COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rover, 2018 ONCA 745

DATE: 20180912

DOCKET: C63274

Doherty, Pepall and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Rover

Appellant

Kathryn Wells, for the appellant

Jeremy Streeter, for the respondent

Heard: June 6, 2018

On appeal from the convictions entered on July 25, 2016 by
    Justice Robert Charney of the Superior Court of Justice.

Doherty J.A.:

I

overview

[1]

The appellant was charged with various drug-related offences. He
    initially elected trial by judge and jury. On a pretrial motion, the appellant
    challenged the admissibility of the drugs seized from his residence, alleging
    various
Charter
violations. The trial judge dismissed the motion, with
    reasons reported at
R. v. Rover,
2016 ONSC 4795. The appellant
    re-elected trial by judge alone and the evidence heard on the motions was taken
    as introduced at the trial. The appellant did not offer any other defence to
    the charges. He was convicted of three counts of possession of different drugs for
    the purpose of trafficking, including one count of possession of fentanyl for
    the purpose of trafficking. The appellant received a sentence of 20 months on
    top of a credit of 3 years, 6 months for pretrial custody.

[2]

The appellant appeals his convictions only.

[3]

I would allow
    the appeal. I would hold that the trial judge erred in finding that the police,
    having chosen to arrest the appellant before they had obtained a warrant to
    search his residence, were entitled to delay the appellants right to speak to
    counsel for several hours while they applied for, obtained, and executed the
    search warrant. I would also hold that, on a proper appreciation of the nature
    of the s. 10(b) breach, the evidence discovered in the search of the
    appellants residence should have been excluded under s. 24(2) of the
Charter
.

II

FACTS

[4]

The police received an anonymous tip that an unknown black male was
    dealing drugs from a residence in Whitby. The tipster reported seeing vehicles
    arriving at the residence, staying for a few minutes and then leaving. He
    described the drug dealer as 62, with dark skin, a slim build, and wearing a
    jacket.

[5]

The police set
    up surveillance at the residence. Over the next five hours, they saw a pattern
    of traffic coming and going at the residence, which they believed confirmed the
    tip provided by the anonymous informant. The police also arrested two women
    shortly after they drove away from the residence. One of the women admitted to the
    police that she had purchased cocaine from the occupant of the residence. The
    police found cocaine in the vehicle.

[6]

Based on the tip, their observation of the traffic at the residence, and
    the womans admission, the police decided they had reasonable and probable
    grounds to arrest the occupant and obtain a warrant to search the residence.

[7]

The occupant, who matched the general description given by the tipster,
    turned out to be the appellant. The police arrested him later the same evening.
    Early the next morning, they obtained and executed a search warrant at the
    residence. They found the drugs that are the subject matter of the convictions
    under appeal.

[8]

The appellant renews the
Charter
arguments made at trial. The
    first two are related and allege arbitrary detention and a breach of s. 9 of
    the
Charter
. The third argument arises out of the police refusal to
    allow the appellant to speak to his lawyer until several hours after his
    arrest.

[9]

I would reject the first two arguments substantially for the reasons
    given by the trial judge. I would, however, accept the third. The appellants
    constitutional right to speak to his lawyer upon arrest was breached and the evidence
    should have been excluded.

III

A: The Section 9 Claims

[10]

The
    appellant submits that the police did not have reasonable and probable grounds
    to arrest him, and that his detention was therefore contrary to s. 9 of the
Charter
.
    The appellant submits that this violation triggers s. 24(2) and warrants the
    exclusion of the evidence seized from the residence.

[11]

The
    appellant also submits that the police did not have reasonable and probable
    grounds to arrest the two women who were arrested shortly after driving away
    from his residence. The police had observed the vehicle drive up to the
    residence. One of the women had gone into the residence and exited a short time
    later. Based on their other observations and experience, the police officers believed
    that the woman had gone into the residence to purchase drugs. They followed the
    car, pulled it over, and arrested both occupants. They found cocaine, and one
    of the occupants confirmed that she had purchased the cocaine from the occupant
    of the residence.

[12]

The
    appellant submits that this unlawful arrest is relevant to the case against him
    because the police relied on the discovery of the cocaine and the admission
    made by one of the women after the arrest to obtain the warrant to search the
    appellants residence. The appellant maintains that, because the womens arrest
    was unconstitutional, any information obtained by the police as a consequence
    of that arrest must be excised from the affidavit used to obtain the search
    warrant. The appellant further argues that, absent the information obtained as
    a consequence of the womens arrest, the affidavit did not contain adequate grounds
    upon which a warrant could be issued. The search of the residence was therefore
    warrantless and a breach of s. 8 of the
Charter
.

[13]

The
    court did not call on the Crown on either of the first two grounds of appeal. There
    is a simple answer to both. The police had reasonable and probable grounds to
    arrest the occupants of the vehicle and the appellant. The trial judge
    thoroughly reviewed the applicable law and set out the factual basis upon which
    he was satisfied that the police had grounds to make the arrests: see
Rover
,
    at paras. 28-35 and 53-54. I would defer to that assessment.
[1]

B: The Section 10(b) Claim

(i)

The trial
    proceedings

[14]

The police
    arrested the two women in the car with the cocaine at around 8:45 p.m. They subsequently
    decided to arrest the appellant, charge him with trafficking in narcotics, and search
    his residence for narcotics. For safety reasons, the police did not want to
    arrest the appellant in his residence. They waited until he left at 10:33 p.m.,
    and arrested him a short distance from his residence at 10:41 p.m. At almost
    the same time as the appellant was being arrested, another officer involved in
    the investigation was submitting a search warrant application. There was no
    evidence that the police turned their mind to whether they should obtain the
    warrant to search the residence before arresting the appellant.

[15]

The officer who
    arrested the appellant at 10:41 p.m. advised him of his right to counsel, as
    required by s. 10(b) of the
Charter
. The appellant immediately exercised that right and
    indicated that he wished to speak to his lawyer. The arresting officer had been
    told by one of the investigators that the appellant should not be allowed to
    speak to counsel until after the warrant had been executed. Various officers
    referred to this as the customary or standard practice. No formal written
    policy to that effect was produced at trial.

[16]

The
    appellant was taken into custody. He was not told why he was not being allowed
    to speak to counsel or when he would be allowed to speak to counsel.

[17]

The
    police received the signed telewarrant at 12:50 a.m. At 2:55 a.m., a special entry
    team, assembled after the warrant was issued, entered the residence and secured
    the scene. The search began at 3:01 a.m. At 4:20 a.m., the arresting officer
    was told by the investigators that he could allow the appellant to contact his
    lawyer. For various reasons, the appellant did not speak to counsel until 5:45
    a.m. The police did not attempt to speak with the appellant before he had an
    opportunity to speak with counsel.

[18]

At
    trial, the appellant argued that the police breached his right to counsel when
    they did not immediately give him access to a lawyer upon request. The trial
    judge accepted that a detainee who asserted their right to counsel was entitled
    to contact counsel without delay. He further held, however, that in some
    circumstances public and police safety concerns or concerns about the
    preservation of evidence could justify a delay in allowing access to counsel.
    The trial judge held that a search of a suspected drug dealers residence engaged
    sufficient concerns about officer safety and the preservation of evidence to
    justify some delay in providing the arrested individual with access to counsel:
Rover
, at paras. 66-70. The trial judge went on, however, to find that
    there was no justification for the delay after the residence had been secured
    at 3:01 a.m. He concluded that the delay between 3:01 a.m. and 4:20 a.m. when
    the appellant was told he could contact counsel constituted a breach of s.
    10(b):
Rover
, at para. 71.

[19]

The
    trial judge then turned to s. 24(2) of the
Charter
. He agreed that the
    breach of s. 10(b), which he calculated as a delay of about 1 hour and 20
    minutes in allowing the appellant to access counsel, was a serious breach reflecting
    the polices disinterest in [the appellants] rights:
Rover
, at para.
    77. In considering the impact of the breach on the appellants rights, the
    trial judge noted that the police did not question the appellant while he was
    detained without access to counsel. The trial judge found no causal connection
    between the breach and the obtaining of the evidence during the search. He
    characterized the interference with the appellants
Charter
-protected
    interests as moderate:
Rover
, at para. 80. Lastly, in addressing societys
    interest in an adjudication on the merits, the trial judge noted that the
    evidence in issue was real, reliable, and crucial to the Crowns case:
Rover
,
    at para. 83.

[20]

Balancing
    the various considerations, the trial judge determined that the police
    misconduct made a strong case for exclusion, the nature of the interference
    with the appellants rights made a moderate case for exclusion and societys
    interest in an adjudication on the merits tip[ped] the balance in favour of
    admissibility:
Rover
, at para. 84. He dismissed the motion to exclude
    the evidence.

(ii)

The
    arguments

[21]

Counsel
    for the appellant accepts that if the trial judge properly characterized the
    nature of the s. 10(b) breach, she cannot successfully challenge his s. 24(2)
    analysis. Counsel submits, however, that the trial judge misconstrued the
    breach, both quantitatively and qualitatively. Counsel argues that the breach
    began when the appellant asserted his right to counsel and was not given the
    opportunity to speak with counsel. She submits that the police refusal to allow
    the appellant to speak to counsel was not precipitated by anything specific to
    the police investigation of the appellant, but was the direct consequence of the
    police practice of refusing access to counsel until the search of the
    appellants residence was completed. Counsel argues that the breach of the
    appellants s. 10(b) right to consult with counsel is made all the more serious
    because it is the result of a police practice that routinely sacrifices a
    detainees constitutional right to immediate access to counsel in favour of the
    police interest in the efficient use of its resources.

[22]

The
    respondent submits that the trial judge correctly determined that the
    appellants s. 10(b) rights were denied when he was not allowed access to
    counsel at 3:01 a.m. The respondent further submits that the trial judges s.
    24(2) analysis is impeccable and reminds the court that it must defer to that
    assessment, absent errors in legal principle or an unreasonable finding:
R.
    v. Beaulieu
, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5.

[23]

Alternatively,
    the respondent submits that even if the breach of s. 10(b) occurred at the time
    of the arrest, the s. 24(2) analysis remains unchanged. The breach had
    virtually no impact on the appellants
Charter
-protected interests, as
    there was no connection between the violation and the evidence obtained. The police
    did not attempt to take advantage of the appellants inability to access
    counsel and made no effort to obtain a statement from him. The respondent submits,
    as the trial judge observed, that there is no reason to believe that anything
    would have occurred any differently had the appellant been given an opportunity
    to speak to counsel at the outset:
Rover
, at para. 80.

(iii)

Analysis

[24]

Section
    10(b) of the
Charter
guarantees to anyone arrested or detained the
    right to retain and instruct counsel
without delay
and to be informed of that right (emphasis added).

[25]

Section
    10(b) obliges the police to advise a detained person of the right to speak with
    counsel without delay and, if the detained person exercises that right, the
    police must immediately provide the detainee with a reasonable opportunity to
    speak to counsel:
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at
    paras. 38, 42;
R. v. Bartle
, [1994] 3 S.C.R. 173, at pp. 191-92.

[26]

The
    s. 10(b) jurisprudence has, however, always recognized that specific
    circumstances may justify some delay in providing a detainee access to counsel.
    Those circumstances often relate to police safety, public safety, or the
    preservation of evidence. For example, in
R. v. Strachan
, [1988] 2
    S.C.R. 980, the court accepted that the police could delay providing access to
    counsel in order to properly gain control of the scene of the arrest and search
    for restricted weapons known to be at the scene. Subsequent cases have accepted
    that specific circumstances relating to the execution of search warrants can also
    justify delaying access to counsel until the warrant is executed: see e.g.
R.
    v. Learning
, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.

[27]

These
    cases have, however, emphasized that concerns of a general or non-specific
    nature applicable to virtually any search cannot justify delaying access to
    counsel. The police may delay access only after turning their mind to the
    specifics of the circumstances and concluding, on some reasonable basis, that police
    or public safety, or the need to preserve evidence, justifies some delay in
    granting access to counsel. Even when those circumstances exist, the police
    must also take reasonable steps to minimize the delay in granting access to
    counsel: see e.g.
R. v. Patterson
, 2006 BCCA 24, 206 C.C.C. (3d) 70,
    at para. 41;
R. v. Soto
, 2010 ONSC 1734, at paras. 67-71;
Learning
,
    at para. 75;
R. v. Wu
, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.

[28]

Wu
,
    at para. 78, provides a helpful summary of the law. That summary includes the
    following:

The assessment of whether a delay or suspension of the right to
    counsel is justified involves a fact specific contextual determination. The
    case law on this issue reveals some general guiding principles that provide a
    framework for this assessment:

a.       The suspension of the right to counsel is an
    exceptional step that should only be undertaken in cases where urgent and
    dangerous circumstances arise or where there are concerns for officer or public
    safety.

e.       Police officers
    considering whether circumstances justify suspending the right to counsel must
    conduct a case by case assessment aided by their training and experience.
A policy or practice routinely or categorically permitting the
    suspension of the right to counsel in certain types of investigations is
    inappropriate
. [Emphasis added.]

[29]

In the present
    case, the evidence demonstrates that the officers involved in this
    investigation followed a practice that routinely prevented arrested persons
    from accessing counsel if the police intended to obtain a warrant to search a place
    for drugs and believed that the place had a connection to the arrested person.
    The rationale behind this practice appears to be that there is always a
    possibility that allowing an arrested person to speak to their lawyer could put
    the officers executing the warrant at risk or jeopardize the preservation of
    evidence. Under this practice, the appellant, as the occupier of the place to
    be searched, was prevented from contacting his lawyer, as were the two women
    who had been arrested earlier that evening.

[30]

Various
    officers who testified acknowledged the practice. Constable Massey, the officer
    who told the arresting officer to deny the appellant access to counsel,
    testified as follows:

Q.
So, any time  is it  I mean, correct
    me if Im wrong, is it accurate to say then that any time this team is
    contemplating getting a warrant, you dont let an accused speak to a lawyer?

A.
Correct.

Q.
No matter how long it might take?

A.
Correct.

Q.
Okay. And thats part of what you have
    been trained to do?

A.
Correct.

Q. All right. Now, you gave that information to Constable
    Hoover and said, Dont let him speak to a lawyer.?

A. Correct.

Q. And, did you indicate that you would stay in touch with him and
    tell him when he could have him speak to a lawyer?

A. I said when we were finished the entry then he could  I
    would let him know. [Emphasis added.]

[31]

Officer
    Sigmann, another officer involved in the investigation, gave the following
    evidence:

Q. Now, you testified that you had nothing to do with telling anyone to
    prevent those two girls from speaking to counsel.

A. No.

Q. You had no
    knowledge of that?

A. Not that I recall,
    no. Its  its a standard practice that peoples  that rights get withheld
    for certain reasons.

Q. And where do you
    learn that?

A. I learn it from
    members of the drug unit.

Q. Umm, okay.

A. Thats where you
    seek advice from  from the drug unit. I think they discuss it on  when you do
    like, plain clothes course. Its  its kind of a general  a general practice.

Q.
So are you taught that if youre even gonna consider writing a
    warrant nobody gets to speak to a lawyer til thats done, its submitted, its
    signed back as approved and then executed. Is that how it works?

A.
Thats my understanding of how it works. Yes.
[Emphasis added.]

[32]

The police practice described by the officers replaces the
    narrow, case-specific exception to the constitutional right to speak to counsel
    without delay upon arrest with a protocol that routinely delays an arrested
    persons access to counsel for an indeterminate time, usually hours, whenever
    the police, for whatever reason, deem it appropriate to arrest them before
    applying for a search warrant.
There is
    no evidence that any of the officers turned their mind to the specific
    circumstances of this case before deciding that the appellant would be arrested
    and denied access to counsel for several hours while the police sought,
    obtained, and executed a search warrant. On the evidence of the police, there
    was no need to consider the specifics of this case. For them, the decision to arrest
    the appellant before seeking the search warrant dictated that the appellant
    would not be allowed to contact a lawyer until the warrant was executed.

[33]

In my view, to
    fall within the exception to the requirement that an arrested person be allowed
    to speak to counsel without delay, the police must actually turn their mind to
    the specific circumstances of the case, and they must have reasonable grounds
    to justify the delay. The justification may be premised on the risk of the destruction
    of evidence, public safety, police safety, or some other urgent or dangerous
    circumstance. Furthermore, if the police determine that some delay in allowing
    an arrested person to speak to counsel is justified to permit execution of the
    warrant, then they must consider whether it is necessary to arrest the individual
    before they execute the warrant. The police cannot create a justification for delaying
    access to counsel by choosing, for reasons of convenience or efficiency, to
    arrest an individual before seeking, obtaining, and executing a search warrant.
    Police efficiency and convenience cannot justify delaying an arrested persons
    right to speak with counsel for several hours.

[34]

The effective
    implementation of the right to counsel guaranteed by s. 10(b) depends entirely on
    the police. The police must understand that right and be willing to facilitate
    contact with counsel. The practice under which the officers involved in this
    case operated demonstrates a disregard of a fundamental constitutional right.
    The appellants right to speak with counsel was denied at the time of his
    arrest, when the police refused his request to speak with counsel.

(iv)

Should the evidence be excluded?

[35]

While
    there was no causal connection between the discovery of the drugs and the s. 10(b)
    breach, there was a close temporal connection. The parties acknowledge that the
    connection is sufficient to engage s. 24(2): see
R. v. Pino
, 2016 ONCA
    389, 130 O.R. (3d) 561.

[36]

The
    exclusionary rule in s. 24(2) operates on the assumption that the routine
    admission of constitutionally tainted evidence must have a long-term negative
    effect on the repute of the administration of criminal justice. As explained in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 70:

Finally, s. 24(2)s focus is societal. Section 24(2) is not
    aimed at punishing the police or providing compensation to the accused, but
    rather at systemic concerns. The s. 24(2) focus is on the broad impact of
    admission of the evidence on the long-term repute of the justice system.

[37]

The
    rationale for the exclusionary rule identified in
Grant
, as applied in
    these circumstances, requires a consideration of the long-term impact on the reputation
    of the administration of justice caused by the admission of evidence obtained
    in an investigation conducted under a police practice that inevitably and
    routinely denies detained persons their constitutional right to access counsel.
    The systemic nature of the violation plays a central role in assessing its
    long-term impact on the proper administration of justice.

[38]

The
    three-pronged line of inquiry under s. 24(2) established in
Grant
is
    well-known. A court looks to the seriousness of the
Charter
-infringing
    state conduct, the impact of that conduct on the
Charter
-protected
    interests of the accused, and societys interest in an adjudication on the
    merits:
Grant
, at paras. 72-86. The first two factors, taken in
    combination, represent the case for exclusion. The third provides the
    counterbalance favouring admission of the evidence.

(a) The seriousness of the state misconduct

[39]

The
    trial judge described the state misconduct as serious and reflective of the
    police disinterest in the appellants rights. Those observations are fully
    justified. Apart entirely from never turning their mind to the actual need to
    delay the appellants access to counsel, the officers showed no interest in
    mitigating the delay. For example
, there
    is no evidence that the police considered obtaining a search warrant before arresting
    the appellant. I see nothing in the circumstances that would have prevented the
    police from obtaining the warrant first. This would have avoided, or at least
    substantially minimized, any delay in affording the appellant his
    constitutional right to speak with counsel. Even if the police wanted the
    appellant out of the residence before executing the warrant, they could have
    obtained the warrant, watched the residence, arrested the appellant when he
    left, and proceeded to execute the warrant. Had the police followed that
    procedure, they could have allowed the appellant immediate access to counsel.
    Instead, by arresting the appellant before obtaining the warrant, the police
    ensured that he would be held without access to his lawyer for hours.

[40]

Although
    the trial judge recognized that the police misconduct was serious, he
    understated its seriousness by failing to connect it to a police practice that
    routinely denied detainees access to counsel in situations in which the police
    were intending to apply for search warrants. Constitutional breaches that are
    the direct result of systemic or institutional police practices must render the
    police conduct more serious for the purposes of the s. 24(2) analysis. A police
    practice that is inconsistent with the demands of the
Charter
produces
    repeated and ongoing constitutional violations that must, in the long run, negatively
    impact the due administration of justice. This is so even if many of the
    breaches are never exposed in a criminal court. As noted in
Grant
, at
    para. 75:

It should also be kept in mind that for every
Charter
breach that comes before the courts, many others may go unidentified and
    unredressed because they did not turn up relevant evidence leading to a
    criminal charge. In recognition of the need for courts to distance themselves
    from this behaviour, therefore, evidence that the
Charter
-infringing
    conduct was part of a pattern of abuse tends to support exclusion.

[41]

The
    same sentiment appears in
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R.
    494, at para. 25, released concurrently with
Grant
, and in subsequent
    appellate decisions: see e.g.
R. v. Jones
, 2013 BCCA 345, 298 C.C.C.
    (3d) 343, at para. 46;
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d)
    643, at para. 67.

[42]

The
Charter
-infringing state conduct in this case must be viewed as very
    serious. A police practice that routinely holds detained individuals
incommunicado
while the police go about obtaining and executing a search warrant must, over
    time, bring the administration of justice into disrepute.

(b) The impact
    on the appellants
Charter
-protected interests

[43]

The
    trial judge described the negative impact of the breach on the appellants right
    to access counsel as moderate. That description was based largely on his
    finding that the delay of about 1 hour and 20 minutes in allowing the appellant
    to access counsel had no causal connection to the obtaining of the evidence
    discovered in the search of the appellants residence, and that the police had
    refrained from questioning the appellant during that time. The trial judge was
    correct in considering the absence of any causal connection between the s.
    10(b) breach and the obtaining of the evidence as a factor mitigating the
    impact of the breach on the appellants
Charter
-protected interests:
Grant
,
    at para. 122.

[44]

For the reasons
    set out above, I calculate the unconstitutional delay in allowing the appellant
    to speak to his lawyer at almost six hours (10:41 p.m. to 4:20 a.m.). A delay
    of that length, even when the police do not attempt to question the arrested
    person, has a significant impact on the arrested persons rights.

[45]

The right to
    counsel is a lifeline for detained persons. Through that lifeline, detained
    persons obtain, not only legal advice and guidance about the procedures to
    which they will be subjected, but also the sense that they are not entirely at
    the mercy of the police while detained. The psychological value of access to
    counsel without delay should not be underestimated.

[46]

In this case,
    instead of providing the appellant with the lifeline to counsel when he requested
    it, the police put him in the cells. The appellant was
held for
    several hours
without any explanation
    for the police refusal of access to counsel, and without any indication of when
    he might be allowed to speak to someone. His right to security of the person
    was clearly compromised. The significant psychological pressure brought to bear
    on the appellant by holding him without explanation and access to counsel for
    hours must be considered in evaluating the harm done to his
Charter
-protected interests.

[47]

Having
    regard to the security of the person interest protected by s. 10(b), and the
    risk posed by the police practice to the maintaining of the appellants right
    against self-incrimination, I would hold that the s. 10(b) breach had a
    significant negative impact on the appellants
Charter
-protected
    rights. While that impact was certainly not as serious as it would have been
    had there been a causal connection between the breach and the obtaining of the evidence,
    it was nonetheless significant.

[48]

The
    final consideration identified in
Grant
, the impact of excluding the
    evidence on societys interest in a trial on the merits, clearly favours
    admitting this evidence. The evidence of the seized drugs is reliable and
    crucial to the prosecution of serious crimes. To exclude the evidence is to
    allow a guilty person to go free.

[49]

In
    my view, however, this is one of those cases in which the long-term repute of
    the administration of justice requires the sacrifice of the short-term benefit
    of an adjudication on the merits of this case. The seriousness of the police
    misconduct points very strongly toward exclusion. The negative impact of the
    breach on the appellants constitutionally-protected rights also points,
    although less strongly, to exclusion. The two together make a strong case for exclusion.
    Societys interests in an adjudication on the merits does not tip the balance
    in favour of admissibility:
McGuffie
, at paras. 61-64. I would exclude
    the evidence.

IV

conclusion

[50]

I
    would allow the appeal, quash the convictions and enter acquittals.

Released: DD  SEP 12 2018

Doherty J.A.

I agree. S.E. Pepall
    J.A.

I agree. I.V.B.
    Nordheimer J.A.

[1]

As I am satisfied there were reasonable and probable grounds
    to arrest the occupants of the vehicle, I need not consider whether the
    appellant, in challenging the validity of a warrant, is entitled to seek the
    excision of material from the affidavit relied on to obtain the warrant on the
    basis that the information was obtained in violation of the constitutional
    rights of third parties: see
R. v. Vickerson
,
    2018 BCCA 39, 358 C.C.C. (3d) 441.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yaghob, 2018 ONCA 775

DATE: 20180924

DOCKET: C61533

Pepall, Lauwers and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mikhael Yaghob

Appellant

Louis P. Strezos, Sherif M. Foda and Kaleigh D.
    Davidson, for the appellant

Lisa Mathews, for the respondent

Heard: September 21, 2018

On appeal from the conviction entered on August 20, 2015
    and the sentence imposed on January 7, 2016 by Justice Beverly A. Brown of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

We approve the substance of the joint submissions of the appellant and
    the Crown and make the following order:

1.

The appeal from the conviction of one count of possession of oxycodone
    for the purposes of trafficking contrary to s. 5(2) of the
Controlled Drugs
    and Substances Act
, S.C. 1996, c. 19

(CDSA) is granted;

2.

A conviction for one count of possession of oxycodone contrary to s.
    4(1) of the CDSA is substituted;

3.

The appeal from the conviction of one count of possession of cocaine
    contrary to s. 4(1) of the CDSA is dismissed; and,

4.

Leave to appeal sentence is granted and a sentence of time served is
    substituted.

S.E.
    Pepall J.A

P.
    Lauwers J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Raimondi v. Ontario Heritage Trust, 2018 ONCA 750

DATE: 20180914

DOCKET: C64043

Pepall, Roberts and Miller JJ.A.

BETWEEN

Idalgo Raimondi and Nancy Raimondi

Appellants (Applicants)

and

Ontario Heritage Trust and Nicola Ross

Respondents (Respondents)

M. Michael Title and Patricia Virc, for the appellants

Sonal Gandhi and Stephanie Figliomeni, for the
    respondent Ontario Heritage Trust

Patricia D.S. Jackson and Sarah Whitmore, for the
    respondent Nicola Ross

Heard: April 13, 2018

On appeal from the order of Justice Peter A. Daley of the
    Superior Court of Justice, dated June 12, 2017, with reasons reported at 2017
    ONSC 3389, 84 R.P.R. (5th) 221.

B.W. Miller J.A.:

Overview

[1]

The appellants are the owners of a 3.59 acre residential property in
    Caledon, Ontario (100 Scott Street). Their property is surrounded by 90 acres
    of parkland (the Willoughby Property) owned by the Ontario Heritage Trust (the
    OHT). The only vehicular access to the appellants residence is via a 1 km
    driveway through the Willoughby Property. The appellants do not own the
    driveway, but they have a legal right (an easement in the nature of a right of
    way) to use it for the purpose of accessing their property. That right of way
    was conferred by a deed of easement when the OHT severed 100 Scott Street from
    the Willoughby Property in 1993. The deed was registered on title of both 100
    Scott Street and the Willoughby Property.

[2]

There are a number of popular hiking trails on the Willoughby Property.
    Some trails long predated the severance of 100 Scott Street from the Willoughby
    Property. Since the appellants purchased 100 Scott Street, the OHT has
    continued to improve existing trails and develop new hiking trails into a
    network connected to the Bruce Trail. More hiking trail development is
    contemplated and the OHT actively encourages the public to use the trail
    network. The respondent Ms. Nicola Ross, a local resident, has published a
    local guide to hiking trails, which includes the trails on the Willoughby
    Property.

[3]

The driveway that leads to 100 Scott Street provides the most popular
    access point for hikers using the trails. The OHT does not permit the public to
    drive on the driveway, but the public is expressly invited to walk up the
    driveway to access the trails. Many people do, especially on weekends and
    holidays. It is the presence of hikers walking up and crossing the driveway  a
    driveway also used by the appellants to access their home  that has led to the
    present conflict over the scope of the appellants rights over the use of the
    driveway. The appellants take the position that the easement grants them
    exclusive use of the driveway, and that members of the public who use the
    driveway to access trails are therefore trespassers.

[4]

This appeal concerns two main issues: (1) whether the deed of easement
    creating the right of way grants the appellants exclusive use of the driveway,
    and (2) whether the OHT has substantially interfered with the appellants use
    of the driveway by establishing public hiking trails and inviting the public
    onto the driveway. Two secondary issues are whether the application judge erred
    by: (3) dismissing the application for an injunction restraining the
    publication of Ms. Rosss hiking guide; and (4) ordering costs against the
    appellants. A further ground of appeal, alleging bias on the part of the
    application judge, was abandoned.

[5]

For the reasons set out below, I would dismiss the appeal.

Background

[6]

The OHT was established in 1967, with a statutory mandate to acquire and
    hold property in trust for the people of Ontario. Part of its mandate is to
    preserve and manage properties of historical, architectural, recreational, and
    natural interest. It acquired the Willoughby Property in 1986. Although the
    property has some cultural and archeological significance, its main public
    significance  and the reason for its designation as a Natural Environment Park
    in the Niagara Escarpment Parks and Open Space System  is that it provides
    access to the Bruce Trail. The Bruce Trail is Canadas oldest and longest
    footpath, extending from Niagara Falls in the south to Tobermory in the north.

[7]

The Willoughby Property is managed by the Credit Valley Conservation
    Authority (CVC). After the OHT acquired the Willoughby Property, the CVC
    engaged in studies and public consultations regarding the development of a
    trail system that would link existing and proposed trails on the Willoughby
    Property into the Bruce Trail. Around 1990, the CVC prepared the Willoughby
    Property Trail Integration Study, which proposed the creation of a trail now
    known as the Crows Nest Trail, which hikers would access from the driveway
    that leads to 100 Scott Street.

[8]

Subsequently, the OHT severed from the Willoughby Property the 3.59 acre
    parcel of land that is now 100 Scott Street, the appellants residence. The
    deed granting the easement of a right of way over the driveway to 100 Scott
    Street was executed by both the OHT as transferor, and Ms. Susan Imrie, the
    appellants predecessor in title and the first purchaser of 100 Scott Street,
    as transferee. The deed is registered on the title to 100 Scott Street.

[9]

The deed reads in part as follows:

1.

The Transferor grants the Transferee the free, uninterrupted and
    unobstructed right-of-way for the transferee and her guests, agents and
    contractors for ingress and egress and to enter, repair and maintain a gravel
    driveway

2.

The right-of-way hereby granted is declared to be on and in the lands
    described in Box 5 of Page 1 hereof, and to be for the benefit of the lands of
    the Transferee described also in Box 5 of Page 1.

3.

The Transferor covenants not to plant any trees or brush on the lands,
    and not to erect any buildings, structures and other man-made obstructions on
    the lands.

4.

The Transferor shall not be responsible for the maintenance and repair
    of the right-of-way.

5.

The Transferee covenants to fill in all excavations and to restore the
    surface to substantially the same condition as existed prior to the
    commencement of any activity of the Transferee authorized hereunder.

6.

The Transferee further covenants to save harmless and keep the
    Transferor indemnified from all claims, costs and damages which may arise by
    reason of any entry made upon or activity performed on the said lands by the
    transferee, her guests, agents and contractors.

7.

This easement and everything contained in it shall be binding upon,
    extend to and enure to the benefit of the parties hereto, as the case may be,
    and their respective heirs, administrators, successors and assigns.

[10]

Attached
    to the deed is a consent to the grant of right-of-way provided by the Ministry
    of Culture, Tourism and Recreation. The consent confirms that the grant was
    made in accordance with the policies and priorities for the conservation, protection
    and preservation of the heritage of Ontario, as required by the
Ontario
    Heritage Act
, R.S.O. 1990, c. O.18.

Issue 1: Interpretation of the deed of easement: use of
    extrinsic evidence

[11]

Where,
    as here, an easement is expressly created by written agreement, the scope of
    the easement is to be determined by interpreting the text. What is the
    agreement that the original parties made that now binds their successors? The
    basic interpretive methodology was stated by this court in
Fallowfield et
    al. v. Bourgault et al.
(2003), 68 O.R. (3d) 417 (C.A.), at para. 10:
    [w]here an easement is created by express grant, the nature and extent of the
    easement are to be determined by the wording of the instrument creating the
    easement, considered in the context of the circumstances that existed when the
    easement was created.

[12]

The
    appellants argue that the wording of the deed is sufficiently clear and precise
    that no resort to the surrounding circumstances was warranted. The application
    judged erred, they argue, in considering external evidence to assist in the
    interpretation of the deed. The appellants particularly object to the
    application judges reliance on contractual negotiations leading up to Ms. Imries
    purchase of 100 Scott Street, evidenced in correspondence between Ms. Imrie and
    the OHT. The correspondence disclosed requests by Ms. Imrie first to purchase
    the driveway lands, and then in the alternative to acquire an exclusive
    easement. The OHT denied both requests. The appellants object to the use of
    private correspondence to interpret a registered instrument, on the basis that
    they were not privy to it, and had no means of knowing about it. They further
    object to evidence from Ms. Imrie and Mr. Gerald Hebert (the appellants
    immediate predecessor in title) as to their respective understandings of the
    scope of the easement, and to evidence from Ms. Imrie, Mr. Hebert, and the OHT
    as to historical use of the driveway by hikers.

[13]

The
    appellants did not object to the admission of any of this evidence at the
    hearing of the application. The extent to which the application judge made use
    of it, if he made use of any of it at all, is unclear. In any event, the
    exclusion of this evidence would not have assisted the appellants. To resolve
    the sole interpretive question the appellants identified  was the grant of the
    easement for the exclusive use of the appellants (or, as the appellants
    restated it on appeal, for the exclusive use of the appellants and the OHT but
    to the exclusion of the OHTs invitees)  no recourse to extrinsic evidence was
    needed. As the application judge held, the appellants position  that the deed
    conveyed a right to exclusive use of the right-of-way  is not supported on the
    clear language of the deed. That is sufficient to dispose of this aspect of the
    appeal.

[14]

The
    application judge found the language of the deed to be clear and unambiguous
    in that it makes no reference of a grant to the transferee of exclusive rights
    to this [right of way]. He concluded that the right of way was granted for
    the limited purpose of ingress and egress to the property at 100 Scott Street,
    which is not mutually exclusive from other uses or users of the [right of
    way]. He further noted that nothing in the deed operated to limit the OHTs
    fee simple interest in the right of way, other than the provision requiring it
    to provide a free, uninterrupted and unobstructed right-of-way to the owner of
    100 Scott Street.

[15]

The
    appellants position is that an owner of a fee simple interest who grants an
    easement over a right of way needs to expressly reserve the right to invite
    the public to use the right of way. The appellants acknowledge that they were
    aware at the time they purchased 100 Scott Street that they were only acquiring
    an easement and not the fee simple of the driveway lands.

[16]

This
    argument confuses the law governing easements created by express grant and
    easements created by reservation. If a vendor asserts an easement over land
    after transferring the title to that land to another person, the law recognizes
    that the vendor should use express language to reserve the easement: see
3021386
    Nova Scotia Ltd. v. Barrington (Municipality)
, 2015 NSCA 30, 357 N.S.R.
    (2d) 289, at para. 36. In this context, the law is reluctant to imply the
    reservation of an easement because this would undermine the principle that a
    vendor of land should not be able to derogate from the grant: see Bruce Ziff,
Principles
    of Property Law
, 6th ed (Toronto: Carswell, 2014), at p. 390. However, this
    principle does not apply in cases of express grant where the grantor retains
    title to the land subject to the easement because these policy rationales are
    absent. Instead, express grants should be construed according to general
    principles as to the interpretation of legal documents in the context of
    easements: Jonathan Gaunt QC & Hon. Mr. Justice Morgan,
Gale on
    Easements
, 20th ed (London: Sweet & Maxwell, 2017), at para. 3-12;
Fallowfield
,
    at para. 10.

[17]

The
    application judge accordingly made no error in rejecting this argument. It is a
    novel argument for which no authority was provided. The argument overstates the
    nature and extent of the easement conveyed by the deed. It is a
    well-established principle of construction that the grant of a private right of
    way ordinarily confers on the grantee only a right to the reasonable use of the
    way in common with others: see Gaunt & Morgan, at para. 13-06;
Weidelich
    v. de Koning
, 2014 ONCA 736, 122 O.R. (3d) 545, at para. 13, quoting
Clifford
    v. Hoare
(1874), L.R. 9 C.P. 362, at p. 371. The OHT, as the grantor,
    retains all of its rights as owner of the estate in fee simple, except to the
    extent that those rights are inconsistent with the rights of the grantee granted
    by the deed. Subject to what the deed expressly granted to the appellants, the
    OHT retains the right to use the lands as it sees fit and to invite others to
    use them: see Anne Warner La Forest, ed.,
Anger & Honsberger: Law of
    Real Property
, 3rd ed, (Toronto: Thomson Reuters Canada, 2006), Vol. 2 at
    para. 17:20.30(a);
Bibieffe International Holding B.V. v. York Region
    Condominium Corp. No. 838
, 2000 CarswellOnt 3374 (C.A.), at para. 4;
Przewieda
    v. Caughlin
, 2015 ONSC 3770, 58 R.P.R. (5th) 21, at para. 19;
Arpy-Ara
    Co. v. A.R. Manufacturers & Distributors Ltd.
, 2015 ONSC 425, 52
    R.P.R. (5th) 25, at para. 240.

Issue 2: Substantial interference

[18]

The
    second issue raised on appeal is whether the application judge erred in
    concluding that the OHT, by inviting the public to use the right-of-way,
    substantially interfered with the appellants easement for free,
    uninterrupted, and unobstructed use of the right of way for access to 100
    Scott Street.

[19]

Whether
    there has been a substantial interference with an easement is a question of
    fact, reversible only for palpable and overriding error:
Matthews et al. v.
    Township of Plympton
(1982), 37 O.R. (2d) 382 (S.C.), at p. 387, affd
    (1983), 42 O.R. (2d) 24 (C.A.);
Weidelich
, at para. 14. On this
    question, the evidence of historical use of the right-of-way is obviously relevant,
    as it provides a baseline to assist in determining what constitutes substantial
    interference.

[20]

The
    appellants have the burden of establishing substantial interference:
Weidelich
,
    at para. 12. The application judge concluded, on the evidentiary record before
    him, that the appellants had not met that burden. The appellants, as I explain
    below, have not identified any palpable and overriding error made by the
    application judge, and are essentially seeking to reargue the application. This
    aspect of the appeal must be dismissed.

[21]

The
    appellants referred to the following in support of their claim of substantial
    interference:

1.

3200 visitors walking along the right of way between 2013 and 2015;

2.

on occasions when the appellants encountered pedestrians on the right of
    way, the appellants were forced to slow or momentarily stop their vehicles so
    the pedestrians could move to one side and the vehicles safely pass;

3.

on some occasions, the presence of pedestrians impeded snow removal; and

4.

on six instances, unauthorized vehicles entered the right of way,
    including one instance in which a vehicle became stuck and blocked the
    appellants access until it could be towed away.

[22]

The
    application judge concluded that these occurrences were at most minor and
    infrequent and did not rise to the level of substantial interference.

[23]

With
    respect to the presence of pedestrians, the application judge held that:

At its highest, the interference with the applicants rights
    within the terms of the granted easement can be described as a minor and
    infrequent inconvenience, limited to times when they are entering or leaving
    their property and it does not in any way interfere with the reasonable use of
    the easement by the applicants.

[24]

The
    bare fact that there were 3200 instances of pedestrians using the driveway over
    a 22 month period does not go very far towards establishing interference with
    the appellants use, let alone substantial interference. The appellants did not
    provide any evidence as to the frequency of use, the size of groups, or the number
    of times the appellants encountered pedestrians. The two instances recounted by
    Ms. Raimondi where pedestrians were said to have interfered with the use of the
    right of way, were characterized by the application judge as a minor
    inconvenience. Although the appellants claimed to have video evidence in
    support of the claim of substantial interference, they did not produce it. The
    application judge was entitled to draw a negative inference from this decision,
    as he did.

[25]

With
    respect to the use of the right of way by vehicles, there was no evidence that
    the OHT permitted or condoned such use. To the contrary, the application judge
    found that the OHT prohibited unauthorized vehicles from making use of the
    right of way, with clear signage to that effect.

[26]

The
    appellants main argument on appeal is that the application judge erred by
    failing to give sufficient weight to the appellants safety concerns: that a
    safety hazard occasioned by the mere presence of hikers on the driveway
    constituted a substantial interference with the easement. The creation of a
    safety hazard, the appellants argue, is sufficient to establish substantial
    interference.

[27]

Again,
    the application judges findings of fact are a complete answer to this
    argument. It is not necessary to decide the question of whether, or in what
    circumstances, the existence of a safety hazard can amount to substantial
    interference. The application judges finding, on the preponderance of evidence
    before him, is that the use of the driveway by hikers had not created a safety
    hazard. The appellants have not identified a palpable and overriding error and
    have, essentially, invited this court to reweigh the evidence. But it is not
    the function of an appellate court to re-weigh the evidence or substitute its
    views on the evidence for those of the application judge:
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 22-23.

Issue 3: Injunction claim against Nicola Ross

[28]

The
    appellants also appeal from the application judges refusal to grant a
    permanent injunction restraining Ms. Ross from publishing anything that states
    expressly or by implication that 100 Scott Street, the Appellants home, or the
    [right of way] is part of a public trail system, part of public lands or part
    of the Willoughby Property. As the application judge noted, this claim is
    founded upon the assertion that the [right of way] is a private driveway for
    the exclusive use and benefit of the [appellants]. That assertion, as the
    application judge concluded, is incorrect. Additionally, there was no evidence
    before the application judge that Ms. Ross had ever stated that 100 Scott
    Street is public property or otherwise encouraged anyone to trespass on it.

[29]

There
    was therefore no basis for an injunction enjoining Ms. Ross from publishing
    material stating that the driveway may be used by the public for the purpose of
    accessing public hiking trails. Accordingly, the application judge made no
    error in refusing to grant the injunction sought.

Issue 4: Costs below in favour of Ms. Ross

[30]

The
    appellants seek leave to appeal the costs award made in favour of Ms. Ross.
    Costs awards are highly discretionary, and a reviewing court is only entitled
    to set aside an award of costs on appeal if the judge made an error in
    principle or if the costs award is plainly wrong:
Hamilton v. Open Window
    Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. The appellants
    have not identified any error in principle that would entitle this court to
    interfere with the costs decision of the application judge. The application
    judge did not err in rejecting the argument that Ms. Ross needlessly expanded
    the litigation. The application put her personal and professional reputation in
    issue, as well as her livelihood as a writer, and necessitated a response. To respond
    to the allegations it was reasonable for Ms. Ross to address the appellants
    claims against the OHT. The application judge did not err in concluding that
    the resources Ms. Ross deployed were proportionate to the claims brought
    against her. I would dismiss the appeal against the costs order in favour of
    Ms. Ross.

DISPOSITION

[31]

I would dismiss the appeal and order costs payable to
    each of the OHT and Ms. Ross in the amount of $15,000, for a total of $30,000,
    inclusive of disbursements and taxes.

Released: SEP SEP 14 2018

B.W. Miller J.A.

I agree. S.E. Pepall
    J.A.

I agree. L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Simmonds v. G&G Pool Services, 2018 ONCA 772

DATE: 20180920

DOCKET: C65259

Juriansz, Brown and Huscroft JJ.A.

BETWEEN

Robert Simmonds

Plaintiff (Appellant)

and

G&G Pool Services and Renovation Limited,
2286120
    Ontario Inc., c.o.b. as Kells Garden City Landscape Construction

Defendant (Respondent)

Daniel Zacks and Julia Vizzaccaro, for the appellant

Douglas Spiller and Joshua Hemmings, for the respondent,
    2286120 Ontario Inc., carrying on business as Kells Garden City Landscape
    Construction and for the proposed defendant, Kells Garden City o/o Garden City
    Inc.

Heard and released orally: September 19, 2018

On appeal from the
    order of Justice Guy P. Di Tomaso of the Superior Court of Justice, dated March
    13, 2018.

REASONS FOR DECISION

[1]

The appellant submits the motion judge erred by not applying the
    litigation finger test. We agree.

[2]

In
Lloyd v. Clark
, 2008 ONCA 343, 52 C.P.C. (6th) 41, this
    court held, at para. 4, that where there is a coincidence between the
    plaintiffs intention to name a party and the intended partys knowledge that
    it was the intended defendant, an amendment to a statement of claim may be made
    despite the passage of the limitation period to correct the misdescription or
    misnomer.

[3]

Here, the motion judge found that the appellant knew who the proper
    defendant was but failed to sue the proper party. That satisfies the first
    branch of the test.

[4]

Mr. Guido, the principal of Garden City Inc., swore, at paras. 13 and 14
    of his March 2, 2018 affidavit, that when the statement of claim arrived at the
    shared accounting office of 2286120 Ontario Inc. and Garden City Inc., it was
    forwarded to him. He reviewed it and, after discussion with the principals of
    2286120 Ontario Inc., found a lawyer, Mr. Spiller, to defend the claim.

[5]

Mr. Spillers letter to plaintiffs counsel of June 13, 2017, two weeks
    before the possible expiry of the limitation period, stated the wrong defendant
    had been sued and that the plaintiff had contracted with Garden City Inc. The
    only reasonable inference is that Mr. Spiller received that information from
    Mr. Guido or someone else at Garden City Inc., the proposed defendant.
    Accordingly, the intended party  Garden City Inc.  knew that it was the
    intended defendant.

[6]

In those circumstances, the appellant has satisfied the litigation
    finger test for misnomer and the motion judge erred in failing to grant the
    appellant leave to amend his statement of claim to substitute Garden City Inc.
    for 2286120 Ontario Inc.

[7]

The respondent submits that even if the case is one of misnomer, the
    motion judge retained a discretion to refuse the motion. The motion judge did
    not purport to exercise such a residual discretion, but dismissed the motion on
    an erroneous view of the law.

[8]

For these reasons, the appeal is allowed. The appellant is granted leave
    to amend his statement of claim to substitute Kells Garden City o/o Garden
    City Inc. in the title of proceedings in place of 2286120 Ontario Inc.,
    carrying on business as Kells Garden City Landscape Construction Inc.

[9]

The appellant is entitled to his costs of the appeal fixed in the amount
    of $6,000, together with the costs of the motion below fixed in the amount of
    $3,500, payable by the respondent, 2286120 Ontario Inc.

R.G.
    Juriansz J.A.
David Brown J.A.
Grant Huscroft J.A.