COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bielli, 2021 ONCA 222

DATE: 20210409

DOCKET: C62930

Pepall, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Bielli

Appellant

James Lockyer and Jack Gemmell, for the
    appellant

Emily Marrocco, for the respondent

Heard: October 21, 2020 by videoconference

On appeal from the conviction entered on
    January 5, 2017 and the sentence imposed on January 5, 2017 by Justice John B. McMahon
    of the Superior Court of Justice.

Pepall J.A.:

[1]

At the centre of this appeal is
a planned and intentional
    breach of s. 10(a) of the
Canadian Charter of Rights and
    Freedoms.

The breach formed part of a
    police ruse designed to search the appellant and his vehicle in furtherance of
    a larger investigation into illegal gambling in Ontario.

[2]

The appellant appeals from his conviction of possession of proceeds of
    crime over $5000 for the benefit of a criminal organization. Prior to trial,
    the appellant applied to exclude evidence pursuant to s. 24(2) of the
Charter
on the basis that his
Charter
rights under ss. 8, 9, 10(a) and 10(b) had been infringed. M.G. Quigley J., the
    application judge, concluded that although there had been no breach of ss. 8 or
    9, the appellants rights under ss. 10(a) and 10(b) had been breached. However,
    after conducting a s. 24(2) analysis, he dismissed the application. For the
    reasons that follow, I would allow the appeal.

A.

Background Facts

(1)

The Investigation

[3]

In 2011, the police began an investigation into a suspected criminal
    organization operating illegal gambling online and in the City of Toronto. The
    investigation was called Project ORiver. Detective Kevin Leahy, an officer
    with the Combined Forces Special Enforcement Unit, was the lead investigator.

[4]

Platinum SB (Sports Betting) operated a betting website. It had a
    network of betting agents or bookies. The bookies dealt directly with the
    bettors, and the bettors losses were physically collected weekly by the
    bookies and ultimately remitted to management. The appellant was alleged to be
    one of those collecting the proceeds from the bookies for the benefit of
    members at the top level of the organization.

[5]

The investigative team hoped to arrest prominent members of the organization.
    The take-down day was to be on the occasion of the 2013 Super Bowl party, an
    annual event where members would congregate early in the year.

[6]

By November 2012, the lead investigators believed that the appellant was
    a central figure within the Platinum SB organization. The police had conducted
    wiretaps and surveillance and had observed the appellant exchange packages, and
    on one occasion cash, with at least one person thought to be operating an
    illegal gaming website that facilitated bookmaking activities and illegal
    gaming on sports activities. In addition, the appellant was seen meeting with
    subjects of the investigation on a number of different dates.

[7]

The officers suspected that the appellant travelled regularly between
    London and Toronto on Tuesdays and Thursdays to collect money for Platinum SB. They
    believed he returned to London with the proceeds of the transactions which might
    be mixed with other monies when he got home. Det. Leahy testified that the
    investigation was losing evidence every week.

[8]

Det. Leahy wanted to seize evidence from the appellant and his vehicle
    without disclosing or compromising the ongoing investigation. Undercover
    officers were engaged in the investigation and their safety was also of concern
    to him.

(2)

Discussion with Crown Attorney

[9]

Det. Leahy spoke with Andrew Sabbadini, the Crown attorney assigned to
    Project ORiver. Mr. Sabbadini had given advice to Det. Leahy previously on
    general warrants and was familiar with the Project ORiver file.

[10]

Det. Leahy asked Mr. Sabbadini whether the police could apply for
    judicial authorization using a general warrant under s. 487.01 of the
Criminal Code
,
R.S.C. 1985, c. C-46, so as to
    obtain evidence from the appellants vehicle without disclosing the
    investigation to him. Det. Leahy proposed that, using the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8 to stop the appellant, the police
    would search his vehicle and seize the evidence pursuant to a general warrant,
    but he would not be arrested. The application judge described Det. Leahys
    discussion with Mr. Sabbadini at para. 16 of his reasons:

[W]e had asked whether we could type a general warrant to come
    up with an excuse for a search of Mr. Biellis vehicle under the guise of a
    general warrant. He [the Crown] told us that was not something you could do
    because the accused would not know the full jeopardy of the circumstances.

He said a Judge would not authorize a warrant in that
    particular scenario because Mr. Bielli would not know the full jeopardy of the
    stop.

[11]

Thus, Mr. Sabbadini explained that he would not be willing to bring that
    general warrant forward as he did not feel that it would be authorized by a
    judge because the appellant would not know the full scope of the jeopardy he
    was in at the time. Det. Leahy testified that the police needed Mr. Sabbadinis
    endorsement to go ahead with the general warrant.

(3)

The Plan

[12]

Around two weeks after receiving this advice from Mr. Sabbadini, Det.
    Leahy hatched a plan based on
R. v. Dibble
, 2011
    ONSC 399, 230 C.R.R. (2d) 323, a case he learned about from a friend in another
    unit. There the police told the accused that his vehicle was being searched for
    a radar detection device when the true purpose of the search was to obtain
    evidence of narcotics. The Crown in that case conceded that the police breached
    ss. 10(a) and 10(b) of the
Charter
. The trial
    judge found that the police had breached their s. 10 obligations
to protect an ongoing investigation and not to intentionally
    circumvent Mr. Dibbles s. 10 rights. She
refused to exclude the
    evidence seized. Det. Leahy familiarized himself with the
Dibble
decision
    and came up with a plan using a ruse. He cleared the ruse with his superior and
    prepared a typewritten Operational Plan (the Plan), the goal of which was
    to conduct a vehicle stop on BIELLI, search the vehicle and seize evidence in
    relation to offences being investigated for Project ORIVER.

[13]

The appellant would be stopped on the highway going to London from
    Toronto after making his collections. If the appellant did not commit a
Highway Traffic Act
offence, the officer would initiate
    a vehicle stop regardless. So as not to put the investigation into jeopardy, the
    appellant would not be arrested. The vehicle and the appellant would be searched
    for the evidence the police were seeking.

[14]

As Det. Leahy testified:

A:      [T]he goal
    was to get the money on Mr. Bielli prior to him returning home after we had
    observed him doing these meets.

A:      And the
    ruse was devised so [as] not [to] raise any suspicion to Mr. Bielli that wed
    actually been watching him for a number of months and that he was a subject
    [of] a larger scale investigation that was occurring at the time.

[15]

Det. Leahy acknowledged in cross-examination that the Plan had nothing
    to do with the arrest of the appellant, it had to do with the seizure of the
    items in the vehicle. He instructed that the appellant should not be arrested
    for criminal organization and gaming offences but that he should be told that
    he was being investigated and detained for possession of proceeds of crime. He
    specifically instructed that the term investigative detention be used and not
    the term arrest. The appellant would not know what he was actually under
    investigation for; he would know he was being investigated for money in the
    car but not for criminal organization, booking or money laundering charges.

[16]

Det. Leahy appreciated that there were some issues with the Plan. He knew
    that the appellant would not know his full jeopardy and that he might make some
    self-incriminating remarks or statements. To mitigate the jeopardy, the
    officers were going to give him his rights to counsel, put him in touch with
    his lawyer, caution him, and would not elicit any incriminating evidence from
    the appellant himself, just the evidence of what the police were looking for in
    the vehicle and on his person.

[17]

The appellant was not being told he was under arrest; that was the whole
    plan according to Det. Leahy. However, in Det. Leahys mind, even though the
    appellant was told he was under investigative detention, he was under arrest.

[18]

That said, Det. Leahy acknowledged that because the appellant was told
    he was under investigative detention and presumably the appellants lawyer
    would be advised of the same, the appellant would get legal advice on the basis
    of being under investigative detention, not on the basis of being under arrest.
    Moreover, he acknowledged that the police could not search a vehicle incident
    to an investigative detention in this scenario.
[1]
Det. Leahy recognized that the appellant was educated in police techniques and
    might have refused to comply with an unlawful search pursuant to an
    investigative detention. Therefore the officers were to try and persuade the
    appellant to comply; they could try telling him that he would be arrested for
    obstruction, although if he fled, they were not to engage him in a pursuit.

[19]

Det. Leahy agreed that the appellants lawyer inevitably had to be
    misled about what was really going on; his lawyer could not be fully informed.

[20]

Det. Leahy offered that it was a unique situation. In hindsight it was
    complex and it would have been prudent to speak with Mr. Sabbadini or another
    lawyer. However, that was not the decision he made. In his mind, the appellant
    was arrestable for proceeds of crime, gaming offences, and criminal
    organization offences and they could search him and his vehicle incident to his
    arrest for those offences.

[21]

On November 29, 2012, Det. Leahy briefed the two officers involved in
    the execution of the Plan, P.C. Brisebois and D.C. Lee. He gave them a copy of
    the
Dibble
decision, which they both read
, and told
    them that the appellant was arrestable for proceeds of crime, gaming offences,
    and criminal organization offences.

[22]

Under the Plan, P.C. Brisebois was to effect the
Highway
    Traffic Act

stop and D.C. Lee would be
    called in as backup. P.C. Brisebois would approach the car, get the documents
    from the appellant, and return to the police vehicle to do certain checks.
    Knowing that the appellant was associated with members of an outlaw biker gang
    (Hells Angels), as part of the ruse, the officers would return to the appellants
    vehicle, tell him they knew of his association with an outlaw motorcycle gang, and
    would like to search the car for contraband, and give the appellant his rights
    to counsel and a caution. Once the officers found the money, they were to stop
    their search and inform the appellant that he was being detained [and] investigated
    for proceeds of crime  and given his rights to counsel, again. P.C. Brisebois
    and D.C. Lee were told not to question the appellant. The officers were told
    that the appellant would not know the full jeopardy of the circumstances he
    was in. Moreover, his lawyer would not be fully informed.

[23]

Det. Leahys notes after his briefing stated:

Brief PC Joe Brisebois & D/C LEE
    on scenario. I advise them I have grounds to arrest BIELLI for gaming & crim
    org related offences at this time but to protect integrity of investigation do
    not want to arrest him for these offences at this time.

(4)

Execution of the Plan

[24]

The Plan proceeded to execution on November 30, 2012. P.C. Brisebois
    stopped the appellant at 10:49 a.m., telling him that his speeding, abrupt lane
    change, and quick exit raised suspicion. The appellant provided P.C. Brisebois with
    his drivers documentation as requested. P.C. Brisebois called D.C. Lee for
    backup. After conducting checks, P.C. Brisebois told the appellant that he was
    placing him under investigative detention as records showed his connection with
    the Hells Angels and that they would be searching his car for contraband and
    weapons. The appellant, knowing his rights, told the police that they needed a
    warrant. P.C. Brisebois testified that he gave the appellant two options:
    investigative detention or be arrested for obstruct.
[2]
While P.C. Brisebois could not recall the appellants exact response, his
    evidence was that the appellant became compliant and exited his vehicle. He was
    not arrested for obstruction but was hand-cuffed, subjected to a pat-down
    search, placed in the police cruiser, and given his rights to counsel and cautioned
    at 11:15 a.m. D.C. Lee testified that P.C. Brisebois had placed the appellant
    under investigative detention as soon as they reached the cruiser.

[25]

The appellant spoke with his lawyer, James Lockyer, in private while in
    the police cruiser. D.C. Lee testified that he placed the call for the
    appellant and told Mr. Lockyer that the appellant had been placed under
    investigative detention. The call lasted 23 minutes, from 11:22 a.m. to 11:45
    a.m.

[26]

P.C. Brisebois searched the car and found cash. He testified that his
    lawful authority to search the appellant and his vehicle was incident to arrest
    based on Det. Leahys instruction that the police had reasonable grounds to
    arrest for possession of proceeds of crime. He advised the appellant at 11:55
    a.m. that he was being investigated for possession of proceeds of crime. The appellant
    was given his rights to counsel and cautioned again and the appellant spoke
    with Mr. Lockyer again, from 12:08 p.m. to 12:16 p.m. At some point, P.C.
    Brisebois told Mr. Lockyer that the traffic stop was for speeding and an unsafe
    lane change and that the search was to look for contraband and weapons, based
    on affiliation with Hells Angels.

[27]

The officers conducted a more thorough search of the vehicle which they
    completed at 12:49 p.m. They gave the appellant a receipt for the property
    taken: $74,835 in cash, a number of cellphones, and a laptop, among other
    things. Contrary to their instructions, the two officers did question the appellant,
    but he declined to answer them.

[28]

P.C. Brisebois testified that he gave the appellant a verbal warning
    about his speed and improper lane change but did not issue a
Highway Traffic Act
ticket because he did not have
    proper evidence for this. The appellant was released without charges at 1:46
    p.m. He had been detained for nearly three hours.

(5)

Reporting on the Outcome

[29]

The officers completed their paperwork for the stop. The Plan prepared
    and distributed by Det. Leahy instructed them to complete the necessary reports
    but that [n]o mention of Project ORIVER will be included in the report. The
    OPP Port Credit officer [P.C. Brisebois] will be provided with a project book
    specific to ORIVER to make notes regarding the briefing to this stop. Duty
    books of the officer will not have any reference to ORIVER.

[30]

P.C. Brisebois prepared two sets of notes, one set that referred to the
    traffic stop with no reference to the underlying investigation, the true
    purpose of the stop, or Det. Leahys grounds for arrest, and another set that
    described Det. Leahys Project ORiver and the grounds to arrest the appellant.
    D.C. Lee testified that he similarly kept a Project notebook and an
    administrative notebook as well that would not mention the Project. P.C.
    Brisebois testified that it was not typical to have two sets of notes.

(6)

The Eventual Arrest

[31]

The appellant was not told he was under arrest until over two months later,
    on February 3, 2013. At that time, and as anticipated at the time of the execution
    of the ruse, the police raided the annual Super Bowl party. The appellant was
    arrested as were five others. He was charged with conspiracy to commit an
    indictable offence, possession of proceeds of crime exceeding $5,000,
    committing an indictable offence for the benefit of a criminal organization,
    and two counts of possession of the proceeds of bookmaking exceeding $5,000. A
    financial audit revealed that Platinum SB grossed over $103 million from 2009
    to 2013.

B.

SUPERIOR
    COURT Decisions

(1)

Charter
Application
[3]

[32]

The appellant brought a
Charter
application to exclude the evidence that the police had seized during the
    course of the traffic stop ruse on November 30, 2012. He alleged that his ss.
    8, 9 and 10(a) and 10(b) rights had been violated by the police. The Crown
    contested the alleged ss. 8, 9, and 10(b)
Charter
breaches but conceded that the police had violated the appellants s. 10(a)
Charter
rights. The Crown argued that the evidence
    should be admitted nonetheless.

[33]

The application judge determined that there was no s. 8 or s. 9
Charter

breach but that the
    police had breached both ss. 10(a) and 10(b). He nonetheless concluded that the
    evidence should not be excluded under s. 24(2) of the
Charter
.

[34]

Dealing first with s. 8 and s. 9, the application judge found that the search
    of the vehicle was a lawful search incident to arrest. The appellant had been
de facto
under arrest when detained. It was not
    necessary for the officers to state that he was under arrest. Although the
    appellant was never told why he was pulled over, detained and searched, nor
    told the full reason for the detention, the application judge found that the
    appellant was aware of the gravity of the situation and was under arrest. Accordingly,
    the search was conducted incident to that
de facto
arrest. As reasonable and probable grounds existed for the arrest, the search
    was valid, and there was also no arbitrary detention. The application judge
    considered the cases of
Dibble, R. v. Grant and Campbell
,
    2015 ONSC 1646, and
R. v. Whipple
, 2016 ABCA
    232, 39 Alta. L.R. (6th) 1, leave to appeal refused, [2016] S.C.C.A. No. 435, where
    ruses were used to conceal an ongoing police investigation. In his view, the
    Plan was a legitimate policing technique that was designed to preserve the
    larger investigation while obtaining evidence from the appellant. He thus concluded
    that the police had not infringed the appellants
Charter
rights under s. 8 and s. 9.

[35]

However, the operation of the ruse resulted in a breach of both ss. 10(a)
    and 10(b). Putting the appellant in contact with counsel did not constitute a
    meaningful exercise of his right to counsel. There could not be meaningful
    communication between the appellant and his counsel when both were misled as to
    the true nature of the appellants jeopardy. Misinformation necessarily tainted
    counsels ability to provide meaningful and accurate legal advice. The failure
    to inform the appellant of the true reason for his detention and
de facto
arrest necessarily resulted in a substantive
    violation of ss. 10(a) and 10(b).

[36]

That said, the application judge determined that the evidence should not
    be excluded under s. 24(2) of the
Charter
. The
    police acted in good faith, they took steps to comply with the appellants
    right to counsel and were directed not to question him, and there was a need to
    protect the integrity of the ongoing investigation. The breaches therefore were
    serious, but these factors significantly mitigated the seriousness of the
Charter
-infringing conduct. Moreover, there was no
    meaningful impact on the appellants
Charter
-protected
    interests as the police had prevented the appellant from incriminating himself.
    Societys interest in the adjudication of the case on its merits favoured admissibility.
    Accordingly, the appellants
Charter
application was dismissed.

(2)

The Conviction

[37]

The Crown amended one of the counts in the indictment and the appellant
    entered a plea of not guilty to the amended count of committing the indictable
    offence of possession of property obtained by crime over $5,000 for the benefit
    of a criminal organization, contrary to s. 467.12 of the
Criminal
    Code
. An agreed statement of facts was read into the record, and
    the trial judge entered a conviction on the one count with brief reasons
    delivered orally. The Crown withdrew the remaining counts.

(3)

The Sentence

[38]

Following a joint submission, the appellant was sentenced to 15 months
    imprisonment. The trial judge observed that this was at the low end of the
    range for the offence.

C.

Issues On Appeal

[39]

The appellant raises three grounds of appeal on his appeal of
    conviction. First, he submits that the application judge erred in finding that
    the appellant was under
de facto
arrest and in finding that his s. 8
Charter

right was not infringed.
    Second, he submits that the application judges analysis of the s. 10 breaches
    was flawed. Third, he argues that the application judge erred in his analysis
    under s. 24(2) of the
Charter
. At the
    suggestion of the Crown and given that the application judge found breaches of
    ss. 10(a) and 10(b), the appellants s. 10 arguments are encompassed in my s.
    24(2) discussion.

[40]

The appellant also seeks leave to admit fresh evidence for the purposes
    of the conviction appeal and also seeks leave to appeal his sentence and to
    admit fresh evidence for the purposes of the sentence appeal. The Crown seeks
    to admit responding fresh evidence on the sentence appeal.

[41]

For the reasons that follow, I would dismiss the request for leave to
    admit fresh evidence on the conviction appeal but would allow the appeal. There
    is therefore no need to address the sentence appeal or the requests for leave
    to admit fresh evidence on the sentence appeal.

D.

Discussion

(1)

Appeal from Conviction

(a)

Should fresh evidence be admitted on the conviction appeal?

[42]

The appellant seeks leave to introduce the Report to a Justice made by D.C.
    Lee on December 10, 2012, after the seizure of the items from the appellants
    vehicle on November 30, 2012. The police required the Report to obtain a
    detention order for the items seized. The Report made no mention of the Project
    ORiver investigation.

[43]

The appellant was represented by Kim Schofield as counsel at the
    preliminary hearing and at trial. She considered the Report but decided against
    using it for reasons explained in her affidavit filed as part of the fresh
    evidence application:

1)

In the Report, D.C. Lee
    did outline the details of the stop and did not try to fashion grounds for the
    search. Ms. Schofield noted that the Report to a Justice often does not contain
    the motive for the search and the form simply requires that the officer specify
    the exact nature of the search (including the premises, place or person
    searched) and the date and time of the search.

2)

Ms. Schofield did not
    consider the Report to be crucial information; the argument was not that D.C. Lee
    embarked on his own breach of rights, but that he was part of a project that
    led to a warrantless search and a plan that resulted in breaches of ss. 8, 9
    and 10 of the
Charter
.

3)

She confirmed that the
    decision not to confront D.C. Lee with the Report was a strategic choice as
    there was a potential downside in doing so. D.C. Lee had testified well before
    the application judge. Ms. Schofield did not wish to call him a liar and lose
    credibility with respect to the rest of her arguments. Instead, her strategy
    was to say that all of the officers were following orders that put them in a
    spot to ignore
Charter
rights.

[44]

In cross-examination, Ms. Schofield stated that with the benefit of
    hindsight, she may have used the Report at trial and that another decision
    could have been made and may have been successful.

[45]

The appellant asserted in his affidavit filed in support of the request
    for leave that he had ineffective assistance from his counsel. However, he did
    not pursue this argument in his factum or in oral submissions.

[46]

In cross-examination for the purposes of the fresh evidence application,
    D.C. Lee agreed that the synopsis in the Report did not contain the full story
    about the ongoing investigation and that this was to protect the integrity of
    the investigation. However, he had been instructed to advise the justice of the
    peace that the vehicle stop was a ruse and he had done so orally. The
    transcript of his attendance before the justice of the peace on December 7,
    2012 confirms that he advised the presiding justice of the peace who granted
    the detention order that the traffic stop had been directed by the Combined
    Forces Special Enforcement Unit as part of an ongoing project.

[47]

Due to an incorrect expiry date on the detention order, D.C. Lee
    subsequently attended before another justice of the peace on December 10, 2012 and
    swore to the truth of the information in the Report. The expiry date was then
    corrected.

[48]

The test for leave to admit fresh evidence is described in
Palmer v. The Queen
, [1980] 1 S.C.R. 759, at p. 775. The
    applicant must show that the proposed fresh evidence: (i) was not available at
    the time of the hearing by the exercise of due diligence; (ii)
is relevant to a potentially decisive issue
; (iii) is
    credible; and (iv) if believed and taken together with the rest of the
    evidence, it could reasonably be expected to have affected the result.

[49]

The appellant submits that the test for admission of fresh evidence has
    been met. The appellant argues that the Report perpetuated the ruse, failed to
    comply with s. 489.1(1)(b) of the
Criminal Code
because it failed to make full and frank disclosure about the legal basis for
    the search and its investigative purpose, and also amounted to a violation of
    s. 8 of the
Charter
. Ms. Schofield as trial
    counsel did not consider the
Charter
implications of the Reports failure to make full, frank and fair disclosure
    and if she had, she may have relied upon the Report. Furthermore, the filing of
    the deceptive Report was relevant to the appellants application under ss. 8
    and 24(2) of the
Charter
and whether the
    police acted in good faith. Appeal counsel submits that the Report was
    probative and could reasonably be expected to have resulted in the exclusion of
    the evidence against the appellant. Counsel also asserts that the record before
    this court is sufficient to deal with this issue.

[50]

The Crown responds that the appellant is seeking to raise a new argument
    on appeal and there is an insufficient record for this court to make the fact-specific
    inquiry that is required. In addition, the test for admission of fresh evidence
    has not been met.

[51]

I would dismiss the application for admission of fresh evidence. The
    appellant has not met the requirements for raising a new argument for the first
    time on appeal, nor has he met the
Palmer
criteria.

[52]

Clearly this is a new argument raised on appeal. There is a general
    prohibition against such arguments on appeal:
R. v. Reid
,
    2016 ONCA 524, 132 O.R. (3d) 26, leave to appeal refused, [2016] S.C.C.A. No.
    432, at paras. 37-41. To avoid the general prohibition, the appellant must
    satisfy three pre-conditions:

i.

the evidentiary record must be sufficient to permit the appellate court
    to fully, effectively, and fairly determine the issue raised on appeal;

ii.

the failure to raise the issue at trial must not be due to tactical
    reasons; and

iii.

the court must be satisfied that no miscarriage of justice
    will result from the refusal to consider the new argument on appeal.

The
    decision to consider the new argument is discretionary and informed by a
    balancing of the interests of justice as they affect all parties: see
Reid
, at
    paras. 42-44.

[53]

The appellant has not satisfied any of the three pre-conditions.

[54]

The evidence surrounding the Report emanated from D.C. Lee in
    cross-examination. He filed the Report on the instructions of Det. Sgt. Goodwin
    who did not testify. D.C. Lee did not recall whether he had authored the
    Report. This raises the spectre that the evidentiary record is incomplete.

[55]

More significantly, this evidence was available to the appellant at the
    time the
Charter
application was heard. Experienced
    counsel considered and rejected the use of the Report at trial, a tactical
    decision based on a reasonable assessment of the evidence. The integrity of the
    trial process is undermined if those tactics can now be reassessed in hindsight:
    see
R. v. Perlett
(2006), 212 C.C.C. (3d) 11 (Ont.
    C.A.) at paras. 142-144, leave to appeal refused, [2007] S.C.C.A. No. 96.

[56]

I also am not persuaded that any miscarriage of justice would ensue from
    the refusal to consider this new argument. Significantly, D.C. Lee orally advised
    the presiding justice of the peace of the ruse in that the traffic stop and
    seizure of property had been directed as part of an ongoing investigation. In
    addition, the alleged deficiencies with the Report consisted of its failure to
    disclose the quantum of money seized and the description of the legal basis for
    the search. Section 489.1(1) does not specifically require that the quantum and
    grounds be provided. Indeed, Ms. Schofield testified that based on her
    experience, Reports often do not provide exact amounts or the motive for the
    search. Nor did she agree that such Reports typically refer to the legal basis
    for the search.

[57]

Accordingly, the appellant has not met the three pre-conditions nor do
    the interests of justice require that this new argument be addressed. I would
    decline to entertain this new argument on appeal.

[58]

This is determinative of the leave application, but quite apart from the
    issue of a new argument on appeal, for many of the same reasons, the
    application for leave to admit fresh evidence should also not succeed. In
    particular, the evidence was available to the appellant at the time of the
Charter
application and, taken together with the rest of
    the evidence, could not reasonably be expected to have affected the result.

[59]

In conclusion, I would dismiss the appellants application to admit fresh
    evidence on the conviction appeal.

(b)

Did the
    application judge err in concluding that there was a
de facto
arrest and that therefore the search was reasonable within the meaning of s. 8
    of the
Charter
?

(i)

Background and Context

[60]

Before the application judge, the appellant conceded that the police had
    reasonable and probable grounds to arrest. The Crown took the position that the
    appellant was under arrest at the time of his detention and that the search was
    incidental to a lawful arrest. In contrast, the appellant argued that
    regardless of the existence of reasonable and probable grounds to arrest, the appellant
    reasonably thought he was detained. Indeed, he was not put under arrest until
    two months later in February. The search was not incident to a lawful arrest,
    and as such was illegal and breached the appellants s. 8
Charter
right.

[61]

Given their respective positions, the application judge had to
    consider whether the appellant was under
de facto
arrest. T
he application judge found that there was a lawful
de
    facto
arrest in November and that the searches of the appellant and his vehicle
    were lawfully conducted incident to that arrest.

(ii)

General Principles

[62]

Everyone has the right to be secure against unreasonable search or
    seizure. So states s. 8 of the
Charter
.

[63]

The Supreme Court has directed that a search is reasonable if it is
    authorized by a reasonable law and is conducted reasonably: see
R. v. Collins
, [1987] 1 S.C.R. 265, at p. 278;
R. v. Caslake
, [1998] 1 S.C.R. 51, at para. 10; and
R. v. Fearon
, 2014 SCC 77, [2014] 3 S.C.R. 621, at para.
    12. Police may search based on a warrant. Or, if there is no warrant, the
    police have a common law power to search incident to an arrest. To be valid,
    the arrest must be lawful, the search must have been conducted as an incident
    to the arrest, and it must be carried out in a reasonable manner: see
R. v. Stillman
, [1997] 1 S.C.R. 607, at para. 27. As
    stated by Lamer C.J. in
Caslake
, at para. 17,
    searches which derive their legal authority from the fact of arrest must be
    truly incidental to the arrest in question.

[64]

The power to search incident to arrest is contrasted with the police
    power to search incident to an investigative detention. The power to search
    incident to an investigative detention is limited to safety concerns: see
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 40.
    There is no dispute that the power to search incident to an investigative
    detention did not authorize the search of the appellants vehicle in the
    circumstances.

[65]

In this case, the Crown relied on the common law power of search
    incident to arrest to provide the legal authority for the search. The right to
    search had to arise from the fact of the arrest:
Caslake
,
    at para. 13. Thus, the lawfulness of the search turns on whether the appellant
    was under a
de facto
arrest. If there was no
de facto
arrest, the common law power to search incident
    to arrest could not be relied upon.

[66]

The subject of a
de facto
arrest was
    addressed by the Supreme Court in
R. v. Latimer
,
    [1997] 1 S.C.R. 217 in the context of an alleged breach of s. 9 of the
Charter
. That case bears some similarities to this one. The
    accused was the father of a severely disabled daughter who died while in his
    care. The RCMP began to treat the death as a homicide investigation. The
    officers attended at the accuseds farm, an officer told Mr. Latimer that what the
    officer was about to say had very serious consequences, and that Mr. Latimer
    was being detained for investigation into the death of his daughter. The RCMP
    officers decided prior to attending at the farm that they did not wish to
    arrest the accused.

[67]

The accused was cautioned and advised of his right to retain counsel. At
    the police station, he confessed to the crime and gave a written statement.

[68]

One of the issues to be addressed was whether the appellant had been arbitrarily
    detained in violation of s. 9 of the
Charter
. The
    Supreme Court concluded that the detention was not arbitrary. The RCMP had put
    the accused under
de facto
arrest. That arrest
    was entirely lawful because it was based on reasonable and probable grounds to
    believe that the accused had taken his daughters life. A
de
    facto
arrest which is lawful cannot be an arbitrary detention for
    the purpose of s. 9.

[69]

In response to the accuseds argument that no arrest occurred because
    the officers deliberately chose not to arrest him, Lamer C.J. wrote that
    notwithstanding what their intention may have been, the conduct of the officers
    had the effect of putting the accused under arrest. He noted the definition of
    arrest found in
R. v. Whitfield
, [1970] S.C.R.
    46: an arrest consists either of (i) the actual seizure or touching of a
    persons body with a view to his detention, or (ii) the pronouncing of words
    of arrest to a person who submits to the arresting officer. As such, he
    declined to accept that only the word arrest will suffice to amount in fact to
    an arrest. At para. 24, he quoted from
R. v. Evans
,
    [1991] 1 S.C.R. 869, at p. 888, where McLachlin J. (as she then was) wrote for
    the majority that what counts is:

[T]he substance of what the accused can reasonably be supposed
    to have understood, rather than the formalism of the precise words used. The question
    is  what the accused was told, viewed reasonably in all the circumstances of
    the case.

[70]

Thus the test asks what the accused can reasonably be supposed to have
    understood in light of what he was told, viewed reasonably in all the circumstances
    of the case.

[71]

Lamer C.J. concluded that on the facts of
Latimer
,
    a
de facto
arrest had occurred through the use
    of words that conveyed clearly that Mr. Latimer was under arrest coupled with
    the conduct of the officers and the accuseds submission to the authority of the
    officers: at para. 25. Lamer C.J. was also satisfied that the arrest was lawful
    and hence concluded that the trial judge had correctly decided that there were
    reasonable and probable grounds for an arrest and accordingly the accused had
    not been unlawfully detained.

(iii)

Positions of the Parties

[72]

Before this court, the appellants argument is
    that the application judges finding that the appellant was under
de facto
arrest was unreasonable whereas the Crown submits that his finding was both
    reasonable and amply supported by the record. The Crown points to evidence that
    includes the police taking control of the appellant, the handcuffing, the
    cautions, giving the rights to counsel, informing the appellant of his known
    association with the Hells Angels and that his car would be searched for
    contraband, telling him he would be charged with obstruction if he did not
    cooperate, holding him for over two hours in the cruiser, permitting him to
    have extensive consultations with his lawyer, and his submission to the
    authority of the police.

(iv)

Analysis

[73]

There is no issue that the police had grounds to
    arrest the appellant when they conducted the vehicle stop on November 30, 2012.
    It is this alleged arrest that is relevant to the search, not the actual arrest
    of February 3, 2013.

[74]

As discussed, the test for a
de facto
arrest asks what the accused can reasonably be supposed to have understood in
    light of what he was told, viewed reasonably in all the circumstances of the
    case.

[75]

As in
Latimer
, the police Plan was not
    to arrest the appellant. Indeed, the Plan did not contemplate an arrest unless the
    appellant obstructed the police or was in possession of a gun or drugs. Det.
    Leahy told P.C. Brisebois and D.C. Lee that the appellant was arrestable but
    instructed that he not be arrested for criminal organization and gaming
    offences. In addition, he instructed the officers not to pursue the appellant
    if he fled.

[76]

P.C. Brisebois testified that he did not arrest
    the appellant and that part of the ruse was to put him under investigative
    detention and then search the car.

[77]

So from the police perspective, clearly there
    was no intention to arrest the appellant nor did they formally do so. In
    addition, there was no intention to tell the appellant that he was under arrest
    and the officers did not do so. As seen from
Latimer
, however, the absence
    of an intention by the police to arrest and the failure to advise the appellant
    that he is under arrest are not fatal. To reiterate, in addition to what he was
    told, what counts is the substance of what the accused can reasonably be
    supposed to have understood: see
Evans
, at p. 888.

[78]

The appellant did not testify on the
voir
    dire
. That said, his circumstances were very different from those of Mr.
    Latimer. He was no ingenue as far as the criminal justice system was concerned.
    Det. Leahy testified that he believed that the appellant was educated in the
    area of police techniques and counter surveillance, and he was someone Det.
    Leahy believed would possibly know his rights. D.C. Lee also testified as to the
    appellants sophistication.

[79]

P.C. Brisebois testified that the appellant was
    told he was under investigative detention. Indeed, P.C. Brisebois was told to
    use those words. In cross-examination, he confirmed that he was going to convey
    as much as he could that the appellant was not under arrest. The appellant
    refused to get out of his car and told P.C. Brisebois that he needed a warrant.
    P.C. Brisebois gave him two options: investigative detention or arrest for obstruction.
    The appellant chose not to be arrested and instead submitted to an
    investigative detention. He exited his vehicle, and he and P.C. Brisebois made
    their way to the police cruiser. It follows that having chosen not to be
    arrested for obstruction, he would have reasonably understood that he was under
    investigative detention rather than arrest. Although he was cuffed and sat in
    the police cruiser for a number of hours, viewed reasonably, one would expect
    that the appellant would take the police at their word that he was under
    investigative detention and not under arrest. D.C. Lee also recorded in his
    notes that Brisebois placed Bielli under investigative detention. He also
    told Mr. Lockyer that P.C. Brisebois had placed the appellant under
    investigative detention.

[80]

The police gave the appellant an option and he
    chose investigative detention. The police planned not to arrest the appellant
    and they executed that plan. Considering the evidence as a whole, there was no
de
    facto
arrest. Again, the test turns on what the accused can reasonably be
    supposed to have understood. The application judges finding that the appellant
    knew he was under arrest cannot be reconciled with his factual finding that the
    police told the appellant that if he complied with the search, he would not be
    arrested. The application judge did not explain why, in light of the option the
    police gave the appellant, he would have believed himself to be under arrest. In
    conclusion, I agree with the appellant that the application judges finding
    that there was a
de facto
arrest was unreasonable and that the search
    was not incident to arrest. As such, the search was unlawful. The application
    judge erred in finding that there was no s. 8 breach.

(c)

Did the application judge err in his s. 24(2)
Charter
analysis?

[81]

In determining whether evidence should be
    excluded under s. 24(2), the court is to consider (i) the seriousness of the
Charter
-infringing
    state conduct; (ii) the impact of the breach on the
Charter
-protected
    interests of the accused; and (iii) societys interest in an adjudication of
    the case on the merits: see
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R.
    353, at para. 71. If the application judge considered the proper factors and
    has not made any unreasonable finding, the decision is owed considerable
    deference on appeal: see
Grant
, at para. 86;
R. v. Côté
, 2011
    SCC 46, [2011] 3 S.C.R. 215, at para. 44; and
R. v. Mian
, 2014 SCC 54,
    [2014] 2 S.C.R. 689, at para. 77.

[82]

In light of my conclusion on s. 8, the
Grant
factors must be reassessed and the balancing of the factors reconsidered.
    However, as I will explain, quite apart from the s. 8 breach, I would also
    conclude that the s. 24(2) decision should not survive scrutiny.

(i)

Background and General Principles

[83]

At its heart, this case involves the planned and
    deliberate violation of the
Charter
. The Crown attorney, Mr. Sabbadini,
    advised the police that a general warrant would not be granted because the
    appellant would not be advised of his jeopardy. Put differently, the proposed plan
    would not legally justify the granting of a general warrant. The police did not
    pursue a general warrant. Rather, based on their reading of
Dibble
which served as their legal anchor and which involved breaches of ss. 10(a) and
    10(b) of the
Charter
, they pursued a Plan which they knew would result
    in a
Charter
violation. This was not an incidental violation; it
    formed part of the Plan itself. The Plan, as formulated, anticipated a breach
    of the
Charter
.

[84]

Section 10 of the
Charter
provides that
    everyone has the right on arrest or detention:

(a) to be informed promptly of the
    reasons therefor;

(b) to retain and instruct counsel
    without delay and to be informed of that right.

[85]

Section 10 ensures that people have a chance to
    challenge the lawfulness of an arrest or detention. Police are to advise promptly
    the reasons for the arrest or detention, and individuals then have the right to
    receive legal advice about their situation from counsel. The information
    provided pursuant to s. 10(a) serves to inform the advice provided as a result
    of the invocation of s. 10(b). If the information is inaccurate, it taints the
    ability of counsel to give meaningful and responsive advice.

[86]

In this case, even though the police took steps
    to attenuate the prejudice to the appellant by facilitating the right to
    counsel and by at least planning not to question the appellant (even though
    they ultimately did do so), their approach ignores the foundation of the s.
    10(a) right. As McLachlin J., as she then was, said in
Evans
,
at
    pp. 886-87:

The right to be promptly advised of the reason
    for ones detention embodied in s. 10(a) of the
Charter
is founded
    most fundamentally on the notion that one is not obliged to submit to arrest if
    one 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 s. 10(b) of the
Charter
.
    As Wilson J. stated for the Court in
R. v. Black
, [1989] 2 S.C.R. 138,
    at pp. 152-153, [a]n individual can only exercise his s. 10(b) right in a
    meaningful way if he knows the extent of his jeopardy. In interpreting s.
    10(a) in a purposive manner, regard must be had to the double rationale
    underlying the right. [Citation omitted.]

(ii)

Positions of the Parties

[87]

The appellant advances three arguments in
    support of his position that the application judge erred in his s. 24(2)
    analysis. First, he submits that the application judge placed excessive weight
    on the
cases on police ruses, and in any event, these
    cases were all distinguishable. Second, he submits that the application judge erred
    in finding that the police conduct in designing and implementing the ruse was
    indicative of good faith when in fact, the conception and execution of a Plan
    designed to deliberately violate the appellants rights were indicative of bad
    faith. Third,
he made errors in his analysis of the
    impact of the breaches on the
Charter
-protected interests of the
    appellant.

[88]

The Crown submits that the principles from the ruse
    case law relied upon supported the application judges conclusion, including
    that the seriousness of the breach can be mitigated by the motivation of the
    police to protect an ongoing investigation. The application judge engaged in a
    fact-specific analysis into the seriousness of the breaches. The finding of
    good faith is entitled to deference and supported by the evidence. As to
    impact, the appellant was only briefly questioned after he had spoken with counsel
    and only to assist with completing a form. The police had reasonable grounds to
    arrest and search at the time of the stop and the evidence would have been
    discovered regardless. In addition, the application judge correctly observed
    that informing the appellant about the offence of proceeds of crime for which
    he was being investigated mitigated the seriousness of the breaches.

(iii)

Reliance on Ruse Authorities

[89]

The appellants first argument was that the application
    judge relied excessively on cases involving police ruses that were distinguishable
    and that this infected his s. 24(2) analysis and more particularly, his
    treatment of the seriousness of the
Charter
-infringing conduct. At
    para. 70 of his reasons, the application judge concluded that the use of the
    ruse was a legitimate policing technique:

In summary, in my
    view,
the operational plan developed by the police in
    this case was a legitimate policing tool designed and implemented by them based
    on this well-recognized existing line of judicial authority.

[90]

The cases relied upon by the application judge
    that constituted the well-recognized existing line of judicial authority were
Dibble
,
Grant

and Campbell
, and
Whipple
.
    He also referred to the oft-quoted dicta of Lamer J. in the pre-
Charter
decision of
Rothman v. The Queen
, [1981] 1 S.C.R. 640, at p. 697, to
    the effect that the investigation of crime and the detection of criminals is
    not a game to be governed by the Marquess of Queensbury rules.

[91]

In
Dibble
, the police were engaged in a
    Guns & Gangs Task Force investigation. Mr. Dibble was not a target. However,
    he was observed leaving a building with a gym bag suspected to be holding
    illicit drugs and getting into a car with a driver. One of the surveillance
    officers immediately contacted the OPP to stop and search the car but to avoid
    divulging the reason for the search, they were asked to create a false reason
    for the search. The car was stopped and the police told Mr. Dibble and the
    driver that this was due to a radar detector signal. On searching the car,
    including the gym bag, the police found cocaine. Mr. Dibble was then arrested
    for possession of cocaine for the purpose of trafficking.

[92]

Relying on alleged violations of ss. 8, 10(a),
    and 10(b) of the
Charter
, Mr. Dibble applied for an order excluding
    the evidence of the search pursuant to s. 24(2). Croll J. reasoned that Mr.
    Dibble did not have a reasonable expectation of privacy in relation to the
    vehicle or the gym bag, but she went on to consider whether the search was
    reasonable. She determined that this was a continuing and dynamic investigation
    and the police had grounds to believe that Mr. Dibble was in possession of
    cocaine. As such, there was no s. 8 breach. The Crown conceded a s. 10(a) and a
    s. 10(b) breach. In considering s. 24(2), Croll J. stated that the police did
    not comply with the s. 10 requirements
but did so to protect
    the investigation
and not to intentionally circumvent Mr. Dibbles section 10
    rights. The police did not ask any questions about the drugs or take advantage
    of his lack of access to counsel. Given the nature of the ongoing
    investigation, the breaches were minor and made in good faith. She also found
    in favour of the Crown on the other two lines of inquiry under
Grant
.
    As such, Mr. Dibbles application was dismissed.

[93]

In
Grant and

Campbell
, relying
    on ss. 8, 10(a), and 10(b) of the
Charter
, the two accused argued that
    they were subjected to unlawful searches of their persons and vehicle and were
    not promptly advised of the reasons for detention or arrest or provided with
    their rights to counsel. They sought an order excluding evidence of two
    prohibited firearms pursuant to s. 24(2) of the
Charter
. The police
    had information from a confidential informant that individuals would be
    attending a certain nightclub, carrying firearms, on the night in question. Based
    on surveillance of the area outside the nightclub that night, the police
    believed that one of the two accused had placed a firearm in a vehicle. The
    police were not going to let the vehicle travel far from the nightclub without
    stopping it but given public safety concerns for people around the nightclub,
    they did not want the interaction to take place in the parking lot. The police
    plan was to stay with the vehicle and later effect an arrest when it was safe
    to do so; the only question was where and how to effect the arrest safely.

[94]

After allowing the vehicle to leave the
    nightclub area and travel a short distance, the police stopped the vehicle for
    two purposes: the criminal firearms investigation and evident seat-belt
    infractions under the
Highway Traffic Act
. However, the police only
    told the occupants of the vehicle, including the two accused, of the
Highway
    Traffic Act
infraction. This was thought to be safer and would allow for a
    more controlled stop and interaction. The police told the occupants they were
    detained, walked them to the police scout car, conducted pat-down searches,
    searched the vehicle, and found a firearm. The police then informed the occupants
    that they were under arrest for possession of a firearm and advised them of
    their rights to counsel. The police subsequently found a second firearm in the
    vehicle.

[95]

Campbell J. found that there was a
de facto
arrest when the police first stopped the vehicle and had the accused exit the
    vehicle. This permitted the police to conduct searches of the occupants and the
    vehicle as incident to the arrest in an effort to discover the firearm that the
    police honestly and reasonably believed was in the vehicle. Campbell J.
    accepted the evidence of the police that they always intended to arrest the
    occupants of the vehicle as soon as they could do so safely. The fact that the
    search and seizure preceded the arrest by a few minutes did not mean that it
    was not incidental to the subsequent formal arrest. He found no s. 8 violation
    but did find both s. 10(a) and s. 10(b) violations. However, he found that compliance
    with s. 10(a) took place about three minutes after it should have and the delay
    was motivated by a continuing police concern over the whereabouts of the
    firearm reasonably believed to be inside the vehicle and by an interest in
    gaining control over it. As such, the s. 10(a) breach was not a serious breach.
    It was technical, very short-lived, and committed honestly and in good faith. The
    second and third prongs of the
Grant
s. 24(2) analysis also favoured
    the Crowns position. Accordingly, the evidence was admissible.

[96]

These two cases are materially different from
    that of the appellant. First, the
Charter
breaches in those cases were
    not planned in advance. Second, the ruses in those cases developed in dynamic circumstances.
    The police conduct was immediately responsive to the circumstances that
    presented themselves. Both
Dibble
and
Grant

and Campbell
involved spur-of-the-moment decision making by the police, not a planned,
    intentional violation of the
Charter
as occurred here. The cocaine in
Dibble
and the firearm in
Grant and Campbell
were dangerous contraband that
    could cause harm to the public, and the conduct in
Grant and Campbell
was motivated by safety concerns. Here, there was no urgency to the alleged
de
    facto
arrest. Moreover, the s. 10(a) breaches in
Grant and Campbell
were momentary, and the accused were advised of the real reason for their
    arrests within just a few minutes, unlike this case. The accused in
Dibble
was similarly advised of the real reason for his arrest not long after he was
    stopped, and before he was afforded access to counsel.

[97]

The police conduct in
Whipple
also
    differed from that in this case. There the police had obtained a general
    warrant that authorized the police to use a ruse to effect a traffic stop. As
    in
Dibble
and
Grant and Campbell
, the accused was advised of
    the real reason for his arrest within minutes of the vehicle stop. In addition,
    unlike the application judge, I do not read
Whipple
as authorizing
    police conduct that intentionally breaches s. 10(a). The Alberta Court of
    Appeal expressly concluded that the warrant did not authorize a breach of s. 10(a)
    and in any event, there was no breach of s. 10(a). This is in contrast to the
    case under appeal: the police both planned to breach s. 10(a) and actually
    breached s. 10(a) as planned. Furthermore, here, the Crown attorney, Mr. Sabbadini,
    had previously advised Det. Leahy that a warrant would not be granted because
    the appellant would not know the full scope of the jeopardy he was in.

[98]

In
Evans
, Sopinka J. stated in
    concurring reasons, at p. 875, that the purpose of s. 10(a) is
inter alia
,
    to enable the person under arrest or detention to immediately undertake his or
    her defence, including a decision as to what response, if any, to make to the
    accusation. The accused in
Dibble
,
Grant and Campbell
, and
Whipple
could undertake their defences shortly after their detentions or arrests
    whereas here, the appellant was not informed that he was under investigation for
    possession of proceeds of crime until nearly an hour into his detention and was
    not charged for over another two months.

[99]

Contrary to the conclusion of the application
    judge, the Plan developed by the police in this case was not based on a
    well-recognized existing line of judicial authority. As explained, the police
    conduct in those cases was materially different from that engaged by this
    appeal. Those cases do not support the police conduct in issue. The application
    judges finding that the police in this case had engaged in a legitimate
    policing technique was an error and infected his analysis of the first prong of
Grant
.

(iv)

Good Faith Conduct

[100]

Second and as mentioned, the appellant submits
    that the application judge erred in finding that the police acted in good
    faith. He argues that, to the contrary, the conception and execution of a plan
    designed to deliberately breach the appellants rights was indicative of bad
    faith. Det. Leahy knew that a traffic stop ruse was unlawful, there was no
    urgency to the operation, and he designed the Plan in a way that would ensure
    that the appellant would remain ignorant long after the operation was
    completed. The Crown submits that the application judges finding of good faith
    was open to him on the record and is entitled to deference.

[101]

In assessing the seriousness of the infringement
    of the appellants ss. 10(a) and 10(b) rights, the application judge found that
    the violation was plain and serious but resulted from good faith police work
    based on the line of judicial authority including
Dibble
which
    permitted the police to conduct such a deceptive ruse in order to preserve the
    integrity and secrecy of a larger police investigation. Moreover, he concluded
    that there was no need for the court to disassociate itself from this conduct.

[102]

In
Dibble
and
Grant and Campbell
,
    the accused were arrested shortly after their initial detention and could
    undertake their defence immediately; not so here. In addition, Det. Leahy had
    familiarized himself with
Dibble
and knew that the timing in
Dibble
differed from his conceived ruse. He also knew from Mr. Sabbadini, the Crown
    attorney, that a general warrant would not be granted for a plan where the
    police would stop his car for a
Highway Traffic Act
offence and
    search his vehicle and just take the evidence because the appellant would not know
    the full scope of his jeopardy. The plan in support of a general warrant was
    considered to be unlawful. Nonetheless, on discovering the
Dibble
decision, Det. Leahy made no further inquiries of Mr. Sabbadini and instead
    proceeded with a plan that would necessarily result in a
Charter
breach.
    Indeed, the breach was an integral part of the ruse. The breach was planned and
    deliberate.
Dibble
did not depend on an absence of any
Charter
breach; rather it depended on a s. 24(2) rescue. This would have been evident
    to Det. Leahy, P.C. Brisebois and D.C. Lee, all of whom testified to having read
    the decision. The application judge failed to consider the reasonableness of the
    police reliance on
Dibble
and how the facts in that case differed from
    the Plan they were pursuing.

[103]

In addition, as argued by the appellant, there
    were no pressing or exigent circumstances here. To use Det. Leahys
    terminology, the excuse for the stop was practical. There was no evidence of urgency
    nor was this a spontaneous police response. Indeed, the police already had
    plans to conduct a takedown at the annual Super Bowl party a few months later. As
    stated by Michelle Fuerst J., Fairburn J. (as she then was), and Scott Fenton
    in Ruse Traffic Stop for the Purpose of Conducting Search Incident to Arrest
    (Two Months Prior to Arrest) is
Charter
Compliant,
Police Powers
    Newsletter
2017-1 (January 2017), it was a strategic mid-investigation
    decision designed to benefit the investigation at the intended cost of
    breaching the [appellants] rights. Although I acknowledge that deference is
    owed to an application judges finding of good faith, the finding in this
    constellation of facts was unreasonable.

[104]

As a result of my conclusions and given that it
    is necessary to conduct the
Grant
analysis anew, there is no need to
    address the appellants third argument on the impact of the breaches on the
Charter
-protected
    interests of the appellant. The appellant had submitted that the application
    judge erred in minimizing the impact of the s. 10 breaches based on the fact
    that the police provided semi-accurate information partway through the ruse and
    had also argued that the application judge erred in concluding that the
    impugned evidence was discoverable in any event regardless of the premeditated
    breach of his
Charter
rights. In light of the s. 8 breach and the
    other s. 24(2) errors I have found, it is unnecessary to consider these
    arguments. Even accepting the application judges findings on these points, as
    I will explain, on a fresh
Grant
analysis, the evidence should be
    excluded.

[105]

In conclusion, quite apart from the s. 8 breach,
    there were errors in the application judges s. 24(2) analysis.

(v)

Fresh
Charter
s. 24(2) Analysis

[106]

Due to my determination that there was a s. 8
    violation, which the application judge did not find, coupled with those of ss. 10(a)
    and 10(b), it now falls to me to conduct a s. 24(2)
Charter
analysis. As
    I have explained, it is unnecessary to address the appellants arguments
    regarding the expanded impact of the s. 10 breaches, because even on the
    application judges more limited findings, the evidence should be excluded.

[107]

First, regarding the seriousness of the
Charter
-infringing
    state conduct, as I have explained, the police were not relying on a
    well-established line of authority when they engineered this ruse. On the
    contrary, the police proceeded with a Plan which they knew or should have known
    would breach the appellants s. 10 rights. The fact that the police also
    planned to search the appellant incident to arrest without actually arresting
    the appellant makes the state conduct all the more troubling. The violation of
    the appellants
Charter
rights was integral to the police Plan. They
    would not have proceeded with the Plan had it not involved violating the
    appellants
Charter
rights.

[108]

I would also add that the police conduct is
    elusive of public confidence and ought not to be sanctioned by the court. Put
    differently, and adopting the language of McLachlin C.J. and Charron J. in
Grant
,
    the court should dissociate itself from such police conduct. I fail to see how
    the police conduct in this case does not threaten the integrity of the criminal
    justice system. Protection of
Charter
rights is the operative
    principle, not planned circumvention for investigative purposes however
    laudable they may be.

[109]

Second, the impact on the appellants
Charter
-protected
    interests was significant. He was subjected to a search without lawful
    authority. The appellant was, at least initially, unable to have a meaningful
    consultation with counsel because the police left him in ignorance of his full
    jeopardy. His counsel was equally misled about the reason for his detention.
    Assuming the application judge correctly concluded that the impact of the
    breach was somewhat mitigated by the semi-accurate information the police
    provided partway through the ruse, in light of the s. 8 breach, the impact
    remains serious. I acknowledge that the police attempted to mitigate the impact
    of the breach by affording the appellant access to counsel, but those steps
    fall short given that he was misinformed. This factor favours exclusion.

[110]

Finally, I accept, as the application judge did,
    that the third
Grant
factor, societys interest in an adjudication of
    the case on its merits, weighs in favour of admitting the evidence. The weight
    of this factor is somewhat attenuated because, as the application judge found,
    while important, this evidence is not crucial to the Crowns case.

[111]

For these reasons, I would exclude the impugned
    evidence under s. 24(2) of the
Charter
, allow the appeal from
    conviction and order a new trial.

(2)

Appeal from Sentence

[112]

Under the circumstances, there is no need to
    address the appellants request for leave to appeal sentence and to admit fresh
    evidence or the Crowns responding fresh evidence in support of the sentence
    appeal.

E.

Disposition

[113]

For these reasons, I would dismiss the
    application for the admission of fresh evidence on the conviction, allow the
    appeal from conviction, and order a new trial.

Released April 9, 2021

"S.E.P."

"S.E. Pepall J.A."
"I agree. K. van Rensburg J.A."
"I agree. David Brown J.A."

[1]
Det.
    Leahy stated that the appellants vehicle
could be searched incident to
    an investigative detention if the officer saw a weapon in the vehicle. This did
    not become an issue.

[2]
P.C. Brisebois
could not recall whether he said obstruct
    police or obstruct justice.

[3]

The application judges reasons are reported at 2016 ONSC
    6866, 367 C.R.R. (2d) 219.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Biya, 2021 ONCA 171

DATE: 20210319

DOCKET: C66597

Watt, Benotto and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abadula Biya

Appellant

Najma Jamaldin, for the appellant

Jeremy D. Tatum, for the respondent

Heard: March 3, 2021 by video
    conference

On appeal from the conviction entered on
    August 8, 2018 and the sentence imposed on December 14, 2018, with reasons
    reported at 2018 ONSC 6887, by Justice Carole J. Brown of the Superior Court of
    Justice.

REASONS FOR DECISION

Introduction

[1]

The appellant, Abadula Biya, appeals his
    conviction and sentence for charges relating to the
unauthorized
    possession of a firearm and ammunition, possession of a Schedule I controlled substance
    (MDEA) for the purpose of trafficking, and possession of the proceeds of crime in
    the amount of $1,725
.

[2]

The appellants main argument on the conviction
    appeal is that the trial judge materially misapprehended the evidence in
    rejecting the appellants third party suspect defence. The appellant claims this
    error leaves the trial judges reasoning on which the conviction depends on unsteady
    ground, resulting in a miscarriage of justice.

[3]

We agree with the appellant. For the reasons that
    follow, we allow the appeal, quash the conviction, and order a new trial.

Background

[4]

On September 11, 2015, the police received a tip
    that a person was selling drugs outside a Drake concert at Ryerson University.
    The person was described as a black male with cornrows, wearing a black
    t-shirt, and carrying a bouquet of flowers and a red and black GoodLife gym bag.

[5]

Police officers located a person matching this
    description talking to two other men at a gas station. The police watched the three
    men and noticed that when a mounted police unit approached the area the men
    slinked back into the gas station. When a second mounted police unit approached,
    the men retreated further and entered a Honda SUV parked at the gas station.
    The appellant had the gym bag and bouquet with him when he entered the drivers
    seat of the Honda. The officers did not see who had control of the gym bag
    after the three men entered the Honda.

[6]

A group of uniformed police officers and two
    plainclothes officers huddled for between one to two minutes about 30 metres
    from the Honda. The men inside the Honda could see the officers. The police
    believed the men inside the Honda noticed the officers approaching when they
    were 5 to 10 metres away. The officers could see the appellant, who was in the drivers
    seat, and Simeon George-McCool, who was in the front passenger seat. They could
    not see Jevon Moore, who was in the back seat directly behind George-McCool.
    The appellants gym bag and flowers were also in the back seat directly behind the
    appellant.

[7]

Six uniformed officers rode their bicycles towards
    the Honda. This took about 30 to 40 seconds. As the police approached they saw
    the appellant appear nervous and wide-eyed. He shoved his hand between the door
    and the seat and then into the pockets of his pants. An officer also saw
    George-McCool in the front passenger seat appearing to move quickly and looking
    towards the back seat. But the officers could not see Moore in the back seat.

[8]

Two officers approached on the drivers side and
    smelled marijuana. Based on that smell and the appellants apparent nervousness,
    the occupants were arrested and directed to get out of the car. Moore and
    George-McCool got out voluntarily and complied with the police. The appellant
    did not comply and was forcibly removed. He resisted arrest but was quickly subdued.

[9]

The police searched the three men incident to
    arrest. On George-McCool the police found cocaine, marijuana, and MDMA in the bag
    he was carrying as he got out of the car, three cellphones, and $1,070 in cash.
    On Moore the police found $1,080 in cash but no drugs or drug packaging. On the
    appellant the police found packaged marijuana and $1,725 in cash. In the
    drivers seat area the police found a cellphone and a digital scale.

[10]

The police searched the gym bag incident to
    arrest and at the bottom of the bag found a handgun, ammunition, a bottle of MDEA
    pills, and packaging like that used in the packaged marijuana found on the
    appellant. They also found some of the appellants personal items, including two
    condolence cards (the appellant was going to a funeral visitation for a
    friends mother later that night).

[11]

All three men were charged with various offences.
    The charges against Moore were later withdrawn before trial.

The Trial Judges Decision

[12]

The appellant and George-McCool were tried
    together.

[13]

The trial judge convicted George-McCool of possession
    of cocaine and MDMA for the purpose of trafficking. The trial judge inferred
    from the quantities of drugs he had in his bag as he got out of the car that
    the drugs were in his possession for the purpose of trafficking rather than
    personal use. George-McCool did not appeal his conviction.

[14]

Neither the appellant nor Moore testified. The appellant
    did not dispute he had knowledge and control of the marijuana found on his
    person, but he did dispute any knowledge of or control over the gun, magazine,
    and pills in the gym bag. His defence centred on Moore as a third party suspect.
    He posited that Moore had one to two minutes in the back seat to place the contraband
    in the bag while the officers huddled across the street and then approached the
    car in plain view of the three suspects. He claimed that Moore had on his
    person a quantity of cash consistent with drug trafficking but no contraband
    because he had stashed it in the gym bag. The appellant also adduced Moores
    criminal record for gun and drug trafficking offences to show his propensity as
    a third party suspect.

[15]

The trial judge rejected the appellants third
    party suspect defence and convicted the appellant. She found that Moore did not
    have the time to remove the magazine from the handgun and to stow the handgun,
    magazine, and bottle of pills at the bottom of the bag. She also found that
    Moore did not have the opportunity and propensity to have had the firearm, ammunition,
    and pills on his person and to have put them surreptitiously in the gym bag as the
    police approached. She found there was no real evidence for this proposition, which
    she found was speculative. Finally, the trial judge found overwhelming evidence
    that the appellant had knowledge of and control over the contraband in the gym
    bag. She noted that the packaging in the bag resembled the packaging of the marijuana
    found on the appellant; the condolence cards were for a visitation the appellant
    was to attend that evening; the appellant had been seen carrying the gym bag; drugs
    such as MDEA are often sold at concerts, where the appellant was arrested; and
    the cash found on the appellant was in smaller denominations.

[16]

The trial judge sentenced the appellant to four
    years incarceration, less credit for pre-trial custody and bail conditions,
    and various ancillary orders.

[17]

The appellant now appeals his conviction and seeks
    leave to appeal his sentence.

Discussion

[18]

Although the appellant advances several grounds
    of appeal from conviction and sentence, we have concluded that the appeal should
    be allowed because the trial judge materially misapprehended the evidence in
    concluding that Moore lacked enough time to remove the magazine from the gun
    and place it in the gym bag. The trial judge then repeated this error in
    concluding that Moore did not have the propensity and opportunity to have
    placed the contraband in the bag. These errors led the trial judge to conclude erroneously
    there were no reasonable possibilities inconsistent with the appellants guilt:
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37.

[19]

The uncontradicted evidence was that the police
    huddled for one to two minutes and then took another 30 to 40 seconds to bike
    to the car, all while in plain view of the cars occupants. The elapsed time
    was therefore between
1 minute 30 seconds and 2 minutes
    40 seconds, during which the police could not see Moore because he was in the
    back seat.

[20]

The trial judge explained her reasons for concluding
    that Moore did not have enough time to stow the contraband in the gym bag as
    follows:

I am not satisfied that it would have been possible
    within the timeframe from the police approaching the vehicle to Mr. Moore and
    Mr. George-McCool exiting the vehicle, for Mr. Moore to have taken all the
    items from his person and put them in the bag, and
particularly taking the
    magazine out of the handgun
and stowing the handgun, ammunition, and drugs
    at the bottom of the bag under
all of
the
    other contents. I do not find this
to be
feasible
    and reject this argument. [Emphasis added.]

[21]

However, there was no evidence before the trial
    judge as to how long it would have taken to remove a magazine from a gun, or
    this magazine from this gun. There was also no evidence that the magazine was
    even in the gun and needed to be removed. The trial judge therefore
    misapprehended the evidence on this point.

[22]

The Crown concedes that the trial judge
    misapprehended the evidence but contends the misapprehension was not material.
    The Crown asserts that even if this finding is excised, the other evidence the
    trial judge relied on allowed her to conclude that Moore had insufficient time
    to put the contraband in the gym bag.

[23]

We do not accept this submission. The trial
    judge herself highlighted that her conclusion was based particularly on the
    lack of time to remove the magazine from the gun. Her own wording suggests this
    error about the substance of the evidence was material to her reasoning in
    rejecting the third party suspect defence. Striking this error in the
    assessment of the evidence from the judgment leaves the trial judges reasoning
    on which the conviction depends on unsteady ground, leading to a miscarriage of
    justice: see
R. v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras.
    1-2;
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; and
R.
    v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541.

[24]

The trial judge repeated this error in concluding
    that Moore did not have the opportunity and propensity to have surreptitiously placed
    the contraband in the bag as the police huddled and approached the car. She
    stated:

It is the position of [counsel] on behalf of
    [the appellant] that the police had huddled with [one of the other police officers]
    for one to two minutes before they approached the car, and that the lapse of
    time was sufficient for Mr. Moore to have taken the seized items from his
    person and put them into the gym bag in the back seat behind the drivers seat.
As set forth above,
I do not accept the
    arguments of counsel for [the appellant], which suggests that Mr. Moore had the
    opportunity and propensity to have had the firearm, ammunition, and drugs on
    his person and put them surreptitiously into the gym bag when the police
    approached the vehicle. There is no real evidence for this, and I find the
    proposition to be speculative. I reject the submission
. [Emphasis added.]

[25]

The trial judge did not separately address
    Moores opportunity and propensity. She seems to have rejected the appellants third
    party suspect defence only because she found that Moore lacked opportunity.

[26]

However, Moores criminal record provided a
    reasonable basis to claim he had the propensity to have placed the contraband
    in the gym bag: see
R. v. Arcangioli
, [1994] 1 S.C.R. 129, at p. 141;
R.
    v. Tomlinson
, 2014 ONCA 158, 207 C.C.C. (3d) 36, at para. 76. His criminal
    record included several recent firearms and drug-related convictions: for robbery
    with a firearm in 2012; possession of a Schedule I substance in 2014; possession
    of an unauthorized firearm, breach of a firearm prohibition order, and possession
    of a Schedule I substance in June 2014; possession of an unauthorized firearm
    and breach of a firearm prohibition order in July 2014; and trafficking in a
    Schedule I substance in 2015. The trial judge thus erred in summarily rejecting
    the third party suspect defence.

Conclusion

[27]

The trial judge erred by convicting the appellant
    based on a material misapprehension of the evidence about Moores opportunity
    as a third party suspect. There was also evidence that Moore had the propensity
    as a third party suspect, which the trial judge failed to address. The trial
    judges errors leave the conviction on unsteady ground and resulted in a
    miscarriage of justice.

[28]

Because there was evidence on which a properly
    instructed trier of fact could reasonably have convicted the appellant, the appropriate
    remedy is to order a new trial on all counts under s. 686(2)(b) of the
Criminal
    Code
, R.S.C. 1985, c. C-46: see
Morrissey
, at p. 540. There is no
    need to address the appellants request for leave to appeal the sentence.

Disposition

[29]

The appeal from conviction is allowed, the appellants
    conviction is quashed, and a new trial is ordered on all counts.

David
    Watt J.A.

M.L.
    Benotto J.A.

M.
    Jamal J.A.