COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gray, 2021 ONCA 86

DATE: 20210210

DOCKET: C67523

Pepall,
    Tulloch and Harvison Young JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Anthony
    Gray

Appellant

Ewan Lyttle and Meaghan McMahon, for
    the appellant

Jeremy Tatum, for the respondent

Heard: August 20, 2020 by video conference

On appeal
    from the sentence imposed on September 20, 2019 by Justice Norman D. Boxall of
    the Ontario Court of Justice.

Tulloch J.A.:

A.

INTRODUCTION

[1]

The appellant seeks leave to appeal his sentence,
    and if leave is granted, appeals his sentence imposed for his convictions for armed
    robbery and wearing a disguise with intent to commit an indictable offence.

[2]

The appellant pleaded guilty. He was sentenced
    to six months imprisonment for the robbery count, three months imprisonment for
    the wearing a disguise with intent count, to be served concurrently, and 12
    months probation.

[3]

The offences were committed when the appellant
    was 21 years old. At the time of sentencing, the appellant was 24 years old and
    a first-time offender without any prior criminal record. His sentence appeal is
    based on two main grounds.

[4]

First, the appellant submits that the sentencing
    judge failed to properly apply the principles relevant when sentencing Indigenous
    offenders, set out in
R. v. Gladue
, [1999] 1 S.C.R. 688, as the judge
    permitted denunciation and general deterrence to improperly overwhelm the
    analysis. The appellant claims that this error led to the arbitrary conclusion
    that no jail sentence less than six months was appropriate in the
    circumstances.

[5]

Second, the appellant submits that there has
    been a new development in the law since the appellants sentencing, allowing this
    court to impose a conditional sentence on the robbery count. Due to
R. v.
    Sharma
, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020]
    S.C.C.A. No. 311, a recent decision from this court striking down s. 742.1(c)
    of the
Criminal Code
, conditional sentences are now available for
    offences where the maximum penalty is 14 years or life imprisonment, including
    robbery. The appellant effectively argues that this development entitles him to
    a conditional sentence.

[6]

For the following reasons, I would not interfere
    with the sentence imposed. However, I would allow the appeal for the limited
    purpose of permanently staying the execution of the appellants remaining
    period of incarceration.

B.

FACTS

[7]

On August 5, 2016, at approximately 11:24 a.m., the
    appellant entered a branch of the Bank of Montreal in Ottawa. His face and head
    were covered by a shirt. He walked over to a teller, produced an eight-inch
    knife, and, while brandishing the weapon at the teller, demanded money. The
    appellant made these threats in the presence of other patrons, including a
    mother and her two young children. He managed to flee the scene with $5,000.

[8]

The robbery went unsolved for quite some time. On
    August 11, 2016, the police distributed a media release to try to identify the
    perpetrator of the robbery. However, it was not until January 2018, almost a
    year and a half after the robbery, that the appellant was arrested. At that
    time, the ex-girlfriend of the appellants brother identified the appellant,
    leading to his arrest.

[9]

In October 2018, the appellant pleaded guilty to
    the offences of robbery and wearing a disguise, two weeks before his three-day
    trial on November 13, 2018. A
Gladue
report and a pre-sentence report
    were prepared for the sentencing hearing, which took place in August 2019. The imposition
    of the sentence was adjourned to September 2019.

[10]

At the sentencing hearing, the appellant,
    through his lawyer, filed various materials documenting his positive attributes
    and post-plea rehabilitative steps. In addition, both the pre-sentence report
    and the
Gladue
report were presented to and relied on by the
    sentencing judge.

[11]

The Crown sought a global sentence of one-year
    incarceration, followed by probation.

[12]

The defence requested a sentence which the
    sentencing judge described as nuanced. They sought either a non-custodial or intermittent
    sentence on the robbery charge, and a conditional sentence followed by
    probation for the offence of wearing a disguise.

[13]

The defence pointed to the significant progress
    that the appellant had made since the offence; his work history; and the fact
    that at the time of the offence, he was affected by a drug addiction that he received
    treatment for by the time of sentencing. The appellant also had a close and
    supportive relationship with his mother. In addition, he was remorseful, had
    made full restitution, and was willing to participate in a sentencing circle, although
    the victims were not interested.

[14]

The sentencing judge imposed a sentence of six
    months incarceration for the robbery count and three months concurrent for
    the wearing a disguise count, followed by 12 months probation. He gave a very
    thorough decision in which he fully considered the applicable principles of
    sentencing. He recognized that as the appellant was an Indigenous offender, he
    had to be sentenced with reference to the
Gladue
principles and s.
    718.2(e) of the
Criminal Code
. The sentencing judge also observed that
    a fit and appropriate sentence must be guided by the fundamental principle that
    a sentence must be proportionate to the gravity of the offence and the degree
    of responsibility of the offender. He then specifically addressed the
    mitigating and aggravating factors and crafted a sentence which was responsive to
    the circumstances of the appellant. In arriving at what the sentencing judge
    deemed a fit sentence for the appellant on the robbery offence, he made the
    following observations:

There is no minimum sentence for robbery, so
    in - at least, in theory, I could consider a suspended sentence and a period of
    probation. Although a blended sentence of probation on the robbery and a
    conditional sentence on wearing disguise is theo - theoretically available, in
    my view, it would be an error in law to impose a conditional sentence on a
    lesser-related offence, and one cannot do this simply to avoid parliaments
    intention. A pure suspended sentence on - on both counts is - is theoretically
    available, but in my view, suspending sentence on both counts and just placing
    the accused on probation
would not address the
    seriousness of the offences, or the principles of sentences
; and, in
    fact, defence counsel has essentially conceded this by suggesting a blended
    sentence - includes a - a conditional sentence.

Its indicated there is no minimum sentence
    for robbery. However, I find that it would be an error in law to impose a
    suspended sentence and a period of probation,
given that
    this was a bank robbery, and it involved a weapon. Thus, the sentence must
    involve custody in - in some fashion
. Parliament has directed that it
    cannot be conditional, with respect to the robbery offence.
I might add that, if a conditional sentence was available for
    the robbery, I would seriously consider it;
in my view, specific
    deterrence is not a factor in this case, and there are many mitigating
    circumstances. And, deterrence, in some cases, can be met by a conditional sentence.
    However, Parliament has directed that a conditional sentence is not available
    for a robbery. [Emphasis added.]

[15]

Prior to the appeal hearing, the appellant introduced
    two motions for fresh evidence, dated June 17, 2020 and August 18, 2020. These
    motions seek to adduce evidence relevant to the appellants post-sentence rehabilitative
    efforts and steps taken to live a pro-social life. Both motions included the
    consent of the respondent to the admission of this fresh evidence. As a
    preliminary conclusion, I am satisfied that this evidence satisfies the
    criteria for the admission of such evidence set out in
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759, at p. 775: see also
R. v. D.V.B.
, 2010 ONCA 291,
    100 O.R. (3d) 736, at para. 97, leave to appeal refused, [2011] S.C.C.A. No.
    207.

C.

ISSUES

[16]

The appellant effectively seeks leave to appeal
    his sentence on two bases:

1)

Did the sentencing judge err by failing to
    properly apply the
Gladue
principles and permitting denunciation and general
    deterrence to improperly overwhelm the analysis, leading to the arbitrary
    conclusion that no jail sentence less than six months was appropriate in the
    circumstances; and

2)

Given this courts recent decision in
Sharma
,
    is the appellant now entitled to a conditional sentence?

D.

ANALYSIS

(1)

Did the sentencing judge err by improperly permitting denunciation
    and general deterrence to overwhelm the analysis?

[17]

The appellant does not argue that the sentence
    was unfit. Instead, he submits that the sentencing judge erred in principle in his
    application of the
Gladue
principles, by overemphasizing the
    principles of denunciation and general deterrence. He argues that this error enables
    this court to alter the sentence on appeal.

[18]

He contends that, had the sentencing judge
    properly applied the
Gladue
principles, he would have more heavily
    considered restorative justice principles and imposed a lower sentence.

[19]

I disagree. The sentencing judge correctly
    weighed the relevant sentencing principles. He made proper reference to both the
    circumstances of the appellant and the
Gladue
principles as codified
    in s. 718.2(e) of the
Criminal Code
.

[20]

For this court to intervene in the sentence
    imposed, the appellant must establish that the sentence imposed is either
    demonstrably unfit, or that the judge made an error in law or principle that impacted
    the sentence. The seminal case of
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089, at paras. 10-11, 39-41, 44, 48-51, and 53, sets out the grounds upon
    which an appellate court may intervene and vary a sentence. Trial judges are
    afforded a wide discretion to impose what they deem to be an appropriate
    sentence. Sentencing is a fact-specific exercise, and each case must be
    considered contextually. This necessarily means that considerable deference is
    afforded to the sentencing judge.

[21]

Among the underlying principles that guide any
    sentencing analysis are proportionality and parity. However, when sentencing an
    Indigenous accused, the analysis must be informed by s. 718.2(e) of the
Criminal
    Code
. This section is a remedial provision requiring a unique method of
    analysis when determining a fit sentence for an Indigenous accused, as set out
    in
Gladue
.

[22]

When a judge crafts a sentence for an Indigenous
    accused, s. 718.2(e) requires them to consider

all available sanctions, other than
    imprisonment, that are reasonable in the circumstances and consistent with the
    harm done to victims or to the community  with particular attention to the
    circumstances of Aboriginal offenders.

[23]

Section 718.2(e) directs sentencing judges to
    pay particular attention to the circumstances of Aboriginal offenders in order
    to endeavour to achieve a truly fit and proper sentence in any particular case:
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 75. A
    sentencing judge must, when crafting a sentence for an Indigenous accused, consider
    all of the principles mandated by ss. 718.1 and 718.2 of the
Criminal Code
,
    including those codified in s. 718.2(e):
Ipeelee
, at para. 51.

[24]

However, s. 718.2(e) and the associated
Gladue
framework do not detract from the fundamental sentencing principle of
    proportionality:
R. v. Altiman
, 2019 ONCA 511, 56 C.R. (7th) 83, at
    para. 78, citing
R. v. F.H.L.
, 2018 ONCA 83, 360 C.C.C. (3d) 189, at
    para. 47. Similarly, the principle of parity in sentencing maintains relevance
    in the
Gladue
context, although courts should ensure that a
    formalistic approach to parity does not undermine the remedial purpose of s. 718.2(e):
Ipeelee
, at para. 79.

[25]

The principle of proportionality mandates that a
    sentence must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender, or what is also known as the moral
    blameworthiness of the offender:
Ipeelee
, at para. 37. The principle
    of parity underpins the integrity of the judicial sentencing process and
    preserves fairness by avoiding disparate sentences where similar facts
    relating to the offence and the offender would suggest like sentences:
R.
    v. Rawn
, 2012 ONCA 487, 294 O.A.C. 261, at para. 18.

[26]

When sentencing an Indigenous accused, s. 718.2(e)
    and the
Gladue
principles provide the necessary
context
for understanding and evaluating the
    case-specific information particular to the accused (emphasis in original):
Altiman
,
    at para. 77, citing
F.H.L.
, at para. 39.

[27]

Section 718.2(e) requires a different method of
    analysis when sentencing Indigenous offenders. However, it does not necessarily
    require a different result or that a sentencing judge always prioritize principles
    of restorative justice when sentencing an Indigenous offender. This court made
    this clear in
F.H.L.
, at para. 47:

Gladue
and
Ipeelee
do not detract from the fundamental principle that a sentence must be
    proportionate to the gravity of the offence and the degree of responsibility of
    the offender.
What
Gladue
and
Ipeelee
recognize is
    that evaluating the degree of responsibility of an Aboriginal offender requires
    a different method of analysis. A different method of analysis does not
    necessarily mandate a different result
. Crafting a just and appropriate sentence
    may, in some cases, require giving greater weight to sentencing objectives such
    as deterrence and denunciation. As this court recognized in [
R. v.
    Kakekagamick
(2006), 81 O.R. (3d) 664 (C.A.), leave to appeal refused,
    [2007] S.C.C.A. No. 34], at para. 42:

To be clear, s. 718.2(e)
    does not require, nor is there a general rule, that Aboriginal offenders must
    be sentenced in a way that gives the most important weight to the principle of
    restorative justice
. It may be that in certain
    cases the objectives of restorative justice articulated in s. 718.2(e) and
    Gladue will not weigh as favourably as those of separation, denunciation and
    deterrence. [Citations omitted; emphasis added.]

[28]

In my view, the sentencing judge carefully
    considered the applicable principles of sentence as they pertained to the appellants
    individual circumstances and the offences for which he was sentenced. The
    sentencing judge recognized that, while the appellant is an Indigenous first-time
    offender with positive post-offence rehabilitative efforts, he still had to consider
    the principles of proportionality and parity within the context of the
Gladue
analysis.

[29]

The appellant committed a violent and serious
    crime. He robbed a bank during daylight hours, wearing a disguise, and while
    brandishing an eight-inch knife. He threatened a bank teller in the presence of
    patrons of the bank, including a mother and her two small children. He was also
    able to escape with $5,000 and was not apprehended until almost a year and a half
    later. This was an offence that required the sentencing judge to factor into
    his analysis the principles of general deterrence and denunciation.

[30]

While the appellants circumstances suggested
    that specific deterrence was not a factor relevant to his sentence, the trial
    judge recognized that the needs of the community at large required a sentence
    that would denounce the conduct of the offence and serve to deter others who
    may be inclined to commit similar offences in the future. These were relevant
    and important considerations at the time of sentencing.

[31]

The sentencing judge found that, after
    considering general deterrence, denunciation, and the need for a sentence
    proportionate to the gravity of the offence, a period of incarceration was necessary.
    This was so, notwithstanding the relevance of the
Gladue
principles
    and the particular circumstances of the appellant. This was a reasonable
    finding in the circumstances. The offence of robbery is one of the most serious
    offences within the
Criminal Code
. This offence mandates sentences up
    to a maximum of life. Any robbery offence is inherently violent, as the very
    definition of robbery connotes an offence of theft coupled with an act of
    violence. There are different degrees of robbery, and this one was serious.

[32]

This trial judge recognized that his task was to
    carefully balance the circumstances of the appellant with the applicable sentencing
    principles in order to arrive at a fit and appropriate sentence. He recognized
    that one of the principles of sentencing was that he was obliged to consider
    the principle of proportionality. He stated this at the outset of his reasons.

[33]

The sentencing judge directed his mind to the circumstances
    of the appellant and the appellants Indigenous status. Notwithstanding the
    seriousness of the charge, the sentencing judges task was to engage in an
    individualized analysis of the offender before him and the offence for which he
    was being sentenced. He recognized and accepted mitigating factors which inured
    to the appellants benefit. He concluded that specific deterrence was not a concern,
    given that the appellants post-offence and post-sentence conduct was positive
    and that he was unlikely to reoffend as a result. He noted that he was not
    bound by a sentencing range, and that he must consider the circumstances of the
    offence, the offender, and the needs of the community where the offence
    occurred.

[34]

The sentencing judge specifically considered the
    appellants Indigenous status. He referenced his judicial duty to give effect
    to the remedial purpose of s. 718.2(e) of the
Criminal Code
and
    to respond to the over-incarceration of Indigenous offenders. It is this very
    analysis which led the sentencing judge to consider a sentence in the low
    reformatory range, and to impose a sentence of six months incarceration. In
    his reasons, he stated the following:

Ive concluded there
    must be a custodial sentence for the robbery
. [U]nfortunately,
    I cannot conclude on these facts that I can impose an intermittent sentence. As
    I said, had a conditional sentence [been] available for the robbery proper, I
    would certainly consider it strongly.
However, given
    general deterrence and denunciation, and proportionality of the gravity of the
    offence, even accepting the reduced moral responsibility of this offender; when
    one takes a look at the offence involved here, which is a bank robbery with a
    weapon
; in my view, a custodial period that would be required for
    robbery exceeds that available under an intermittent sentence, which is
    restricted to a term of 90 days.
However, I must go on to
    consider what is the minimum sentence I can impose - the least restrictive
    sentence I can impose, that satisfies all the sentencing principles and factors
    Ive outlined, considering importantly, his plea of guilty, the Gladue factors,
    the fact that he is a first offender, the positive pre-sentence report, the
    restitution his counsel is in possession of, and undertaken to pay, and very
    importantly, that there is no need for specific deterrence in this case
.
    Ive concluded, after considerable thought, over a number of weeks not without
    some difficult moments, that the appropriate sentence and the shortest sentence
    that I can impose in this particular case,
in compliance
    with my duty and responsibility to impose the least restrictive sentence, but
    yet, makes sure the sentence does meet the principles [and] purposes of
    sentence, generally, is one of six months incarceration
. [Emphasis
    added.]

[35]

I see no error in this analysis that would
    warrant interference by this court.

(2)

Does this courts decision in
Sharma
entitle the appellant to a conditional sentence in this case?

[36]

The appellant also contends that in light of
    this courts recent decision in
Sharma
, this court should impose a
    conditional sentence, an option that was unavailable to the sentencing judge. He
    argues that as this court held in
Sharma
that s. 742.1(c) of the
Criminal
    Code
is unconstitutional, a conditional sentence is now available for the
    robbery charge and should be imposed as the appropriate sentence. He proposes a
    conditional sentence of one year on the robbery count, followed by one year of
    probation on the wear disguise count.

[37]

As indicated above, the sentencing judge was clearly
    mindful of his responsibility pursuant to s. 718.2(e). After weighing the
    relevant factors of sentencing pertaining to the appellant, who he recognized
    was a first-time Indigenous offender, he concluded that a non-custodial
    disposition would not adequately meet the objectives of sentencing.

[38]

The sentencing judge considered a non-custodial
    sentence, as this was the initial request by the defense in their sentencing
    submissions. He concluded that a non-custodial sentence was not appropriate due
    to the circumstances of this offence.

[39]

He also observed that a conditional sentence was
    not available to the charge of robbery. He went on to opine that if a
    conditional sentence was available, he would seriously consider it. While the
    sentencing judge stated that he would seriously consider a conditional sentence
    if it was available, he did not say that he would have imposed a conditional
    sentence if it was in fact available.

[40]

When considering the intersection of the
Gladue
principles, as codified in s. 718.2(e), and the availability of conditional
    sentences to Indigenous offenders who have committed serious offences, the case
    of
R. v. Wells
, 2000 SCC 10, [2000] 1 S.C.R. 207, is instructive.

[41]

In
Wells
, the appellant was convicted
    of sexual assault, and sentenced to 20 months incarceration. He appealed his
    sentence and sought to convert it to a conditional sentence, on the basis that
    the sentencing judge did not take account of the considerations required by s.
    718.2(e).

[42]

Iacobucci J. summarized the central issues
    raised by this appeal at para. 25:

Section 718.2(e) of the
Criminal Code
provides that all available sanctions other than imprisonment that are
    reasonable in the circumstances should be considered, with particular attention
    to the circumstances of aboriginal offenders.
As a
    general matter, this appeal raises the issue of whether a non-custodial
    sentence is reasonable, to use the language of s. 718.2(e), in circumstances
    where the paramount sentencing objectives are denunciation and deterrence
.
    More specifically, this appeal must determine whether the trial judge properly
    applied s. 718.2(e) when sentencing the appellant. [Emphasis added.]

[43]

In dismissing the appeal, the court made the
    following observations, at para. 30:

If the judge's preliminary assessment of a fit
    sentence excludes both a suspended sentence and a penitentiary sentence, and
    the statutory prerequisites in s. 742.1 are fulfilled, then he or she is
    required to consider s. 718.2(
e
) when deciding the appropriateness of
    a conditional sentence.
The judge's consideration of
    s. 718.2(
e
) at this stage does not displace the need to take into
    account all of the other principles and objectives set out in ss. 718 to
    718.2
. Moreover, whenever a judge narrows the choice to a sentence
    involving a sentence of incarceration,
the judge is
    obliged to consider the unique systemic or background circumstances which may
    have played a part in bringing the particular aboriginal offender
    before the courts. As well, the judge must consider the types of practicable
    procedures and sanctions which would be appropriate in the circumstances for
    the offender because of his or her particular aboriginal heritage
.
    As was indicated in
Gladue
,
the application
    of s. 718.2(
e
)

does not mean that a sentence
    will automatically be reduced
, since the determination of a fit sentence
    requires a consideration of all the principles and objectives set out in Part
    XXIII. [Emphasis added; citations omitted.]

[44]

The fact that a conditional sentence is
    available does not mean that one will necessarily be imposed. The sentencing
    judge is still required to conduct an individualized analysis, considering all
    the relevant principles of sentencing and weighing the appropriate factors to
    determine a fit sentence.

[45]

I accept that with the recent ruling in
Sharma
,
    it is now open for this court to consider the appropriateness of a conditional
    sentence for the appellant.

[46]

I also accept that in all cases involving the
    sentencing of an Indigenous accused, judges are directed by s. 718.2(e) of the
Criminal
    Code
to consider all available sanctions, other than imprisonment, that
    are reasonable in the circumstances and consistent with the harm done to
    victims or to the community.

[47]

In this case, the sentencing judge was of the
    view that because of the nature and circumstances of this particular offence,
    an actual custodial sentence was warranted, even when the Indigenous status of
    the appellant was factored into the sentencing analysis.

[48]

When applying s. 718.2(e) to determine the
    appropriate sentence to be imposed, the court must consider sanctions that are
reasonable in the circumstances
and
consistent with the harm done
to victims or to the
    community (emphasis added). The available sanctions must be reasonable in the
    circumstances. Not all sanctions, though available, are reasonable in the
    circumstances of the offence and the offender.

[49]

The trial judge recognized that there was no
    minimum sentence for the robbery, and in theory, he could consider a
    non-custodial sentence such as a suspended sentence and a period of probation. However,
    he concluded that because this offence was a bank robbery involving a weapon,
    he was obliged to impose a custodial sentence.

[50]

In the circumstances of this case, this was a conclusion
    that was open to the sentencing judge. In
Gladue
, the court recognized
    that even where Indigenous offender are concerned, there are some serious
    offences and some offenders for which and for whom separation, denunciation,
    and deterrence are fundamentally relevant: at para. 78. That court went on to
    say that [g]enerally, the more violent and serious the offence the more likely
    it is as a practical reality that the terms of imprisonment for aboriginals and
    non-aboriginals will be close to each other or the same, even taking into
    account their different concepts of sentencing: at para. 79. While I
    acknowledge that this latter statement was subsequently qualified in
Wells
,
    at para. 50, and
Ipeelee
, at paras. 84-85, and 87, I nevertheless find
    it instructive in considering the present issue.

[51]

The court in
Gladue
was also clear that
    s. 718.2 (e) should not be taken as requiring an automatic reduction of a
    sentence, or a remission of a warranted period of incarceration, simply because
    the offender is aboriginal. Instead, it is a direction to sentencing judges
    to consider certain unique circumstances pertaining to aboriginal offenders in
    reaching a fit sentence: at para. 88.

[52]

After considering the sentencing judges
    reasons, the applicable principles, the appellants fresh evidence, and this
    courts decision in
Sharma
, I conclude that the sentencing judges
    decision is sound. I would not alter the sentence imposed, even after
    considering the newfound availability of a conditional sentence for robbery.

[53]

Accordingly, I would not give effect to this
    ground of appeal.

E.

CONCLUSION

[54]

Having determined that the sentence imposed at
    trial was fit, and that the sentencing judge did not commit any error in
    principle or law that had an impact on the sentence, I would not interfere with
    the sentence imposed.

[55]

However, I would allow the appeal for the
    limited purpose of permanently staying the execution of the appellants remaining
    period of incarceration. Almost two years have passed since the appellant was
    sentenced. He spent 27 days in custody between receiving his sentence and being
    released on bail pending appeal. He was released on bail pending appeal on
    October 16, 2019, and his time since his release has been without incident.

[56]

Most importantly, the fresh evidence indicates
    that the appellant has since had no trouble with the law and is living a positive
    and pro-social life. He has developed positive relationships with his mother,
    brother, and father. He started his own catering company and cooks on a
    volunteer basis for a charitable organization. The evidence indicates that the
    appellant is not consuming drugs. He has also started seeing a psychiatrist to
    address his underlying mental health issues and discuss how his drug addiction
    impacted his behaviour.

[57]

In my view, reincarcerating the appellant at
    this stage would serve no genuine societal interest and is unnecessary to
    achieve the objectives of denunciation and general deterrence:
R. v. Owen
,
    2015 ONCA 462, 336 O.A.C. 95, at para. 62. Instead, those objectives can be met,
    without disrupting the appellants rehabilitative progress, by affirming the
    sentence initially imposed. Furthermore, the sentencing judge explicitly noted
    that specific deterrence was not relevant to the appellant, who in their view
    was not likely to reoffend. My view on the issue of reincarceration is
    strengthened when I consider the Supreme Court of Canada's guidance in
Gladue
.
    The community is best protected if the [appellant] continues along [his]
    rehabilitative path, and I would accordingly stay the remainder of his
    custodial sentence and substitute a total period of probation of two years:
R.
    v. Smickle
, 2014 ONCA 49, 317 O.A.C. 196, at paras. 18-20;
R. v. Dufour
,
    2015 ONCA 426, 326 C.C.C. (3d) 52, at paras. 11, 13, 17, and 29;
Owen
,
    at para. 63.

[58]

Finally, I would also impose a weapons prohibition
    order under s. 109 of the
Criminal Code
, for a period of ten years.

Released: S.E.P. February 10, 2021

M.
    Tulloch J.A.

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

I
    agree. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Griffith, 2021 ONCA 302

DATE: 20210507

DOCKET: C66830

Miller, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Taylor Adam Griffith

Appellant

Marianne Salih, for the appellant

Avene Derwa, for the respondent

Heard: October 28, 2020 by video conference

On appeal from the conviction entered on
    October 31, 2018 and the sentence imposed on January 11, 2019, with reasons
    reported at 2019 ONSC 358, by Justice Alfred J. OMarra of the Superior Court
    of Justice.

Jamal J.A.:

A.

overview

[1]

The appellant, Taylor Griffith, was convicted of
    offences related to the unlawful possession of a loaded semi-automatic handgun with
    a chambered round ready to fire and possession of crack and powder cocaine
for the purpose of trafficking
. He was sentenced to 6
    years in prison and various ancillary orders, less credit for pre-sentence
    custody calculated at 22 months, requiring him to serve another 4 years and 2
    months. He now appeals his conviction and seeks leave to appeal his sentence.

[2]

The main issue on the conviction appeal is
    whether the trial judge erred in dismissing an application to exclude the evidence
    of the handgun and drugs found on the appellant when he was searched incident
    to arrest. The trial judge found the police had objectively reasonable grounds
    to arrest the appellant in all the circumstances, including their previous observations
    of hand-to-hand transactions of suspected drug trafficking. He also held  and
    the Crown conceded  that the police breached the appellants right to counsel
    under s. 10(b) of the
Charter
by delaying his access to counsel for
    several hours while they executed search warrants at his apartment and storage
    locker.
At the same time, the
trial judge ruled
    that the police had case-specific concerns for officer safety and evidence
    preservation that justified delaying access to counsel until the search
    warrants were executed. The trial judge declined to exclude the evidence under
    s. 24(2) of the
Charter
. He also declined to reduce the appellants
    sentence because of the s. 10(b) breach.

[3]

For the reasons that
follow, I would dismiss the conviction and sentence appeals. I agree
    with the trial judge that the police had objectively reasonable grounds to
    arrest the appellant and to search him incident to arrest. I also agree with
    the trial judge that the police breached s. 10(b) by delaying access to counsel,
    but as I explain below, I would find the breach to have been briefer than the
    trial judge found. The police were justified in delaying access to counsel while
    they executed the search warrants because of the case-specific concerns for
    officer safety that the trial judge himself found. This delay in accessing
    counsel therefore did not breach s. 10(b). However, the further unexplained delay
    in accessing counsel, of one hour and twenty minutes after the search warrants were
    executed, did breach s. 10(b). Despite this breach of s. 10(b)  which appears to
    have been unintentional and situation-specific rather than systemic  I would
    not exclude the evidence under s. 24(2) of the
Charter
. I also see no
    basis to interfere with the trial judges assessment that the s. 10(b) breach did
    not warrant a sentence reduction.

B.

background

[4]

The police received information from a
    confidential informant that the appellant was selling drugs on Eglinton Avenue
    West in Toronto in an area known to have drug trafficking problems. A team of
    four plain-clothes officers from the Major Crime Unit of the Toronto Police
    Service  Detective Constables Quinlan, Mignardi, McCartney, and Pollard
    placed the appellant under surveillance. The officers were trained and
    experienced in drug investigations and had seen many street-level drug deals.
    They followed and watched the appellant on October 10, 11, 21, and 24, 2017.

[5]

The surveillance was challenging because the appellant
    jumped fences and habitually used alleyways rather than main streets. The
    officers perceived the appellant to
be conscious of
surveillance.
    D.C. Mignardi described his head [as] always on a swivel.

October 10

[6]

On October 10, 2017, D.C.s Mignardi and
    McCartney followed the appellant as he left a library on Eglinton Avenue West
    carrying a satchel. He went down a laneway, over a fence, and used a key to
    enter an apartment building. The officers were familiar with the apartment building
    because they had received complaints that some tenants allowed drug users to consume
    drugs in their units and they had made several drug arrests there. The landlord
    had even given the police a key to the building because of concerns about drug trafficking.
    D.C.s Quinlan and Mignardi testified that they had been in the building a lot.
    D.C. Quinlan said he had conducted three or four drug investigations there that
    led to arrests.

October 11

[7]

The next day, D.C. Quinlan went back to the
    building. He went to a third‑floor apartment that the confidential informant
    told the police that the appellant occupied and he saw the appellant leave the apartment.

October 21

[8]

On October 21, 2017, D.C. Mignardi monitored the
    appellant as he sat on a park bench in a parkette. She was about 20 meters away
    from the appellant and out of sight. The appellant was talking on his
    cellphone. She saw two men approach him on bicycles and interact with him for
    about 30 seconds. She recognized them both as suspected drug users and had seen
    them in the area  one of them daily, panhandling. She knew one of them lived
    in a house full of drug users because she had been in the house twice and had
    seen him inside with crack pipes and drugs scattered around. At first, the men on
    bicycles had their hands in their pockets and then completed a hand-to-hand
    transaction with the appellant, lasting like a second, in which their fists were
    slightly clenched, their hands met, and there was sort of a  swap. It was
    not a fist-bump, but a sort of handshake where the palms swiped together. D.C.
    Mignardi saw no money or drugs and heard no conversation. The two men then rode
    away in the direction they had come, and the appellant immediately got up and walked
    away.

[9]

D.C. Mignardi was convinced the two men had just
    bought drugs from the appellant. She had seen about 50 hand-to-hand drug
    transactions in her career. She had also just completed a drug-investigation
    training course the week before, including on what to look for in hand-to-hand
    transactions  it matched what she had just seen.

[10]

D.C. Quinlan came to assist D.C. Mignardi at the
    parkette. He was about 100 metres away. He saw the two men on bicycles ride by.
    He knew one of them by name as a suspected drug user because he had seized a
    crack pipe from him once before and often saw him panhandling.

[11]

D.C. Mignardi testified that she believed she
    now had grounds to arrest the appellant for drug possession and possession
for the purpose of trafficking
. The officers decided
    not to arrest the appellant that night, however, because they wanted to
    continue the investigation and planned to seek a search warrant. D.C. Mignardi
    testified that the police wanted to see what [the appellant] was up to and to
    learn where he was keeping his product and if there was more product.

[12]

The police continued to follow the appellant
    that evening. He went into a laundromat and came out carrying a garbage bag of
    clothes. They then followed him to a storage locker, which he left empty-handed
    after less than 20 minutes.

October 24

[13]

On October 24, 2017, D.C. Mignardi drafted two search
    warrant applications: one for the appellants apartment and one for the storage
    locker. The police planned to arrest him and then to execute the search warrants
    when they had him in custody.

[14]

The officers tracked down the appellant in
    mid-afternoon and saw him enter a John Howard Society building. They
decided to arrest
him based on the hand-to-hand
    transactions they had seen three days earlier. They tried to locate him in the
    building but could not find him. They then saw him leave the building carrying
    a bag and followed him into a laneway. After a brief struggle in which the
    appellant tried to escape, D.C.s McCartney and Mignardi arrested the appellant
    at 3:55 p.m.

[15]

During the struggle as the appellant was
    arrested, D.C. Mignardi saw a handgun in the waistband of his pants and seized it
    incident to arrest. It turned out to be a loaded semi-automatic handgun with a
    chambered round ready to fire and 11 more rounds in the magazine.

[16]

The police also searched the appellants bag
    incident to arrest and found over an ounce of crack and powder cocaine, $440 in
    cash, and his identification.

[17]

The officers called for a marked police cruiser
    so that the appellant could be videotaped as he was read his rights. He was
    placed in a marked cruiser at 4:00 p.m. At 4:03 p.m., the appellant was advised
    of his right to counsel, as recorded on the in-car camera. He was asked, Do
    you want to call a lawyer now? He replied, Yes, and told the officer the
    name of his lawyer.

[18]

The appellant was then transported to the police
    station. At 4:25 p.m., as he was being processed, an officer reminded the
    appellant of his right to counsel. The appellant reiterated that he wanted to
    speak to the lawyer he had named. The officer told the appellant that the
    police would try to contact his lawyer.

[19]

Meanwhile, the police executed the search warrants.
    They drove to the storage locker, which was about 15 minutes drive away, and searched
    it, beginning at 5:07 p.m. The search took just two minutes. They then took
    photographs and secured the scene. Next, they drove to the appellants apartment,
    and searched it from 5:50 p.m. until 6:20 p.m. They found nothing of
    consequence at either place. They then returned to the police station at 6:28
    p.m.

[20]

At 7:40 p.m.  three hours and forty-five
    minutes after the appellants arrest and an hour and twenty minutes after the search
    warrants had been executed  the appellant
was
    allowed to
speak to his lawyer.
At no time
did
    the police explain to the appellant the reason for the delay in accessing
    counsel.

C.

The trial judges reasons

[21]

At the start of trial, the trial judge dismissed
    an application to exclude the evidence of the gun and drugs seized incident to
    arrest:
R. v. Griffith
, 2018 ONSC 6471. The trial judge ruled: (1) the
    police had objectively reasonable grounds to arrest the appellant, and thus did
    not violate his right not to be detained arbitrarily under s. 9 of the
Charter
;
    (2) the warrantless search of the appellant was a lawful search incident to
    arrest, and thus did not breach his right against unreasonable search or
    seizure under s. 8 of the
Charter
; and (3) the delay in accessing counsel
    until after the search warrants were executed breached the appellants right to
    counsel under s. 10(b) of the
Charter
.

[22]

The trial judge held, however, that the evidence
    should not be excluded under s. 24(2) of the
Charter
. He ruled: (1) the
    police conduct in delaying access to counsel and failing to inform the
    appellant of the reason for the delay, while not done in bad faith, was
    serious misconduct that favoured excluding the evidence; (2) the delay in
    accessing counsel had minimal negative impact on the appellant and there was
    no causal or indeed temporal connection between the s. 10(b) breach and the
    evidence obtained, which mitigated the impact of the breach on his
Charter
-protected
    interests; and (3) the evidence seized was reliable and crucial to the
    prosecution of very serious offences. Balancing the seriousness of the breach,
    the minimal negative impact on the appellants
Charter
-protected
    interests, and societys interest in the adjudication of these offences on the
    merits, the trial judge ruled that the admission of this evidence would not
    bring the administration of justice into disrepute.

[23]

On the admission of the evidence, the appellant
    was found guilty. He was sentenced to a global sentence of six years in prison:
    four years for possession of a loaded prohibited firearm; one year consecutive
    for possession of crack cocaine and powder cocaine
for
    the purpose of trafficking
; one year consecutive for breach of a
    firearms prohibition order; six months concurrent for breach of a probation
    order; and various ancillary orders. After pre-sentence custody credit calculated
    at 22 months, the appellant had 50 months left to serve.

D.

discussion

[24]

I will address the following four issues:

1.

Did the police lawfully arrest the appellant and search him incident
    to arrest?

2.

Were the police justified in delaying the appellants
    access to counsel?

3.

Should the evidence have been excluded under s.
    24(2) of the
Charter
?

4.

Did the trial judge err in his sentencing
    analysis?

Issue #1: Did the police lawfully arrest the appellant and search him
    incident to arrest?

(a)

Overview

[25]

The appellants first ground of appeal asserts
    that the trial judge erred in concluding that the police had lawful grounds to
    arrest him based on what D.C. Mignardi saw in the parkette. He claims that
    because the police did not have lawful grounds to arrest him without a warrant
    or search him incident to arrest, his arrest violated s. 9 of the
Charter
and the search and seizure violated s. 8 of the
Charter
. As I will
    elaborate, I do not accept this submission.
In my
    view, the
police had lawful grounds to arrest the appellant and to search
    him incident to arrest.

(b)

The applicable principles

[26]

Section 495(1)(a) of the
Criminal Code
, R.S.C.
    1985, c. C-46,
provides that a
peace officer may arrest without warrant a person who has committed
    an indictable offence or who, on reasonable grounds, he believes has committed
    or is about to commit an indictable offence.

[27]

A lawful arrest requires the arresting police
    officer to have subjective reasonable and probable grounds to believe that an
    offence has been committed and those grounds must be justifiable from an
    objective viewpoint. The objective assessment depends on the totality of the
    circumstances relied on by the arresting officer, including the
dynamics of the situation
, as seen from the
    perspective of a reasonable person with comparable experience as the arresting
    officer:
R. v. Storrey
, [1990] 1 S.C.R. 241, at pp. 249-51;
R. v.
    Lawes
, 2007 ONCA 10, at para. 4; and
R. v. Anang
, 2016 ONCA
    825, 367 C.R.R. (2d) 289, at para. 14.

[28]

The existence of reasonable and probable grounds
    is founded on
the trial
judges factual
    findings. Although such factual findings attract appellate deference, whether
    the facts as found by the trial judge amount to reasonable and probable grounds
    is a question of law reviewable for correctness:
R. v. Shepherd
, 2009
    SCC 35, [2009] 2 S.C.R. 527, at para. 20;
Anang
, at para. 13.

(c)

Application to this case

[29]

The appellant does not dispute that D.C. Mignardi
    had subjective reasonable and probable grounds to believe that an offence had
    been committed in the parkette. He claims, instead, that her subjective grounds
    were not justifiable from an objective viewpoint. He submits that her belief
that
she saw two drug transactions in the parkette
    rested on unverifiable speculation: she saw no drugs or money exchanged and
    nobody was investigated that night. He says that nothing the police had seen
    during their surveillance of him was incriminating: the appellant walking
    around alone his own neighbourhood and taking short cuts, sitting on a park
    bench alone, or briefly interacting with two men on bikes.

[30]

I do not accept this submission. The appellants
    argument focuses on each factor in isolation and ignores the trial judges factual
    findings on the totality of the circumstances relied on by D.C. Mignardi. Such
    an approach is wrong in law: see
Lawes
, at para. 4. The relevant factual
    findings of the trial judge include D.C. Mignardis training and
    experience and her knowledge
of the participants
in
    the transactions, which informed his conclusion
that
she
    had objectively justifiable reasonable and probable grounds to believe that the
    appellant had committed an indictable offence. The trial judge found:

-

D.C. Mignardi saw the three men engage in very brief hand-to-hand
    transactions, lasting less than 30 seconds, which did not appear to be a
    handshake or other greeting, with limited or no conversation. The trial judge
    summarized D.C. Mignardis evidence as being that the men extended their arms with
    clenched fists as if holding something and then swiping or sliding their palms
    together, which she believed based on her training and experience to be
    exchanging money for drugs. The two men on bikes immediately rode away in the
    same direction as they had come. The appellant walked off in the other
    direction.

-

D.C. Mignardi had been involved in several drug surveillance
    investigations and had seen about 50 hand-to-hand drug transactions in her
    career. She and D.C. McCartney had relevant training.

-

D.C. Mignardi
had relevant knowledge about
    the three people
she saw: (1) she and her colleagues had seen the
    appellant behave
in a manner suggesting to them that
he
was conscious of
police surveillance; (2) the
    appellant was linked to an apartment building that the police knew had drug issues,
    so much so the landlord had given the police a key to the building because of these
    concerns; and (3) she knew the two men on bikes as suspected drug users, and
    her colleague, D.C. Quinlan, knew one man by name as a suspected drug user.

[31]

The appellant relies on
R. v. Brown
,
    2012 ONCA 225, 286 C.C.C. (3d) 481, as he did
at
    trial,
to support his claim that D.C. Mignardi lacked objectively justifiable
    reasonable and probable grounds to arrest him. As the trial judge noted,
    however, the facts in
Brown
were quite different from this case. In
Brown
,
    two police officers were on general patrol in a police cruiser. They
had no prior knowledge of either of the participants
in
    a suspected drug transaction on a street corner. One officer  but not the
    other  saw the suspected seller, the accused, extend his arm as if to hand
    over some drugs, but the suspected buyer did not reciprocate and instead walked
    away abruptly. On these facts, this court concluded that the officers
    observations did not provide any objective basis upon which to believe that
    the two persons were engaged in a drug transaction: at para. 15.

[32]

Here, however, the officers investigating the
    appellant
had prior knowledge about him
and
    the two suspected drug purchasers and they had had the appellant under surveillance
    for several days. On these facts, I see no error in the trial judges
    conclusion that D.C. Mignardi had reasonable and probable grounds to arrest the
    appellant without a warrant. A reasonable person standing in the shoes of D.C. Mignardi,
    with the same training and experience as her in investigating drug cases and
    seeing hand-to-hand transactions, and with the same knowledge of her
    surveillance of the appellant and what she had seen in the parkette, could in
    all the circumstances reasonably believe that drug transactions had occurred. The
    arrest was therefore lawful and the police did not breach s. 9 of the
Charter
.

[33]

It follows from my conclusion that the
    appellants arrest was lawful that the search incident to that arrest was also lawful.
    The appellant does not argue otherwise. The police could search the appellant incident
    to arrest to locate and preserve evidence and to ensure the safety of the
    police, the public, and the appellant  particularly when D.C. Mignardi saw a
    handgun in the waistband of his pants as he was arrested: see
Cloutier v.
    Langlois
, [1990] 1 S.C.R. 158, at p. 186;
R. v. Golden
, 2001
    SCC 83, [2001] 3 S.C.R. 679, at paras. 74-75; and
R. v. Nolet
,
    2010 SCC 24, [2010] 1 S.C.R. 851, at para. 49. The police thus did not breach
    s. 8 of the
Charter
.

Issue #2: Were the police justified in delaying the appellants
    access to counsel?

(a)

Overview

[34]

The second issue is whether the police were
    justified in delaying the appellants access to counsel. As I will elaborate, both
at trial
and on appeal, the Crown conceded
    that the breach of s. 10(b) of the
Charter
lasted from when the appellant
    was arrested, at 3:55 p.m., to 7:40 p.m.  a delay of three hours and
    forty-five minutes, or one hour and twenty minutes after both search warrants had
    been executed at 6:20 p.m.
At the same time,
the
    Crown sought to uphold the trial judges factual finding that the police had
    case-specific concerns for officer safety and the preservation of evidence that
    justified them delaying access to counsel until after the searches were
    completed. The Crown appeared to view these case‑specific concerns as
    mitigating the overall seriousness of the breach. The appellant agreed with the
    Crown as to the duration of the s. 10(b) breach, but disagreed
that
there were any case-specific concerns for
    officer safety or the preservation of evidence that justified the delay in accessing
    counsel.

[35]

I agree with the Crown that the trial judge could
    find on the evidence that the officers had case-specific concerns about officer
    safety that justified delaying access to counsel until they completed the
    searches. Based on that finding, however, I would hold that the initial delay until
    the completion of the searches at 6:20 p.m. did not infringe s. 10(b). The
    subsequent delay in implementing the right to counsel, from 6:20 p.m. until
    7:40 p.m., did infringe s. 10(b).

(b)

Applicable principles

[36]

Section 10(b) of the
Charter
provides
    that everyone has the right on arrest or detention to retain and instruct
    counsel
without delay
and to be informed of that right (emphasis
    added).

[37]

The jurisprudence has confirmed that s. 10(b) requires
    the police to inform a detainee of the right to speak to counsel immediately (an
    informational duty), and if that right is exercised, the police must
    immediately provide the detainee with a reasonable opportunity to speak to
    counsel (an implementational duty):
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;
R. v. Rover
, 2018 ONCA 745, 143 O.R. (3d) 135, at
    para. 25; and
R. v. La
, 2018 ONCA 830, 366 C.C.C. (3d) 351, at para.
    38.

[38]

Courts have recognized that specific circumstances,
    including concerns for police safety, public safety, or the preservation of
    evidence, may justify some delay in providing a detainee access to counsel:
Suberu
,
    at para. 42;
Rover
, at para. 26; and
La
, at para. 38. Such
    concerns must be case-specific rather than general concerns applicable to
    virtually any case:
Rover
, at para. 27;
La
, at paras. 39-40. As
    Doherty J.A. explained in
Rover
 decided almost a year after the
    execution of the warrants in this case  the police may delay access to counsel
    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:
Rover
,
    at para. 27. Even if such circumstances exist, the police must take reasonable
    steps to minimize the delay in granting access to counsel:
Rover
, at
    para. 27;
La
, at para. 40.

(c)

Application to this case

[39]

At trial,
Crown counsel (not appellate counsel) conceded that the appellants
    section 10(b) rights had been breached by a suspension of his rights until the
    execution of [the] search warrants. The Crown argued that the police were
    justified in delaying the appellants s. 10(b) rights because of case-specific concerns
    for evidence preservation and police safety and submitted that the court should
    consider this in assessing the seriousness of the breach under s. 24(2).
    Defence counsel
at trial
(not appellate
    counsel) did not suggest a different analytical approach. Before this court,
    appellate Crown counsel adopted the same approach, stating in her factum that
    the police decision to delay the appellants access to counsel until the
    search warrants were executed constituted a violation of s. 10(b). Counsel for
    the appellant agreed.

[40]

The trial judge seems to have adopted the Crowns
    approach. He found that the police had case-specific concerns that justified
    delaying the appellants right to counsel in consideration of police/public
    safety and the preservation of evidence. He summarized D.C. Quinlans testimony
    as being
that
there were heightened concerns
    regarding police safety given the arrest involved an accused who possessed a
    loaded firearm, and they did not know if the apartment they were to search,
    where they suspected drugs to be present, was occupied by others. The trial
    judge also found that there was a concern about the possible destruction of
    evidence. Later in his reasons, however, the trial judge ruled that the delay
    in accessing counsel constituted serious misconduct.

[41]

In my view, the trial judge and the parties proceeded
    on the mistaken assumption that a justified delay in accessing counsel breaches
    s. 10(b). That is not the law.

The
    correct approach is reflected by this courts decisions in
Rover
and
R.
    v. Leonard
, 2020 ONCA 802. In
Rover
, Doherty J.A. took no issue
    with the analysis of the trial judge in that case that concerns for officer
    safety and evidence preservation could justify delaying access to counsel: at
    paras. 18, 26-27. He added, however, that the police must have case-specific
    evidence that the police turned their minds to the circumstances
of the case
before delaying access to counsel: at
    paras. 32-33. More recently, in
Leonard
, this court confirmed that a
    reasonable delay in accessing counsel justified by case-specific concerns for
    officer safety does not violate s. 10(b): at para. 15.

[42]

Because the Crowns concession of a breach of s.
    10(b) arising from a justified delay in accessing counsel is an erroneous
    concession of law, this court is not bound by the concession and must analyze
    the situation according to what the law provides:
R. v. Barabash
, 2015
    SCC 29, [2015] 2 S.C.R. 522, at para.
54;
R. v. Shaikh
, 2019 ONCA 895, 148 O.R. (3d) 369, at
    para. 63.

[43]

Applying the correct analytical framework, I now
    turn to consider whether the evidence supported the trial judges conclusion that
    the police had case-specific concerns for police safety and evidence
    preservation that justified delaying access to counsel.

[44]

The appellant asserts
that
there was no case-specific evidence and the police merely followed a
    general practice of delaying access to counsel until the search warrant had been
    executed. He claims the concerns alleged by the police were of a general or
    non-specific nature applicable to virtually every search and therefore cannot
    justify suspending the constitutional right to counsel. He relies on D.C. Pollards
    evidence of the polices general practice of delaying access to counsel until
    after the execution of a search warrant and D.C. Quinlans characterization of that
    practice as just smart policing. D.C. Quinlan also testified that it is
    always better from an officer-safety standpoint to have the target in custody
    before executing the search warrant. D.C. Mignardi similarly agreed with the
    suggestion
that
there is always a risk that
    the target could call someone to facilitate destroying evidence.

[45]

This evidence must, however, be considered in
the context of
other evidence that confirmed the
    police had turned their minds to the specific circumstances
of this case
and had a reasonable basis for
    concluding
that
there were concerns for
    officer safety at a minimum. D.C. Mignardi testified that the police had just
    arrested the appellant with a loaded gun and we didnt want to put any of our

our lives in danger by going to a house
    where [the appellant is] able to phone whoever he wants when hes at [the
    police station]. She also testified that the team had specifically
    consider[ed] safety issues when a decision was made to arrest [the appellant]
    before the execution of the search warrants so that his rights would be
    suspended until the search warrants [were] executed. She noted that searches were
    to be conducted at two locations  the storage locker and the apartment  which
    raised particular safety concerns if the appellant could telephone somebody
    before both searches were completed. D.C. Quinlan similarly testified that the
    officer safety concerns were heightened by the firearm recovered from the
    appellant. He highlighted
that
this was not a
    large operation and included only four officers. Cumulatively, this testimony
    provided an evidentiary basis for the trial judges conclusion that the police had
    a reasonable basis to conclude that concerns for officer-safety justified delaying
    access to counsel until the searches were completed.

[46]

Given this conclusion, I need not decide whether
    the police were justified in delaying access to counsel based on case-specific evidence-preservation
    concerns that rose beyond a general or non-specific nature applicable to
    virtually any search. The police-safety concerns alone justified their
    approach.

[47]

To sum up, I conclude that the police did not
    breach s. 10(b) by delaying access to counsel until the searches were completed
    at 6:20 p.m., but they did do so from 6:20 p.m. to 7:40 p.m., when the
    appellant finally called his lawyer.

Issue #3: Should the evidence have been excluded under s. 24(2) of
    the
Charter
?

[48]

The next issue is whether the trial judge erred
    in not excluding the evidence of the gun and drugs under s. 24(2) of the
Charter
.

[49]

A trial judges decision to admit or exclude
    evidence under s. 24(2) of the
Charter
attracts appellate deference
    absent an error in principle, a failure to consider the proper factors, a
    palpable and overriding factual error, or an unreasonable determination:
R.
    v. Just
, 2020 ONCA 362, 388 C.C.C. (3d) 273, at para.
21;
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at
    para. 64;
La
, at para.
37; and
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 86, 127.

[50]

Section 24(2) is triggered where evidence is
    obtained in a manner that violates an accuseds
Charter
rights. A s.
    24(2) inquiry examines the impact of admitting evidence obtained in breach of
    the
Charter
on public confidence in the justice system over the long
    term, based on the factors set out in the leading case of
Grant
: (i)
    the seriousness of the
Charter
-infringing state conduct; (ii) the impact
    of the breach on the accuseds
Charter
-protected interests; and (iii)
    societys interest in the adjudication
of the case
on
    the merits. The courts task is to balance the assessments under these three
    inquiries to determine whether, considering all the circumstances, admission
    of the evidence would bring the administration of justice into disrepute:
Grant
,
    at para. 71;
R. v. Le
, 2019 SCC 34, 434 D.L.R. (4th) 631, at paras.
    139-142.

[51]

Section 24(2) does not create an automatic
    exclusionary rule when evidence is obtained
in a
    manner that infringes
a
Charter
right. The accused bears the
    onus of establishing that, having regard to all the circumstances, the
    admission of the evidence would bring the administration of justice into disrepute:
R. v. Hobeika
, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 76;
R.
    v. Lenhardt
, 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11; and
R.
    v. Fearon
, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 89.

Obtained in a manner

[52]

Courts have taken a very broad reading and
    generous view of the phrase obtained in a manner under s. 24(2), the
    threshold requirement of whether the admission of the evidence would bring the
    administration of justice into disrepute:
Hobeika
, at para. 77;
R.
    v. Pileggi
, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 101. The
    jurisprudence has accepted that courts should examine the entire chain of
    events between the accused and the police:
R. v. Pino
, 2016 ONCA
    389, 130 O.R. (3d) 561, at para. 72;
Pileggi
, at para. 101. The
    connection between the breach and the discovered evidence may be causal,
    temporal, or contextual, or any combination of these three connections, as
    long as the connection is not too tenuous or too remote:
Pino
, at
    para. 72;
Pileggi
, at para. 101; see also
R. v.

Wittwer
,
    2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; and
Rover
, at para. 35.

[53]

Here, before this court, the parties accepted that
    the evidence was obtained in a manner that infringed the appellants
Charter
rights. The Crown did not dispute this, while the appellant submitted
that
there was a contextual and temporal connection
    between the s. 10(b) breach and the impugned evidence. The trial judge made no
    express finding on this point. His reasons appear to have accepted
that
this criterion was satisfied and then addressed
    whether the evidence should be admitted under the test in
Grant
.

[54]

I pause here to note that when addressing the
    impact of the breach  the second
Grant
factor  the trial judge said
    that there is no causal or indeed
temporal connection
between the s.
    10(b) breach and the evidence obtained (emphasis added). Similarly, in his
    sentencing reasons, the trial judge stated that the firearm and drugs [were]
    not
contextually
, causally or [
temporally]
connected to the
    breach of delaying contact with counsel (emphasis added). If these comments
    are read literally, there would have been no need to apply the
Grant
test
    because the threshold for applying s. 24(2) would not have been met.

[55]

The trial judge may have misspoken when he said
    there was no temporal or contextual connection between the evidence and the s.
    10(b) breach. If he did not misspeak, he was in error. Although the evidence was
    not causally connected to the breach of s. 10(b) because it was discovered
    before the breach, there was no basis to find
that
it
    was not temporally or contextually connected to the breach or that the
    connection was tenuous or remote. The discovery of the evidence and the s.
    10(b) breach all arose from the same transaction  the appellants arrest: see
Pino
,
    at para. 73. The connection was temporal because the discovery of the evidence
    was relatively close in time to the s. 10(b) breach and part of the continuum
    of events arising from the appellants arrest: see
Pino
at para. 74.
    The connection was also contextual because the discovery of the evidence arose out
    of the same events flowing from the appellants arrest that led to the s. 10(b)
    breach: see
Pino
, at para. 74. Neither connection was tenuous or
    remote.

[56]

I would therefore find that s. 24(2) of the
Charter
was engaged. I now turn to the three lines of inquiry under
Grant
.

(i)

The seriousness of the
Charter
-infringing state conduct

[57]

The first line of inquiry considers the
    seriousness of the police conduct that infringed the
Charter
and was
    connected to the discovery of the evidence. It asks whether the police engaged
    in misconduct from which the court should dissociate itself, such as where the
    departure from
Charter
standards was significant or where the police
    knew or should have known that their conduct breached the
Charter
; or
    rather whether the breach was merely
of a
technical
nature
or reflected an understandable mistake,
    in which case dissociation is much less of a concern:
Grant
, at paras.
    72-74;
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22;
    and
R. v. McSweeney
, 2020 ONCA 2, 384 C.C.C. (3d) 265, at para. 78.

[58]

Courts should dissociate themselves from
    evidence obtained through a negligent breach of the
Charter
:
Le
,
    at para. 143; see also
Grant
, at para. 75. A systemic problem or
    pattern of
Charter
-infringing conduct is an aggravating factor that
    supports exclusion:
Grant
, at para. 75;
Harrison
, at para.
    25.

[59]

Here, the trial judge found that the police
    breached s. 10(b) by delaying access to counsel until after the execution of
    the warrants and then for another hour and twenty-minutes. He also considered
    the police conduct in failing to inform the appellant of the reason for the
    delay. He distinguished
Rover
because he found the delay in accessing counsel
    here was because of case-specific concerns for police safety and evidence
    preservation. He concluded that although the s. 10(b) breach and the failure to
    inform the appellant of the reason for the delay were not done in bad faith,
    they involved serious misconduct, which in the analysis favours exclusion.

[60]

I agree with the trial judges final assessment
    that the s. 10(b) breach was serious, even though I would find the breach in
    accessing counsel as having been briefer than the trial judge found. I also
    agree that the polices failure to inform the appellant of the reason for the
    delay in accessing counsel aggravated the s. 10(b) breach. This was a
    significant breach of established obligations under s. 10(b).

[61]

I would add that the seriousness of the s. 10(b)
    breach arising from the one hour and twenty minutes of unjustified delay in
    accessing counsel must be understood in
the
    particular context of
this case. The police had
already
    delayed
access to counsel for two hours and twenty-five minutes to
    execute the warrants. Once the searches were completed, the police should have acted
    with particular urgency in providing the appellant access to counsel. Instead, they
    let him wait in his cell without access to counsel for another hour and twenty
    minutes.

[62]

I acknowledge that the
police took
some
steps to minimize
    the delay the appellant experienced by obtaining the search warrants before he was
    arrested. This factor was highlighted in
Rover
as mitigating the
    seriousness of the breach by helping to minimize the delay in accessing counsel:
Rover
, at para. 39.

[63]

I also note that the delay in accessing counsel
    after the searches were completed was left largely unexplained. There is no
    evidence to permit a further finding  there is no evidence of a pattern of
    ignoring constitutional rights during detention, of a deliberate decision to do
    so, or any evidence of other constitutional breaches while the appellant was
    detained. This lack of evidence bears on whether the appellant has met his onus
    under s. 24(2) of establishing that the admission of the evidence would bring
    the administration of justice into disrepute:
Hobeika
, at para. 76;
Lenhardt
,
    at para. 12.

[64]

The only evidence in the record pointing in any
    direction appears to suggest that
the failure to
provide
    access to counsel after execution of the search warrants was a fact-specific
    oversight, albeit a serious one. D.C. Mignardi testified that after executing
    the warrants she headed back to the station and started working on the  case
    by inputting information, such as the record of the arrest, in the police
    computer system. She explained
that
there is
    pressure to make sure all your notes [are] in for disclosure purposes right
    away. She did not speak to the appellant. At some point, she learned from
    another officer that the appellant wanted to contact his lawyer. At 7:40 p.m., she
    helped him to do so. She then returned to inputting information in the police
    computer system. She testified that the police did not set out to intentionally
    delay the appellants right to counsel and there was no advantage to the
    investigation or prosecution in doing so. She testified that she was trying to
    fulfill the appellants
Charter
rights, and specifically, his right to
    counsel.

[65]

In mentioning this evidence, I should not be
    taken as suggesting that the police can delay access to counsel to input
    information in their computer system or that an officers assertion
that
they did not intend to breach constitutional
    rights is itself determinative. I simply highlight that the only evidence in
    the record appears to suggest that what happened here was a fact-specific
    oversight and not a systemic or intentional breach of the appellants s. 10(b)
    rights.

[66]

Even if unintentional, what happened here reflected
    an unacceptably negligent approach to safeguarding the appellants s. 10(b) rights.
    The police conduct violated an established constitutional obligation. As this
    court has noted, [t]he law around s. 10(b) is clear and long-settled. It is
    not difficult for the police to understand their obligations and carry them
    out:
R. v. Noel
, 2019 ONCA 860, at para. 34. The officers collective
    negligence in failing to uphold the appellants s. 10(b) rights precludes
    a finding of good faith: see
Le
, at paras. 143, 147;
Pileggi
,
    at para. 119; and
Hobeika
, at para. 81.

[67]

A serious breach of an established
    constitutional right supports exclusion of evidence under s. 24(2), even if the
    breach is not deliberate or systemic or part of a pattern of police misconduct:
Harrison
, at paras. 24-25;
R. v. Paterson
, 2017 SCC 15,
    [2017] 1 S.C.R. 202, at para. 44; and
Hobeika
, at para. 82. That
    principle applies here.

(ii)

Impact of the breach on the appellants
Charter
-protected  interests

[68]

The second line of inquiry under s. 24(2) asks
    whether and to what extent the
Charter
breach actually undermined the
    interests protected by the right infringed:
Grant
, at para. 76;
Le
,
    at para. 151. This involves identifying the interests protected by the
Charter
rights and evaluating how seriously the
Charter
infringements
impacted
those interests. The more serious the
    impact on
Charter
-protected interests, the greater the risk that
    admission of the evidence may signal to the public that
Charter
rights, however high-sounding, are of little actual avail to the citizen,
    breeding public cynicism and bringing the administration of justice into
    disrepute:
Grant
, at paras. 76;
Le
, at para. 151.

[69]

The s. 10(b) right to retain and instruct
    counsel without delay and to be informed of that right allows a detainee to
    obtain advice about how to exercise their rights relevant to their legal
    situation:
R. v. Taylor
, 2014 SCC 50, [2014] 2 S.C.R. 495, at para.
    21;
R. v. Wong
, 2015 ONCA 657, 127 O.R. (3d) 321, at para. 77. This
    helps ensure that a detainees choice to speak to the police is free and
    informed and guards against the risk of involuntary self-incrimination:
Suberu
,
    at para. 40;
R. v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at
    para. 25; and
Wong
, at para. 77. As Doherty J.A. explained in
Rover
,
    the right to counsel is a lifeline for detained persons that provides
    detainees with both legal advice and psychological benefits by conveying to
    them
that
they are not at the mercy of the
    police while detained: at para. 45; see also
Pileggi
, at para. 123.

[70]

Here, the trial judge found that the s. 10(b)
    breach had minimal negative impact on the appellants
Charter
-protected
    interests because he found no causal or temporal connection between the s.
    10(b) breach and the evidence obtained. I agree there was no causal
    connection, but as I have explained, the trial judge either misspoke or erred
    in finding no temporal connection.

[71]

In
appropriate
cases,
    the lack of a causal connection can mitigate the impact of the infringement:
Grant
,
    at para. 122;
Rover
, at para. 43; and
Pileggi
, at para. 120.
    I also note that the police did not
try to
elicit
    information from the appellant, thus avoiding an aggravating feature found in
    several other cases: see e.g.,
La
, at paras. 47-48;
McSweeney
,
    at paras. 79-80;
R. v. Manninen
, [1987] 1 S.C.R. 1233, at pp. 1242-43,
    1245; and
R. v. Prosper
, [1994] 3 S.C.R. 236, at pp. 280, 284.

[72]

I also agree with the appellant that the trial
    judge erred in describing the impact of the breach of s. 10(b) on the
    appellants
Charter
-protected interests as minimal. The appellant was
    deprived of the lifeline of counsel without justification for an hour and
    twenty minutes, after he had
already
been
    deprived of access to counsel with justification for two hours and twenty-five
    minutes. He was also not told the reason for the delay.
[1]
This breach
impacted the appellants
Charter
-protected
    interests, even if the police did not aggravate the breach by seeking to elicit
    information from him.

[73]

The impact of the s. 10(b) breach on the
    appellants
Charter
-protected interests was
nevertheless
less significant than
other cases in which
evidence
    has been excluded under s. 24(2), such as:

-

Rover
, in which the accused was denied
    access to counsel for almost six hours, with no explanation as to why the
    police had refused him access to counsel and without an indication of when he
    might be allowed to do so, leading to significant psychological pressure
    being brought to bear on him: at paras. 44, 46;

-

La
, in which the accused was denied access
    to counsel for over eight and a half hours, during which
time
the police tried to obtain an incriminating
    statement from him: at paras. 7, 47-48; and

-

Noel
, in which the police did not even
    try to contact counsel on the accuseds behalf until three hours after his
    arrest and it was never confirmed that the accused actually spoke to counsel:
    at paras. 29, 31.

[74]

The impact of the breach on the appellants
Charter
-protected
    interests was also comparable to, or less significant than, other cases in
    which evidence has been admitted under s. 24(2), such as:

-

Hobeika
, in which there was an
    unexplained failure to provide access to counsel for just over four hours: at
    para. 79;

-

Pileggi
, in which there was a three-hour
    delay in providing access to counsel, the breach was unintentional and
    occurred largely due to a lack of communication between police officers, and no
    one tried to elicit information from the accused, although the police made
    reasonable efforts early on to contact duty counsel and kept the accused apprised
    of their attempts to contact counsel on his behalf: at paras. 114, 117-18 and
    124.

[75]

Placing the impact of the s. 10(b) breach here
    along the continuum of s. 10(b) breaches in past cases, I would describe
    the impact of the s. 10(b) breach on the appellants
Charter
-protected
    interests as moderate.

(iii)

Societys interest in the adjudication
of the case
on the
    merits

[76]

The last line of inquiry considers factors such
    as the reliability of the evidence and its importance to the Crowns case. It asks
    whether the truth-seeking function of the criminal trial process would be
    better served by the admission of the evidence or by its exclusion:
Grant
,
    at para. 79;
McSweeney
, at para. 81. Reliable evidence critical to the
    Crowns case will generally pull towards inclusion:
Harrison
, at
    paras. 33-34;
McGuffie
, at para. 62; and
McSweeney
, at para.
    81.

[77]

Here, the gun and drugs are reliable evidence and
    essential to the Crowns case for what are
extremely
serious
    offences. The admission of this evidence would better serve the truth-seeking
    function of the criminal trial process than its exclusion. I therefore agree
    with the trial judge that societys interest in the adjudication
of the case
on the merits favours the admission of
    this evidence.

Balancing the factors

[78]

The final step in the s. 24(2) analysis involves
    balancing the factors under the three lines of inquiry to assess the impact of
    admission or exclusion of the evidence on the long-term repute of the
    administration of justice. Such balancing involves a qualitative exercise, one
    that is not capable of mathematical precision:
Harrison
, at para. 36.
    As Doherty J.A. recently noted in
Hobeika
, [t]he nature of the s.
    24(2) inquiry means, in some cases, different judges will reasonably arrive at
    different conclusions with respect to admissibility: at para. 89.

[79]

Here, I have concluded that the evidence was
    properly admitted under s. 24(2). I say this for several reasons. The breach
    of s. 10(b), although serious, appears to have been situation-specific and
    isolated, rather than institutional or systemic. It has not been established
    that the breach was deliberate or intentional. The breach only moderately
impacted
the appellants
Charter
-protected
    interests. The evidence, consisting of the loaded gun and drugs, was obtained
    through a lawful search incident to arrest and, because it was not causally
    related to the s. 10(b) breach, was not compromised by the breach of s. 10(b).
    In these circumstances, excluding the evidence would only punish the police
    which is not the purpose of s. 24(2)  and would damage, rather than vindicate,
    the long‑term repute of the criminal justice system:
Grant
, at
    para. 70;
Hobeika
, at para. 90; and
Pileggi
, at para. 127. It
    would allow an apparently unintentional, situation-specific police-slip that
    had only a moderate impact on
Charter
-protected interests to lead to
    the acquittal of an armed and dangerous drug trafficker in a city already
    plagued by gun violence.

[80]

Like the trial judge, I thus conclude that the admission
    of the evidence would not bring the administration of justice into disrepute.

[81]

I would dismiss the conviction appeal.

Issue #4: Did the trial judge err in his sentencing
    analysis?

[82]

Finally, the appellant submits that the trial
    judge erred by declining to reduce the sentence he imposed (6 years, less
    credit for pre-sentence custody calculated at 22 months) because of the s.
    10(b) violations. The appellant was 22 years old when he committed the
    offences.

[83]

An appellate court can interfere with a sentence in only two situations:
    (1) if the sentence is demonstrably unfit; or (2) if the sentencing judge made
    an error in principle that had an impact on the sentence:
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26;
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras.
    11, 41 and 44; and
R. v. Suter
, 2018 SCC 34,
    [2018] 2 S.C.R. 496, at para. 24.

[84]

The appellant does not argue that the sentence
    was demonstrably unfit. Instead, he submits that the trial judges refusal to reduce
    the sentence because of the s. 10(b) breach was an error in principle that
    justifies appellate intervention. As he did at first instance, the appellant
    relies on the Supreme Court of Canadas decision in
R. v. Nasogaluak
,
    2010 SCC 6, [2010] 1 S.C.R.
206, in support of
his
    submission. That case upheld a sentence reduction for the offences of impaired
    driving and flight from the police when the police used excessive force in
    arresting the accused and breached his
Charter
rights during his
    arrest and detention. Here, by analogy, the appellant asserts that the s. 10(b)
    breach was contextually and temporally connected to his arrest and thus
    warranted a sentence reduction.

[85]

I do not accept this submission.

[86]

A sentencing judge crafting a fit sentence must consider
    all the circumstances of the offence and offender. This includes state
    misconduct, including a
Charter
breach, if it relates to the
    circumstances of the offence and the offender. When, however, the state
    misconduct does not relate to the circumstances of the offence or the offender,
    the accused cannot seek a remedy through the sentencing process:
Nasogaluak
,
    at paras. 3-4, 46-49;
R. v. Donnelly
, 2016 ONCA 988, 135 O.R. (3d)
    336, at paras. 150-54.

[87]

Here, the trial judge considered
Nasogaluak
but
    determined that the circumstances of the s. 10(b) breach did not relate to the offences
    or the offender
in a way that could be
considered
    in sentencing. He held there was no additional harm or prejudice caused by the
    s. 10(b) breach that would act as a mitigating circumstance. He referred to his
    ruling on the
Charter
application that the discovery of the evidence was
    not causally connected to the breach, and thus did not align with the offences
    or to the offender. In support of that conclusion, he cited
R. v. Glykis
(1995), 24 O.R. (3d) 803 (C.A.), which also involved a s. 10(b) breach arising
    from a delay in accessing counsel. Dubin C.J.O. held that the s. 10(b) breach in
    that case should not reduce the sentence because it did not mitigate the
    seriousness of the offence or constitute a form of additional punishment or
    hardship for the accused.

[88]

The trial judges conclusion that the s. 10(b) breach
    here did not warrant a sentence reduction attracts
deference
.
    His conclusion that the s. 10(b) breach did not relate to the circumstances of
    the offences or the offender to affect the appropriate sentence is reasonable.
    The breach of s. 10(b) did not alter the circumstances of the offences.
    Although the delay in accessing counsel no doubt had some effect on the
    appellant, there was no evidence about this.
As a
    result,
I see no error in principle warranting appellate
    intervention.

[89]

I would therefore grant leave to appeal the
    sentence but dismiss the sentence appeal.

E.

conclusion

[90]

I would dismiss the conviction appeal, allow
    leave to appeal the sentence, and dismiss the sentence appeal.

Released: May 7, 2021 B.W.M.

M.
    Jamal J.A.

I
    agree. B.W. Miller J.A.

I
    agree. Coroza J.A.

[1]
Recent
    case law suggests that the failure of the police to inform an accused of the
    reasons for the delay in providing access to counsel, where such delay is
    justified, or to advise the accused when they might be allowed to speak to
    counsel, may constitute an independent breach of s. 10(b) of the
Charter
: see
R.
    v. Rover
, 2018 ONCA 745, 143 O.R. (3d) 135, at
    paras. 45-46 (seeming to agree with the trial judges finding at 2016 ONSC 4795,
    at para. 70, that the police should have advised the accused that they were
    suspending his s. 10(b) right);
R. v. Shang En Wu
, 2017 ONSC 1003, 35
    C.R. (7th) 101, at para. 78. However, since this appeal was not argued on this
    basis, I refrain from further comment.