COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Mac, 2016 ONCA
    379

DATE: 20160518

DOCKET: C57573

Watt, Lauwers and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Khaun Min Mac

Appellant

Kim Schofield and Melina Macchia, for the appellant, Mr.
    Mac

Anya Weiler, Geoffrey Roy and Kelvin Ramchand, for the
    respondent, the Crown

Heard: April 14, 2016

On appeal from the conviction entered by Justice Bruce A.
    Glass of the Superior Court of Justice on April 29, 2013, and from the sentence
    imposed on October 17, 2013, with reasons reported at 2013 ONSC 2523.

Lauwers J.A.:

[1]

The appellant was convicted of conspiracy to traffic two kilograms of methamphetamine.
    The evidence against the appellant was based on intercepted communications and
    observed interactions between the appellant and Mr. Quan Lao, the subject of
    police investigation. The appellant unsuccessfully challenged the wiretap
    authorization by way of a pre-trial
Garofoli
application.

[2]

The appellant appeals both conviction and sentence. With respect to his
    conviction, he argues that the trial judge erred in not permitting him to
    cross-examine the affiant and sub-affiant on the content of the affidavit that
    led to the wiretap authorization, and in failing to excise from the affidavit
    certain allegedly unfounded assertions related to importation.

[3]

With respect to his seven year sentence, the appellant argues that it should
    be varied because trial judge erred in focusing on his dated and unrelated
    criminal record and ignored his rehabilitative prospects.

[4]

The appeal is dismissed for the following reasons.

A.

Factual Background

[5]

The appellant s communications with
    Mr. Lao were intercepted in the course of a police investigation called
    Project Nexus. It was initially focused
    on several other targets under separate investigation, who had come to police
    attention through two confidential informants. They provided information  that a group of individuals were involved in the
    importation and production of methamphetamine. The police observed their
    activities through video surveillance of an apartment building they frequented.
    Through unforeseen developments explained below, Mr. Lao became a target of Project
    Nexus and police began to intercept his communications.   The police
    intercepted communications between Mr. Lao and others, including the appellant.

[6]

In the course of Project Nexus, an undercover detective posing as a drug
    dealer seeking to buy cocaine and methamphetamine arranged to purchase two
    kilograms of methamphetamine from Mr. Lao. The appellant was observed meeting
    and shaking hands with Mr. Lao shortly before Mr. Lao provided the
    undercover officer with a sample of methamphetamine. The appellant was charged
    with conspiracy to traffic two kilograms of methamphetamine; Mr. Lao was the
    co-conspirator.

[7]

The appellant, Mr. Lao, and Mr. Joseph Nestorovski, who was allegedly
    engaged in a conspiracy to traffic in cocaine with Mr. Lao, were tried together.
    Mr. Lao entered a guilty plea following pre-trial motions and was not part of
    the trial.

B.

The Chronology of the Investigation Leading to the Request for
    Authorization

(i)

October 2009

[8]

Police received information from a first confidential informant (CI)
    that a Mr. Chan was involved in large scale trafficking of drugs. That same CI led
    police to an apartment building where police learned that Mr. Chan had rented
    an apartment.

[9]

Mr. Chans apartment is located in a building which has a sophisticated
    video surveillance system. The police began to use this system to observe the
    movements of Mr. Chan and his associates.

(ii)

November 2009

[10]

Police
    observed a flurry of activity over three days at Mr. Chans apartment. A
    number of individuals, many of whom are later named as the primary targets in
    the investigation, are observed attending at Mr. Chans apartment carrying
    various bags and boxes. These include: Mr. Sethi, Mr. Suri, Mr. Tahkur,
    Mr. Pang, and later, Mr. Lao. These bags and boxes were transferred among the
    various persons attending at Mr. Chans apartment and were not left in the
    apartment for a significant period of time. The police believed that these bags
    and boxes contained controlled substances and that the targets were engaged in
    drug trafficking.

(iii)

December 2009

[11]

Police
    obtained several number recorder warrants to monitor the telephone activity of
    the primary targets. These number recorder warrants were extended until April
    2010. The police concluded that the primary targets communicated with each other
    frequently.

[12]

The police
    also obtained a general warrant permitting covert entry to Mr. Chans
    apartment. Inside, they located small amounts of ephedrine and ecstasy, a money
    counter, packaging material, and a drug testing kit.

[13]

Mr. Chan was
    arrested for impaired driving. Mr. Suri, one of the primary targets, was a
    passenger in Mr. Chans car. Mr. Chan told police he resided in British Columbia
    and did not disclose his apartment in Ontario. The police seized a phone bill that
    matched one found in Mr. Chans apartment during the polices covert entry. On
    the phone bill was what police described as a debt list consistent with
    kilogram level trafficking of cocaine.

(iv)

January-March 2010

[14]

Police
    received information from a second CI that Mr. Sethi was in possession of
    ephedrine, a precursor for making methamphetamine. The CI was unable to tell
    police the whereabouts of the ephedrine or the methamphetamine lab.

[15]

Police
    conducted physical surveillance of both Mr. Suri and Mr. Sethi. They were unable
    to uncover any evidence of illegal activity but ascertained that they
    associated with each other away from Mr. Chans apartment.

[16]

Police
    also obtained a tracking device warrant for several of the primary targets.
    Police installed one tracking device on Mr. Suris rental vehicle. The data
    from this tracking device did not provide any evidence of illegal activity.

[17]

Police
    also installed a covert camera in the hallway outside Mr. Chans apartment.
    This camera was able to confirm that Mr. Suri and Mr. Sethi visited Mr. Chan
    frequently, carrying various bags.

(v)

April 2010

[18]

Police
    conducted an unrelated undercover operation targeting Mr. Lao. Detective Thai
    Truong met Mr. Lao at a parole office and posed as a low-level dealer. Mr. Lao,
    whom the police suspected was a high level dealer, agreed to sell Detective
    Truong four ounces of cocaine. Analysis of the number recorder warrants data
    revealed that Mr. Lao had been in communication with Mr. Sethi and Mr. Suri.
    Mr. Lao was also observed attending Mr. Chans apartment in the company of Mr.
    Sethi and Mr. Suri.

[19]

Police concluded
    that Detective Truong could be used to stimulate activity within the group by
    making more low-level buys. However, given his cover story as a low-level
    dealer, they concluded that it would be unsafe to escalate his involvement in
    order to directly target the primary targets.

(vi)

May 2010

[20]

Police
    concluded they were unlikely to further penetrate what they considered to be a
    highly sophisticated drug trafficking operation using only the investigative means
    described above. Police applied for a wiretap order against the primary targets
    named in the application, supported by the affidavit of Detective Nicholas
    Ibbott dated May 18, 2010.

C.

The
Garofoli
Application

[21]

The
    appellant and his co-accused brought a pre-trial
Garofoli
application
    challenging the admission of wiretap evidence under s. 8 of the
Canadian
    Charter of Rights and Freedoms
, on the basis that the interceptions
    constituted an unreasonable search or seizure:
R. v. Garofoli
, [1990]
    2 S.C.R. 1421. They argued that the police did not lay a proper foundation to
    show investigative necessity for the wiretaps.

[22]

To assist
    in arguing the
Garofoli
application, the appellant and his co-accused moved
    for leave to cross-examine the affiant (Detective Ibbott) and the sub-affiant
    (Detective Truong) on the affidavit. This was denied, for reasons reported at
    2013 ONSC 1951.  The appellants
Garofoli
application was also
    denied.

D.

The Issues

[23]

There are four
    issues in this appeal:

1.

Did the trial judge err in refusing the appellant leave to cross-examine
    the affiant and the sub-affiant on the affidavit filed in support of the
    application for authorization?

2.

Did the trial judge err in dismissing the
Garofoli
application?

3.

Did the trial judge err in not excising references to importation from
    the affidavit?

4.

Did the trial judge err by imposing a seven year sentence?

(1)

Did the trial judge err in refusing the appellant leave to cross-examine
    the affiant and the sub-affiant on the supportive affidavit?

[24]

Section
    186(1) of the
Criminal Code
provides that an authorization to
    intercept a private communication may only be given on the following grounds:

186. (1) An authorization under this section may be given if
    the judge to whom the application is made is satisfied

(a)     that it would be in the best interests of the
    administration of justice to do so; and

(b)     that other investigative procedures have been tried
    and have failed, other investigative procedures are unlikely to succeed or the
    urgency of the matter is such that it would be impractical to carry out the
    investigation of the offence using only other investigative procedures.

[25]

The
    appellant sought leave to cross-examine the affiant and sub-affiant in order to
    explore whether the pre-conditions of s. 186(1)(b) had been met, whether other
    investigative procedures have been tried and have failed, and whether other
    investigative procedures are unlikely to succeed. The appellant argued that cross-examination
    would have assisted the trial judge in determining whether investigative necessity
    was satisfied by the affiant/sub-affiant, while also providing a factual
    foundation for any analysis, or findings made under s. 24(2) of the
Charter
.

[26]

The trial
    judge refused leave to cross-examine the affiant. The appellant asserts that he
    erred in doing so. The appellant argues that the test for granting leave to
    cross-examine was satisfied  that is, that there is a reasonable likelihood
    that cross-examination would assist the Trier of Fact in determining a material
    issue.

(a)

The Governing Principles on Leave to Cross-Examine

[27]

The
    governing principles on leave to cross-examine were canvassed by this court in
R.
    v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 39, per Watt
    J.A.:

An accused does not have an absolute right to cross-examine the
    affiant. Leave to cross-examine is required. And leave is not granted, just for
    the asking. To obtain leave to cross-examine the affiant, an accused must show
    that the proposed cross-examination will elicit testimony that tends to
    discredit the existence of a pre-condition to the issuance of the warrant, as
    for example, reasonable and probable grounds: . [citations omitted.]

[28]

In
R.
    v. Pires
;
R. Lising
, 2005 SCC 66, [2005] 3 S.C.R. 343,
    Charron J. explained, at para. 40:

[T]he
Garofoli
leave requirement is simply a means of
    weeding out unnecessary proceedings on the basis that they are unlikely to
    assist in the determination of the relevant issues. The reason that the test
    will generally leave just a narrow window for cross-examination is not because
    the test is onerous - it is because there is just a narrow basis upon which an
    authorization can be set aside. Hence, in determining whether cross-examination
    should be permitted, counsel and the reviewing judge must remain strictly
    focussed on the question to be determined on a
Garofoli
review -
    whether there is a basis upon which the authorizing judge could grant the
    order.

[29]

As this
    court recently noted in
R. v. Beauchamp
, 2015 ONCA 260, 326 C.C.C.
    (3d) 280, it is not the reviewing judges task to conduct a re-hearing and
    substitute his view for that of the authorizing judge. The reviewing judges
    task is more circumscribed. The court noted, at para. 87:

The task for the reviewing judge, as framed by
Garofoli
and subsequent authorities, is to determine whether on the supportive
    affidavit, as amplified by evidence adduced on the review, there was sufficient
    reliable evidence that might reasonably be believed on the basis of which the
    authorizing judge
could
have concluded that the probable cause
    requirement had been met.

(b)

The Trial Judges Ruling

[30]

The trial
    judge denied the motion for leave to cross-examine the affiant and the
    sub-affiant. He rejected, at para. 3, the applicants arguments that: the

affiant

did

not
lay
a

proper

foundation

for

the

authorization; the police went to an
    interception of private communications prematurely; and that the police took
    the easy road rather than conducting regular police investigatory procedures.

[31]

The trial
    judge rejected these criticisms of the investigation, noting, at para. 7:

The

only

achievement

that

cross-examination

might

accomplish would

be

to

grind

the

officers

in

cross-examination

with

questions

about

what

they

did

or

did

not

do

and

whether

they

conducted such police
    work properly. At the end of the argument, the court will continue to be back
    to the materials provided to the authorizing judge when she granted permission
    to intercept private communications. Even if cross-examination is conducted so
    that one might criticize the officers for the quality of their work, the court
    will decide whether the information provided is properly founded for the order
    given. There is no suggestion that the affiant misled the authorizing judge
    when applying for permission to intercept private communications. In other
    words, there is nothing to be gained with cross-examination.

(c)

The Principles Applied

[32]

The trial
    judge did not err in denying leave to cross-examine the affiant and
    sub-affiant. On a
Garofoli
application, leave to cross-examine must be
    understood in light of the limited scope of review of an authorizing justices
    decision to issue a warrant. As stated by the Supreme Court in
Pires; Lising
at para. 40, a reviewing court is only tasked with determining whether
    there is a basis upon which the authorizing judge could grant the order.

[33]

The trial
    judge was required to assess whether the appellants proposed cross-examination
    would tend to undermine one of the pre-conditions for issuing the authorization.

[34]

This
    assessment is by necessity highly contextual and depends upon the facts of each
    specific case. As in all cases where judges are called upon to make factual
    findings, deference is owed by reviewing courts. I would repeat this courts
    admonition in
Beauchamp
, at para. 89:

On appeal, we owe deference to the findings of fact made by the
    reviewing judge in his or her assessment of the record, as amplified on review,
    as well as to his or her disposition of the s. 8
Charter
challenge.
    Absent an error of law, a misapprehension of material evidence or a failure to
    consider relevant evidence, we should decline to interfere. [Citations
    omitted.]

[35]

The trial
    judge clearly understood the reason behind the appellants desire to
    cross-examine the affiants. However, in his opinion, cross-examination would
    not assist him in deciding the
Garofoli
application, since the affidavit
    laid out in sufficient detail the steps taken by the police and the reasons why
    the investigation took the path it did. In my view, the trial judges
    conclusion is entitled to deference and this ground of appeal must fail.

(2)

Did the trial judge err in dismissing the
Garofoli
application?

[36]

The
    appellant argues that the trial judge erred in holding that the police had established
    the investigative necessity requirement in s. 186(1)(b) of the
Criminal
    Code
. Specifically, the appellant complains that the police used a wiretap
    authorization as an investigative short-cut in place of conducting a proper
    investigation.

(a)      The Governing Principles

[37]

The general
    governing principles for a
Garofoli
application, where the underlying
    charge is conspiracy, were canvassed extensively by this court in
Beauchamp
,
    at paras. 79-105. I need not repeat them here but will draw on them briefly.

[38]

In
Beauchamp
this court elaborated on investigative necessity, and the notion of no other
    reasonable alternative method of investigation, at paras. 115-129. The court
    noted particularly, at para. 118, that a wiretap is not a technique of last
    resort [] but one of practical necessity in light of the investigative
    objectives. Further, at para 119, the court rejected the argument that investigative
    necessity cannot be established where the use of other investigative techniques
    or procedures would likely succeed in establishing the culpability of one of
    the targets of investigation. Investigative necessity is to be assessed not on
    a target-specific basis, but in relation to the investigation as a whole.
    Finally, at para 121, the court observed that [t]he nature of the activity
    under investigation is a crucial factor in the analysis and that concerted
    activity by individuals is often resistant to other investigative procedures
    that cannot reach the degree of participation and state of mind of those involved.
    See also
R. v. Spackman
, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para.
    217.

[39]

In
R.
    v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992,
the
    Supreme Court discussed investigative necessity in the context of drug
    trafficking conspiracies
. Justice LeBel observed at para. 41 that [c]atching
    the ringleaders in drug rings and conspiracies is never an easy task.  He
    added: There was, in my view, evidence in the affidavit to negate arguments
    for other investigative techniques and to make the case that wiretapping was,
    practically speaking, the only reasonable alternative, taking into account the
    nature and purpose of this particular investigation. He concluded, at para. 43:
    Here, the police had more need for wiretapping given that they were trying to
    move up the chain and catch the higher-ups in the operation. In his view:
    This rightly reinforces the investigative necessity made plain by the
    affidavit materials.

[40]

However, the
    fact that wiretap authorization might inevitably be required because of the
    nature of the activity being investigated does not excuse the police from the
    obligation to establish a firm evidentiary foundation for the authorization
    through the use of less intrusive methods of investigation. As this court noted
    in
Beauchamp
, at para. 126, there should be no rush to interception.

(b)      The Trial Judges Ruling

[41]

The trial
    judges reasons for dismissing the
Garofoli
application are set out in
    paras. 13-14:

I am satisfied that here the police did follow the required
    provisions of the
Criminal Code
by investigating as police normally
    would. Only after they found that those procedures were not succeeding with
    results and at the same [time] with information that the drug activity appeared
    to be taking place, they were able to satisfy the authorizing judge that they
    needed an additional instrument to gather more evidence. They were at an
    impasse in effect. That additional process was an order permitting them to
    intercept private communications.  Investigative necessity was made out in the
    information to obtain the authorization. Granting the authorization was in the
    best interest of the administration of justice.

Although the applicants have stated that there were other or
    additional actions that the police could have undertaken, I interpret the
    submissions to be a wish list of ideal investigative processes and results.

[42]

Noting
    that police must make a decision at some point during their investigation
    whether to apply for a warrant or not, the trial judge concluded, at para. 14, that
    there was a foundation of material upon which the authorizing judge could made
    an order permitting the intercepts.

[43]

The trial
    judge took note, at para. 15, of the appellants concession that
:
that there is evidence of drug trafficking
    activity and that although the appellant disputed it, said there was also evidence
    of importation as well.

(c)      The Application of the
    Principles

[44]

The trial
    judge rejected each of the appellants criticisms of the police investigation.
    They were as follows: that the police did not do actual physical surveillance
    of the targets; they did not conduct more searches of the stash houses and
    vehicles; that they did not fully use tracking and number recorder warrants;
    and they did not continue an undercover operation.

[45]

The trial
    judge did not err in rejecting each of these criticisms. He noted the
    appellants arguments amount to little more than a wish list of ideal
    investigative processes and results. As will be seen below, each of these
    criticisms was adequately addressed in the affiants evidence and established
    that the police had reached an investigative impasse.

(i)       The

efficacy

of

video,

as

opposed

to

live
,
surveillance

[46]

Details of
    the live and video surveillance were set out at length in the affidavit. The
    affiant concluded that physical surveillance would be insufficient to meet the
    goals of the investigation. The affiant stated, at para. 295 of the affidavit,
    that physical surveillance would not reveal when and where shipments of drugs
    were arriving in to Canada, nor would it reveal the identity of unknown parties
    taking part in the distribution of the drugs
.

(ii)      More
    covert searches of alleged "stash house" and vehicles

[47]

The police
    carried out a single covert

search

of

the

identified

stash

house that did
    not find large quantities of drugs. The

affiant
    explained, at para. 297 of the affidavit, that the video surveillance
    established the bags suspected of containing large amounts of drugs were not
    kept at the residence for long periods of time. For this reason, the police
    concluded additional searches of the stash house would not advance the investigation.

(iii)     The
    use  of tracking devices

[48]

The police installed

one

tracking

device

in

a

rental
    vehicle
that was soon
returned

to

the

rental

agency.

The affiant stated, at para. 301 of the affidavit, this investigative
    technique has limited utility because it could only confirm that the targets
    associated with one another. However, the investigation had already established
    that the primary targets associated with one another, and the use of more tracking
devices could not have advanced the investigative
    goals of the project.

(iv)     Number
    recorder orders

[49]

The appellant argues that the police could have used number
    recorder warrants more extensively. The number recorder warrant did produce
    positive results, as Bird J. outlined in
R. v. Sethi et al
.
,
    2015 ONSC 684. In that related case, Bird J. dismissed a
Garofoli
application brought by the some of the primary targets. Justice
Bird held, at paras. 60-61, that the number recorders
    established that Mr. Sethi had been in regular phone contact with Mr. Chan, Mr.
    Lao, and Mr. Suri.
However, as the affiant explained at para. 298 of the
    affidavit, this method also has limitations. The result of number recorder
    warrants could only reveal with whom the targets communicated, but reveals
    nothing about the contents of their communications.

(v)      The
    efficacy of the undercover operation

[50]

The initial
    undercover operation targeting Mr. Lao was unrelated to Project Nexus. However,
    once Mr. Laos association with the primary targets became known, this
    undercover operation was folded into Project Nexus. By this time, the
    undercover officers cover story had already been established. As the affiant explained,
    at para. 187 of the affidavit, Det. Truong was not portraying himself as the
    same level of drug dealing as Lao. This is evident from the fact that the
    undercover officer only arranged to purchase four ounces of cocaine from Mr.
    Lao.

[51]

The affiant
    explained that the undercover officers undercover work would be of limited
    utility on its own. While capable of showing that Mr. Lao was involved in
    trafficking cocaine, the affiant explained that Mr. Lao did not reveal the
    identity of his supplier(s). This link was only provided by the video
    surveillance of Mr. Chans apartment. The affiant explained that without the
    ability to listen to Mr. Laos phone calls, the undercover officers
    involvement was unlikely to reveal the desired information.

[52]

The
    affiant also explained that it would be dangerous to escalate the undercover
    officers involvement. He pointed out that the primary targets were being
    investigated for large-scale manufacturing and importation of drugs. To have the
    officer attempt to escalate his involvement from a low-level cocaine dealer to
    directly involve the primary targets would raise red flags. The affiant was
    particularly concerned with the fact that one of Mr. Chans co-accused in
    a separate drug investigation had been murdered and that there had been two
    attempts on the life of Mr. Sethi.

(vi)     Conclusion

[53]

In my
    view, the trial judge correctly concluded that the police had gone as far with
    their investigation as they could without a wiretap authorization. Taken together,
    it is clear from the affiants evidence that the police had reached an investigative
    impasse.

[54]

To
    summarize, the undercover operation could not be escalated due to the risk to the
    undercover officer. Physical and video surveillance, the number recorder
    warrants, and the tracking devices were unlikely to reveal anything more than known
    associations. Lastly, any additional covert entry into Mr. Chans apartment was
    unlikely to find any large quantities of drugs since the drugs were not stored
    there for any lengthy period of time.

[55]

The
    appellant would have this court look at each individual technique in isolation
    and question why the police did pursue each to its utmost. But the appellants
    approach is flawed. The investigative necessity inquiry is contextual and must
    focus on the investigation as a whole, not examine each individual technique
    under a microscope. The police were dealing with a sophisticated criminal
    conspiracy that had proven resistant to traditional investigative techniques. Investigative
    necessity dictated that a wiretap authorization was the only realistic method by
    which the police could identify the ring leaders.

[56]

The police
    did not rush to obtain a wiretap authorization in this case. They conducted a
    thorough and extensive operation and reached an impasse. The trial judge
    assessed the application as a whole and concluded that there was a basis upon
    which the authorizing judge could issue the wiretap authorization. I see no
    basis to disturb this assessment on appeal.

(3)

Did the trial judge err by not excising information about importation from
    the affidavit?

[57]

As noted
    above, the trial judge concluded, at para. 14, that the affidavit disclosed
    evidence of importation. The appellant argues that the trial judges conclusion
    on this point is flawed since there was no evidence independent of the two CIs
    corroborating this fact. Accordingly, the appellant argues that the trial judge
    erred by not excising any reference to importation from the affidavit.

[58]

I reject
    this argument. In essence, the appellant asks this court to look at each
    individual reference to importation in isolation and decide whether on its own,
    it supports a finding that importation was taking place.

[59]

There are
    two main problems with the appellants argument. First, it ignores the fact
    that a judge must review an application for authorization in a contextual
    manner and decide whether, as a whole, there was a basis for the authorization
    to issue. Second, it ignores the fact that a reviewing judge has no
    jurisdiction to excise correct information from an affidavit:
R. v. Ebanks
,
    2009 ONCA 851, 97 O.R. (3d) 721, at para. 28.

[60]

The
    appellant readily accepts that the trial judges findings are entitled to
    deference on appeal. I agree. Given that the appellant has not argued that the
    CIs information was incorrect or false, the trial judge had no jurisdiction to
    excise that information from an affidavit supporting a wiretap authorization.
    Moreover, the trial judges assessment of whether the affidavit as a whole,
    including the information from the CIs and from the whole of the police
    investigation, disclosed evidence of importation is also entitled to deference.
    As such, I see no reason to disturb the trial judges finding that the
    affidavit disclosed evidence of importation.

(4)

Did the trial judge err by imposing a seven year sentence?

[61]

The
    appellant argues that the trial judge erred by imposing a seven year sentence.
    In support of that argument, the appellant contends that the trial judge erred
    in finding that the appellant had no prospect for rehabilitation. As evidence
    that his sentence was disproportionate and therefore unfit, the appellant also
    points to the fact that he received a sentence similar to the sentences meted
    out to his co-accused Mr. Lao and Mr. Nesorovski, even though each has a lengthier
    criminal record.

(a)      The governing principles

[62]

An
    appellate court must show deference to a trial judges sentence unless an
    accused can demonstrate that the sentence is demonstrably unfit or show that
    the trial judge committed an error in principle which had an impact on the
    sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11,
    44.

[63]

Deference is
    warranted on appeal because the sentencing process is highly contextual. As
    stated by the Supreme Court in
R. v. M.(L.)
, 2008 SCC 31, [2008] 2
    S.C.R. 163, at para. 15, [t]he sentencing judge has served on the front lines
    of our criminal justice system and possesses unique qualifications in terms of
    experience and the ability to assess the submissions of the Crown and the offender.

(b)      The trial judges decision

[64]

The core
    of the trial judges reasons is found at para. 61 of his reasons for sentence:

I conclude that with Mr. Mac denunciation of conspiring to
    traffic a serious drug, general deterrence to the public from engaging in such
    activity and a specific sanction to Mr. Mac not to engage in such actions again
    are important. There is no rehabilitation feature at play here. He has
    experienced a jail sentence in the past. Any consideration of him caring for
    his wife as a factor to reduce his sentence is not sufficient to warrant
    sentence of less than 2 years incarceration.

[65]

The trial
    judge also noted, at para. 62, that [h]ad the conspiracy advanced to the
    actual trafficking of methamphetamine, this would have been a crime for profit.
    As a result, the trial judge imposed a sentence of seven years on the appellant.

[66]

The trial
    judge also sentenced Mr. Lao and Mr. Nestorovski for conspiracy to traffic. He
    took into consideration Mr. Laos lengthy criminal record for crimes of dishonesty,
    weapons, and drugs. He also took into consideration the fact that Mr. Lao
    pleaded guilty prior to trial. However, he concluded that specific deterrence
    must be emphasized and imposed a sentence of seven years for conspiracy to
    traffic. Mr. Nestorovski was charged with conspiring to traffic one kilogram of
    cocaine with Mr. Lao. The trial judge again emphasized specific deterrence and
    imposed a sentence of six years.

(c)      The principles applied

[67]

In my
    view, the appellants sentence is neither demonstrably unfit, nor affected by
    an error in principle that had an impact on his sentence. The trial judge
    considered the relevant mitigating and aggravating factors. He noted that the
    appellants prior custodial sentence had not deterred him from committing more crimes.
    Given the societal harm caused by drug trafficking, the trial judge did not err
    in emphasizing specific and general deterrence.

[68]

I would
    also reject the appellants argument that his sentence is disproportionate and
    therefore unfit because it is similar to those of his co-accused. It is true
    that the appellants co-accused had more substantial prior criminal records. This
    fact alone does not demonstrate that the appellants sentence was unfit. The
    trial judge considered the appellants criminal record and concluded that the
    appellant did not warrant a non-custodial sentence.

[69]

In
    addition, unlike Mr. Lao, the appellant did not plead guilty. This was a mitigating
    factor in Mr. Laos seven year sentence for conspiracy to traffic.  Mr.
    Nestorovics situation was different in that he was charged with conspiracy to
    traffic a smaller quantity of drugs that the appellant. This explains Mr.
    Nestorovics sentence of six years.

[70]

In my
    view, the trial judges reasons show that he was aware of the personal circumstances
    of each co-accused and crafted a fit and proportionate sentence for each in
    light of their respective degrees of moral culpability. I see no error in his
    reasons.

E.

Disposition

[71]

I would
    dismiss the appeal from conviction. I would grant leave to appeal, but dismiss
    the sentence appeal.

Released: May 18, 2016 DW

P.
    Lauwers J.A.

I
    agree David Watt J.A.

I
    agree B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGuffie, 2016 ONCA 365

DATE: 20160513

DOCKET: C57466

Doherty, Simmons and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Philippe Fred McGuffie

Appellant

Howard L. Krongold, for the appellant

James D. Sutton, for the respondent

Heard:  March 18, 2016

On appeal from the convictions entered on April 12, 2013
    by Justice T.D. Ray of the Superior Court of Justice, reported at 2013 ONSC
    2097.

Doherty J.A.:

overview

[1]

The appellant was convicted of two counts of possession of cocaine for
    the purpose of trafficking, three counts of breaching a condition of his
    recognizance and one count of breaching a probation order.  He was also
    acquitted of several gun-related charges.  The acquittals are not in issue on
    the appeal.

[2]

The appellants factual guilt on the charges for which he was convicted
    was never in doubt.  However, he argued that the police obtained the evidence
    relied on to establish his guilt in a manner that breached his rights under the
Canadian
Charter of Rights and Freedoms
.  He sought to exclude
the evidence
    pursuant to s. 24(2) of the
Charter
.  The trial judge found several
    breaches of the appellants
Charter
rights, but declined to exclude
    the evidence.  He convicted the appellant on the relevant counts.

[3]

The appellant appeals, renews his claim and argues that the evidence
    should have been excluded under s. 24(2).

[4]

I would allow the appeal.  The trial judge made three legal errors in
    his s. 24(2) analysis:

·

he treated the absence of evidence of systemic institutional
    non-compliance with the requirements of the
Charter
as mitigating the seriousness of the police
    misconduct;

·

he failed to give any consideration to the impact of the
    several
Charter
breaches on the
    constitutionally protected interests of the appellant; and

·

he
    treated the seriousness of the drug charges as the paramount and overriding
    consideration.

[5]

On a proper s. 24(2) analysis, the evidence should have been excluded.
    I would quash all of the convictions and enter acquittals.

THE EVIDENCE

[6]

The Ottawa Police Service received a telephone call at about 2:00 a.m. from
    security personnel at a downtown bar advising that a group of five men in the
    bar had been seen passing a handgun around.  Several officers, including
    Constable Greenwood, responded to the call.

[7]

Constable Greenwood arrived at the bar at about 2:07 a.m.  Security
    staff were ushering the patrons out of the bar.  Other officers were already
    present.  The doorman identified two individuals as part of the group that had been
    passing the handgun around in the bar.  The appellant, one of those two men,
    walked away quickly from the bar.  Constable Greenwood followed him.

[8]

Constable Greenwood caught up to the appellant a short distance from the
    bar.  He asked the appellant why he was running away from his friends?  The
    appellant gave conflicting responses.  Constable Greenwood decided to detain
    the appellant as he suspected the appellant had the weapon seen earlier in the
    bar.  Constable Greenwood did not suggest that he had grounds to arrest the
    appellant.  Constable Greenwood told the appellant he was being detained
    because Constable Greenwood believed he had a handgun.  The appellant denied
    having a handgun.

[9]

When asked in examination-in-chief why he detained the appellant,
    Constable Greenwood responded:

I had a belief that he possibly had a firearm on him; for
    public safety; for the continuation of the investigation at the time.

[10]

Constable Greenwood was also asked what he meant by public safety:

If he had a firearm on him, the safety of the public; concerned,
    obviously, firearms in the wrong hands is a very dangerous thing.  I was
    concerned  there was a lot of citizens there, a lot of people, a lot of
    patrons, et cetera.

[11]

Constable Greenwood handcuffed the appellant and conducted a pat down
    search of the appellant for firearms.  He described the search as cursory.  Nothing
    turned up in the search.  The appellant was standing on the street when he was
    handcuffed and searched.

[12]

The appellant gave Constable Greenwood a health card in the name of
    David Piard and provided an address.  Both the name and the address were false.
    Constable Greenwood did not check the name or address given to him by the
    appellant.  He decided to return to the bar to assist in the search for the handgun
    and to make sure my colleagues [were] safe.

[13]

Constable Greenwood chose not to release the appellant.  Instead, he
    placed him, still handcuffed, into the back of Constable McDonnells cruiser.  Constable
    Greenwood told Constable McDonnell that he was detaining the appellant as he
    suspected that he was one of the group who were passing the handgun around in
    the bar.  He asked Constable McDonnell if he could leave the appellant in his
    cruiser, but did not give Constable McDonnell any further detail or instruction.

[14]

Constable Greenwood returned to the bar leaving the appellant handcuffed
    in the back of Constable McDonnells cruiser.  There is no evidence that
    Constable Greenwood turned his mind to how long the appellant would be held in
    the cruiser.  Constable Greenwood did not have reasonable and probable grounds
    to arrest the appellant.

[15]

Constable McDonnell, who was seated in the drivers seat of the cruiser,
    made attempts to verify the identification that the appellant had given
    Constable Greenwood.  The appellant was not cooperative and Constable McDonnell
    could not verify the appellants identity.

[16]

Constable Greenwood returned to Constable McDonnells cruiser 30 minutes
    later.  The appellant was still handcuffed in the backseat.  According to Constable
    McDonnell, Constable Greenwood told him that he wanted to move the appellant to
    Constable Greenwoods cruiser so he could take the appellant back to the police
    station.  The appellant was not under arrest at this time.  Constable McDonnell
    testified that Constable Greenwood removed the appellant from his cruiser and
    that he assisted Constable Greenwood in conducting a further search of the
    appellant.

[17]

Constable Greenwoods evidence was different.  He testified that when
    he returned to Constable McDonnells cruiser he was still concerned that the
    appellant might be in possession of the handgun that had been seen earlier in
    the bar.  Constable Greenwood testified that he decided to conduct a more
    thorough safety search of the appellant for the handgun.  Constable Greenwood
    acknowledged that when he left the appellant in Constable McDonnells cruiser
    with Constable McDonnell sitting in the front seat, he had not expressed any concerns
    to Constable McDonnell that the appellant might still be armed.

[18]

Constable Greenwood testified that he removed the appellant from the
    cruiser and began a more thorough search of the appellant.  He felt a hard
    rectangular object in the pocket of the appellants shirt.  Concerned that it
    might be the handgun, he removed the object.  It turned out to be a package of
    white powder that later analysis showed to be cocaine.  Constable Greenwood testified
    that he continued to search the appellant and found some money and marihuana in
    the appellants pant pocket.

[19]

Constable Greenwood arrested the appellant on a charge of trafficking in
    cocaine.  He testified that he would have advised the appellant of his right
    to counsel when he arrested him.  There was no evidence of the language used by
    Constable Greenwood when he advised the appellant of his right to counsel.
    Even on Constable Greenwoods evidence, the appellant had not been advised of
    his right to counsel until almost 40 minutes after he was first detained.

[20]

According to Constable Greenwood, the appellant said he wanted to speak
    to a lawyer.  Constable Greenwood did nothing in response to the appellants
    request.

[21]

Sometime after the appellants arrest on the cocaine charge, Constable
    Greenwood transferred the appellant into his cruiser and drove him to the
    police station a few blocks from the scene of the arrest.  Constable Greenwood
    and the appellant arrived at the station about 30 minutes after the appellants
    arrest.  It had now been over an hour since Constable Greenwood left the
    appellant handcuffed in the back of Constable McDonnells cruiser.

[22]

Constable Greenwood told the officer in charge at the station that he wanted
    to strip search the appellant because he was concerned the appellant might
    still be carrying a handgun, as well as more drugs.  The sergeant approved the
    request.  When Constable Greenwood made the request, he knew that the firearm from
    the bar had been found.  Nothing was said about giving the appellant an
    opportunity to speak to a lawyer before the search was conducted, despite
    Constable Greenwood knowing that the appellant wanted to speak to a lawyer.  Nor
    did any of the officers allude to the possibility that the police should
    refrain from conducting the strip search until the appellant had an opportunity
    to speak with counsel.

[23]

Initially, the appellant vigorously resisted the strip search.  Several
    officers, including Constable Greenwood, assisted in overcoming his
    resistance.  Constable Greenwood testified that he restrained the appellants
    legs because the appellant had attempted to kick other officers.  The trial
    judge described Constable Greenwoods participation in the following terms:

His assistance consisted of standing on Mr. McGuffies ankles
    with what was clearly an intention to cause Mr. McGuffie pain.  It was a purely
    gratuitous act.  While Cst. Greenwood might have gained satisfaction from
    needlessly standing on Mr. McGuffies ankles for over a minute, he further
    breached Mr. McGuffies rights to be free from the intentional infliction of
    pain while being in his custody.

[24]

During the search, the police found a package of cocaine sewn into the
    waist of the appellants underwear.  After this cocaine was located, the
    appellant became more cooperative and produced a package of cocaine that he had
    secreted in his buttocks.  The appellant was taken into another room so that
    the strip search could be completed.  The appellant cooperated during the strip
    search.  While the search was being done, the door to the room was open and
    three police officers were in the room.

[25]

After the strip search was completed at 3:54 a.m., the police gave the
    appellant an opportunity to speak to his lawyer.
[1]
About 90 minutes had passed since the appellant was first detained.  An hour
    had passed since the appellant, in response to being told he had a right to a
    lawyer, had indicated he wanted to speak to a lawyer.  After the appellant spoke
    with his lawyer, he told the police his real name and that there were warrants
    outstanding for his arrest.

the trial judges reasons

[26]

The trial judge accepted that the initial detention of the appellant on
    the street in connection with Constable Greenwoods firearm-related
    investigation was a constitutionally appropriate investigative detention.  He
    also accepted that the pat down search of the appellant was a reasonable
    safety-related search and complied with s. 8 of the
Charter
.  The
    trial judge further held, however, that from the time Constable Greenwood put
    the appellant into Constable McDonnells cruiser until he finally allowed him to
    speak to his lawyer about 90 minutes later, the police repeatedly violated the
    appellants constitutional rights.

[27]

The trial judge held that the detention of the appellant in the police
    cruiser while Constable Greenwood went back to the bar to assist in the
    investigation ignored the obligation to minimize the length of an investigative
    detention and thereby breached the appellants right under s. 9 of the
Charter
to be free from arbitrary detention.  The trial judge contrasted Constable
    Greenwoods approach to that of other officers who briefly detained other individuals
    suspected of having some connection to the firearm and released them when the
    detention provided no grounds for an arrest.

[28]

The trial judge held that Constable Greenwoods failure to tell the
    appellant that he had a right to counsel when he detained him in the police
    cruiser violated the appellants constitutional right under s. 10(b).  A second
    s. 10(b) violation occurred when the appellant was not given an opportunity to
    speak to his lawyer for an hour after he indicated that he wanted to speak to a
    lawyer.

[29]

The trial judge referred to the second search of the appellant after Constable
    Greenwood removed him from Constable McDonnells vehicle as raising some
    serious questions.  The trial judge did not make a specific finding that the
    second search of the appellant breached his s. 8 rights.  For reasons I will
    explain below, there is no doubt that it did.

[30]

The trial judge was also critical of the search conducted at the police
    station.  He described Constable Greenwoods intentional and gratuitous infliction
    of pain by standing on the appellants ankles for about a minute as a breach of
    the appellants rights to be free from intentional infliction of pain while
    being in custody.  He also found that the police failed to adequately respect
    the appellants privacy rights when they conducted the strip search with the
    door open and in the presence of officers who were unnecessary for the proper
    conduct of the strip search.  I read these findings cumulatively as an implicit
    finding that the search of the appellant at the police station was conducted in
    an unreasonable manner and breached the appellants rights under s. 8.

analysis

[31]

This appeal is about the application of the exclusionary
    rule in s. 24(2) of the
Charter
.  The
    Crown does not, and could not, seriously challenge the finding that the
    appellants rights under ss. 9, 10(b) and 8 were infringed by the conduct of
    Constable Greenwood.  Before I turn to the s.
24(2) analysis, it is
    helpful to clearly identify the various constitutional breaches revealed by
    this evidence.  In doing so, I do not intend to depart from the trial judges
    factual findings.  I do, however, attempt to connect those findings more
    specifically to the
Charter
breaches that arise from them.

The Section 9 Breach

[32]

An individuals right to be left alone by the police and the
    police duty to investigate crime and protect the public will inevitably come
    into conflict.  That conflict often plays out in street level encounters like
    the one involving Constable Greenwood and the appellant.  Section 9 provides
    the constitutional imperative against which the competing interests of the
    individual and the state, as represented by the police, must be balanced and
    resolved.  The section reads
:

Everyone has the right not to be arbitrarily detained or
    imprisoned.

[33]

The appellant was detained from the moment Constable Greenwood stopped
    him on the street.  The detention was made all the more obvious when Constable
    Greenwood handcuffed the appellant.  The appellant was entirely under Constable
    Greenwoods control from that point forward:
R. v. Grant
, 2009 SCC
    32, [2009] 2 S.C.R. 353, at para. 44.

[34]

When Constable Greenwood detained the appellant, he had reasonable
    grounds to suspect that the appellant was involved in the illegal possession of
    a handgun.  He had information from the doorman, he had seen the appellant quickly
    leaving the area of the bar and the location of the handgun was unknown as far
    as Constable Greenwood was aware.  Constable Greenwoods investigation raised
    legitimate and immediate public safety concerns.  While Constable Greenwood did
    not have grounds to arrest the appellant, he did have a duty to investigate the
    gun-related incident and the appellants potential connection to it.

[35]

An individual may be detained for investigative purposes if the police
    are acting in the exercise of their duty and the detention is justified as
    reasonably necessary in the totality of the circumstances:
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 34;
R.
    v. MacKenzie,
2013 SCC 50, [2013] 3 S.C.R.
    250, at para. 35.  As explained in
Mann
:

The detention must be viewed as reasonably necessary on an
    objective view of the totality of the circumstances, informing the officers
    suspicion that there is a clear nexus between the individual to be detained and
    a recent or on-going criminal offence.  Reasonable grounds figures at the
    front-end of such an assessment, underlying the officers reasonable suspicion
    that the particular individual is implicated in the criminal activity under
    investigation.  The overall reasonableness of the decision to detain, however,
    must further be assessed against all of the circumstances, most notably the
    extent to which the interference with individual liberty is necessary to
    perform the officers duty, the liberty interfered with, and the nature and
    extent of that interference.

[36]

In my view, the
    appellants initial detention on the street was a lawful exercise of the police
    power to detain persons in the course of a criminal investigation.
[2]

[37]

In
Mann
, at para. 35, Iacobucci J. stressed that an
    investigative detention was not the same thing as an arrest and could not be allowed
    to become a
de facto
arrest.  The significant interference with individual liberty occasioned by an
    arrest is justified because the police have reasonable and probable grounds to
    believe that the arrested person has committed an offence.  Investigative
    detention does not require the same strong connection between the detained individual
    and the offence being investigated.  The detention contemplated by an
    investigative detention cannot interfere with individual liberty to the extent
    contemplated by a full arrest.

[38]

The duration and nature of a
    detention justified as an investigative detention must be tailored to the
    investigative purpose of the detention and the circumstances in which the
    detention occurs.  A brief detention on the street to question an individual implicated
    in a criminal investigation involving ongoing events may be justifiable under
    the
Mann
criteria, but
    under those same criteria imprisonment in a police cruiser while handcuffed for
    some indefinite period while an officer carries out other aspects of a criminal
    investigation could not be justified.  The police cannot use
investigative
    detention as an excuse for holding suspects while the police search for
    evidence that might justify the arrest of the suspect.  Nor does investigative
    detention mean that the police can detain suspects indefinitely while they carry
    out their investigation.

[39]

Constable Greenwood was justified in briefly detaining the appellant to
    question him about his knowledge of the handgun.  However, after that brief
    detention, he was required to release the appellant unless he had grounds to
    arrest him.  There is no suggestion that he had the grounds to arrest the
    appellant.  Constable Greenwood was therefore required to release the
    appellant.  Instead, he imprisoned the appellant while he pursued his
    investigation elsewhere.  In doing so, he completely disregarded the appellants
    right to liberty and rendered him vulnerable to further police investigation.  The
    appellants right to be free from arbitrary detention was infringed by
    Constable Greenwood when he confined the appellant in the back of Constable
    McDonnells cruiser.

The Section 10(b) Breaches

[40]

Section 10(b) of the
Charter
reads:

Everyone has the right on arrest or detention

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

[41]

Section 10(b) creates the right to retain and instruct counsel without
    delay, and the right to be informed of that right without delay.  If a detained
    person, having been advised of his right to counsel, chooses to exercise that
    right, the police must provide the detained person with a reasonable
    opportunity to exercise that right and must refrain from eliciting
    incriminatory evidence from the detained person until he has had a reasonable
    opportunity to consult with counsel:
R. v. Suberu
, 2009 SCC 33, [2009]
    2 S.C.R. 460, at para. 38;
Grant
, at para. 58;
R. v. Taylor
,
    2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 20-26.

[42]

The rights created by s. 10(b) attach immediately upon detention,
    subject to legitimate concerns for officer or public safety:
Suberu
,
    at para. 42.  On the facts of this case, the appellant should have been told by
    Constable Greenwood that he had a right to speak to his lawyer no later than immediately
    after Constable Greenwood had handcuffed the appellant and conducted the pat
    down search while standing on the street.  The appellant should have been asked
    if he wanted to speak with counsel and, if he did, Constable Greenwood should
    have afforded him that opportunity without delay.

[43]

In
Suberu
, at
    para. 40, the court described the rationale for the rights guaranteed by s.
    10(b):

[T]he purpose of s. 10(b)
    is to ensure that individuals know of their right to counsel, and have access
    to it, in situations where they suffer a significant deprivation of liberty due
    to state coercion which leaves them vulnerable to the exercise of state power
    and in a position of legal jeopardy.  Specifically, the right to counsel is
    meant to assist detainees to regain their liberty, and guard against the risk
    of involuntary self-incrimination.

[44]

The purpose animating s. 10(b) applied with full force in this case.
    The appellant was under the control of the police.  He was effectively imprisoned
    from the moment he was handcuffed and placed in the cruiser.  Constable
    Greenwood took advantage of that control to subject the appellant to an unconstitutional
    detention and two intrusive unconstitutional searches, both of which yielded
    incriminatory evidence.  The appellant was in serious legal jeopardy.  He needed
    legal advice.  More importantly, he was constitutionally entitled to it.  The
    conduct of the police, and specifically Constable Greenwood, ensured that he
    would not receive that advice until after the police were done with the
    appellant and had the evidence they needed to convict him.  The appellants
    rights under s. 10(b) were breached.

[45]

Crown counsel did not attempt to defend the police failure to comply
    with virtually all of their obligations under s. 10(b) of the
Charter
.
    He did, however, in an attempt to mitigate those failures, suggest that had Constable
    Greenwood given the appellant his right to counsel when he was initially
    detained, and had the appellant exercised his right to counsel, it would have
    resulted in a lengthier detention of the appellant as Constable Greenwood would
    have been required to take the appellant back to the police station so that he
    could exercise his right to counsel.

[46]

Counsel did not press this submission.  It is clearly based on
    speculation.  There is no way of knowing what Constable Greenwood might have
    done had he complied with s. 10(b) when he first detained the appellant and had
    the appellant demanded the opportunity to consult with counsel.  The evidence
    of Constable McDonnell suggests that Constable Greenwood intended all along to
    hold the appellant while he assisted in the search for the handgun and to take
    the appellant back to the police station unless the handgun had been located.  If
    this was Constable Greenwoods plan, it left no room for a trip back to the
    station to allow the appellant to consult with counsel.

[47]

There is no need to address this hypothetical.  It does, however, highlight
    the tension between the relatively brief duration of investigative detentions
    and the exercise of the right to counsel by persons being held under
    investigative detention.  The submission assumes that the police can
    significantly prolong the detention if necessary to afford the detained person
    an opportunity to speak with counsel.  I do not necessarily accept that
    submission.  It may be that, if a police officer can afford a detained person
    an opportunity to exercise his s. 10(b) rights only by significantly prolonging
    an investigative detention, the police officer must release the detained person
    rather than breach s. 9 of the
Charter
.  I leave that question for
    another case.

The Section 8 Breaches

[48]

Section 8 declares:

Everyone has the right to be secure against unreasonable search
    or seizure.

[49]

Section 8, like s. 9, is reflective of an individuals right to be left
    alone by the state absent justification for state interference with the
    individual.  The constitutional protection in s. 8 rests on the fundamental
    belief that privacy, in its various manifestations, is an essential precondition
    to individual liberty and security of the person.  State intrusion upon privacy
    must be reasonable; that is, any law authorizing an intrusion must be
    reasonable and the manner in which the intrusion is effected must be
    reasonable:
R. v. Fearon,
2014
    SCC 77, [2014] 3 S.C.R. 621, at para. 12;
R. v. Aucoin
, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 30.

[50]

In the modern world, notions of privacy are evolving and becoming more
    nuanced and complex in the face of relentless technological change:  see e.g.
R.
    v. Spencer,
2014 SCC 43, [2014] 2 S.C.R. 212.  The privacy interests
    engaged in this case involve no subtleties or nuances.  The initial pat down
    search of the appellant, the second more intrusive search of his person beside
    the cruiser, and the very intrusive strip search at the police station all struck
    at the core of the appellants most basic right to personal privacy.

[51]

The pat down search of the appellant on the street at the time of his
    initial detention was, in my view, reasonable and justified as an incident of
    his investigative detention.  In
R. v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. 37
, the
    court recognized that the police could, in some circumstances, conduct safety
    searches as an incident of the exercise of their duty to investigate crime and
    protect the public.  Two passages from
MacDonald
are helpful:

[40] I am
    convinced that the duty of the police officers to protect life and safety may
    justify the power to conduct a safety search in certain circumstances.  At the
    very least where a search is reasonably necessary to eliminate an imminent
    threat to the safety of the public or the police, the police should have the
    power to conduct the search.

[44] This common law power to conduct searches for safety
    purposes is the reasonably lawful authority for the search carried out by Sgt.
    Boyd.  The power was engaged because Sgt. Boyd had reasonable grounds to
    believe that there was an imminent threat to the safety of the public or the
    police and that the search was necessary in order to eliminate that threat.

[52]

As discussed by the dissent in
MacDonald
, the majoritys
reference to reasonable
    grounds could be confusing.  However, in the circumstances of this case, there
    is no doubt that Constable Greenwood had sufficient grounds to believe there
    was an imminent threat to his safety should he confront and detain the appellant
    on the street for investigative purposes.  That reasonable belief of an
    imminent threat could, in my view, be based on the reasonable suspicion that
    the appellant had the handgun.  A cursory pat down search of the appellant was
    justified to eliminate that concern.

[53]

Constable Greenwood also attempted to justify the second more thorough search
    of the appellant as a safety search.  This search occurred when the appellant
    had been unlawfully detained for 30 minutes.  Setting aside the trial judges understandable
    doubts about the veracity of this part of Constable Greenwoods evidence, and
    assuming the second search was a safety search, it was nonetheless unlawful
    and unconstitutional.

[54]

The police power to conduct a safety search as described in
MacDonald
assumes that the officer is engaged in the execution of their lawful duty:
MacDonald
,
    at paras. 33-35.  Constable Greenwood was not engaged in any lawful exercise of
    his duty when he confined the appellant in Constable McDonnells cruiser.  The
    appellant was unlawfully detained and remained so when Constable Greenwood
    returned from the bar and decided to conduct the second search.  The further
    intrusion upon the appellants privacy by way of the second search of his
    person could not be justified by Constable Greenwood on the grounds that he
    reasonably suspected that his safety was in jeopardy.  If there was any danger
    to Constable Greenwood when he conducted the second search, it flowed directly from
    his unlawful detention of the appellant and not from anything Constable
    Greenwood was doing in the lawful exercise of his duty.  In my view, the police
    cannot, through unlawful conduct, create a circumstance said to justify a
    safety search of an individual.

[55]

I would draw an analogy between searches that are said to be lawful as an
    incident of an arrest and safety searches which are said to be lawful as an incident
    of a lawful investigative detention.  If the arrest is unlawful, the search
    incidental to the arrest is unlawful and contrary to s. 8: see
R. v.
    Stillman
, [
1997] 1 S.C.R.
    607, at para. 27;
R. v. Golden
, 2001 SCC 83, [2001] 3 S.C.R. 679, at
    para. 91;
R. v. Loewen
, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 3.
    Similarly, if an investigative detention is unlawful, a safety search said to
    be justified on the basis of that detention must be unlawful and contrary to s.
    8.  The second search of the appellants person infringed his rights under s. 8
    of the
Charter
.

[56]

Aucoin
is also instructive.  In that case, the officer chose to
    place the accused in the rear of his police cruiser and to conduct a pat down
    search as a prelude to doing so.  Moldaver J. explained that in the
    circumstances, detention in the cruiser was unlawful rendering the pat down
    search preliminary to that detention unlawful and contrary to s. 8.  He explained,
    at para. 44:

Because detaining the appellant in the back of the cruiser
    would have been an unlawful detention  given there were other reasonable means
    by which Constable Burke could have addressed his concern that the appellant
    might flee  it cannot constitute the requisite basis to support a warrantless
    search. Therefore the pat-down search was unreasonable within the meaning of s.
    8. [Citations omitted.]

[57]

In the present case, the detention of the appellant in the back of
    Constable McDonnells cruiser was unlawful and on the reasoning in
Aucoin
cannot provide a basis for the warrantless search of the appellants person.

[58]

At trial, it was not argued that the strip search itself was
    unreasonable and contrary to s. 8.  It was argued that the manner in which the
    strip search was conducted violated s. 8.  The trial judge concluded that the
    manner in which the strip search was conducted unreasonably compromised the
    appellants physical integrity and his personal privacy.  The former occurred
    when Constable Greenwood gratuitously assaulted the appellant during the
    efforts to subdue him.  The latter occurred when the police failed to take
    reasonable steps to minimize the inherently humiliating and degrading impact on
    the appellant of the strip search.   On the authority of
Golden
, at
    paras. 99-103, the manner in which the police strip searched the appellant
    violated his rights under s. 8 of the
Charter
.

The Section 24(2) Analysis

[59]

Section 24(2) directs that where evidence is obtained in a manner that
    infringes a right guaranteed by the
Charter
, the evidence shall be
    excluded if it is established that, having regard to all the circumstances, the
    admission of it in the proceedings would bring the administration of justice
    into disrepute.

[60]

Section 24(2) recognizes that the admission of constitutionally
    tainted evidence and the use
of that
    evidence to convict persons may bring the administration of justice into
    disrepute.  As observed in
Grant
, at paras. 67-71, s. 24(2) is premised on the
    assumption that there must be a long-term negative impact on the administration
    of justice if criminal courts routinely accept and use evidence gathered in
    violation of the legal rights enshrined in the
Charter
.  At the same time, however, s. 24(2) accepts that the
    exclusion of evidence can also bring the administration of justice into
    disrepute.  In
Grant
,
    the Supreme Court provided the framework for differentiating between those cases
    in which the exclusion of the evidence would promote the proper administration
    of justice and those cases in which the proper administration of justice would
    be further harmed by the exclusion of otherwise relevant and probative evidence.

[61]

After
Grant
, at paras. 71-86, the admissibility of evidence under
    s. 24(2) is approached by examining:

·

the seriousness of the
Charter
-infringing state conduct;

·

the impact of the breach on the
Charter
-protected interests of the accused; and

·

societys
    interest in an adjudication on the merits.

[62]

The first two inquiries work in tandem in the sense that both pull
    toward exclusion of the evidence.  The more serious the state-infringing
    conduct and the greater the impact on the
Charter
-protected interests, the stronger the pull for
    exclusion.  The strength of the claim for exclusion under s. 24(2) equals the
    sum of the first two inquiries identified in
Grant
.  The third inquiry, societys interests in
an
    adjudication on the merits, pulls in the opposite direction toward the inclusion
    of evidence.  That pull is particularly strong where the evidence is reliable
    and critical to the Crowns case:  see
R. v. Harrison
, 2009 SCC 34, [2009]
    2 S.C.R. 494, at paras. 33-34.

[63]

In practical terms, the third inquiry becomes important when
    one, but not both, of the first two inquiries pushes strongly toward the exclusion
    of the evidence:  see e.g.
Harrison
, at paras. 35-42;
Spencer
,
    at paras. 75-80;
R. v. Jones
, 2011 ONCA 632, 107 O.R. (3d) 241, at paras.
    75-103;
Aucoin
, at paras. 45-55.  If the first and second inquiries make
    a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance
in favour of admissibility: see e.g.
R.
    v. Côté
, 2011 SCC 46, [2011] 3 S.C.R.
    215, at paras. 81-89;
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112.
    Similarly, if both of the first two inquiries provide weaker support for
    exclusion of the evidence, the third inquiry will almost certainly confirm the
    admissibility of the evidence:  see e.g.
Grant
, at para. 140.

[64]

The three inquiries identified in
Grant
require both fact-finding and the weighing of
    various, often competing
interests.  Appellate review of either
    task on a correctness standard is neither practical, nor beneficial to the overall
    administration of justice.  A trial judges decision to admit or exclude
    evidence under s. 24(2) is entitled to deference on appeal, absent an error in
    principle, palpable and overriding factual error, or an unreasonable determination:
    see
Grant
, at paras.
86, 127;
Côté
, at para.
    44;
R. v. Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34, at para.
82;
Jones
,
    at para. 79;
R. v. Ansari
, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para.
    72.

The Trial Judges Errors

[65]

As outlined above, at para. 4, I
    think the trial judge made three
errors in law in his s. 24(2) analysis.
    Those errors require appellate intervention and a re-appraisal of the
    admissibility of the evidence.

[66]

The trial judges first error appears in the course of his brief
    consideration of the seriousness of the police misconduct.  He observed:

I am encouraged by the text book detention and search conducted
    by the other officers.  Cst Greenwoods infringing conduct was not typical of a
    systemic problem in the Ottawa Police Force.

[67]

The trial judges description of the investigative detentions conducted
    by the other officers is accurate.  Their conduct does not, however, mitigate
    the seriousness of the unconstitutional detention and searches of the appellant,
    much less the denial of the appellants right to counsel.  Systemic or
    institutional abuse of constitutional rights may be an aggravating factor
    rendering police misconduct more serious.  The absence of evidence of systemic
    non-compliance with
Charter
requirements by the police is not a
    mitigating factor.  The police are expected to comply with the law, especially
    the
Charter
.  As observed in
Harrison
, at para. 25:

[W]hile evidence of a systemic problem can properly aggravate
    the seriousness of the breach and weigh in favour of exclusion, the absence of such
    a problem is hardly a mitigating factor.

[68]

Apart altogether from the trial judges improper characterization of the
    absence of institutional failings as a mitigating factor in the s. 24(2)
    analysis, I agree with counsel for the appellant that the evidence shows that
    the failings of the Ottawa Police Service went beyond the actions of Constable
    Greenwood.  When Constable Greenwood finally got the appellant to the police
    station, his superiors did not express any concern about the appellants s.
    10(b) rights or, more specifically, any concern about whether the appellant had
    been given the opportunity to speak to his lawyer before undergoing the
    proposed strip search.  Similarly, whoever was in charge of the strip search,
    and it was not Constable Greenwood, seemed unconcerned about the excessive use
    of force by Constable Greenwood and the failure to minimize the intrusiveness
    and humiliation inherent in that kind of search.

[69]

Constable Greenwoods conduct is properly front and centre in the s.
    24(2) analysis.  He was, however, not alone in his disregard for the
    appellants constitutional rights.

[70]

The trial judges second error is found in his failure to consider the
    impact of the
Charter
breaches on the appellants
Charter
-protected
    interests.  Although the trial judge identified the impact of the breaches on
    the appellants interests as a relevant consideration under s. 24(2), he made
    no further mention of that factor in his reasons.  The trial judge proceeded
    directly from a very brief consideration of the seriousness of the police
    misconduct to a somewhat longer, but still brief, consideration of the
    seriousness of the drug crimes with which the appellant was charged.  At no
    point did he address the impact of the breaches on the appellants liberty,
    privacy, or security of the person.

[71]

A trial judges failure to expressly refer to an applicable
    legal principle, or a factor relevant to a decision, does not necessarily mean
    that the judge did not consider that principle or factor.  In this case, however,
    I am satisfied that the trial judges failure to refer to the impact of the
    breaches on the appellants
Charter
-protected
    rights does demonstrate a failure to consider that impact
.  The
    trial judge never identified the
Charter
-protected interests affected by the multiple
Charter
breaches.  He made no assessment of the extent to
    which those interests were compromised by the specific breaches.  In my view, the
    trial judge failed entirely to consider the impact of the breaches on the
    appellant in assessing whether the admission of the evidence would bring the
    administration of justice into disrepute.

[72]

The third error made by
    the trial judge in his s. 24(2) analysis arises from his treatment of the
    seriousness of the drug charges as a factor strongly favouring the
    admissibility of the evidence.  The trial judges description of the
    seriousness of the drug charges dominated his brief s. 24(2) analysis.  I think
    it is fair to say that it was his assessment of the seriousness of the charges,
    and nothing else, that led the trial judge to admit the evidence, despite his
    finding of significant police misconduct.

[73]

The seriousness of the
    charges to which the challenged evidence is relevant, does not speak for or against
    exclusion of the evidence, but rather can cut both ways:
Grant
, at para. 84.  On the one hand, if the evidence at
    stake is reliable and important to the Crowns case, the seriousness of the
    charge can be said to enhance societys interests in an adjudication on the
    merits.  On the other hand, societys concerns that police misconduct not
    appear to be condoned by the courts, and that individual rights be taken
    seriously, come to the forefront when the consequences to those whose rights
    have been infringed are particularly serious:  see
Grant
, at para. 84;
R. v. Dhillon
, 2010 ONCA 582, 260 C.C.C. (3d) 53, at para. 60.

[74]

The trial judge allowed
    his view of the seriousness of the drug charges to effectively overwhelm the
    other factors relevant to the s. 24(2) inquiry.  As observed in
Harrison
, at para. 40,
Charter
protections apply to everyone, including persons
    charged with serious criminal offences.  I adopt the observation of Frankel
    J.A. in
Ahmed-Kadir
,
    at para. 111:

The importance of maintaining respect for
Charter
rights and ensuring that the justice system remains
    above reproach outweighs the collective cost of his acquittal.
To admit the handgun in the face of the breaches that occurred
    here would send the message that when the charges are serious, individual rights
    count for little.
[Emphasis added.]

Should the Evidence have been Excluded?

[75]

I have no doubt that on a proper s. 24(2) analysis the evidence of the
    drugs seized from the appellant must be excluded.  The seriousness of the police
    misconduct and the strong negative impact of the breaches on the appellants
Charter
-protected
    interests combine to make out an overwhelming case for exclusion.  While
    society no doubt has a significant interest in a trial on the merits and the
    evidence in issue is both reliable and crucial, societys immediate interest in
    an adjudication of the merits of this particular case must yield to the more
    important long-term interests served by excluding the evidence in this case.

[76]

The police misconduct falls at the very serious end of the continuum
    described in
Grant
, at para. 74.  Constable Greenwood and, to a lesser
    extent, other officers, totally disregarded the appellants rights under ss. 8,
    9 and 10(b) of the
Charter
.  Constable Greenwood seemed wholly unaware
    of, or worse yet, wholly unconcerned with, the limits of his powers to detain
    and search individuals.  He was equally oblivious to his obligations under s.
    10(b).  Constable Greenwoods conduct during the search at the police station goes
    beyond a wilful disregard of the appellants rights.  On the trial judges
    findings, he deliberately restrained the appellant in a manner intended to
    gratuitously inflict pain on the appellant.

[77]

I can find little, if anything, that might be said to mitigate the
    police misconduct.  This was not a situation in which the police conduct
    slipped barely over the constitutional line, or in which legal uncertainty could
    reasonably be said to have blurred that line.  Finally, there is nothing by way
    of extenuating circumstances that might offer some excuse for the police
    disregard of the appellants constitutional rights.

[78]

Courts, as representatives of the community, cannot be seen to condone the
    blatant disregard of the appellants rights that occurred in this case.  The only
    way the court can effectively distance itself from that conduct is by excluding
    the evidentiary fruits of that conduct.

[79]

The serious negative impact of the
Charter
breaches
    on the appellants
Charter
-protected
    interests also compels exclusion.  None of the
Charter
breaches could be characterized as technical or
    minor.  The appellants arbitrary detention effectively negated his personal liberty.
    Not only was he in imprisoned, but he was imprisoned in a manner that left him
    vulnerable to further police misconduct.  The police took advantage of the
    appellants arbitrary detention to unlawfully search the appellant.  That
    conduct led directly to the discovery of incriminating evidence.  The strong
    causal connection between the denial of the appellants liberty, the unconstitutional
    search of his person, and the subsequent obtaining of the incriminating evidence
    speaks to the profound impact of the breaches on the appellants
Charter
-protected interests.

[80]

The appellants interests
    protected by s. 10(b) of the
Charter
were completely compromised by the police conduct.
    Detained persons are constitutionally entitled to know of their right to that
    advice, and to a reasonable opportunity to access that advice.  Access to legal
    advice while detained is fundamental to individual liberty and personal
    autonomy in a society governed under the rule of law.

[81]

The appellant was not
    made aware of his right to speak to counsel until after Constable Greenwood had
    searched him and found drugs.  Even then, the appellant was not given an opportunity
    to exercise his right to counsel, despite expressing his desire to do so.
    Instead, he was subjected to a second unconstitutional search which discovered
    yet further evidence.  Had the appellant been afforded an opportunity to speak
    to counsel before the strip search, it may well be that the strip search would
    have been unnecessary.

[82]

The significant negative
    impact of the unconstitutional strip search on the appellants privacy rights
    is obvious.  The police misconduct was highly intrusive and struck at the core
    of even the most restrictive notion of personal privacy.

[83]

In summary, the police
    conduct demonstrates a blatant disregard for the appellants constitutional
    rights.  That conduct all but negated several of the appellants
Charter
-protected interests.  The court can only adequately
    disassociate the justice system from the police misconduct and reinforce the
    communitys commitment to individual rights protected by the
Charter
by excluding the evidence.  In doing so, the court acquits
    a person who is clearly guilty of serious criminal offences.  In my view, the
    long-term interests of the due administration of justice require the exclusion
    of the evidence.  This unpalatable result is a direct product of the manner in
    which the police chose to conduct themselves.

The Appropriate Order

[84]

The exclusion of the
    drugs means that the appellant must be acquitted on the two counts of
    possession of cocaine for the purpose of trafficking (counts 1 and 2).  There
    is an argument that one of the breach of recognizance charges (being in an
    establishment that served alcohol contrary to the appellants bail conditions)
    does not depend on evidence gathered after the various
Charter
violations.  I do not propose to make that
    distinction.  Had Constable Greenwood complied with the
Charter
, the appellant would have been on his way after a
    brief detention.  He would never have been identified to the police and none of
    the charges would have been laid.

[85]

I would enter acquittals on all
    counts.

Released: DD  MAY 13 2016

Doherty J.A.

I agree Janet Simmons J.A.

I agree K. van Rensburg J.A.

[1]
In his reasons, the trial judge inadvertently notes this time as 3:36 a.m. (see
    paras. 34, 45).  It is clear from cell block surveillance footage that the
    appellant is not given an opportunity to consult counsel until 3:54 a.m.  The
    accuracy of the time recorded on the cell block surveillance footage is not in
    dispute.

[2]
Constable Greenwood handcuffed the appellant when he detained him on the
    street.  Counsel did not argue that the handcuffing of the appellant rendered
    his initial detention arbitrary under s. 9 of the
Charter
.  These
    reasons do not address that issue:  see
R. v. Ahmed-Kadir
, 2015 BCCA
    346, 327 C.C.C. (3d) 33.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McIntosh, 2016 ONCA 370

DATE: 20160516

DOCKET: C56463

Epstein, Pepall and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Audley McIntosh

Appellant

Eva Taché-Green, for the appellant

Katie Doherty, for the respondent

Heard: May 9, 2016

On appeal from the conviction entered on March 23, 2012
and the sentence imposed on September 20, 2012 by Justice Alexander Sosna of
the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was charged and convicted of various offences arising out
of events that occurred on September 28, 2010. He appeals his convictions for
assault, uttering death threats and four firearm-related offences in relation
to the complainant Jacqueline McCarthy. He does not appeal his convictions for
dangerous driving and possession of cannabis. He seeks leave to appeal his
sentence of nine years, less 18 months credit for pre-sentence custody.

[2]

The appellant was a convicted drug trafficker. The complainant
trafficked drugs for the appellant for several years. She testified that, while
a passenger in the appellants SUV on September 28, 2010, she told him she no
longer wanted to traffic drugs for him. He assaulted and threatened her, saying
that someone was going to die that day. He drove her to the house where his partner,
Shannon Butler, lived with their children. He ordered Butler and the children
out of the house, took a gun from a shelf in the front hall closet, racked
the pistol by sliding the mechanism back and forth, and pointed the gun at
McCarthy, threatening to kill her and her mother. The incident ended after the
complainant said just kill me. The appellant returned the gun to the closet.
He then drove the complainant home after dropping Butler at work and their
children at daycare.

[3]

Later that day McCarthy went to the police. The appellant was arrested
that evening as he entered an SUV in front of Butlers residence. Charges and a
conviction (not appealed) resulted from his attempt to drive through a police
blockade. A few hours later, the police found a loaded gun on a shelf in the
front hall closet and a bulletproof vest in Butlers bedroom. Butler denied
knowledge of the gun in her home.

[4]

Two witnesses testified for the defence: Shannon Butler and Raza Khan
(who was McCarthys boyfriend and a drug dealer). The defence theory was that
McCarthy had a motive and the opportunity to lie. The defence contended that
the complainant planted Khans gun in the closet and fabricated the events
about which she testified, because she owed the appellant money, she wanted to
make her own money trafficking drugs, and she wanted to send the appellant to
jail for a long time to get him out of her life.

[5]

Butler testified that she let the complainant stay at her house when she
wanted to stay away from drugs, but she did not allow McCarthy to have
visitors. Butler had previously told Khan to leave upon finding him and
McCarthy together in her house. Both Butler and Khan testified that the
previous day, September 27, Khan had been at Butlers house with the
complainant. Butler, who came home unexpectedly, saw Khan run out the back
door. He identified the gun found in the closet as his own.

[6]

The trial judge did not believe the defence witnesses testimony about
McCarthy being at Butlers house the previous day, and he found that it did not
raise a reasonable doubt as to the appellants guilt. He accepted the
complainants evidence, which he found to have been confirmed in material
respects by other evidence.

[7]

The appellants conviction appeal focuses on the trial judges
assessment of the witnesses evidence. In particular, he contends that the
trial judge applied a different level of scrutiny to the defence and Crown
evidence, contrary to the principles in
R. v. F. (J.)
, [2005] O.J. No.
39 (C.A.) and in
R. v. Gravesande
, 2015 ONCA 774. The appellant says
that his convictions depended on the credibility and reliability of the
complainants evidence. In dealing with that central issue the trial judge
glossed over or ignored inconsistencies in that evidence, such as the
inconsistencies in her testimony about whether the appellant pointed the gun to
her head or to her leg, and about how many times she had previously seen the
firearm. The trial judges willingness to treat frailties in McCarthys
evidence as defensible should be contrasted, argues the appellant, with his
unwillingness to tolerate frailties in the testimony of Butler and Khan.

[8]

We disagree. The trial judge conducted a careful and scrupulous review
of the evidence of all three lay witnesses.

[9]

He was alive to the frailties in the complainants evidence, including
her motives to lie. He adverted to inconsistencies and weaknesses in McCarthys
evidence, including her claim to forget certain details and retracting details
she had provided earlier. He concluded that the complainants evidence was not
so flawed or inconsistent as to destroy or raise a reasonable doubt about its
reliability in relation to the material aspects of her evidence.

[10]

Recognizing that the complainant was a
Vetrovec
witness, the
trial judge looked for and found independent evidence to confirm the essential
parts of her testimony: Butlers evidence that the appellant was angry when he
arrived at the house with McCarthy, and that he had ordered her and the
children out of the house; the photo showing injuries to her face; her cell
phone records that placed her in Scarborough, and not at Butlers home on
September 27; and the seizure of the loaded, racked gun from Butlers residence
where the complainant said the appellant had put it.

[11]

As for his treatment of the defence evidence, we disagree that the trial
judge drew unfair conclusions about that evidence and engaged in speculation
when rejecting the evidence. In considering Butlers and Khans testimony he
drew reasonable inferences that were available to him on the evidence. These
included his conclusion that it was unlikely that Butler would have said
nothing in her statement about McCarthys showing up unannounced the previous
day (as Khan had testified), and that it made no sense that Khan, who carried a
gun for protection, would leave it in Butlers closet, and then expect McCarthy
to retrieve it after he ran from the house. Again, the complainants cell phone
records were important to his rejection of the defence evidence.

[12]

There is simply no basis to conclude that the trial judge applied
different standards of scrutiny to the evidence of the witnesses or to
interfere with the trial judges findings of credibility and reliability and
his assessment of the evidence.

[13]

For these reasons we dismiss the conviction appeal.

[14]

In his sentence appeal, the appellant says that, following the decision
of the Supreme Court of Canada in
R. v. Nur
, 2015 SCC 15, and the
striking of mandatory minimum sentences for weapons offences, the sentence of
nine years ignored the jump principle and was excessive (the appellants
longest previous sentence was for two years less a day). He says that the trial
judge ignored rehabilitation as a factor in sentencing. Finally, in light of
R.
v. Summers
, 2014 SCC 26, the trial judge erred in awarding only 1:1 credit
for pre-trial custody.

[15]

We grant leave to appeal sentence and allow the sentence appeal in part.

[16]

The respondent accepts that, because of
Nur
, it falls to this
court to determine a fit sentence for the appellant with respect to the
conviction under s. 95 of the
Criminal Code
.

[17]

In our view, a five year sentence is fit for this offence. We agree with
the Crowns characterization of these offences as a toxic combination of
circumstances. The sentence is warranted by the gravity and circumstances of
the offences, considered in the light of the appellants significant criminal
record (consisting of more than 20 convictions) that demonstrates a pattern of
continuous criminal behaviour and violence. The record discloses nothing that
would contradict the trial judges assessment that rehabilitation was not a
realistic prospect. The appellant was subject to a number of weapons
prohibitions, which were intended to protect the public, including his two
young children. In these circumstances, the sentence does not offend the jump
principle and was a fit sentence.

[18]

Since we have dismissed the conviction appeal in respect of all
offences, there is no basis to interfere with the concurrent two year sentences
in relation to the assault and threatening convictions.

[19]

The Crown acknowledges the
Summers
error. The appellant was
entitled to enhanced credit at 1.5:1 for the entire period of his pre-sentence
custody. The sentence appeal is allowed to the extent that the appellant is
entitled to an additional 180 days credit. His sentence is therefore varied to
nine years, less 720 days credit for pre-sentence custody.

[20]

The sentence appeal is otherwise dismissed.

Gloria Epstein J.A.

S.E. Pepall J.A.

K. van Rensburg J.A.