area further to the radio call. At some point, PC Millar heard PC Akiki say on the air: "He's running." According to PC Millar, he then looked south and saw PC Di Tommaso and PC Akiki sprinting after a male matching the description in the call. PC Millar said during his testimony that when he first saw the officers, they were already south of Bloor Street. However, based on the footage from PC Millar's body-worn camera, this is not possible. The footage shows that PC Millar started doing a three-point turn on Dovercourt north of Bloor at approximately the same time that PC Di Tommaso and PC Akiki got out of their car. He then drove south on Dovercourt and went through the Bloor-Dovercourt intersection at 10:52:04 p.m., just a few seconds after PC Di Tommaso and PC Akiki started crossing the intersection on foot. PC Balachorek's recollection of when and from where she saw the chase and Mr. Edwards1 is also inconsistent with the body-worn camera footage. As a result, because I do not find their recollections reliable regarding the beginning of the chase, I do not rely on the observations, memory and evidence of PC Millar and PC Balachorek until the time that they joined the foot pursuit in the alleyway south of Bloor and were directly involved with Mr. Edwards. Among other things, I do not accept that PC Millar saw that Mr. Edwards had dreadlocks while he was running south on Dovercourt Street.
3. Foot pursuit in the alleyway south of Bloor Street West
23Mr. Edwards continued running southbound on Dovercourt and then turned right into an alleyway south of Bloor. PC Di Tommaso and PC Akiki lost sight of him for a few seconds. Before turning the corner into the alleyway, PC Akiki told PC Di Tommaso that the individual had a gun and to "watch out". PC Di Tommaso redrew his firearm as he was rounding the corner of the alleyway because he had lost sight of Mr. Edwards and he did not know what he was doing. PC Di Tommaso's view was that the threat of imminent serious bodily harm or death had come back. The individual could have potentially drawn his firearm and that was what PC Di Tommaso believed at the time.
24PC Akiki had his firearm out for the first time when he and PC Di Tommaso turned the corner into the alleyway south of Bloor. He said that he drew his firearm because they had information that the suspect had a firearm with him and he did not want to turn the corner and see the individual with a firearm while he did not have his. PC Akiki stated that at that point, the situation was very dynamic and evolving so fast that the only option was drawing his firearm. PC Akiki does not know for how long he had his firearm out.
25After he rounded the corner at 10:52:10 p.m., PC Di Tommaso observed Mr. Edwards leaning over. PC Di Tommaso did not know or see what Mr. Edwards was doing. Once in the alleyway, both PC Akiki and PC Di Tommaso yelled at Mr. Edwards to get on the ground several times. PC Di Tommaso had his firearm pointed at Mr. Edwards. At that time, it was his intention to place Mr. Edwards under arrest for possession of a firearm, but he did not say that to Mr. Edwards at that time. PC Akiki saw Mr. Edwards fumbling something in his satchel. PC Akiki then said: "Stop, you're gonna get shot, get on the ground." He was scared and believed at that point that Mr. Edwards was going to take out a firearm or do something.
26PC Akiki's evidence was that when he rounded the corner and drew his firearm, Mr. Edwards was under detention, but he was still not arrestable for possession of a firearm until they got more information.
27One second or so after PC Di Tommaso and PC Akiki turned westbound into the alleyway, PC Millar parked his vehicle on Dovercourt Street at the end of the alleyway (at 10:52:11 p.m.). He and PC Balachorek then got out of the car and ran after Mr. Edwards behind PC Di Tommaso and PC Akiki. When PC Millar got out of the car, Mr. Edwards was about 40 feet from him and PC Millar could see him better. PC Millar stated that he could see that the person running was a Black male, with shoulder-length dreadlocks, with dark clothing and a satchel.
28When Mr. Edwards turned into the alleyway, PC Millar lost sight of him for 2-3 seconds. At the time, PC Millar had officer safety concern and was afraid that Mr. Edwards might have a gun and turn around and shoot the officers. When PC Millar caught sight of him again in the alleyway, it looked to PC Millar like Mr. Edwards was reaching around his waistband and his pockets. His hands were around his abdomen. It looked like he might have been dropping things or pulling things out of his pockets. PC Balachroek also testified that Mr. Edwards was fidgeting with his waistband during the chase. PC Balachorek was concerned that he had a firearm in his waistband.
29Mr. Edwards did not initially comply with the officers' commands to get on the ground. When he saw the police officers yelling at him, he turned to continue running. After taking a few steps, he finally got on the ground on his stomach and on top of his satchel of his own volition at 10:52:17 p.m., when he was about halfway through the alley. At that time, PC Di Tommaso was about five meters from him.
30Once Mr. Edwards was on the ground, PC Di Tommaso and PC Akiki got on top of him to get physical control. PC Millar went around one of the officers to be at the head of Mr. Edwards and take control of his head. PC Balachorek took control of his legs. Mr. Edwards physically resisted for a brief period of time while the officers were struggling to get his arms together. They managed to put one hand in handcuffs, and they were trying to get the other hand. PC Akiki said that he did not know what Mr. Edwards was doing with his hand at that time. As Mr. Edwards was moving his arms while the officers were trying to handcuff him, PC Akiki told Mr. Edwards: "Keep your fucking hand there, buddy, fucking idiot." PC Akiki stated that he was probably still trying to calm down from the chase when he said that. He agreed that this was not "ideal language". He said that this is not how he usually speaks to individuals in this kind of situation and that he regretted using this language. He apologized.
31Mr. Edwards was ultimately handcuffed to the rear at 10:52:44 p.m. After handcuffing him, PC Millar took off Mr. Edwards' hood. PC Millar testified that he believed that Mr. Edwards was arrestable for possession of a firearm.
4. Search and arrest of Mr. Edwards
32After Mr. Edwards was handcuffed, the police officers immediately began conducting a frisk search of Mr. Edwards for a firearm while he was on the ground. The officers went through Mr. Edwards' waistband and his pockets one by one. In his pockets, they located lighters, loose change, and a cell phone, among other things.
33PC Millar's evidence was that Mr. Edwards was searched incident to arrest because they believed that he had a gun. PC Millar said that they had reasonable and probable grounds to arrest him as they believed that he had a firearm based on the fact that he matched the description provided in the radio call and was running from the police.
34Mr. Edwards was not advised that he was under arrest at that time. According to PC Di Tommaso, their "adrenaline was pumping", and they were still recovering from the foot pursuit. He said that he should have told Mr. Edwards his rights right away.
35Shortly after the search started, PC Akiki asked Mr. Edwards: "What do you have on you, dude?" Mr. Edwards responded: "Nothing." PC Akiki repeated: "What do you have on you, man?" Mr. Edwards gave the same answer: "Nothing." PC Akiki testified that he asked these questions because he was still concerned about a firearm. He said that he was still "elevated" from the chase at that time and that was an error on his part to ask this question before advising Mr. Edwards of the reasons for his arrest and his rights to counsel. PC Akiki also stated that he should have advised Mr. Edwards that he was under detention for possession of a firearm and of his rights, and he should have held off from questioning Mr. Edwards until after he had complied with these obligations.
36During the search, Mr. Edwards asked: "Why are you stepping on me?" PC Akiki told him to shut up. Mr. Edwards later asked: "What is that on my feet?" PC Di Tomasso then asked him: "What are you running for?" PC Di Tomasso agreed that he should not have asked that question.
37Mr. Edwards asked again: "Why are you stepping on me?" Again, PC Akiki told him to shut up. PC Akiki testified that at this time, he did not want Mr. Edwards to say anything. He wanted to search him for a firearm and then read him his rights. However, he agreed that Mr. Edwards had the right to know why he was detained in such a manner, and that he could have done things better.
38During the search, PC Millar asked Mr. Edwards where he was going. He asked that question because Mr. Edwards was running and he seemed to be confused about why the officers were there. Mr. Edwards answered: "Nowhere." PC Millar repeated his response "nowhere".
39At the end of the search, a sergeant asked Mr. Edwards: "Do you have a gun on you, man? Just tell us, we're gonna find it." Mr. Edwards responded "no". The sergeant then said: "Did you pitch a gun somewhere? You gonna be honest, man, I don't know, we're gonna find it." Mr. Edwards said that he did not have a gun.
40After Mr. Edwards was placed into handcuffs, PC Balachorek noticed that Mr. Edwards was wearing a satchel on his upper body. She removed the satchel to make sure that there was no firearm in the satchel. She opened the satchel and started to look through it. Inside the satchel, there were small bags of marijuana and a clear plastic bag containing white powder, which PC Balachorek believed to be cocaine at the time.
41PC Balachorek does not remember if she felt the satchel before opening it. Her understanding was that Mr. Edwards was under arrest for possession of a firearm, and that her search of the satchel was incident to arrest. Her first concern was safety at that time. She was not involved in providing Mr. Edwards with the grounds for his arrest or his rights to counsel.
42Within approximately 20 seconds of the end of the search, at 10:54:18 p.m., PC Akiki advised Mr. Edwards that he was arrested for possession of a Schedule 1 substance, and he read Mr. Edwards his rights. The body-worn camera footage shows that immediately after the search was concluded, PC Akiki reached out for a notebook in order to have the text that he needed to read to Mr. Edwards to give him his rights. This was the first time that someone was advising Mr. Edwards of his rights and the reasons for his arrest. PC Akiki said that he should have done it earlier. He said that he did not do it earlier as he was fixated on Mr. Edwards having a firearm.
43When PC Akiki asked Mr. Edwards if he understood what he had read to him, Mr. Edwards did not answer. When PC Akiki asked Mr. Edwards whether he wished to speak to a lawyer right now, Mr. Edwards responded: "What are you talking about?" PC Akiki then said: "There's drugs on you, dude." Mr. Edwards said: "Don't have no drugs." PC Akiki told him that that was why he was arrested. He asked Mr. Edwards if he had a lawyer. Mr. Edwards responded affirmatively. PC Akiki then asked him if he wanted to speak to his lawyer right now. Mr. Edwards said that he did not have his lawyer's number. PC Akiki responded that they were going to get that to him.
44PC Akiki then wanted to continue to read Mr. Edwards' rights and he asked him to listen, but Mr. Edwards kept interrupting him, talking and moving. PC Akiki raised his voice and yelled at Mr. Edwards to stop moving and to shut up. PC Akiki stated that he did not want Mr. Edwards to say anything before he had finished reading his rights to counsel and caution. He said that this is not how he usually speaks to suspects, but he was still elevated and upset after running and being scared for his life.
45While this was happening, PC Di Tommaso went to recover his scout car which he had left north of the Bloor-Dovercourt intersection with the door opened. After exiting the alleyway, he realized that another officer had brought the car near the scene. Because he had lost sight of Mr. Edwards for a few seconds when he turned into the alleyway south of Bloor, PC Di Tommaso was concerned that Mr. Edwards may have hidden a firearm in the area. After his scout car was secured, PC Di Tommaso returned to the alleyway and looked around in the area to make sure that no weapon was hidden. No firearm was recovered. However, some money and additional quantities of drugs were located in the alleyway.
46In total, approximately 45 grams of cocaine were recovered.
47While PC Di Tommaso was searching the area, Mr. Edwards was escorted to his scout car by PC Akiki and PC Millar. While walking to the scout car, Mr. Edwards claimed that the officers had tackled him, punched him in the face and generally mistreated him. At that time, around 10:56:38 p.m., Mr. Edwards was still asking questions about why he was being arrested. PC Millar tried to explain to Mr. Edwards that someone matching his description was described as having a handgun, but Mr. Edwards was not listening, was interrupting him and making various allegations. As a result, PC Millar discontinued his explanation. Before Mr. Edwards was placed in the rear of the scout car, a thorough and methodical frisk search was conducted next to the scout car to ensure that nothing had been missed earlier.
48Once Mr. Edwards was in the rear of the scout car, PC Di Tommaso asked him for his name and date of birth to find out who he was. PC Di Tommaso did not obtain information from Mr. Edwards, but Mr. Edwards was identified as a result of a driver's licence that was located during the search.
49PC Di Tommaso and PC Akiki transported Mr. Edwards to the police station. They left the scene at 11:13 p.m. and they arrived at the station at 11:16 p.m. Upon arrival, they paraded Mr. Edwards in front of the sergeant at 11:47 p.m., after the booking of another unrelated person. PC Di Tommaso and PC Akiki were also responsible for strip searching Mr. Edwards. Nothing was located during the strip search. Mr. Edwards was more cooperative at the station. He complained of injuries – sore shoulder and face from the arrest – but there were no visible injuries.
50After the booking process, Mr. Edwards was put into a cell at 12:14 a.m. The officers got a phone number for his father. After PC Di Tommaso spoke with Mr. Edwards' father briefly, Mr. Edwards spoke to his father. After this phone call, Mr. Edwards spoke to his lawyer of choice at 12:43 a.m.
51PC Di Tommaso agreed that the officers made some mistakes in this case. He said that he should have informed Mr. Edwards of what he was under arrest for once he was placed under control, and he should not have questioned Mr. Edwards until his rights to counsel were read.
B. DISCUSSION
52As stated above, Mr. Edwards alleges breaches of sections 7, 8, 9, 10(a) and 10(b) of the Charter. I will discuss the alleged breaches in turn, starting with the alleged breach of section 9. I will then consider the issue of whether evidence should be excluded under section 24(2) of the Charter.
1. Section 9 of the Charter
a. Applicable legal principles
53Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. The arbitrariness of a detention or arrest turns on its legality.
54The police have statutory authority to arrest a person without a warrant under section 495 of the Criminal Code. Subsection 495(a) states that a peace officer may arrest without a warrant a person who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence.
55A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint. In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence. The objective assessment of the arresting officer's subjective grounds for arrest must be based on the totality of circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer. See R. v. Beaver, 2022 SCC 54 at para. 72 ("Beaver").
56In evaluating the objective grounds to arrest, courts must recognize that the officer's decision to arrest must often be made quickly, in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make their decision based on available information which is often less than exact or complete. Courts must also remember that determining whether sufficient grounds exist to justify an exercise of police powers is not a scientific or metaphysical exercise, but one that calls for the application of common sense, flexibility, and practical everyday experience. See Beaver at para. 72.
57"Reasonable and probable grounds" is a higher standard than "reasonable suspicion". While the reasonable suspicion standard requires a reasonable possibility of crime, the reasonable and probable grounds standard requires a reasonable probability of crime. However, police do not require a prima facie case for conviction before making an arrest. Nor do the police need to establish that the offence was committed on a balance of probabilities. The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest. The reasonable and probable grounds standard is met where, based on all of the circumstances known to the officer, credibly-based probability replaces suspicion. See Beaver at para. 72 and R. v. Canary, 2018 ONCA 304 at para. 23.
58Psychological detention requires three elements: (1) a police direction or demand to an individual; (2) the individual's voluntary compliance with the direction or demand, resulting in a deprivation of liberty or other serious legal consequences; and (3) the individual's reasonable belief that there is no choice but to comply. See R. v. Grant, 2006 CanLII 18347 at para. 28 (Ont. C.A.), R. v. Nesbeth, 2008 ONCA 579 at paras. 15-17 ("Nesbeth"), R. v. Grant, 2009 SCC 32 at para. 30 (quoting from R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613 at 644) ("Grant") and R. v. Atkins, 2013 ONCA 586 at para. 10.
59The 911 emergency system exists so that individuals can bring emergency situations to the attention of the police. The system assumes that the police will react in a timely fashion to the information provided by a 911 caller. It has been recognized in the case law that the police can rely on such information without further independent investigation when there are public safety concerns. The 911 system would not be effective if the police were expected to investigate the information provided and obtain independent confirmation of the information before acting on it. See R. v. Clayton, 2007 SCC 32 at para. 34 ("Clayton"), R. v. Clayton, 2005 CanLII 16569 at paras. 58-59 (Ont. C.A.), R. v. Griffith, 2022 ONSC 3558 at para. 14 ("Griffith"); aff'd 2023 ONCA 822, and R. v. Carelse-Brown, 2016 ONCA 943 at paras. 46-49 ("Carelse-Brown").
b. Positions of the parties
60The Applicant's position is that there were insufficient objective grounds to detain or arrest him without more information. He argues that the information provided by an anonymous tip was insufficient to justify an arrest. He states that the vagueness of the tip and the lack of police corroboration of the tip do not reach the reasonable suspicion standard or reasonable grounds on an objective basis. In the alternative, the Applicant submits that if there were grounds for arrest or detention, the manner of his arrest or detention was unreasonable given that firearms were drawn.
61The Crown submits that Mr. Edwards was not detained nor under arrest when he did not comply with police demands and the chase began. Rather, Mr. Edwards' detention or arrest only occurred when he stopped fleeing. The Crown's position is that what occurred when Mr. Edwards was on the ground in the alleyway south of Bloor was an arrest, not a detention. The Crown argues that there were reasonable and probable grounds to arrest Mr. Edwards for possession of a firearm. The Crown states that the officers acted lawfully in arresting Mr. Edwards based on the information received and his behaviour. The Crown asserts that the police can rely on information provided in 911 calls without further investigation when public safety concerns exist. The Crown points out that: (a) the 911 caller provided specific detail, including the location, the description of the suspect and the type of weapon; and (b) the police arrived within minutes and observed Mr. Edwards who matched the description and was seen in the area, wearing the same clothing.
c. Analysis
62I find that there was no detention or arrest in this case until Mr. Edwards voluntarily got on the ground in the alleyway south of Bloor Street. There was no detention or arrest before that time because, until he got on the ground, Mr. Edwards was running and fleeing from the police. Thus, the conditions for detention were not met because the condition that there be voluntary compliance with the police direction and a resulting deprivation of liberty was not present. See paragraph 58 above.
63In my view, at the time that Mr. Edwards got on the ground in the alleyway, police had reasonable and probable grounds to arrest him for possession of a firearm. Based on their evidence and the body-worn camera footage, it is clear that PC Di Tommaso and PC Akiki subjectively and honestly believed that Mr. Edwards had committed the offence of possession of a firearm, i.e., they subjectively believed that Mr. Edwards had a firearm on him.
64I find that, based on the totality of circumstances known to the officers at the time of the arrest, the officers' subjective belief was justifiable from an objective viewpoint. The relevant circumstances include the following:
a. Mr. Edwards matched the physical description in the 911 call, including the dreadlocks. This was significant in itself but, as pointed out by PC Millar, even more so considering the fact that it was late on a weekday and there were not many pedestrians around. Further, PC Akiki testified that there was no one else in the area matching this description.
b. Mr. Edwards was observed near the intersection of Dovercourt and Bloor, and he came from an alleyway that, to the knowledge of the officers, was connected to a park which had a parking lot adjacent to it. This was consistent with the information provided in the 911 call.
c. Mr. Edwards was observed within minutes of the 911 call. Further, PC Di Tommaso and PC Akiki saw Mr. Edwards running in the alleyway north of Bloor almost immediately after they received a radio transmission from another unit advising them that the suspect was running towards them.
d. Mr. Edwards failed to comply with PC Di Tommaso's and PC Akiki's demands and kept running in an attempt to flee from police.
e. Mr. Edwards appeared to be fumbling with his satchel as he was running from the police.
f. Mr. Edwards was fidgeting with his waistband and fumbling with his satchel in the alleyway south of Bloor.
g. After he turned right in the alleyway south of Bloor, Mr. Edwards appeared to have dropped things on the ground.
65In coming to the conclusion that the officers had reasonable and probable grounds to arrest Mr. Edwards for possession of a firearm, I have taken into account the fact that the officers had to make their decision quickly, in a volatile and changing situation. I have also taken into account the reality that officers often have to make their decision based on available information that is often less than exact or complete, as well as the fact that officers are not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations before making an arrest. See Beaver at para. 72. In my view, a reasonable probability of crime replaced a reasonable possibility of crime (or suspicion) when Mr. Edwards failed to comply with police demands and attempted to flee from the police. His conduct and behaviour while running from the police (e.g., fidgeting with his waistband and fumbling with his satchel) also added to the police's grounds.
66PC Akiki is the officer who formally arrested Mr. Edwards and who informed him of the reasons for his arrest. However, as discussed further below in the context of section 10(a) of the Charter, PC Akiki did not advise Mr. Edwards that he was under arrest for possession of a firearm. In fact, during his cross-examination, PC Akiki expressed the view that while there were grounds to detain Mr. Edwards in the alleyway south of Bloor for possession of a firearm, Mr. Edwards was not arrestable at that time for possession of a firearm until they got more information.
67I do not give weight to PC Akiki's answers in cross-examination that Mr. Edwards was not arrestable for possession of a firearm. This is for a number of reasons, including the following:
a. It is clear from PC Akiki's evidence that he subjectively and honestly believed that Mr. Edwards had a firearm on him. The question of whether this belief is justifiable from an objective viewpoint is a question for the Court, and the Court is entitled to draw reasonable inferences from the circumstances. See Nesbeth at paras. 19-20.
b. During his testimony, PC Akiki was often unable to articulate or explain the various standards that apply in a criminal case (not restricted to the standard that applies to an arrest). A misunderstanding of the applicable standard by a police officer is a relevant consideration for the Court. See R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 at para. 34. Further, the fact that PC Akiki may have believed that he did not have enough evidence to obtain a conviction and that he needed more evidence does not mean that there were no reasonable and probable grounds to arrest Mr. Edwards for possession of a firearm. See R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217 at para. 27.
c. All of the other officers involved – PC Di Tommaso, PC Millar and PC Balachorek – expressed the view that Mr. Edwards was arrestable for possession of a firearm. They relied on their belief in this regard when they conducted a search of Mr. Edwards and of his satchel.
68A number of cases dealing with 911 calls support the conclusion that reasonable and probable grounds to arrest Mr. Edwards for possession of a firearm were present in this case.
69The Crown relies on Griffith in support of its position. In that case, the TPS received a 911 call that an individual had been seen brandishing a firearm in a retail plaza. A description of the individual was provided. Upon arriving at the plaza, officers in plainclothes and unmarked cars observed a man somewhat matching the description provided. They did not see anyone else matching the description provided in the 911 call, and they formed the view that the man they saw was the suspect with a gun. See Griffith at para. 4. An officer approached the car in which the suspect was sitting with his gun drawn, shouting "police" and "don't move". He pulled the suspect out of the car and placed him under arrest for possession of a firearm. See Griffith at para. 7. Following his arrest, the suspect was subjected to a pat-down search and no firearm was found. See Griffith at para. 10.
70Justice Schabas stated that it was not disputed that the police had grounds to arrest the suspect and to search him following his arrest. He noted that it was well-established that police could rely on information provided in 911 calls and act on that information without further independent investigation when there were public safety concerns. See Griffith at para. 14. He also stated the following at paragraph 15:
Similar circumstances existed here. The 911 Call provided "significant detail" about the suspect, the gun and the location. Although the officers were aware that the intersection where the plaza is located has a history of false reports about individuals alleged to be in possession of guns – known as "swattings" – the description of the suspect and his activity in the plaza lent credence to the allegations. Edwards was seen in the vicinity of the stores described in the 911 Call, and sufficiently matched the description of the suspect to justify his arrest. No one else was seen by the officers who matched the description of the suspect. As in R. v. Carelse-Brown, 2016 ONCA 493 at para. 46, "not only were [the police] justified in acting on that information, they would have been derelict in their duty had they not acted on it."
71The circumstances of this case are stronger than in Griffith. In addition to the fact that Mr. Edwards matched the description provided in the 911 call, was in the area described in the 911 call, and no one else was seen by the officers who matched the description of the suspect, Mr. Edwards attempted to flee from the police.
72The Applicant attempts to distinguish Griffith by saying that it did not involve an anonymous caller. However, it is not mentioned in the reasons in Griffith whether the identity of the caller was known. In any event, the officers in Griffith did not do any further investigation regarding the 911 call before arresting the suspect, even though they were aware that the specific area where the plaza was located had a history of false reports about individuals alleged to be in possession of guns. This is not the case here. While the officers in this case acknowledged that false reports are sometimes made through 911, there is no evidence that there was a history of false reports in the area.
73The Applicant relies on R. v. Williams, 2013 ONCA 772 ("Williams") in support of his position that while the facts of this case may have been sufficient to justify a detention, they did not justify an arrest. In Williams, the Court of Appeal found that an anonymous tip and the accused's conduct when he encountered the police was capable of supporting a reasonable belief that he might be connected to a gun crime as reported by the anonymous caller. See Williams at para. 27. The accused's conduct included that he did not answer the question asked by an officer as to whether he was armed, and instead, he turned to his side "in a manner the officer considered evasive". One of the officers also noticed that the accused made a movement towards his waist area. See Williams at para. 12.
74I agree with the Crown that there is more than just evasive behaviour in this case. Mr. Edwards ran from the police for some time and refused to comply with many police commands. As stated above, Mr. Edwards' attempt to flee from the police, his conduct while doing so, and his failure to comply with numerous police demands replaced a reasonable suspicion by a reasonable probability of crime.
75The Applicant also relies on R. v. Biadi, 2014 ONSC 2493 ("Biadi"). However, Biadi is distinguishable as it occurred in a completely different factual context. The Applicant relies on this case because it also involved an anonymous tip. However, the anonymous tip in Biadi was provided to a police officer by a confidential informant, not in the context of a 911 emergency call, and the Crown conceded that the anonymous tip, which had launched the investigation, "was inherently unreliable" and that all references to the tip should be expunged from the information to obtain under which a search warrant was obtained. The reasons for the Crown's concession regarding the reliability of the tip were not provided to the Court. See Biadi at para. 39. This concession played a central role in that case when determining the legality of the arrest. The Court stated the following at paragraph 42:
The objective grounds are more difficult to sustain. For me, the major difficulty is the late breaking acknowledgment by the Crown that the anonymous tip was inherently unreliable, and could be removed from consideration. This tip, as is often the case, was the foundation of the police investigation of Mr. Biadi. And a subsequent criminal record check indicated that Mr. Biadi had no criminal record and no known involvement in the drug trade.
76There was no such concession in this case and, as stated above, it is recognized that the police can rely on information received through the 911 emergency system without further independent investigation when there are public safety concerns. This is a different context than a tip received from a confidential informant in a non-emergency situation. In the present circumstances, the officers had no reason to doubt the bona fides of the caller and would have been derelict in their duty had they not acted on the information. See Carelse-Brown at para. 46. See also R. v. Golub, 1997 CanLII 6316, [1997] O.J. No. 3097 at para. 18 (Ont. C.A.) ("Golub").
77While I agree with the Applicant that the fact that a 911 call was made by an anonymous caller is a relevant factor, I do not give to that factor in this case the same weight that the Applicant advocates it should have. The main concern raised by an anonymous caller is that the report may not be true. However, false reports can also be made by people who provide a name when calling 911, and false names can be provided. Further, the difference between a call received from an anonymous caller – which could be true or false – and a call received from a person who provides a name – which could be true or false – is diminished in the context of a 911 call because it has been recognized that the police can rely on information provided in a 911 call without further independent investigation when there are public safety concerns. In this case, there was no apparent reason to doubt the veracity of the report. Further, as noted by the officers in this case, the situation would have been very different had Mr. Edwards complied with the police demands and stopped running. At that time, the police would only have had grounds for an investigative detention based on the 911 call. However, this is not what happened, and Mr. Edwards attempted to flee from the police, giving further credence to the 911 report, and preventing the police officers from asking him questions in furtherance of their investigation. As noted above, the police are not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest.
78In light of the foregoing, I find that the officers were entitled to arrest Mr. Edwards without a warrant in the alleyway south of Bloor because they had reasonable and probable grounds to believe that Mr. Edwards unlawfully had a firearm on him.
79As discussed further below when dealing with the allegation of excessive use of force, I do not accept Mr. Edwards' allegation that the manner of his arrest was unreasonable because firearms were drawn. The manner in which Mr. Edwards was physically restrained in order to effect his arrest was also reasonable given his attempt to flee the police and his resistance while the officers were trying to handcuff him. There is no evidence before me that Mr. Edwards sustained any injuries.
80Thus, I conclude that Mr. Edward was lawfully arrested for possession of a firearm after he got down on the ground in the alleyway south of Bloor, and that his right under section 9 of the Charter was not infringed.
2. Section 8 of the Charter
a. Applicable legal principles
81Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. A search is reasonable within the meaning of section 8 if it is authorized by a reasonable law and is conducted reasonably. However, a warrantless search is presumptively unreasonable, shifting the burden of persuasion to the Crown to establish on a balance of probabilities that the search was reasonable. See R. v. Campbell, 2024 SCC 42 at para. 81.
82The common law standard for search incident to arrest permits the police to search a lawfully arrested person and to seize anything in their possession or the surrounding area of the arrest to guarantee the safety of the police and the arrested person, prevent the person's escape, or provide evidence against them. The exercise of this common law power requires that: (1) the individual searched has been lawfully arrested; (2) the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest; and (3) the search is conducted reasonably. See R. v. Stairs, 2022 SCC 11 at paras. 34-35 ("Stairs").
83Under the second step, valid law enforcement purposes include: (a) police and public safety; (b) preventing the destruction of evidence; and (c) discovering evidence that may be used at trial. The police's law enforcement purpose must be subjectively connected to the arrest, and the officer's belief that the purpose will be served by the search must be objectively reasonable. To meet this standard, the police do not need reasonable and probable grounds for the search. Rather, they only require "some reasonable basis" to do what they did. This is a much lower standard than reasonable and probable grounds. See Stairs at paras. 36-37.
84Thus, under the "some reasonable basis" standard, the police do not have to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. Rather, under that standard, the police are entitled to search an arrested person for a weapon if, under the circumstances, it seems reasonable to check whether the person might be armed. See Stairs at para. 38 (citing R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 at para. 20).
b. Positions of the parties
85The Applicant's position is that he was not searched incident to a lawful arrest, but, rather, incident to an unlawful detention and in an unreasonable manner. He states that no search incident to arrest can be justified where there are insufficient grounds to arrest, or the arrest is otherwise unlawful. The Applicant submits that in this case, the search incident to arrest took place before the arrest.
86The Crown's position is that the search was a lawful search incident to arrest. The Crown submits that the conditions of a lawful search incident to arrest are met in this case: (1) there was a lawful arrest; (2) the search was for a valid law enforcement purpose connected to the arrest, including police and public safety and discovering evidence; and (3) the search was conducted reasonably. The Crown concedes that if there were no valid grounds to arrest Mr. Edwards and there were only grounds to detain him, then the search of his person and the satchel was unlawful as it exceeded what would have been permitted in the context of a detention. However, the Crown's position is that Mr. Edwards had no reasonable expectation of privacy in the drugs that he discarded while fleeing and that, as a result, the seizure of these items was lawful.
c. Analysis
87I find that the search of Mr. Edwards and his satchel was a valid search incident to arrest. The three conditions of a lawful search incident to arrest are met in this case:
a. As set out above, Mr. Edwards was lawfully arrested.
b. The search of Mr. Edwards and of his satchel was truly incidental to his arrest in that it was for a valid law enforcement purpose connected to the arrest, i.e., police and public safety and discovering evidence that may be used at trial. I am satisfied that both the subjective and objective components of this condition were met in this case.
c. The search was conducted reasonably. The police searched Mr. Edwards' several pockets, his waistband, and the satchel that was on him at the time of his arrest. The body-worn camera footage does not show any unnecessary force being used during the search, which took approximately one minute ten seconds.
88Further, I agree with the Crown's submission that Mr. Edwards had no reasonable expectation of privacy in the items (including the drugs) that he discarded while fleeing in the alleyway south of Bloor. A reasonable and independent observer would conclude that any continued assertion of a privacy interest by Mr. Edwards in items that he voluntarily discarded in the alleyway is unreasonable in the circumstances. See R. v. Patrick, 2009 SCC 17 at paras. 22-25, 55. The items were abandoned in a place accessible to the public, and Mr. Edwards did not retain any control over them after he voluntarily dropped them and chose to continue running from the police.
89Accordingly, I find that Mr. Edwards' right under section 8 of the Charter was not infringed.
3. Sections 10(a) and 10(b) of the Charter
a. Applicable legal principles
90Section 10(a) of the Charter provides that everyone has the right, on arrest or detention, to be informed promptly of the reasons therefor.
91The right to prompt advice of the reasons for detention or arrest is rooted in the notion that a person is not required to submit to an arrest if the person does not know the reasons for it. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by section 10(b) of the Charter. This is because an individual can only exercise their section 10(b) right in a meaningful way if they know the extent of their jeopardy. See R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 at 886-887 ("Evans") and R. v. Gonzales, 2017 ONCA 543 at para. 124 ("Gonzales").
92Breaches of section 10(a) can be temporal or informational. A temporal breach occurs if an arrested or detained person is not promptly informed of the reasons for their arrest or detention. An informational breach arises if the reasons for their arrest or detention are not adequately communicated. See R. v. Roberts, 2018 ONCA 411 at para. 63.
93While an arrested or detained person must be informed promptly of the reasons for their arrest or detention, section 10(a) permits delay on the basis of concerns for officer or public safety. See Gonzales at para. 123.
94When considering whether a breach of section 10(a) has occurred, it is the substance of what an accused can reasonably be supposed to have understood, not the formalism of the precise words used, that must govern. The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit the accused to make a reasonable decision to decline or submit to arrest and to exercise meaningfully the right to counsel under section 10(b). See Evans at 888 and Gonzalez at para. 125.
95Section 10(b) of the Charter provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right.
96The right to counsel is meant to assist detainees regain their liberty and guard against the risk of involuntary self-incrimination. There is also a recognized psychological value to providing access to counsel. See R. v. Rover, 2018 ONCA 745 at para. 45, R. v. Suberu, 2009 SCC 33 at para. 40 ("Suberu") and R. v. Keshavarz, 2022 ONCA 312 at para. 72 ("Keshavarz").
97Once an individual is detained or arrested, section 10(b) is engaged and imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay, and of the existence and availability of legal aid duty counsel. The implementational obligation requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. The duty to facilitate access to a lawyer arises immediately upon the detainee's request to speak to counsel. The implementation obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until they have had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so. This duty also prevents the police from interacting with a detainee, short of questioning, in a manner that triggers a response from the detainee. See Suberu at para. 38, R. v. Taylor, 2014 SCC 50 at paras. 23-24 and R. v. Pileggi, 2021 ONCA 4 at para. 71 ("Pileggi").
98The police's duty to inform a detainee of their right to retain and instruct counsel and the duty to facilitate that right immediately upon detention are subject to officer and public safety, as well as reasonable limitations that are prescribed by law and justified under section 1 of the Charter. See Suberu at paras. 2, 42.
b. Positions of the parties
99The Applicant's position is that he was detained when police yelled at him to get on the ground or, alternatively, when he got on the ground in the alleyway. He submits that his right to know the reason for his detention, as well as his concomitant right to counsel, were completely disregarded. He states that he was never told that he was under detention with respect to the possession of a firearm, and that he was not provided his right to counsel until after he was arrested for possession of a controlled substance. The Applicant points out that during the intervening period, he was ordered to the ground at gunpoint, he had his pockets and his person searched, and he was aggressively questioned about where the gun was. He argues that all of these actions were in clear violation of his right to counsel and in violation of the officers' duty to hold off questioning the accused. The Applicant submits that the police did not have reasonable grounds to justify the delay in informing him of the reasons for his detention or arrest and of his rights to counsel.
100The Crown's position is that there was no breach of section 10(a) in this case. The Crown points out that the obligation of the police to inform an individual of the reasons for an arrest or detention arises on arrest or detention. Here, there was no arrest or detention until Mr. Edwards stopped fleeing. The Crown also points out that serious concerns for officer or public safety may justify a delay in informing an individual of the reasons for their arrest. The Crown states that in this case, the officers did not have a chance to inform Mr. Edwards of the reason for his arrest or detention until after he surrendered, and he was advised that he was under arrest for possession of Schedule 1 drugs and provided with his rights to counsel within two minutes of being handcuffed and searched. The Crown argues that any delay was justified for reasons of officer or public safety. The Crown notes that the officers explained the circumstances of the 911 call about a person with a gun to Mr. Edwards before putting him in the scout car.
101The Crown similarly submits that the brief delay in advising Mr. Edwards of his rights to counsel was reasonable and justified by concerns for officer and public safety. However, the Crown concedes that the questions asked by the officers after Mr. Edwards was handcuffed breached the duty to hold off under section 10(b) because Mr. Edwards had not yet contacted counsel or waived his right.
c. Analysis
102As stated above, Mr. Edwards was not detained or arrested until he got down on the ground in the alleyway south of Bloor. His rights under sections 10(a) and 10(b) were only engaged at that time.
103In my view, there was no temporal breach or informational breach under section 10(a) with respect to informing Mr. Edwards of the reasons for his arrest for possession of a controlled substance. After drugs were located, the officers were allowed to confirm that Mr. Edwards did not have a weapon on his person before informing him of the reasons for his arrest. See R. v. Pera, 2023 ONCA 160 at paras. 24-25. The very short delay that was the result of searching Mr. Edwards on the ground was justified based on officer and public safety. The body-worn camera footage shows that immediately after the search was concluded, PC Akiki reached out for a notebook in order to have the text that he needed to read to Mr. Edwards to give him his rights, and he then advised Mr. Edwards of the reasons for his arrest and his rights to counsel.
104However, I find that there was a temporal breach under section 10(a) with respect to the "original" arrest of Mr. Edwards for possession of a firearm. Again, for reasons related to officer and public safety, the officers were justified in delaying informing Mr. Edwards of the reasons for his arrest for the very short period during which the officers were handcuffing and searching Mr. Edwards on the ground. While this delay was justified, Mr. Edwards was not advised that he was arrested for possession of a firearm after the concerns for officer and public safety were under control. Rather, Mr. Edwards was only advised of the substance of the firearm allegations by PC Millar after he was brought to the scout car, approximately two minutes and twenty seconds after being advised that he was under arrest for possession of drugs. While Mr. Edwards was interrupting PC Millar and not really listening to what he was telling him, it is clear from what Mr. Edwards was saying next to the scout car that he understood that it was alleged that he had a handgun on him. Thus, I find that the informational component of section 10(a) was satisfied at that time.
105For the same reasons as set out above in relation to section 10(a), the very short delay in informing Mr. Edwards of his right to retain and instruct counsel – i.e., the time that it took to handcuff him after he got down on the ground and search him to ensure that the did not have a weapon on his person – was justified based on officer and public safety. However, I agree with the Crown's concession that there was a breach of the officers' duty to refrain from questioning Mr. Edwards until he had had a reasonable opportunity to reach his lawyer. A number of officers asked questions of Mr. Edwards that could have elicited incriminating evidence while he was being searched and before he was read his rights to counsel.
106Accordingly, I find that Mr. Edwards' right under section 10(a) of the Charter was infringed as a result of the delay in informing him of the reasons for his arrest for possession of a firearm. I also find that Mr. Edwards' rights under section 10(b) of the Charter were infringed because of the officers' failure to refrain from questioning him until he had had a reasonable opportunity to reach his lawyer.
4. Section 7 of the Charter – Excessive use of force
a. Applicable legal principles
107A police officer has the right to use such force as may be necessary to make an arrest and to continue the state of being under arrest. See R. v. Asante-Mensah, 2003 SCC 38 at para. 52 ("Asante-Mensah").
108Section 25 of the Criminal Code provides as follows:
(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law […]
(b) as a peace officer or public officer, […]
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person's protection from death or grievous bodily harm.
(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if
(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less violent manner.2
109Subsection 25(1) of the Criminal Code essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that they acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. Subsection 25(3) prohibits a police officer from using a greater degree of force, i.e., that which is intended or likely to cause death or grievous bodily harm, unless they believe that it is necessary to protect themselves or another person under their protection from death or grievous bodily harm. The officer's belief must be objectively reasonable. This means that the use of force under subsection 25(3) is to be judged on a subjective-objective basis. If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under subsection 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner. See R. v Nasogaluak, 2010 SCC 6 at para. 34 ("Nasogaluak").
110The use of excessive force in arresting a person, or during the currency of an arrest, has been held to be a breach of the right to the security of the person under section 7 of the Charter. See R. v. Walcott, 2008 CanLII 11374 at para. 22 (Ont. S.C.J.) ("Walcott") and Nasogaluak at para. 38.
111In determining whether the amount of force used by an officer was necessary, regard must be had to the circumstances as they existed at the time the force was used. Police actions should not be judged against a standard of perfection and should not be assessed through the lens of hindsight. A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult, dangerous and exigent circumstances, and cannot be expected to measure the force used with exactitude. See Walcott at para. 24, Asante-Mensah at para. 73, Nasogaluak at para. 35, and R. v. Cornell, 2010 SCC 31 at para. 24.
112In assessing the reasonableness or necessity of the force used in any particular situation, a court must take into account all circumstances, including whether:
a. the suspect was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer's arrest procedure;
b. the relative sizes and weights of the officer and the suspect;
c. the officer was at risk of harm;
d. the police knew the suspect had a history which might represent a threat to them; or
e. the police understood that weapons might be on the premises.
See Walcott at para. 24.
113I also note that section 9 of the regulation R.R.O. 1990, Reg. 926: Equipment and Use of Force made under the Police Services Act, R.S.O. 1990, c. P.15, provides that a member of a police force shall not draw a handgun, point a firearm at a person or discharge a firearm unless they believe, on reasonable grounds, that to do so is necessary to protect against loss of life or serious bodily harm.3
114Once an accused person demonstrates that force was used in effecting an arrest, the burden shifts to the Crown to demonstrate that the use of force was justified. See R. v. Geddes, 2024 ONSC 4430 at paras. 48 and 64.
b. Positions of the parties
115The Applicant's position is that he was subject to an excessive amount of force or, in the alternative, his detention was carried out in an unreasonable manner. The Applicant argues that the officers' decision to draw their firearms on the basis of the bald tip from an unverified, anonymous source was unreasonable. The Applicant submits that no officer had reasonable grounds that drawing their firearm was necessary to protect against loss of life or serious bodily harm. The Applicant states that even if one were to accept that the unverified, anonymous tip sufficed, there was no information that the gun had been drawn, pointed at anyone, or used in any capacity.
116The Crown's position is that the use of force, including drawing firearms, was necessary and reasonable in the circumstances given that the police were responding to a call about a person with a gun, Mr. Edwards matched the description of the suspect, and Mr. Edwards was resisting detention by fleeing and being uncooperative. The Crown states that when Mr. Edwards fled and refused to comply, the officers had reason to believe that their safety or the safety of others was at risk, requiring immediate action. The Crown points out, among other things, that Mr. Edwards was fidgeting with his waistband.
c. Analysis
117In my view, the use of force in this case, in particular the drawing of firearms, was reasonable and necessary in the circumstances and does not constitute a breach of section 7 of the Charter.
118There is evidence in this case that firearms were drawn twice: (1) by PC Di Tommaso as Mr. Edwards was coming out of the alleyway north of Bloor, and (2) by PC Di Tommaso and PC Akiki before they turned into the alleyway south of Bloor. Both times, the firearms were pointed at Mr. Edwards. On both occasions, Mr. Edwards was running/fleeing from the police.
119Starting with the second occasion, I am satisfied that, at the time that PC Di Tommaso and PC Akiki turned the corner and entered into the alleyway south of Bloor, the five conditions set out in subsection 25(4) of the Criminal Code were met:
a. As set out in the section 9 analysis above, the officers were proceeding lawfully to arrest Mr. Edwards.
b. The offence for which Mr. Edwards was to be arrested, i.e., possession of a firearm, was one for which a person may be arrested without a warrant.
c. Mr. Edwards had taken flight to avoid arrest.
d. I find that PC Di Tommaso and PC Akiki subjectively believed that the drawing of their firearm was necessary to protect themselves from imminent death or grievous bodily harm. As set out above in the section 9 analysis, they had reasonable and probable grounds to believe at the time that Mr. Edwards had a firearm on him, and they had lost sight of him for a few seconds, giving him the opportunity to draw his firearm. Having regard to the circumstances that existed at the time, the fact that the officers were at risk of harm, and the fact that a certain amount of latitude is permitted to police officers who must often react in difficult, dangerous and exigent circumstances, I find that PC Di Tommaso and PC Akiki had reasonable grounds to believe that drawing their firearms was necessary in the circumstances for the purpose of protecting themselves from death or grievous bodily harm.
e. Mr. Edwards' flight could not be prevented by reasonable means in a less violent manner. Mr. Edwards was on foot, he refused to comply with many police demands, and he had been running from the police for a few blocks (and, while doing so, had crossed an intersection on a red light when a number of cars were going through the intersection). No other way to stop Mr. Edwards' flight was suggested.
120The first occasion involving only PC Di Tommaso at the very beginning of the chase is more of a borderline case. Nevertheless, I have also concluded that the five conditions set out in subsection 25(4) of the Criminal Code were met:
a. Although this was the very beginning of the chase, I find that PC Di Tommaso was proceeding lawfully to arrest Mr. Edwards. PC Di Tommaso had seen that Mr. Edwards' physical appearance, location and timing matched the information that he had received from the 911 call and another unit, and Mr. Edwards was already running from police. The grounds (a) to (d) set out in paragraph 64 above were present and, in my view, were sufficient to allow PC Di Tommaso to arrest Mr. Edwards.
b. The offence for which Mr. Edwards was to be arrested, i.e., possession of a firearm, was one for which a person may be arrested without a warrant.
c. Mr. Edwards had taken flight to avoid arrest.
d. I accept PC Di Tommaso's evidence that he subjectively believed that the drawing of his firearm was necessary to protect himself and members of the public from imminent death or grievous bodily harm. As set out above, PC Di Tommaso had reasonable and probable grounds at the time to believe that Mr. Edwards had a firearm on him, and he was running from the police. The presence of firearms in a public space inherently threatens the police's and public's safety: see Clayton at para. 41. Having regard to the circumstances that existed at the time, the fact that the officers and the public were at risk of harm had Mr. Edwards drawn a firearm, and the fact that a certain amount of latitude is permitted to police officers who must often react in difficult, dangerous and exigent circumstances, I find that PC Di Tommaso had reasonable grounds to believe that drawing his firearm was necessary in the circumstances for the purpose of protecting himself, PC Akiki and the public from death or grievous bodily harm. Police actions should not be assessed through the lens of hindsight, now that we know that Mr. Edwards did not in fact have a firearm on him.
e. Mr. Edwards' flight could not be prevented by reasonable means in a less violent manner. Mr. Edwards was on foot, he was running from the police, and he refused to comply with police demands. No other way to stop Mr. Edwards' flight was suggested.
121Alternatively, even if PC Di Tommaso was not in a position to effect a lawful arrest and, thus, was not trying to prevent Mr. Edwards from fleeing to avoid a lawful arrest, I would still find that he was justified in drawing his firearm under section 25(3) of the Criminal Code because it was necessary to protect himself from death or serious bodily harm. The reasonable grounds that are required under section 25(3) of the Criminal Code are not necessarily the same reasonable grounds that are required to make an arrest. Reasonable grounds mean different things in different contexts: see Golub at para. 18. For instance, in a detention context, where there is only a reasonable suspicion that an individual is connected to a particular crime, an officer can still have reasonable grounds to believe that their safety or that of others is at risk: see R. v. Mann, 2004 SCC 32 at paras. 40, 45.
122In the present case, even if there were no reasonable and probable grounds to arrest Mr. Edwards when he was running in the alleyway north of Bloor, there were reasonable grounds for PC Di Tommaso to believe that the drawing of his firearm was necessary to protect himself from death or serious bodily harm given the following: the information provided in the 911 call, the fact that Mr. Edwards was acting in a non-complying manner towards the police, the fact that Mr. Edwards was at first running towards PC Di Tommaso, PC Di Tommaso's understanding that a firearm might be on Mr. Edwards, and the fact that PC Di Tommaso was at risk of harm if that was the case: see Walcott at para. 24. Again, in determining whether the amount of force used by PC Di Tommaso was necessary, it must be remembered that a certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult, dangerous and exigent circumstances, and cannot be expected to measure the force used with exactitude.
123In light of the foregoing, I find that the use of force in this case was reasonable and necessary in the circumstances existing at the relevant time, and does not constitute a breach of section 7 of the Charter.
5. Section 9 of the Charter – Racial profiling
a. Applicable legal principles
124A detention or arrest based on racial profiling is arbitrary because, by definition, it is not based on reasonable suspicion or reasonable grounds. See R. v. Le, 2019 SCC 34 at para. 78 ("Le").
125The concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment. See Le at paras. 76-77.
126Racial profiling has two components: (1) an attitudinal component; and (2) a causation component. The attitudinal component is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The causation component requires that this race-based thinking must consciously or unconsciously play a causal role, i.e., that race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment. See R. v. Dudhi, 2019 ONCA 665 at paras. 54-55 ("Dudhi").
127A decision need not be motivated solely or even mainly by race or racial stereotypes to be based on race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment. The presence of reasonable grounds does not disprove racial profiling. See Dudhi at paras. 62, 84.
128Racial profiling can seldom be proved by direct evidence. Therefore, it is necessary for judges to consider all of the circumstances surrounding the police action to determine whether it can be inferred that the police action in issue was the product of racial profiling. See Dudhi at paras. 75-76.
b. Positions of the parties
129The Applicant submits that his race was a factor in both suspect selection and subject treatment.
130The Applicant argues that the officers' actions during the entire transaction demonstrate an attitude that corresponds with the phenomenon of racial profiling. He relies on the following non-exhaustive list of factors in support of his allegation of unconscious racial bias:
a. the lack of any investigation into the veracity of the unknown, unverified, anonymous source, who provided vague and generic information;
b. the Applicant was presumed guilty because he was a Black male in a hoodie running down the street;
c. the decision to pull a firearm out and point it at Mr. Edwards at a busy downtown Toronto intersection;
d. the manner in which Mr. Edwards' "detention" was performed, with multiple officers pointing their firearms at him; and
e. the manner in which the officers dealt with Mr. Edwards, which included insulting him, aggressively questioning him in breach of their obligation to hold off questioning, and not telling him why they were piled on top of him with their knees shoved into him, until they had rummaged through his pockets and located some drugs.
131The Applicant also submits that the police officers lied while giving their evidence, particularly with respect to the issue of whether they could see that the Applicant had dreadlocks. The Applicant argues that the police officers were trying to firm up their grounds. The Applicant also points out that PC Di Tommaso's evidence changed since the preliminary inquiry on the issue of whether he had grounds to arrest the Applicant.
132The Crown submits that racial profiling did not play a role in Mr. Edwards' detention. The Crown states that Mr. Edwards' race did not influence the police's actions to investigate him because he matched the description from the 911 call, he was in the same area as reported, and he fled when approached. The Crown argues that any disrespectful language used by the officers was due to the dynamic situation, not race. The Crown points out that the officers were not rude to Mr. Edwards after the situation was under control and the officers had cooled down.
c. Analysis
133I do not accept Mr. Edwards' argument that racial profiling or racial stereotypes about offending or dangerousness were used in this case, whether consciously or unconsciously, to any degree in his selection as a suspect or in his treatment.
134Race was a legitimate factor in this case with respect to suspect selection because it was part of the description provided by the 911 caller. Among other things, the suspect was described as a Black male with dreadlocks. However, this is not the end of the analysis. As illustrated by the facts in R. v. James, 2021 ONSC 3794 ("James"), on which the Applicant relies in support of his position that there was racial profiling in this case, racial stereotypes can still be used, consciously or unconsciously, in suspect selection, even when the race of the suspect has been identified.
135It is my view, however, that James does not support the Applicant's position. In James, Justice André stated the following at paragraphs 23-25:
[23] Ms. Johnson submits that racial profiling played a role in the detention and arrest of Mr. James given that his clothing, colour of his du-rag and the car in which he travelled did not match the description given by the 911 caller. However, requiring the police to stop only those vehicles matching the description given described [sic] by the 911 caller, "imposes an unrealistic burden on the police and one which is inconsistent with their duty to quickly respond to serious allegations of crimes in a timely manner": see R. v. Clayton, [2007] 2 S.C.R. at para. 37.
[24] Second, this is not a case as in Brown, where a police officer as in Brown, stopped a black motorist driving an expensive car, or a traffic stop as in R. v. Barth, 2021 BCSC 418. As the Supreme Court of Canada noted in Clayton, at para. 47, "had the caller described individuals who were white, the police would not have had reasonable grounds for the continued detention on [sic] non-white occupants. In my view, the vehicle was followed because it generally matched the dark car which the 911 caller described, its occupants were black, one appeared to have a du-rag and grey item of clothing and the vehicle was seen on the street in proximity to where the incident was reported to have taken place.
[25] That said, in my view, racial profiling played a role in the arrest of Mr. James, even if a minimal one. He was not in a black jeep, as the 911 caller reported. He was not wearing a grey jumpsuit neither was he wearing a black du-rag. He did not act in any suspicious manner neither did he say anything that could have raised a suspicion he was involved in the alleged incident. On the contrary, he was cooperative with the police. He was arrested because he was a young black male in a dark vehicle wearing black jeans and a grey hoodie which did not match the description given of the gun-toting black male. The general description of the male matches an unknown number of black males in the neighbourhood where the incident allegedly occurred. To that extent, the officer racially profiled Mr. James.
See also James paras. 34-35.
136The circumstances of this case are very different. There were no discrepancies between the description provided in the 911 call and Mr. Edwards, and there was no one else in the area matching this description late on a weekday, at a time when there were not many pedestrians around. Further, Mr. Edwards acted in more than a suspicious manner: he attempted to flee from the police, which resulted in a dangerous foot pursuit. Thus, contrary to the situation in James, I have no basis to conclude that racial profiling played a role in Mr. Edwards' arrest or that race or racial stereotypes were used, consciously or unconsciously, to any degree in suspect selection.
137I also reject Mr. Edwards' argument that "the lack of any investigation into the veracity of the unknown, unverified, anonymous source" supports a finding of racial profiling. As stated above, the police are entitled to rely on information provided in 911 calls without further independent investigation when there are public safety concerns. The 911 system would not be effective if the police were expected to investigate the information provided and obtain independent confirmation of the information before acting on it. Further, and in any event, the police officers did not have any time in this case to conduct an investigation of the complaint, and Mr. Edwards himself frustrated any attempt to investigate when he made the decision to flee from the police. I also note that there is no evidence before me that a similar complaint would normally be investigated first before acting on it, or that the officers would do so in cases involving suspects of a different race.
138As set out above, I reject the Applicant's argument that PC Di Tommaso or PC Akiki lied about seeing Mr. Edwards' dreadlocks when they first saw him in the alleyway north of Bloor, as well as the argument that PC Di Tommaso lied about having grounds to arrest Mr. Edwards.
139Even though, as set out above, I do not accept that PC Millar saw that Mr. Edwards had dreadlocks while he was running south on Dovercourt Street, I am not satisfied that this was a deliberate lie as opposed to confusion and memory issues. PC Millar did see later in the sequence of events that Mr. Edwards had dreadlocks, and he may not remember exactly when he first saw Mr. Edwards' dreadlocks. Further, had PC Millar intended to lie about seeing Mr. Edwards' dreadlocks, PC Millar could have placed Mr. Edwards closer to him as to when he first saw Mr. Edwards. This is because, based on the body-worn camera footage, it is more likely than not that PC Millar saw Mr. Edwards when he was north of Bloor, rather than south of Bloor, as PC Millar testified in court. In my view, the discrepancies between PC Millar's evidence and the body-worn camera footage are more reflective of confusion and an unclear memory than of an intent to lie.
140In any event, whether or not PC Millar saw that Mr. Edwards had dreadlocks on Dovercourt Street played no causal role in suspect selection because PC Millar did not "select the suspect": PC Di Tommaso and PC Akiki did, based on the description in the 911 call. PC Millar joined in the chase late in the process and he is not the officer who arrested Mr. Edwards.
141I also reject the Applicant's argument that PC Millar was lying when he said that he could not recognize certain voices on the body-worn camera footage. First, I note that PC Millar did identify two officers who made certain statements (PC Akiki and the sergeant who was present). As for the other voices/statements, I accept that PC Millar was not certain and that he did not want to guess, especially given the accusatory undertones of the questions asking which officer had said which statement. I recognize that it is not easy to recognize a voice when one cannot see the person who is talking, there are background noises, and the statement is relatively short.
142I now turn to subject treatment. In my view, there is no support for the position that the decision of the officers to draw their firearms was racially motivated. As set out above, that decision was motivated by officer and public safety, based on the information that this specific suspect had a firearm on him and the fact that Mr. Edwards was running from the police. I find that the officers would have acted in the same manner in relation to a white suspect in the same circumstances.
143I have also found that there were no issues with respect to how Mr. Edwards was searched on the ground, and with respect to the manner in which he was physically restrained in order to effect his arrest given his attempt to flee from the police and his resistance while the officers were trying to handcuff him. There is no evidence that race or racial stereotypes motivated or influenced, to any degree, the search or the manner of arrest. Again, it is my view that the officers would have acted in the same manner in relation to a white suspect in the same circumstances.
144The manner in which PC Akiki spoke to Mr. Edwards while he was on the ground was disrespectful and inappropriate for a police officer. However, I am not satisfied that either of the attitudinal or causation components of racial profiling have been established with respect to this conduct. When considering the totality of the circumstances, I accept PC Akiki's evidence that he acted in this manner because he was still upset and agitated following the foot pursuit and being scared for his life. The disrespectful language and tone occurred over a period of approximately three minutes (but not continuously during that period), including the period where Mr. Edwards was resisting being handcuffed. PC Akiki's evidence regarding his state of mind during that short period of time is supported by how he spoke to and conducted himself with Mr. Edwards right after this three-minute period. At that time, PC Akiki brought Mr. Edwards to the scout car, talked to him, and monitored him before bringing him to the police station with PC Di Tommaso, and no disrespectful language or tone was used. During that time, there is no indication of racial profiling with respect to subject treatment, and none was argued by the Applicant.
145During their cross-examinations, the officers were asked whether they would have acted in the same manner had the suspect been an old white lady. The officers all said that they would have if they believed that the suspect had a firearm and the suspect was fleeing from the police. Whether this is the case or not, I do not find that an old white lady is an appropriate or helpful comparator in this case when determining whether racial profiling was present, to any degree. This is because, among other things, gender and sex bring their own stereotypes and social attitudes into play. This is likely true, as well, with respect to elderly people.
146Based on all the circumstances present at the relevant time, and keeping in mind the fact that racial profiling can seldom be proved by direct evidence, I find that what motivated and influenced the decisions made by the officers in this case and the way they treated Mr. Edwards was their belief that he had a firearm (based on the information that they had received from the 911 caller), their associated concerns with respect to officer and public safety, and the fact that Mr. Edwards had fled from the police. In my view, race-based thinking did not play any role, consciously or unconsciously, to any degree regarding suspect selection or subject treatment.
147Accordingly, I conclude that Mr. Edwards' arrest and treatment were not based on racial profiling and, as a result, his arrest was not arbitrary under section 9 of the Charter.
148Given that I have found two Charter breaches in this case – i.e., a breach of section 10(a) and a breach of section 10(b) – I now turn to the application of section 24(2) of the Charter.
6. Section 24(2) of the Charter
a. Applicable legal principles
149There are two components to determining whether evidence must be excluded under section 24(2) of the Charter: the threshold component and the evaluative component. The threshold component asks whether the evidence was "obtained in a manner" that infringed or denied a Charter right or freedom. If the threshold requirement is met, the evaluative component asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute. See Beaver at para. 94.
150Threshold component. Section 24(2) is engaged only when the accused first establishes that evidence was "obtained in a manner" that breached the Charter.4 The threshold requirement insists that there be a nexus between the Charter breach and the evidence, absent which section 24(2) has no application. Determining whether evidence was "obtained in a manner" that infringed the Charter involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained. See Beaver at para. 95.
151Whether evidence was "obtained in a manner" that infringed an accused's rights under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of the evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent discovery of the evidence may be temporal, contextual, causal, or a combination of the three. A remote or tenuous connection between the breach and the impugned evidence will not suffice. See Beaver at para. 96 and R. v. Mack, 2014 SCC 58 at para. 38.
152Evaluative component. Under the second component, a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (a) the seriousness of the Charter-infringing state conduct, (b) the impact of the breach on the Charter-protected interests of the accused, and (c) society's interest in the adjudication of the case on its merits. The court's role on a section 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. The balancing mandated by section 24(2) is qualitative in nature and no overarching rule governs how the balance is to be struck. See Grant at paras. 71, 86, 140. In all cases, the court must assess the long-term repute of the administration of justice: see R. v. Côté, 2011 SCC 46 at para. 48.
153Under the first factor – the seriousness of the Charter-infringing state conduct, the court must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the rule of law. See Grant at para. 72. Misleading evidence significantly aggravates the seriousness of the breach: see R. v. Lai, 2019 ONCA 420 at para. 36.
154The court's task in considering the seriousness of Charter-infringing state conduct is to situate that conduct on a scale of culpability. At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake. Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law, but admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct, but ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. For state misconduct to be excused as a good faith infringement of Charter rights, the state must show that the police conducted themselves in a manner consistent with what they subjectively, reasonably and non-negligently believed to be the law. See Grant at paras. 74-75, R. v. Paterson, 2017 SCC 15 at para. 43, Beaver at para. 120, and Le at para. 147.
155The second factor – the impact of the breach on the Charter-protected interests of the accused – calls for the identification of the interests protected by the relevant Charter right and an evaluation of the extent to which the breach actually undermined the interests protected by the right. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. See Grant at para. 76 and Beaver at para. 123.
156An assessment of the impact of a Charter breach should consider whether the impugned evidence could have been obtained through other Charter-compliant means. That analysis cannot be speculative. There must be compelling grounds to believe the evidence would otherwise have been obtained. In those circumstances, discoverability is a factor that should be considered in determining the impact of the violation of the rights of the accused. See R. v. Sureskumar, 2023 ONCA 705 at para. 28. Similarly, the lack of a causal connection between the Charter breach and the obtaining of the impugned evidence may mitigate the impact of the breach on the accused's Charter-protected interests: see Beaver at para. 125.
157The third factor – society's interest in the adjudication of the case on its merits – asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. This inquiry reflects society's collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. The reliability of the evidence and the importance of the evidence to the prosecution's case are factors to be considered in this line of inquiry. While the seriousness of the alleged offence may also be a valid consideration, it has the potential to cut both ways. See Grant at paras. 79, 81, 83, 84.
158The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pulls towards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence. See R. v. McGuffie, 2016 ONCA 365 at para. 63 and Le at paras. 141-142.
159The final step involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing is a qualitative, not mathematical, exercise. See R. v. Tim, 2022 SCC 12 at para. 98.
b. Positions of the parties
160The Applicant's position is that the evidence should be excluded. He states that section 24(2) is engaged because the two breaches in issue and the discovery of the evidence are part of the same transaction or course of conduct. The Applicant submits that the first two factors of the section 24(2) analysis favour exclusion. According to the Applicant, questioning a suspect in clear violation of his rights to know the reason of his detention and to consult counsel is unquestionably serious. The Applicant also argues that the cumulative impact of the breaches on his Charter-protected interests was high. He points out that he was detained/arrested without knowing why.
161The Applicant concedes that the third factor favours inclusion because the physical evidence that is sought to be excluded is reliable and the core of the Crown's case. However, the Applicant submits that this cannot overwhelm the analysis and points out that this case involves cocaine, and not a more dangerous drug like fentanyl. The Applicant argues that, on balance, the evidence should be excluded because the first two factors pull toward exclusion of the evidence.
162The Crown's position is that the evidence should not be excluded. With respect to the first branch of the test, the Crown submits that the section 10(a) breach is minor. The Crown states that any delay in providing the reasons for detention was brief and occurred in a fast-moving, high-risk situation. The Crown concedes that the section 10(b) breach is serious. However, the Crown points out that no incriminating responses were given, there is no evidence of systemic misconduct, and the breach occurred in a dynamic, high-pressure situation.
163With respect to the second branch of the test, the Crown argues that the impact of the section 10(a) breach on Mr. Edwards was minimal as this all occurred within the span of minutes. The Crown notes that there is no evidence that the police used any delay to gain an advantage. The Crown submits that the section 10(b) breach also had a minor impact on Mr. Edwards. The Crown points out that while the temporal connection between the breaches and the seizure of the evidence is sufficient to engage section 24(2), there is no causal connection between the breaches and the discovery of the real evidence.
164With respect to the third branch of the test, the Crown submits that the effect of excluding the approximately 45 grams of cocaine – which is reliable evidence that is critical to the Crown's case – would bring the criminal justice system into disrepute. The Crown argues that society has a strong interest in ensuring that Mr. Edwards be brough to trial and dealt with according to law. The Crown states that the exclusion of the evidence would put an end to the prosecution.
165According to the Crown, a balancing of the three factors makes it clear that excluding the evidence in this case would bring the administration of justice into disrepute.
c. Analysis
166I find that the threshold component under section 24(2) is met and that this section is engaged. While there is no causal connection between the breaches of sections 10(a) and 10(b) and the evidence, there is a temporal and contextual connection between the two. The breaches and the discovery of the evidence were all part of the same "transaction".
167I discuss below the three factors under the evaluative component.
168Seriousness of the Charter-infringing conduct. In my view, the temporal breach of section 10(a) was not serious. The delay was very short, i.e., approximately two minutes and twenty seconds. Further, by the time that it was safe for PC Akiki to inform Mr. Edwards of the reasons for his arrest, the original reason for his arrest – possession of a firearm – had been superseded by a different offence – possession of a controlled substance – because drugs had been located during the search incident to arrest but not a firearm. Mr. Edwards was informed that he was arrested for possession of a controlled substance as soon as officer and public safety was no longer an issue. The fact that he was only advised of the original reason for his arrest approximately two minutes later does not constitute serious police misconduct, especially when one considers the very dynamic nature of the situation.
169However, I find that the breach of the duty to hold off questioning Mr. Edwards before facilitating his right to counsel showed ignorance of Charter standards and constituted a major departure from such standards. By asking Mr. Edwards potentially incriminating questions before providing his rights to counsel, the officers contravened a well-established constitutional requirement, which exacerbates the seriousness of the misconduct. See R. v. Desilva, 2022 ONCA 879 at para. 92 ("Desilva"). However, I accept that many of the questions that were asked by the officers were prompted by safety concerns related to their belief in the presence of a firearm. See Desilva at para. 98. This somewhat attenuates the seriousness of the breach given that the safety-motivated questions were not a strategic or deliberate attempt to have Mr. Edwards provide incriminating evidence. Thus, the section 10(b) breach, while serious, is not at the extreme end of seriousness.
170Overall, this factor favours the exclusion of the evidence.
171Impact of the breach on the Charter-protected interests of Mr. Edwards. In my view, the impact of the breaches on Mr. Edwards' Charter-protected interests was not significant.
172The breaches of Mr. Edwards' sections 10(a) and 10(b) rights have no causal connection with the discovery of the evidence. The evidence in issue was found as a result of a valid search incident to a lawful arrest. As noted above, the absence of a causal connection lessens the impact of the breach on Mr. Edwards' Charter-protected interests: see Beaver at para. 125 and Keshavarz at para. 115.
173The impact of the section 10(a) breach on Mr. Edwards was minimal. Again, the delay was very short and it did not have any impact on Mr. Edwards' exercise of his section 10(b) rights. I also note that when PC Millar started explaining to Mr. Edwards the original reason for his arrest, Mr. Edwards was not interested in listening to the information and kept talking and interrupting the officers.
174As for the breach of the duty to hold off questioning under section 10(b), Mr. Edwards did not provide prejudicial information as a result of the breach. This mitigates the section 10(b) breach. See Desilva at para. 98 and Pileggi at para. 121.
175In Desilva, the Court of Appeal stated that where there is no causal connection between the breach and the discovery of evidence, and the accused did not incriminate himself, the impact of a section 10(b) breach is not sufficiently serious to warrant exclusion of the evidence. See Desilva at para. 102.
176In light of the foregoing, the second factor favours admission.
177Society's interest in the adjudication of the case on its merits. Society has a strong interest in the prosecution of offences related to the trafficking of Schedule 1 substances. Possession of illicit substances for the purpose of trafficking is a serious crime. Further, the evidence sought to be excluded is real and reliable, and its exclusion would put an end to the prosecution. Consequently, this factor favours admission of the evidence. See Desilva at para. 105.
178Conclusion under section 24(2) of the Charter. Balancing all the factors, I conclude that the admission of the evidence would not bring the administration of justice into disrepute. While the misconduct with respect to the breach of section 10(b) was serious, it was not sufficiently grave to justify the exclusion of the evidence in light of its minimal impact on Mr. Edwards' interests and the fact that the drugs that were seized constitute reliable evidence that is critical to the Crown's case. In my view, the public's confidence in the administration of justice is best served through the admission of the evidence. See Desilva at paras. 107-108.
C. CONCLUSION
179Mr. Edwards' application for an order excluding evidence under section 24(2) of the Charter is dismissed.
Vermette J.
Released: June 26, 2025
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.```
Footnotes
- For instance, PC Balarochek stated that the first time that she saw Mr. Edwards, he was running on Dovercourt south of Bloor and turning westbound in an alley, and she was in a scout car on the opposite side of the street. Based on the body-worn camera footage, she could not have been in a car on the opposite side of Dovercourt Street when Mr. Edwards turned westbound in the alleyway.
- Subsection 25(4) of the Criminal Code is reproduced verbatim in the TPS policy that was marked as Exhibit "1" in this proceeding ("15-01 Incident Response (Use of Force / De-Escalation)") in the section entitled "Fleeing Suspect".
- This provision is also reproduced in the TPS policy that was marked as Exhibit "1" in this proceeding ("15-01 Incident Response (Use of Force / De-Escalation)").
- This is based on the wording of section 24(2) which provides: