COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Keshavarz, 2022 ONCA 312

DATE: 20220421

DOCKET: C67458

Fairburn A.C.J.O., Rouleau and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nujan Keshavarz

Appellant

Andrew Menchynski, for the
    appellant

Andrew Hotke, for the
    respondent

Heard: October 25, 2021 by
    video conference

On appeal from the convictions entered
    by Justice Vincenzo Rondinelli of the Ontario Court of Justice, dated August
    12, 2019.

Fairburn A.C.J.O.:

A.

OVERVIEW

[1]

This is an appeal from two convictions for
    trafficking in firearms.

[2]

On April 29, 2017, the police were conducting
    surveillance on a man named Yama Ghousy. The police watched as the appellant
    carried what they described as two weighted LCBO bags in his hands. He
    entered Mr. Ghousys vehicle. A short time later, the appellant emerged from
    the vehicle with nothing in his hands. Arrests for firearms trafficking ensued,
    followed by searches incident to arrest. The two LCBO bags were found in the
    back of Mr. Ghousys vehicle, each one containing a Glock.

[3]

Mr. Ghousy and the appellant were each informed
    of their right to counsel but, owing to concerns over safety and the preservation
    of evidence, that right was not facilitated until after the police had obtained
    and executed three search warrants. One of those warrants was executed at the
    appellants home, where the police uncovered another seven firearms.

[4]

Mr. Ghousy and the appellant were tried together
    in the Ontario Court of Justice. The trial commenced with a blended
Charter
    voir dire
. On his own, the appellant advanced numerous
Charter
applications, all of which were dismissed except one: a s. 8 application that
    resulted in the s. 24(2) exclusion of the seven firearms that the police had
    seized from his home.

[5]

The appellant and Mr. Ghousy also together advanced
    a s. 10(b)
Charter
application, which was predicated on the delay that
    accrued between the time when he and Mr. Ghousy were informed of their right to
    counsel and the time when they were permitted access to a lawyer. That s. 10(b)
    application was granted. It is the s. 24(2) application that followed upon the
    finding of a s. 10(b) breach that lies at the apex of this appeal.

[6]

Mr. Ghousy succeeded on that s. 24(2)
    application, with the two Glocks in the LCBO bags being excluded from the
    prosecutions case against him. In contrast, the Glocks were not excluded from
    the prosecutions case against the appellant because, as the trial judge found,
    the appellant had abandoned his privacy interest in them when he left them
    behind in Mr. Ghousys vehicle, and so he had no reasonable expectation of
    privacy. Given this finding, the trial judge decline[d] to embark on any
    Section 24(2) analysis.

[7]

The appellant contends that the trial judge
    erred in law by allowing the legal concept of abandonment to bar exclusion of
    the two Glocks under s. 24(2). He maintains that this court should set aside the
    trial judges s. 24(2) conclusion, conduct a proper admissibility analysis, bring
    the appellant into sync with what happened to Mr. Ghousy, exclude the firearms,
    and enter acquittals.

[8]

For the reasons that follow, I would dismiss the
    appeal.

B.

BACKGROUND FACTS

(1)

The Police Investigation and Arrests

[9]

Mr. Ghousy was at the centre of a criminal
    investigation into firearms trafficking. That investigation involved
    information that came from confidential informants. The police had Mr. Ghousy
    under surveillance for some time, and the investigation had given rise to
    numerous persons of interest to the police.

[10]

Two days before the arrests, police officers
    conducting surveillance on Mr. Ghousy saw an unknown male, someone the police
    would later come to know as the appellant, driving a Ford Explorer. The
    appellant parked close to Mr. Ghousys vehicle and began interacting with Mr.
    Ghousy. The appellant then passed Mr. Ghousy a weighted black bag, after which
    Mr. Ghousy drove away.

[11]

On the day of the arrest, police officers saw
    the appellant pull into a gas station parking lot while driving the same Ford
    Explorer. He parked beside Mr. Ghousys vehicle, which was already in the
    parking lot. The police watched as the appellant retrieved two weighted LCBO
    bags from the rear hatch of his own vehicle, entered Mr. Ghousys vehicle, sat
    for a while, and then exited with nothing in his hands.

[12]

Having regard to all the information learned
    during the investigation, the police believed that they had just witnessed a
    firearms transaction and that they had no choice but to immediately arrest the
    appellant and Mr. Ghousy. Therefore, a high-risk takedown ensued, with the two men
    being arrested at about 5:50 p.m. Searches incident to arrest resulted in the
    discovery of: (1) the LCBO bags, each containing a Glock, on the back floor of Mr.
    Ghousys vehicle; (2) fentanyl and two firearm trigger locks in the appellants
    vehicle; and (3) a large sum of cash in the appellants pocket.

[13]

There is no dispute that: (1) upon arrest, just
    after 5:50 p.m., both of the men were properly cautioned and informed of their
    right to counsel; (2) the appellant said he would like to speak with counsel
    and asked to retrieve his lawyers phone number from his cellphone; and (3) the
    appellant was told that he would be permitted to get the phone number from his cellphone
    at a later time.

(2)

The Police Rationale for Suspending the Right to Counsel

[14]

Detective Sergeant (Det. Sgt.) Harris was the
    officer in charge of the investigation. Right after the arrests, he determined
    that it was necessary to obtain and execute three search warrants for
    residential addresses associated to Mr. Ghousy and the appellant. Those
    warrants were aimed at locating and intercepting other firearms.

[15]

The police immediately set about preparing an
    Information to Obtain the warrants. Ultimately, the warrants were issued by a
    judge of the Ontario Court of Justice about four hours after the arrests, at around
    10:00 p.m. Two of the warrants were for locations associated with Mr. Ghousy.
    The third was for the appellants home, where the police seized ammunition,
    magazines, and seven more firearms, comprised of five handguns, a shotgun, and
    an AR-15 rifle.

[16]

Det. Sgt. Harris testified that he decided it
    was necessary to suspend the right to speak with counsel until after the search
    warrants had been obtained and executed. That decision was based upon the
    officers view that permitting the appellant and Mr. Ghousy to make calls
    before the searches were complete could create real risks for officer safety,
    public safety, and the preservation of evidence.

[17]

I will later return to Det. Sgt. Harris
    evidence on this point.

(3)

Implementing the Right to Counsel

[18]

The final search was completed around 12:45 a.m.
    Sometime between 1:15 and 1:30 a.m., the searching officers returned to the
    police Division where the appellant and Mr. Ghousy were detained. Det. Sgt. Harris
    tasked Detective Constable (Det. Cst.) Johnston with the responsibility of
    facilitating the appellants communication with counsel. The appellant was
    permitted to retrieve a phone number from his cellphone. However, he chose not
    to speak with counsel. Instead, he retrieved the number of a friend and called
    that friend, speaking with him at 1:44 a.m.

[19]

Det. Cst. Johnston testified that, after that
    call was complete, he asked the appellant again if he wished to speak with a
    lawyer, but that the appellant said no, explaining that his friend was going to
    arrange for him to speak with counsel. Det. Cst. Johnston testified that he
    told the appellant that he could speak to duty counsel but that the appellant again
    declined the offer.

[20]

The appellant testified differently. While he
    originally said that he was never told that he could avail himself of duty
    counsel, he later retracted that claim, acknowledging that he was probably
    provided with a 1-800 number. On cross-examination, the appellant was asked why
    he decided to call his friend instead of any of the several lawyers whose phone
    numbers he said he had recorded in his cellphone. The appellant answered:

The reason for that is because I trust [my
    friend]. Ive known him for an extensive period of time, and I know that hes going
    to put me towards a lawyer I can trust.  In that situation, I cant really
    trust anyone besides my best friend, which at that point I did.

[21]

In contrast to how things unfolded with the
    appellant, at Mr. Ghousys request, Det. Cst. Johnston attempted to facilitate
    contact with a specific lawyer. When it became clear that his preferred lawyer
    was not available, Det. Cst. Johnston facilitated contact between Mr. Ghousy
    and duty counsel. Det. Cst. Johnston testified that he would have done the same
    thing for the appellant had he wished to speak to duty counsel.

C.

THE
CHARTER
RULING

[22]

The
Charter
ruling is somewhat dense,
    not because of its length, but because of the ground it covers.

[23]

The appellant raised a s. 7
Charter
claim, arguing that the police used excessive force when arresting him. The
    trial judge concluded that, contrary to the appellants evidence, the force
    used in the arrest was proportional, reasonable and necessary. That claim was
    dismissed.

[24]

The appellant raised a s. 9
Charter
claim, arguing that there were insufficient grounds to arrest him. That claim
    was followed by a s. 8 claim, arguing that because the arrest was unlawful, the
    search incident to arrest was unlawful. Both of those claims were dismissed.

[25]

The appellant also raised a s. 8
Charter
claim, arguing that there were insufficient grounds to support the warrant that
    was issued to search his home. This constituted a facial validity challenge to
    the search warrant. Accordingly, the test for review was whether, on the face
    of the information disclosed to the issuing justice, that justice could have
    issued the warrant: see
R. v. Araujo
,

2000 SCC 65, [2000] 2
    S.C.R. 992, at para. 19;
R. v. Garofoli
, [1990] 2 S.C.R. 1421, at p.
    1452.

[26]

The trial judge concluded that the issuing
    justice  also a judge of the Ontario Court of Justice  could not have issued
    the warrant based upon the information available to him because, in the trial
    judges view, that information did not disclose an obvious nexus between [the
    appellant], the offences under investigation and 5622 Whistler Crescent.

[27]

As the overall seriousness of the police conduct
    in this case is a matter that informs the admissibility analysis undertaken
    later in these reasons, I pause now to make the following observation. Respectfully,
    the suggestion that there was not an obvious nexus between [the appellant],
    the offences under investigation and 5622 Whistler Crescent cannot be
    reconciled with the information that was available to the issuing judge. There
    was in fact a significant body of evidence upon which the warrant could have
    been issued. By way of example, there was information that: (1) the appellant
    had been seen passing packages to Mr. Ghousy on at least two occasions; (2) on
    the second occasion, the packages  LCBO bags  were confirmed to contain Glocks;
    (3) the appellant had taken those bags out of the Ford Explorer; (4) the Ford
    Explorer was registered to 5622 Whistler Crescent; (5) the appellants drivers
    licence was registered to 5622 Whistler Crescent; and (6) the appellants firearms
    licence was registered to 5622 Whistler Crescent.

[28]

That body of evidence alone reflects an
    abundance of information upon which the issuing judge could have arrived at the
    conclusion that he arrived at: that there existed a credibly-based probability
     less than a balance of probabilities  that evidence with respect to the
    commission of the offence of firearms trafficking would be located at 5622
    Whistler Crescent: see
Hunter v. Southam Inc.
, [1984] 2 S.C.R. 145, at
    p. 167;
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.

[29]

Having found a s. 8 breach, the trial judge then
    went on to exclude all the firearms seized from the appellants home. The
    exclusionary ruling was based upon the conclusion that, despite having been issued
    a search warrant, the police were not even close to the constitutional mark
    and they were on nothing more than a fishing expedition. The exclusion of
    those seven firearms led to acquittals on the counts arising from the seizures
    from the appellants home.
[1]

[30]

Mr. Ghousy and the appellant joined suit in
    advancing the final
Charter

claim. They argued that their s.
    10(b)
Charter
rights had been breached as a result of the lengthy
    delay that accrued between their arrests and when they were offered the
    opportunity to speak with counsel.

[31]

The trial judge acknowledged that concerns over
    public and police safety, as well as the preservation of evidence, can justify
    a delay in implementing the right to counsel. He also accepted that Det. Sgt. Harris
    concerns about those matters were genuine, stating: I do not have much
    difficulty in accepting that Detective Harriss concerns were genuine.

[32]

Despite that conclusion, the trial judge found a
    breach of s. 10(b) because, in his view, Det. Sgt. Harris had failed to provide
    specifics to justify his genuinely held concerns. The two remaining Glocks were
    then excluded from the prosecutions case against Mr. Ghousy, an exclusion that
    resulted in Mr. Ghousys immediate acquittals and release from the trial.

[33]

As for the appellant, the trial judge announced
    that, with reasons to follow, the fentanyl seized from the appellants car and
    the cash seized from his person would be excluded from evidence. In contrast to
    Mr. Ghousy, the trial judge also announced that he would not be excluding the two
    remaining Glocks from the prosecutions case against the appellant because, in
    the trial judges view, the appellant had abandoned all interest in those
    Glocks when he left them behind in Mr. Ghousys vehicle.

[34]

Accordingly, at the conclusion of the
Charter

rulings, the prosecution was left to proceed only against the appellant and
    only with respect to the two Glocks in the LCBO bags, found in the back of Mr. Ghousys
    vehicle. As a result of those Glocks, the appellant was ultimately convicted of
    two counts of trafficking in firearms.

D.

THE PARTIES POSITIONS ON APPEAL

[35]

The appellant contends that the trial judge
    erred in law when he dismissed the s. 24(2)
Charter

application
    on the basis that the appellant had abandoned his
Charter
interest
    in the Glocks. In relying upon the doctrine of abandonment, the trial judge is said
    to have erroneously imported a s. 8
Charter
concept into the s. 24(2)
    analysis conducted in the wake of a s. 10(b)
Charter
breach.

[36]

Instead of focusing upon whether the appellant
    had abandoned his privacy interest in the Glocks, as if he were dealing with a
    question of standing under s. 8 of the
Charter
, the appellant says
    that the trial judge should have concerned himself with whether the Glocks were
    causally, contextually, or temporally connected to the s. 10(b) breach and, if
    so, asked whether their admission into evidence at trial would bring the
    administration of justice into disrepute. The appellant maintains that the
    answer to both of those questions is a resounding yes.

[37]

The respondent agrees that the trial judge erred,
    as suggested by the appellant, but parts company with the appellant respecting
    the implications of that error.

[38]

In making this concession, the respondent emphasizes
    that the fruits of a s. 8-compliant seizure can be excluded under s. 24(2) of
    the
Charter
, provided that the fruits of that seizure are causally,
    contextually, or temporally connected to another
Charter
breach: see
R.
    v. Cuff
, 2018 ONCA 276, 359 C.C.C. (3d) 415, at para. 30
;

R. v.
    Rover
,

2018 ONCA 745, 143 O.R. (3d) 135, at paras. 12-13, 35; and
R.
    v. Griffith
, 2021 ONCA 302, 408 C.C.C. (3d) 244, at paras. 25, 33, 48, and
    54. Therefore, the respondent agrees with the appellant that the trial judge
    erred by relying upon his conclusion on abandonment to dismiss the s. 24(2)
    inquiry.

[39]

In light of this concession, the respondent accepts
    that this court must set aside the trial judges s. 24(2) finding and conduct its
    own s. 24(2) analysis. The respondent also accepts that there is some
    contextual and temporal connection between the s. 10(b) breach and the Glocks. Where
    the respondent and appellant part company is on the question of whether the
    Glocks should have been excluded. In all of the circumstances, the respondent
    answers that question with a resounding no.

E.

ANALYSIS

(1)

Did the
    Trial Judge Err in his Conclusion about the Impact of Abandonment on the s.
    24(2) Analysis?

(a)

Overview

[40]

The focus in this section of the reasons is on
    whether the trial judge erred when he held that the appellant could not lay
    claim to a s. 24(2) remedy because, in his view, the appellant had abandoned
    the Glocks.

[41]

The impugned passage from the ruling reads as follows:

I
decline to embark on
    any Section 24(2) analysis
relating to the two firearms seized from the
    LCBO bags in Mr. Ghousys vehicle since the totality of circumstances compels
    the conclusion that
[
the appellant] did not have a
    legitimate or reasonable expectation of privacy in the LCBO bags at the time
    that they were searched. He had abandoned any interest in them
.

So, consequently, having
    abandoned his interest in the LCBO bags  [the appellants] Charter rights are
    not engaged with respect to the bags
. [Emphasis
    added.]

[42]

In this court, the appellant does not take issue
    with the fact that he was found to have abandoned the Glocks. Rather, with the
    concurrence of the respondent, he takes issue with the use of the doctrine of
    abandonment to dismiss his s. 24(2) application, particularly where it was
    predicated upon a s. 10(b)
Charter

breach.

[43]

While I agree with the parties that the trial
    judge erred in how he used the doctrine of abandonment to decline to embark
    on a s. 24(2) analysis, the doctrine of abandonment is not irrelevant to a s.
    24(2) analysis, even when arising from a breach other than under s. 8 of the
Charter
.
    To explain this conclusion, I start with the legal underpinnings of the
    doctrine of abandonment
.

(b)

Section 8: A Reasonable Expectation of
    Privacy and the Doctrine of Abandonment

[44]

Section 8 of
    the
Charter
 the right to be secure against unreasonable search
    or seizure  is a personal right; one that protects people, not places: see
R. v. Edwards
, [1996] 1 S.C.R. 128,

at para. 45. Because s. 8 is a personal
    right that protects personal privacy, an accused asserting a s. 8 claim must
    first establish a reasonable expectation of privacy over the subject matter of
    the search. This is frequently referred to as establishing standing to assert
    a s. 8 claim.

[45]

To determine
    the question of standing to assert a s. 8 claim, the court applies a test that
    is both subjective and objective in nature: did the accused have a subjective
    expectation of privacy over the subject matter of the search and was that
    expectation objectively reasonable in all of the circumstances? See
Edwards
, at
    para. 45;
R. v. Tessling
, 2004 SCC 67, [2004] 3 S.C.R. 432, at
    paras. 19, 31-32;
R. v. Patrick
, 2009 SCC 17, [2009] 1 S.C.R. 579, at
    paras. 26-27; and
R. v. Marakah
, 2017 SCC 59, [2017] 2 S.C.R. 608, at
    paras. 10-11
.

[46]

Even where an
    accused is found to have had, at one point, a reasonable expectation of privacy
    in the subject matter of the search, abandonment marks the point in time at
    which the accused ceased to have that expectation of privacy: see
R. v. Dyment
,
[1988] 2 S.C.R. 417,
at p. 435. Accordingly, a pre-existing reasonable expectation of
    privacy will give way where, bearing in mind all of the circumstances, a person
    acts in a way that would lead a reasonable and independent observer to
    conclude that the person has ceased to assert any privacy interest in the
    subject matter of the claim: see
Patrick
,

at paras. 20, 25. And, where the person is found to have ceased to
    assert a privacy interest in the subject matter of the claim, that person is
    without standing to raise a s. 8 claim.

[47]

But where
    does that leave the concept of abandonment in relation to s. 24(2) of the
Charter
, specifically
    in relation to a request to exclude evidence because of a s. 10(b)
Charter
breach?
    In other words, where does that leave the concept of abandonment in relation to
    the issue on appeal?

(c)

The Trial Judges Reasons and Abandonment
    in the Context of a Section 24(2) Application

[48]

The
only way to read the trial judges reasons is that he used the
    concept of abandonment in the same way that it is used to determine the
    question of standing under s. 8 of the
Charter
; he used it to find a
    lack of standing in relation to the Glocks and then used that lack of standing
    to bar s. 24(2) relief. This approach is clear in the reasons, where the trial
    judge explicitly decline[d] to embark on any Section 24(2) analysis because,
    as he saw it, the appellant had abandoned his privacy interest in the Glocks
    and, therefore, his
Charter

rights [were] not engaged with
    respect to those bags.

[49]

The parties agree, as do I, that a lack of
    standing in relation to evidence targeted for exclusion, while relevant for
    purposes of a s. 8 claim, does not bar access to s. 24(2) relief in the wake of
    a different
Charter

breach: see
Cuff
,
at para.
    30;
R. v. Bzezi
,

2022 ONCA 184, at paras. 24-25. Abandonment of
    evidence targeted for exclusion is a relevant consideration in the
    admissibility analysis that ensues under a s. 24(2) application, but it does
    not preclude that analysis from taking place. Accordingly, the trial judge
    erred when he declin[ed] to embark on [a] Section 24(2) analysis merely
    because he determined that the appellant had abandoned the two Glocks in the
    LCBO bags.

[50]

Instead of using the fact of abandonment as
    a bar to accessing s. 24(2) relief, the trial judge should have started the
    analysis by asking the gateway question on all s. 24(2) applications: were the
    Glocks obtained in a manner that infringed
or denied any rights or freedoms guaranteed by
    this
Charter
? See
R.
    v. Pino
, 2016 ONCA 389
, 130
    O.R. (3d) 561, at para. 56;
R. v. Pileggi
,
2021 ONCA 4, 153 O.R. (3d) 561, at para. 101.
If the answer to this question was yes, then the
    trial judge should have gone on to determine whether the admission of the
    evidence into the proceedings would bring the administration of justice into
    disrepute.

[51]

While most cases travel a straight path between
    the breach and the evidence targeted for exclusion, meaning that the gateway
    inquiry is passed with ease, some do not. Where that path is more circuitous,
    like this case, trial judges must calibrate the strength of the connection
    between the evidence sought to be excluded and the breach.

[52]

Over time, a framework has developed for
    determining whether the s. 24(2) obtained in a manner language has been met.
    That framework involves inquiring into whether there is a causal, temporal, or
    contextual connection between the evidence and the breach: see
R. v.
    Strachan
, [1988] 2 S.C.R. 980, at pp. 1002, 1005-6;
R. v. Tim
,
2022 SCC 12, at para. 78;
R. v. Mack
, 2014 SCC 58, [2014] 3 S.C.R.
    3, at paras. 37-38;
R. v. Goldhart
, [1996] 2 S.C.R. 463, at paras. 32-47;
R. v. Wittwer
, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 19, 21;
R.
    v. Plaha

(2004), 188 C.C.C. (3d) 289 (Ont. C.A.), at paras. 45-46; and
Pino
, at para. 72.

[53]

This framework is built on an admittedly generous
    approach:
Tim
,
at para. 80. However, that generosity is not
    unbounded. Causal, temporal, or contextual connections must be real ones,
    connections that are not too remote or too tenuous in nature:
Tim
,
at para. 78;
Mack
, at para.
    38;
Goldhart
, at para. 40;
Wittwer
, at para. 21;
Plaha
,
    at para. 45; and
Pino
, at para. 72. In other words, remote or tenuous
    connections are no connections at all.

[54]

In my view, while the trial judge erred in using
    abandonment as a definitive bar to s. 24(2) relief, the fact of abandonment was
    not irrelevant to the question of whether the Glocks in the LCBO bags were
    sufficiently connected to the s. 10(b) breach to meet the obtained in a
    manner requirement. For instance, the fact of abandonment may dilute the
    strength of a contextual connection between the underlying
Charter

breach
    and the abandoned evidence targeted for exclusion. To use the framework
    language, it may render that connection too tenuous or remote to satisfy
    the obtained in a manner requirement.

[55]

In this case, though, the respondent
    acknowledges that, while weak, there existed both a temporal and contextual
    connection between the discovery of the Glocks in Mr. Ghousys vehicle and the
    s. 10(b) breach that came later. The connection is indeed weak, given that the
    discovery of the Glocks has no causative connection to the breach of the right
    to counsel. However, given the respondents position, which I would accept for
    the purposes of this appeal, the gateway test was met. This leaves the
    following question: would the admission
of
    the evidence into the proceedings bring the administration of justice into
    disrepute?

[56]

This latter question requires a balancing of the
    well-known factors from
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353,
    at paras. 71-86: (1) the seriousness of the
Charter
-
infringing
    state conduct; (2) the impact of the
Charter

breach on the
    accuseds
Charter
-
protected interests; and (3) societys
    interest in the adjudication of the case on the merits. Again, the fact of
    abandonment can inform that analysis, specifically when calibrating the impact of
    the
Charter
breach on the accuseds
Charter
-
protected
    interests.

[57]

I will return to this concept of abandonment during
    the
Grant

analysis at the end of these reasons. First, though,
    I will address the actual extent of the s. 10(b)
Charter

breach.

(2)

The Extent of the s. 10(b) Breach

(a)

Overview

[58]

Where a trial judge erroneously fails to conduct
    a s. 24(2) analysis, this court must conduct the admissibility analysis for the
    first time on appeal: see
R. v. Boutros
, 2018 ONCA 375, 361 C.C.C.
    (3d) 240, at para. 31. That will sometimes require the court to first consider
    whether there was a breach and, if so, the extent of that breach. Only when
    that question is answered can we properly calibrate the seriousness of the
Charter
-
infringing
    state conduct for the purposes of the
Grant

analysis.
    Accordingly, the question we are now dealing with is: when did the s. 10(b)
    breach commence and when did it end?

[59]

There are two components to the right to
    counsel: informational and implementational. The police must inform the
    detainee of the right to speak to counsel without delay  interpreted as
    immediately  and provide the detainee with a reasonable opportunity to
    exercise that right without delay: see
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; and
Rover
,
    at para. 25.

[60]

In some circumstances, there will be a justified
    delay in providing a detainee with access to counsel. Those circumstances will
    often arise from concerns over police safety, public safety, or the
    preservation of evidence: see
Rover
,
at para. 26. Even so,
    until the reasonable opportunity to reach a lawyer has been provided, or until
    the accused unequivocally waives the right to speak with a lawyer, the police
    must suspend any attempts to elicit information from the detainee: see
Suberu
,
    at para. 38.

[61]

This case has never been about the informational
    component of s. 10(b). Everyone agrees that the appellant received the
    necessary information to exercise his right to counsel. What this case has
    always been about is that the police failed under the second prong of s. 10(b)
    to implement the appellants contact with counsel in a timely way. Everyone
    agrees there was a failure. The issue is the extent of that failure.

(b)

Parties Positions

[62]

While the respondent acknowledges that there was
    in fact a s. 10(b) breach in this case, the respondent maintains that the
    breach was much shorter  and, therefore, much less serious  than the trial
    judge found. The appellant counters that submission, contending that while this
    court can inquire into the extent of the breach, it must do so by showing
    deference to the trial judges findings of fact. According to the appellant,
    those findings of fact lead to only one conclusion in this case: the breach was
    exactly as serious as the trial judge said.

[63]

I start with the two legal errors in the trial
    judges s. 10(b) analysis alleged by the respondent.

(c)

The Errors in the Trial Judges Section
    10(b) Analysis

(i)
The Breach Did Not Start at the Time of
    Arrest

[64]

In the initial set of reasons, found in the
    omnibus
Charter

ruling, the trial judge described the delay in the
    implementational component of s. 10(b) as over seven hours in length,
    constituting the time between the arrest and when the appellant was given the
    opportunity to contact his friend. In the trial judges second set of reasons,
    the ones dealing with the exclusion of the fentanyl found in the appellants
    car and the cash on his person, he described the length of the breach as commencing
    shortly after [the appellants] arrest and continu[ing] through the course of
    his detention at the police station. On either version of the reasons, the
    trial judge appears to have determined that the breach commenced at or just
    around the time of arrest. That is not so.

[65]

The appellant was arrested at the scene of a
    high-risk takedown, where the police had just seen the exchange of two
    firearms. The arrest was in broad daylight in a public space, a gas station
    parking lot, where the public was milling about. Two Glocks had been recovered.
    And the police believed that there were other persons of interest to the
    firearms trafficking investigation still at large.

[66]

Against that backdrop, the suggestion that the
    implementational obligation of the s. 10(b) right commenced at the scene of the
    arrest is without foundation. To the contrary, it was entirely reasonable for
    the police to suspend any contact with counsel until, at a minimum, the safety
    of the situation permitted that call: see
Pileggi
, at paras. 75-77.
    Therefore, contrary to what was found in both iterations of the s. 10(b)
    rulings, it was an error to find that the breach commenced at the time of
    arrest.

[67]

Realistically, leaving all else aside for a
    moment, the police were under no obligation to implement the right to counsel
    until after the appellant was in a safe and secure location where a private
    call with counsel could be facilitated. That was about two hours after his
    arrest, after the booking procedure had been completed and his safety and the
    safety of all was secured.

[68]

Of course, even with those two hours taken into
    account, there was still a long time between when the appellant could have been
    offered a phone and when he was offered a phone. I now turn to that period of
    time.

(ii)
The
Rover
Error

[69]

While the trial judge accepted that the right to
    counsel can be suspended in some circumstances involving concerns over safety
    and lost evidence, he concluded that Det. Sgt. Harris did not even provide some
    evidence to support his expression of concern. The trial judge said: There
    simply was no specific evidence before me pertaining to [the appellants] case
    to justify the delay in contacting counsel and the concerns were merely
    generic in nature and could easily be said in many drug or firearm related
    cases. The trial judge came to that conclusion despite his finding that he had
    little difficulty accepting that Detective Harriss concerns were genuine.

[70]

This brings us to the second legal error as
    alleged by the respondent: what I will refer to as the
Rover

error.

[71]

In
Rover
, this court recognized that in
    specific circumstances the implementational component of the right to counsel
    may be suspended. Those specific circumstances often involve concerns over
    police or public safety or the preservation of evidence: see
Rover
,

at para. 26. See also
Suberu
,

at para. 42;
Griffith
,

at para. 38. Indeed, the suspension of the implementational component of
    the right to counsel has been recognized in the context of needing to execute
    search warrants, just like this case: see
Strachan
,

at pp. 998-99;
Rover
,

at para. 26;
R. v. Learning
,

2010 ONSC
    3816, 258 C.C.C. (3d) 68, at paras. 71-75; and
Griffith
,

at
    para. 38.

[72]

The difficulty with suspending the facilitation
    of contact with counsel is that the seriousness of doing so cannot be gainsaid.
    As noted by Doherty J.A. in
Rover
,

at para. 45, the right to
    counsel is a lifeline for all those who are detained. The right to counsel
    assists detainees with regaining their liberty and acts as a guard against the
    risk of involuntary self-incrimination:
Suberu
, at para. 40. As well,
    there is a recognized psychological value to providing access to counsel, a
    value that should not be underestimated:
Rover
,

at para. 45.

[73]

At the same time, the critical importance of
    protecting the safety of the public and law enforcement, as well as preserving
    evidence  particularly evidence such as deadly weapons that are illegal to
    possess  cannot be refuted.

[74]

To resolve the inherent tension that arises when
    these laudable goals collide, the law permits a delay in the facilitation of
    the right to counsel, but only where the police have turned their minds to the
    specific circumstances of the case and concluded 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.
    Doherty J.A. explained the test as follows in
Rover
,

at para.
    33:

[T]o fall within the exception to the
    requirement that an arrested person be allowed to speak to counsel without
    delay, the police must actually turn their mind to the specific circumstances
    of the case, and they must have reasonable grounds to justify the delay. The
    justification may be premised on the risk of the destruction of evidence,
    public safety, police safety, or some other urgent or dangerous circumstance.

[75]

Where those circumstances prevail, the police
    must move as efficiently and reasonably as possible to minimize any ensuing
    delay: see
Rover
, at para. 27;
Griffith
, at para. 38. They
    must also suspend any questioning of the detainee until such time as the
    implementational component of the right to counsel has been accommodated.

[76]

While the trial judge appears to have been aware
    of the legal underpinnings for the doctrine permitting delay in the
    facilitation of the right to counsel, making specific mention of
Rover
,

he erred in his application of that doctrine. Without explaining how he
    arrived at the conclusion, and without adverting to Det. Sgt. Harris testimony
    on the point, the trial judge concluded that the officer gave no specific
    evidence  to justify the delay in contacting counsel. That is simply not so.

[77]

To use the terminology from
Rover
, Det.
    Sgt. Harris turned his mind to the specific circumstance of the case and
    provided reasonable grounds to justify the delay, grounds that were premised
    on the risk of the destruction of evidence, public safety, [and] police
    safety.

[78]

First, he explained his understanding of the law:
    that any decision to suspend the right to counsel must be made on a
    case-by-case basis and is entirely dependent upon the circumstances operative
    at that moment in time.

[79]

Second, he explained that in this case, his
    decision was based upon multiple factors, including that:

(1) the police had just witnessed a clear firearms transaction
    involving two Glocks;

(2) while in a perfect world there would have been the luxury of
    time to prepare search warrant applications in advance, given what the police
    had witnessed in the gas station parking lot, they had no choice but to make
    the arrests at that time;

(3) the appellants identity was only discovered as a result of his
    arrest;

(4) warrants had to be obtained and then executed at three
    locations;

(5) the primary items being looked for were deadly weapons; and

(6) based upon observations made during surveillance over a lengthy
    period of time, and other evidence gleaned during the investigation, the police
    believed that the firearms-trafficking ring was broad, and that there remained
    a number of persons of interest to the investigation at large whose identities
    were still unknown to the police.

[80]

Third, Det. Sgt. Harris explained, against that
    backdrop, particularly with persons of interest to the firearms-trafficking
    investigation still circulating freely in the community, that he had real
    concerns for officer and public safety, as well as the preservation of
    evidence. He testified that, while he had no concern about counsel impropriety
    should the appellant and Mr. Ghousy have been permitted to speak with counsel,
    in his experience, things as simple as counsel contacting potential sureties or
    family members could inadvertently cause [the] loss of evidence. In this
    case, he was concerned that the loss of evidence meant the loss of firearms,
    something that was directly linked to his concerns over police and public safety.

[81]

In my view, that is precisely the kind of
    case-specific evidence that
Rover
contemplates as justifying a delay
    in the implementational component of the right to counsel. The decision to
    suspend the right to counsel was not based on a routine practice or applied in
    a rote fashion in this case. The evidence was clear that the concerns over
    safety and over firearms going missing was rooted in the specifics of what the
    police had learned over the course of the lengthy investigation, which involved
    many moving parts. Yet, at no time did the trial judge deal with that evidence
    and, importantly, he did not reject that evidence. Instead, he simply assigned
    the term generic to what he found to be the officers genuine fears.

[82]

Therefore, reading the reasons in their entire
    context and against the record in this case, I conclude that the trial judge
    erred in either his understanding of what
Rover
demands or in his
    understanding of Det. Sgt. Harris evidence. Either way, a proper application
    of the law to the facts of this case should have led to a different conclusion.

[83]

In my view, just like this courts decision in
Griffith
,
    the police evidence in this case justified the suspension of the right to
    counsel for a period of time. The question is, how much time?

(d)

When did the Section 10(b) Breach Commence and When
    did it end?

[84]

In the context of the second
Charter

ruling, given at the time of sentencing, the trial judge added a few
    factual findings that had not been made at the time of the original, omnibus
    ruling. One of those facts rests in the trial judges comment that the police
    continuously sought to question [the appellant] knowing that he had not spoken
    to a lawyer.

[85]

Based upon that finding of fact, the appellant
    argues that, even if the trial judge erred in his
Rover

analysis,
    there was still a s. 10(b) breach because the police did not respect the
    command of
Rover

to cease all attempts to elicit information
    while the right to counsel remained in a suspended state. The appellant argues
    that this court must defer to that finding of fact.

[86]

I accept that in the context of a s. 24(2)
    analysis, an appellate court must defer to a trial judges factual findings,
    except to the extent that they are unreasonable or tainted by clear and
    palpable error:
Boutros
, at para. 31;
R. v. Clark
, 2005 SCC
    2, [2005] 1 S.C.R. 6, at para. 9. The difficulty with the finding of fact relied
    on by the appellant  that the police continuously sought to question [the
    appellant] knowing he had not spoken to a lawyer  is that the trial judge
    gave no explanation (six months after the original ruling) as to why he came to
    that conclusion. At a minimum, the record called for an explanation.

[87]

The appellant testified that he was interrogated
    four to five times for between five and twenty minutes each time, by Det. Sgt.
    Harris and Det. Cst. Johnston, before he was given access to his phone. The
    police strongly denied that suggestion. The trial judge never performed a
    credibility assessment. Had he done so, he may have arrived at exactly the
    point where I have arrived: that the appellants evidence on the point could
    not be true.

[88]

The officers who the appellant said repeatedly
    interrogated him for lengthy periods before he was given access to a phone,
    were in fact part of the search team. They did not even arrive back at the
    police Division until, at most, 30 minutes before the appellant used the phone.
    Therefore, the appellants evidence on this point cannot be reconciled with the
    other evidence.

[89]

Accordingly, I do not accept that the police
    breached the command of
Rover

to refrain from questioning the
    detainee until the suspension of the right to counsel has been lifted.

[90]

When did the actual s. 10(b) breach commence? In
    my view, it commenced when the police failed in their duty to implement the
    right to counsel at the earliest possible opportunity: as soon as the searches
    were complete. Until then, I see nothing to suggest that the police did not
    move as efficiently and expeditiously as possible.

[91]

The police set about preparing applications for
    search warrants immediately after the arrests were made. A judge then made
    himself available to review those applications at night and the three search
    warrants were issued at 10:00 p.m. That was about four hours after the arrests
    had been made.

[92]

I understand that four hours may seem like a lot
    of time to obtain three search warrants. But this had been a lengthy
    investigation involving many moving parts, a lot of surveillance, confidential
    informants, and unexpected, but necessary, arrests. Prior to the arrests, the
    police did not even know the appellants identity. The preparation of the
    Information to Obtain for the search warrants, requiring as it did, full, fair,
    and frank disclosure, was something that would have required the consolidation
    of a great deal of information, including sensitive information, arising from a
    substantial police investigation. In these circumstances, four hours from
    arrest to issuance was not a surprising amount of time.

[93]

Two teams of police officers then executed the
    warrants, a process that was completed just under three hours later, at 12:45
    a.m. At that point, the risks were alleviated because the police had cleared
    all of the search scenes and, therefore, the justification for delaying the
    implementational component of s. 10(b) had evaporated: see
Griffith
,

at paras. 34-35, 61.

[94]

Instead of contacting the police Division to
    communicate that the appellant should be provided a call, which should have occurred,
    the searching officers first travelled back to the Division where the appellant
    and Mr. Ghousy were detained. They arrived somewhere between 1:15 and 1:27 a.m.
    Det. Sgt. Harris then tasked Det. Cst. Johnston with facilitating the
    appellants access to his phone. Det. Cst. Johnston retrieved the phone and
    provided the appellant with a room where he could locate the number that he
    wanted to call from his phone and make a private call. At 1:44 a.m., the
    appellant chose to call a friend rather than a lawyer.

[95]

In the end, it took about an hour from the time
    that the final search was completed to the time that the right to counsel was
    facilitated. That was too long. The police should have promptly facilitated the
    calls. The failure to do so triggered a s. 10(b) breach. Therefore, the s.
    10(b) breach commenced at the point that the justification for the delay in
    facilitating calls was no longer operative: the completion of the searches at
    12:45 a.m.

[96]

This leaves the question as to when the breach
    ended.

[97]

Despite having spoken with his friend at 1:44
    a.m., the appellant maintains that the s. 10(b) violation continued until he
    was taken to his bail hearing the following day. He bases this claim on the
    suggestion that he was not offered the opportunity to speak with counsel or
    offered the ability to contact duty counsel. Indeed, at points he went so far
    as to suggest that he had not been informed about the existence of duty
    counsel. He says that, had that opportunity for contact arisen, he would have
    pursued it.

[98]

The appellant also points to the trial judges
    finding of fact on this point, again a comment made by the trial judge at the
    time of sentencing, that no police officers seemed to follow up with the
    appellant, after he made contact with his friend, to inquire whether he had
    been afforded his right to counsel or at the very least contact duty counsel.
    Again, the trial judges bald statement is difficult to reconcile with the
    evidence in this case.

[99]

The appellants evidence on this point was in
    direct conflict with that of Det. Cst. Johnston, who testified that he offered
    the appellant the right to speak with counsel and duty counsel, but that the
    appellant did not wish to do so. The trial judge did not address the conflict
    in the evidence or make any credibility findings that would have permitted a
    proper resolution of the matter. It therefore falls to this court to do so.

[100]

While the appellant suggested that he wanted to contact counsel and
    would have contacted duty counsel had he been given that opportunity, he also acknowledged
    that: (1) he had the telephone numbers of numerous counsel in his phone, yet he
    chose not to call them because he wanted a specific lawyer; (2) he called his
    friend because he trusted him and he could not really trust anyone beside
    [his] best friend, which [he] did at that point; and (3) he believed that his
    friend was going to put [him] towards a lawyer that he could trust and, in
    that situation, [he couldnt] really trust anyone besides [his] best friend.
    As for his claim that he had not been told about the availability of free legal
    advice, that evidence was contradicted in different ways, including by the fact
    that the appellant was confronted in cross-examination with the recording of an
    officer telling him (again) about his right to free legal advice.

[101]

In contrast, Det. Cst. Johnston testified that he asked the
    appellant if he wanted to contact a lawyer and he declined. The officer also
    offered him duty counsel, but the appellant declined, saying that his friend
    was going to facilitate that for him. Importantly, Det. Cst. Johnstons
    evidence was supported by the fact that, in relation to Mr. Ghousy, the officer
    did exactly what the appellant said he did not do. In other words, when Mr.
    Ghousy could not reach his counsel of choice, the officer offered him duty
    counsel and facilitated that contact.

[102]

Quite simply, it makes no sense that the officer would facilitate
    duty counsel for Mr. Ghousy but not for the appellant. Therefore, to the extent
    that the officer and the appellants versions conflict as to what happened
    after the appellant spoke with his friend, I would accept the officers
    version.

[103]

Accordingly, the breach ended under the appellants own terms, at 1:44
    a.m. when he called his friend and chose not to call counsel or duty counsel. The
    time between when the right to counsel should have been facilitated and the
    appellants call to his friend was one hour.

(3)

The
Grant
Analysis

(a)

Overview

[104]

Having determined the extent of the s. 10(b) breach, I can now engage
    with the
Grant
analysis.

(b)

Seriousness of the
Charter
-Infringing
    State Conduct

[105]

The first line of inquiry requires this court to assess the severity
    of the s. 10(b) breach. The more severe and deliberate the state conduct, the
    more serious the breach, and the more the court will be required to dissociate
    itself from the state conduct by excluding the evidence linked to that conduct:
    see
Grant
, at para. 72;
Tim
, at para. 82.

[106]

I start with the appellants argument that in determining the
    seriousness of the state conduct, this court owes deference to the trial
    judges findings of fact, including how the trial judge described the breach as
    being clear and serious, the police as being disinterested in the
    appellants s. 10(b) rights, and their facilitation of that right only as an afterthought.
    The difficulty with these descriptors is that they are not factual findings,
    but adjectives arising from a flawed s. 10(b) analysis. In these circumstances,
    no deference is owed.

[107]

Importantly, there is no evidence of a systemic problem in this
    case. Unlike cases such as
Rover
,

the police in this case
    acknowledged the importance of the right to counsel, the extraordinary nature
    of suspending that right, and the need to operate on case-specific information.

[108]

Nor was there a pattern of
Charter

misconduct in
    this case. While the appellant points to the trial judges finding that the
    search of the appellants home violated his s. 8
Charter

rights,
    as I previously explained, that result cannot be reconciled with the
    information that was available to the trial judge.

[109]

While that aspect of the trial judges
Charter

ruling
    is not before this court on review, for purposes of this admissibility analysis
    I do not accept the characterization of that search as demonstrating part of a
    pattern of misconduct. To the contrary, the police acted responsibly, going so
    far as to obtain a search warrant from a judge of concurrent jurisdiction to
    the trial judge. The fact that the issuing judge concluded that there were
    sufficient grounds to search surely lightens the blow of any pattern that could
    be said to arise from that finding of a breach.

[110]

Even without a systemic problem or pattern of abusive police conduct
    in this case, though, this was undoubtedly a serious breach. While the police
    were justified in suspending the right to counsel during the execution of the
    warrants, along with the authority to temporarily suspend the implementational
    component of the right to counsel came the corresponding responsibility to
    appreciate the enormity of the situation and the implications for the
    appellant. He was entitled to be offered the opportunity to speak with counsel
    at the earliest opportunity. The fact that he chose not to in the end, instead
    choosing to speak to a friend, does not detract from the fact that he sat for
    many hours without a call. The police should have been on high alert, ready to
    facilitate the right to counsel at the earliest moment possible, which was when
    the searches were complete, and the risks had cleared. The police failed in
    that regard.

[111]

Accordingly, while the
Charter
-
infringing state
    conduct could have been more serious, especially if it had been part of a
    pattern of breaches or bad faith had been present, it was still serious indeed.

(c)

Impact of the Breach on the Appellants
Charter
-Protected

Interests

[112]

This prong of the admissibility inquiry calls upon the court to
    evaluate the extent to which the
Charter
-
infringing conduct
    undermined the interests protected by the right infringed. As noted by the
Grant

majority, It calls for an evaluation of the extent to which the breach
    actually undermined the interests protected by the right infringed:
Grant
,
at para. 76;
Tim
, at para. 90. To make that determination, the
    court looks to the interests that are engaged by the subject
Charter

right and then considers the degree to which the violation impacted those
    interests:
Grant
,
at para. 77.

[113]

I do not see the actual impact of the breach on the appellants
Charter
-
protected
    interests as being particularly serious.

[114]

It is important to remember here that the predicate
Charter

breach was rooted in the right to counsel. As previously discussed, that
    right is directed at assisting detainees with regaining their liberty and
    protecting them against the risk of involuntary self-incrimination: see
Suberu
,
    at para. 40;
Bartle
, at p. 191; and
R. v. Brydges
,

[1990]
    1 S.C.R. 190, at pp. 202-3. Yet at no point did the appellant incriminate
    himself and there is no indication that his liberty would have been obtained
    any earlier had the breach not occurred.

[115]

Also, there was no causal connection between the breach and the discovery
    of the Glocks, which the trial judge found had been lawfully seized. Rather,
    the Glocks were seized hours before the s. 10(b) breach even occurred. In other
    words, not only were the Glocks discoverable without the breach, but they were actually
    discovered without the breach. This lessened the impact of the breach on the
    appellants
Charter
-
protected interests, making admission  more
    likely: see
Grant
,
at paras. 122-25. See also
Pileggi
,
at para. 120;
Rover
, at para. 43; and
R. v. Miller
, 2018
    ONCA 942, 368 C.C.C. (3d) 479, at para. 21. As in
R. v. Mian
, 2014 SCC
    54, [2014] 2 S.C.R. 689, at para. 87, it is entirely appropriate to consider the
    lack of a causal connection in calibrating seriousness under the second stage
    of the
Grant

analysis.

[116]

Finally, the seriousness of the impact of the predicate s. 10(b)
Charter
breach on the interests protected by s. 10(b) was not compounded by interference
    with any other
Charter
-protected interests: see
Mian
,

at
    para. 87. This is yet another factor for consideration under the second prong
    of the
Grant

analysis. Given the trial judges finding that the
    appellant had abandoned any expectation of privacy in the Glocks, the appellant
    had no remaining constitutional relationship with the Glocks at the point that
    they were lawfully seized. Therefore, his privacy and dignity interests were
    not impacted in any way, let alone by the subsequent s. 10(b) breach.

(d)

Societys Interest in Adjudication on the Merits

[117]

The Glocks found in Mr. Ghousys vehicle were reliable evidence that
    was essential to the Crowns case. The fentanyl had been excluded. The cash had
    been excluded. Seven firearms had been excluded. Exclusion of the two Glocks
    would have erased what little was left of the Crowns case.

[118]

While there is no doubt that the public has a vital interest in a
    justice system that is beyond reproach, particularly where the penal stakes for
    the accused are high, the public also has a heightened interest in seeing a
    determination on the merits where the offence charged is serious:
R. v.
    Harrison
,

2009 SCC 34, [2009] 2 S.C.R. 494, at para. 34.
    Trafficking in firearms is a very serious offence. The circumstances underlying
    this case were particularly serious, including the broad daylight exchange of
    two firearms in a public setting: a gas station parking lot.

[119]

The safety of the community hangs in the balance. Like in
Harrison
,
at para. 34, the third line of inquiry favours admission in this case
    because, without that admission, there would be no case to be adjudicated.

(e)

Final Balance

[120]

The appellant held and continues to hold the onus of establishing
    why exclusion should flow. In my view, while the first line of inquiry pushes
    toward exclusion, the second is somewhat neutral at best, and third pushes
    toward inclusion. I would not exclude the evidence.

[121]

It is important to recall that exclusion of evidence is never
    automatic under s. 24(2). There are competing relevant factors and,
    importantly, the balancing exercise is a qualitative one, not at all conducive
    to mathematical precision:
Harrison
, at para. 36;
Tim
, at
    para. 98. Exclusion does not follow from the length of the breach per se.
    Indeed, there are cases where s. 10(b) breaches that are longer than the one
    hour in this case have not led to s. 24(2) exclusion: see
R. v. Hobeika
,

2020 ONCA 750, 153 O.R. (3d) 350, at para. 90;
Griffith
,
at
    para. 80; and
Pileggi
,
at paras. 4, 128.

[122]

Some may wonder about the result for Mr. Ghousy in this case: he was
    acquitted because of a s. 24(2) exclusion and, therefore, shouldnt the
    appellant receive the same benefit? No. Mr. Ghousy may well have been the lucky
    recipient of a flawed constitutional analysis. There is no constitutional right
    to having those flaws played forward.

[123]

In this case, considering all of the circumstances, as s. 24(2)
    demands, I would not exclude the evidence. In my view, having regard to all of
    the circumstances, exclusion of the two Glocks in the LCBO bags would not
    vindicate the long-term repute of the criminal justice system but, rather, would
    bring it into disrepute.

F.

CONCLUSION

[124]

I would dismiss the appeal.

Released: April
    21, 2022 JMF

Fairburn A.C.J.O.

I agree Paul Rouleau J.A.

I agree Grant Huscroft J.A.

[1]
There is no Crown appeal from those acquittals.


COURT OF APPEAL FOR ONTARIO

CITATION: Iqbal v. Mansoor, 2021 ONCA 927

DATE: 20211222

DOCKET: M52934 (C65591)

Tulloch J.A. (Motion Judge)

BETWEEN

Musharraf
Iqbal

Plaintiff

(Appellant/Moving
Party)

and

Sohail
Khawaja Mansoor and Gold International Inc.

Defendants

(Respondents/Responding
Parties)

Musharraf Iqbal, acting in person

No one appearing for the responding
parties

Heard: November 22, 2021 by video conference

REASONS
FOR DECISION

[1]

The applicant, Musharraf Iqbal, brings this
motion pursuant to r. 3.02(2) of the
Rules of Civil Procedure,
R.R.O
1990, Reg. 194. The applicant seeks an order for an extension of time to pursue
a motion to set aside the order of Coroza J.A., dated August 13, 2020, under s.
7(5) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43. In his
decision, Justice Coroza declined to grant the applicant an extension of time to
seek leave to appeal from two costs decisions, which were made in the Superior
Court of Justice in 2018.

[2]

Pursuant to r. 61.16 of the
Rules of Civil
Procedure
, the time to bring such a motion is within four days of the
order. The appellant submits that the delay in bringing this motion to set
aside the order of Coroza J.A. was mostly as a result of his ignorance of the
proper procedures to follow. He also submits that he mistakenly believed the
COVID-19 suspension was still in place, and that he tried to retain a lawyer
who was ultimately of no assistance.

[3]

The respondents have not submitted any responding
materials, nor has anyone appeared on their behalf to oppose the motion.

Background

[4]

The parties went through proceedings before an
arbitrator in which the applicant was successful. He was awarded costs of the
arbitration hearing but the arbitrator did not make a costs order for the
proceedings prior to the actual hearing. The total costs to the applicant for
the proceedings amounted to $109,817.

[5]

Following the arbitrators decision, the
respondents commenced an application in the Superior Court, in which they
sought an order granting them leave to appeal from the decision of the
arbitrator. In response, the applicant commenced a counter-application seeking
an order upholding the arbitrators decision. In February 2018, the application
judge dismissed the respondents application and granted the applicants
counter-application.

[6]

The applicant made costs submissions before the
application judge and asked for a total of $109,817 in costs for the
proceedings, indicating to the court that the arbitrator had not addressed the
issue of the costs of the proceedings, but had only awarded costs for the
actual hearing.

[7]

The application judge declined to award the
applicant his full arbitration costs in the amount of $109,817, finding that
the costs award he had been granted by the arbitrator covered the entire
proceeding. Upon obtaining confirmation from the arbitrators office that the
costs award was not in fact for the entire proceeding but only for the
arbitration hearing, the applicant brought a motion for the remaining $109,817
in costs. The application judge determined that the applicant sought to appeal
his earlier refusal of costs and that he therefore lacked jurisdiction; the
motion was dismissed.

[8]

The applicant then tried to appeal the
application judges decision to this court, but because he had not first
obtained leave, the court lacked jurisdiction. The panel noted that it was an
error for the application judge to find that he did not have jurisdiction to
hear the motion. The applicant then tried to seek leave from the Supreme Court
of Canada, which was dismissed. The applicant also tried to seek leave to
appeal in the Superior Court, but the application was dismissed for lack of
jurisdiction. The applicant subsequently brought a motion before this court for
an extension of time to bring a motion for leave to appeal the costs order,
which was heard before Coroza J.A. and dismissed.

Analysis

[9]

The overarching principle when considering a
motion for an extension of time is that an extension should be granted if the
justice of the case requires it:
Frey v. McDonald
(1989), 33 C.P.C.
(2d) 13 (Ont. C.A.).

[10]

The relevant factors were set out in
Kefeli
v. Centennial College of Applied Arts and Technology
, 2002 CanLII 45008 (ON
CA), at para. 14:

1.

The length of and explanation for the delay;

2.

Whether the respondent will suffer prejudice;

3.

The merits of the appeal; and

4.

Whether the justice of the case requires it.

[11]

As stated earlier, the applicant wanted to move
to set aside Coroza J.A.s decision but failed to do so within the prescribed
period because he mistakenly believed the COVID-19 suspension was still in
place. He also tried to retain a lawyer who was ultimately of no assistance.

[12]

The applicant argues that the proposed appeal
has merit, that the respondents will not suffer any prejudice, and that an
extension of time is in the interests of justice. On the merits, he argues that
the finding that the costs award he was granted covered the entire proceedings
was clearly wrong, in light of the confirmation from the arbitrators office.
With respect to the application judges finding that he did not have
jurisdiction to hear the motion after this information was discovered, our
court determined that this was also an error. There is no prejudice to the
respondents in the sense that witnesses cannot be called or evidence has been
destroyed. It is in the interests of justice to have the $109,817 costs issue
determined on its merits.

[13]

From the recent history of this litigation, I have
no doubt that the applicant had every intention to appeal the decision of Coroza
J.A. Unfortunately, it took over a year to do so. Accepting his explanation for
the delay, I still must consider whether the respondents will suffer any
prejudice, whether there is any merit to an appeal, and if so, whether the
justice of the case warrants granting the extension.

[14]

There is no doubt that if an extension was
granted, the respondents would suffer prejudice. The respondents are no longer
represented by counsel. A significant amount of time has elapsed since Justice
Corozas decision was rendered. Should an extension be granted, the respondents
would now have to turn their minds to responding again to the applicant, thus
incurring more costs.

[15]

When it comes to the merits of the appeal, this
is a case in which the parties elected to proceed by way of arbitration. During
the arbitration process, both parties were obliged to put their entire claim
before the arbitrator, including all the relevant costs. For whatever reasons,
the applicant neglected to do so, and instead claimed only for his damages,
without factoring in the entire costs of the proceedings. The decision of both
parties to opt out of the court process and to proceed before an arbitrator
entailed that the entire claim, including the costs of the proceedings, would
be placed before the arbitrator. Once an arbitrator decides the outcome, the
matter is no longer within the jurisdiction of the court, provided there was no
legal or procedural errors.

[16]

In all the circumstances, I am of the view that
even if an extension of time was granted, the applicants case lacks sufficient
justification to grant an extension of time. In my view, notwithstanding the
submissions of the applicant, the justice of the case does not warrant this
court exercising its discretion to grant the extension of time to serve the notice
of leave to appeal.

[17]

Accordingly, the motion is dismissed.

M.
Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Girao v. Cunningham, 2021 ONCA 18

DATE: 20210108

DOCKET:
    C63778

Fairburn
    A.C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Yolanda
    Girao

Plaintiff
    (Appellant)

and

Lynn
    Cunningham
and Victor Mesta

Defendant
    (
Respondent
)

Yolanda
    Girao, acting in person

David Zuber
    and Michael Best, for the respondent

Heard: in writing

On appeal
    from the judgment of Justice Peter Cavanagh of the Superior Court of Justice,
    sitting with a jury, dated March 3, 2017, from the order on the threshold
    motion, dated April 20, 2017, with reasons reported at 2017 ONSC 2452, and from
    the costs order, dated July 20, 2017, with reasons reported at 2017 ONSC 4102.

COSTS
    ENDORSEMENT

[1]

The panel allowed the appeal in this matter with
    reasons reported at 2020 ONCA 260. The appeal largely turned on the ways in
    which the trial was unfair to Ms. Girao: see para. 176. She was awarded the
    costs of the appeal and of the trial, including disbursements.

[2]

The trial context was described at para. 175 of
    the appeal decision:

At trial, the appellant functioned as a
    legally-untrained, self-represented, non-English speaking litigant in
    testifying, examining and cross-examining through a Spanish interpreter. She
    was faced with a phalanx of defence counsel, two representing Ms. Cunningham,
    and two representing Allstate Insurance Company of Canada. The trial was 20
    days long, involved many witnesses, and considered complex medical evidence.

[3]

The trial led Ms. Girao to expend funds that are
    to be treated as costs thrown away because they were incurred for steps in the
    proceeding which were reasonably necessary to proceed with the action but
    which have been rendered useless by the other partys conduct in responding or
    not responding to the action:
Royal Bank v. Blatt
, [1991] O.J. No.
    688 (Ont. Gen. Div.).

[4]

Ms. Girao is therefore entitled to her trial
    disbursements in the amount of $14,021.40, broken down as follows:

Expense

Total incl. GST/HST

Medical Legal Report  Dr. Kryjshtalskyj

$2,260.00

Witness Tickets to Toronto (Bruno and
          Giselle Mesta)

$296.48

Lodging for Witnesses (Bruno and Giselle
          Mesta)

$39.96

Courier & Postal service

$44.13

Dr. Malickis attendance

$2,712.00

Dr. Manohars attendance

$2,712.00

Dr. Beckers attendance

$3,390.00

Mr. Wollachs attendance

$1,356.00

Ms. Mukherjees attendance

$1,210.83

[5]

Ms. Girao is also entitled to her appeal
    disbursements in the amount of $6,491.39, broken down as follows:

Expense

Total incl. GST/HST

Trial transcripts

$5,623.33

Courier & Postal service

$868.06

[6]

Ms. Girao also seeks payment of the costs of
    this action up to the trial including the amount of about $137,000 paid to
    former counsel. In our view these costs, including pre-trial preparation, must
    be left to the discretion of the trial judge who hears the re-trial.

[7]

In reserving costs of the action to the judge
    presiding over the re-trial, we direct that if an award of costs is made to the
    respondent, it shall not include any amount for or relating to the respondents
    preparation for or conduct of the trial under appeal. We agree with the
    approach of the British Columbia Court of Appeal in
Fullerton v. Matsqui
    (District)
(1992), 14 B.C.A.C. 153, [1992] B.C.J. No. 2969 that the
    appellant should not in any event be responsible for costs incurred in
    responding to the actions of the respondents previous trial counsel criticized
    in our appeal reasons.

[8]

Ms. Girao also seeks a fee allowance as a self-represented
    person, for herself and her husband, in the amount of nearly $800,000,
    calculated at $150 per hour, including their time in court at the trial and on
    the hearing of the appeal.

[9]

The principles for awarding fee allowances to
    self-represented litigants were set out by Rouleau J.A. in
Benarroch v.
    Fred Tayar & Associates P.C.
, 2019 ONCA 228, following
Fong v.
    Chan
(1999), 46 O.R. (3d) 330, [1999] O.J. No. 4600 (Ont. C.A.),
per
Sharpe J.A. At para. 26 of
Fong
, Sharpe J.A. set out two conditions
    that must be met if a self-represented litigant is to be awarded a fee
    allowance. Fees should only be awarded to those lay litigants who can
    demonstrate that they:

a)

devoted time and effort to do the work
ordinarily done by a lawyer
retained to conduct the
    litigation; and

b)

as a result, incurred an opportunity cost by
foregoing remunerative activity
.

[10]

There is no doubt that much of what Ms. Girao
    and her husband did was work ordinarily done by a lawyer although, as noted in
Fong
and
Benarroch,
self-represented litigants should not be awarded a
    fee allowance for time they would ordinarily be attending in court.

[11]

Another policy direction in
Fong
was that
    costs should serve to dissuade misconduct in litigation. That is why an insurer
    faced with an unrepresented litigant should expect to pay costs in some amount,
    particularly where the insurers trial tactics merit sanction, as in this case.
    In
Benarroch
, at para. 35, Rouleau J.A. stated that where there is
    little evidence of lost opportunity costs, any award will likely be nominal.
    There is no doubt that Ms. Girao and her husband would happily have been doing
    something else during the many hours they spent preparing for and attending at
    the trial and the appeal. We would grant a fee allowance that is, in the
    context, nominal but that is also consistent with the policy direction in
Fong
to reflect disapproval of a partys inappropriate trial tactics.

[12]

As to method of calculation and quantum, Ms.
    Girao claims for 5,261 hours including time for attendance at hearings and for
    document compilation that is not compensable. On several days, her claimed
    hours exceed 24 hours in the day. Her proposed hourly rate of $150 per hour
    falls at the very high end of the range established by case law. There is no
    doubt that Ms. Girao spent considerable time working on her case and her work
    proved effective. However, her method of accounting for such time does not lend
    itself to calculation based on hours worked.

[13]

We are mindful of the comments of Rouleau J.A.
    in
Benarroch
, who noted that lump sum costs awards may be preferable
    in order to avoid transforming costs hearings into complex proceedings where
    the self-represented claimant is called upon to account for every minute of the
    day and prove every penny of revenue: at para. 18.

[14]

Ms. Girao is entitled to a modest fee allowance
    for the trial and the appeal, which we fix at $35,000, for an all-in costs
    award of $55,512.79.

Fairburn
    A.C.J.O.

P.
    Lauwers J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Goderich-Exeter Railway Company
    Limited v. Shantz Station Terminal Ltd., 2021 ONCA 20

DATE: 20210112

DOCKET: C67132

Huscroft, Zarnett and Coroza
    JJ.A.

BETWEEN

Goderich-Exeter Railway Company Limited

Plaintiff (Appellant)

and

Shantz Station Terminal Ltd. and
    Parrish and Heimbecker Limited

Defendants (Respondents)

George Karayannides, for the appellant

Forrest Hume, Monika Gehlen and Robert
    Reynolds, for the respondents

Heard: in writing

On
    appeal from the judgment of Justice Catrina D. Braid of the Superior Court of
    Justice, dated May 31, 2019 with reasons reported at 2019 ONSC 1914, and from a
    costs order, dated September 9, 2019 with reasons reported at 2019 ONSC 5192.

COSTS ENDORSEMENT

[1]

The respondents are awarded their costs of the
    appeal in the sum of $60,000, inclusive of disbursements and applicable taxes.

Grant
    Huscroft J.A.
B. Zarnett J.A.
S. Coroza J.A.