COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mills, 2016 ONCA 391

DATE: 20160524

DOCKET: C60082

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruce Christopher Mills

Appellant

Bruce Christopher Mills, acting in person

Brian Snell, duty counsel

Howard Leibovich, for the respondent

Heard: April 6, 2016

On appeal from the sentence imposed on January 6, 2015 by
    Justice Petra E. Newton of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant pled guilty to possession of stolen property, attempted
    break and enter, and break and enter. He received a global sentence of 42
    months in prison as well as a lifetime weapons prohibition under s. 109(3) of
    the
Criminal Code
. The sole issue on this sentence appeal is whether
    the sentencing judge was entitled in law to impose a lifetime weapons ban.

Facts

[2]

The charges related to three incidents. The facts were read in and
    agreed to by the appellant and involved three home break-in or attempted home
    break-in incidents. The appellant was charged on November 9, 2014 with
    possession of a stolen credit card from a home invasion that took place on
    August 31, 2014 at a home in Toronto. The Crown did not allege that the appellant
    was one of the two perpetrators of that break-in. The second charge related to
    September 19, 2014. At 2:03 in the afternoon the appellant rang the doorbell of
    a three-story duplex in Toronto, then smashed a pane of glass in the door,
    reached in and opened the door to the interior staircase. The appellant then
    banged on the door of one of the duplex units. When a person responded by
    voice, the appellant fled. He was later identified through DNA from a drop of
    blood left on the inside door handle of the duplex.

[3]

The third incident occurred on November 9, 2014 at 10:44 in the morning
    at a house in Toronto. The appellant knocked on the front door and was observed
    by the homeowner through a window. There is no indication whether the appellant
    saw the homeowner. The appellant then went to the side of the house and opened
    the gate, then to the backyard where he sat down. After observing the appellant
    at the front door, the homeowner went down to his basement to watch the
    appellant and heard banging on a basement window. He called 911.

[4]

When the police arrived, they found the appellant in the backyard. He
    told them it was his sister-in-laws house, that there was no answer and that
    the keys were inside. The appellant had a crowbar inside his jacket as well as
    an exacto knife. He was arrested. The Crown alleged that the purpose of the crowbar
    and knife were only for entering the dwelling.

[5]

Following his guilty plea, there was a sentencing hearing. The appellant
    has a very lengthy criminal record dating back to 1983 including 28 break and
    enters or attempted break and enters. The victims of the November incident filed
    a victim impact statement which included the following:

Both my wife and I were at home when the accused tried to break
    into our house. We were both very frightened by his actions that day, and we
    feared for our immediate personal safety. The emotional impact of his actions
    did not end with his arrest. Both my wife and I have been unable to sleep
    soundly since the incident, as the slightest noises in and around the house
    wake us, as we fear that someone may again be trying to break into our home. In
    addition, my wife no longer feels safe when she is home alone. No one should be
    made to fear for their safety in their own home.

[6]

During the sentencing proceedings defence counsel indicated to the court
    that he was assuming there was a lifetime weapons prohibition in place. The
    Crown responded that he was asking for an order under s. 109 of the
Code
for life, adding: But again, Im quite sure it is academic in nature. As part
    of the submissions, the Crown referred to the appellants drinking problem as
    an important contributing factor to his behaviour, and in that context in
    respect of his record, referred to the appellant as having terrorized a number
    of victims and leaving a lot of victims in his wake.

[7]

The sentencing judge confirmed with counsel that the Crown was asking
    for a 48 month prison sentence, the appellant was asking for 36 months, and asked:
    you are both content with the DNA and a 109 for life? Defence counsel agreed.
    The appellant then chose to address the court. One of the issues was what
    resources the appellant would be able to access in prison, and the fact that he
    had asked for certain programs in the past but did not qualify for them. In
    that context, he stated:

you know Im not a violent person. That being said, you know
    scaring people is kind of violent, you know its violence. But you know so
    unfortunately corrections  I dont fit the criteria for the type of support
    that Ive asked for, you know.

[8]

Defence counsel picked up on that, stating:

because as hes indicated, because hes not a violent
    offender, he doesnt fit within the programs provided with people who have
    committed physical offences and this is property offences mostly.

[9]

In her reasons for sentence, the sentencing judge referred to the effect
    on the victims as an aggravating factor on sentence as follows:

Obviously general deterrence is a very significant factor.
    These facts had serious aggravating features of which you have some insight.
    People whose homes are broken into have tremendous impact after the event. That
    is very evident by the victim impact statement that was tendered as an exhibit
    in these proceedings. It is clear that both he and his wife were home when
    there was an attempt to break into the house and he mentions the emotional
    impact of your actions. But it did not end that day. It is clear that the
    negative sequelae have persisted.

There is a principle that people are certainly entitled to the
    sanctity of their homes and thats why sentences for breaking and entering into
    dwelling houses have such significant effects.

You have indicated to me that you are sorry and that you
    apologized to the people that you scared. It was somewhat insightful when you
    said that although you are not eligible for certain types of programs because
    you are not deemed a violent individual, you seem to recognize that breaking
    into somebodys house is a violent intrusion on the sanctity of their home and
    on the security of their home. So there is certainly a need to deter that type
    of behaviour and I think you recognize that.

[10]

The sentencing judge did not mention the s. 109 order in her oral
    reasons, but she did endorse on the prohibition order a mandatory lifetime
    weapons prohibition under s. 109(3) of the
Code
.

Issue

[11]

On the appeal, although his trial counsel had consented to the s. 109
    order, the appellant appeals from that portion of the sentence. He argues that
    the order could not be imposed because there was no violence against a
    personthreatened or attempted, as required by s. 109(1)(a).

Analysis

[12]

The parts of s. 109 of the
Code
that are relevant to this
    appeal provide:

109(1) Where a person is convicted, or discharged
    under section 730, of

(a) an indictable offence in the commission of
    which violence against a person was used, threatened or attempted and for which
    the person may be sentenced to imprisonment for ten years or more,

the court that sentences the person or directs that
    the person be discharged, as the case may be, shall, in addition to any other
    punishment that may be imposed for that offence or any other condition
    prescribed in the order of discharge, make an order prohibiting the person from
    possessing any firearm, cross-bow, prohibited weapon, restricted weapon,
    prohibited device, ammunition, prohibited ammunition and explosive substance
    during the period specified in the order as determined in accordance with
    subsection (2) or (3), as the case may be.

(2) An order made under subsection (1) shall, in the
    case of a first conviction for or discharge from the offence to which the order
    relates, prohibit the person from possessing

(a) any firearm, other than a prohibited firearm
    or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive
    substance during the period that

(i) begins on the day on
    which the order is made, and

(ii) ends not earlier
    than ten years after the persons release from imprisonment after conviction
    for the offence or, if the person is not then imprisoned or subject to
    imprisonment, after the persons conviction for or discharge from the offence;
    and

(b) any prohibited firearm, restricted firearm,
    prohibited weapon, prohibited device and prohibited ammunition for life.

(3) An order made under subsection (1) shall, in any
    case other than a case described in subsection (2), prohibit the person from
    possessing any firearm, cross-bow, restricted weapon, ammunition and explosive
    substance for life.

[13]

The appellants position is that his
modus operandi
is to avoid
    contact with homeowners by operating during mid-day and by knocking first to
    see if anyone is home. In particular, he says that on the facts of these three
    incidents, he did not encounter anyone and therefore he neither threatened
    anyone nor attempted to use violence on anyone.

[14]

In a recent appellate decision from Nova Scotia, the court set aside a
    weapons prohibition imposed following a conviction for break and enter where
    there was no evidence of violence or of threatened or attempted violence. The
    court observed that violence is not a presumed element of the offence of
    breaking and entering a dwelling house: see
R. v. Mackenzie
, 2013 NSCA
    109, 335 N.S.R. (2d) 120, at para. 6.

[15]

However, in
R. v. Samery
, 2007 ONCA 643, this court found that
    implied threats of violence will satisfy the criteria of s. 109(1)(a). In that
    case the charge was breach of recognizance where the appellant made phone calls
    to his wife and children and was also present in the vicinity of their home by
    riding by on a bicycle or waving from a distance, all in breach of that recognizance.
    Although the appellant did not threaten or attempt to hurt his wife, she told him
    that he was frightening her, and it was an admitted fact on the guilty plea
    that she felt insecure in her living space as a result of his actions. In those
    circumstances, this court found that because the appellant continued his
    conduct after his wife told him he was frightening her, it was open to the trial
    judge to find that the appellants conduct amounted to implied threats of
    violence sufficient to meet the criteria of s. 109.

[16]

Another relevant case is
R. v. Simpson
, [1994] O.J. No. 515
    (Ont. Gen. Div.), where the appellant was convicted of conspiracy to rob, and
    where there was no actual victim, violence or threatened or attempted violence.
    In considering the meaning of violence against a person is threatened in the provision
    for a weapons prohibition contained in then s. 100, the court concluded that the
    requirement for the charge of uttering a threat that a threat be
    communicated, should not be imported into s. 100, given its protective purpose.
    The court was satisfied that because the offence of robbery is one where
    violence to a person is threatened, that is sufficient to allow a court to
    impose a weapons prohibition upon conviction for conspiracy to rob.

[17]

In its decision in
R. v. Wiles
, 2005 SCC 84, [2005] 3 S.C.R.
    895, at para. 9, the Supreme Court of Canada confirmed that the sentencing goal
    of a weapons prohibition is protection of the public.

[18]

In this case, while there was no actual threat or attempted violence,
    there was a perceived threat of violence by the victims, as evidenced by their
    victim impact statement. The appellant acknowledged that he scared the victims
    and that scaring people is kind of violent. The fact that the appellant has a
    lengthy history of committing this very offence adds credence to his knowledge
    and understanding of the threatening effect that his actions  have on people who
    are home while he commits or attempts to commit a break and enter, and did in
    fact have in this case.

[19]

In our view, in all the circumstances, and having regard to the
    appellants admitted knowledge of the impact of his actions when there are
    victims in the house, corroborated by the victims in their victim impact
    statement, it was open to the sentencing judge to find an implied threat of
    violence and impose a weapons prohibition.

[20]

Leave to appeal sentence is granted, but the appeal is dismissed.  The
    sentence is varied at the request of the Crown to reduce the lifetime weapons
    prohibition to a 10-year prohibition.

[21]

The court is grateful to the Crown and duty counsel for their additional
    written submissions and assistance in this matter.

K. Feldman J.A.

J. Simmons J.A.

S.E. Pepell J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pino, 2016 ONCA 389

DATE: 20160524

DOCKET: C56288

Laskin, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eneida Pino

Appellant

Howard L. Krongold, for the appellant

John North, for respondent

Heard: October 29, 2015

On appeal from the conviction entered on June 27, 2012 by
    Justice
David Paciocco
of the Ontario Court of Justice.

Laskin J.A.:

A.

Overview

[1]

The appellant Eneida Pino, a 43-year-old house cleaner with no previous
    criminal record, was convicted of possessing 50 marijuana plants for the
    purpose of trafficking. The marijuana was seized from the trunk of her car
    following a search incident to her arrest on an Ottawa street.

[2]

Ms. Pino brought a motion before trial to exclude the marijuana on the
    ground the police had violated her constitutional rights under the
Canadian
    Charter of Rights and Freedoms
. The trial judge found three
Charter
violations:

·

The manner of the police search was unreasonable, contrary to s.
    8 of the
Charter
, because the police carried out Ms. Pinos arrest by
    a dangerous and unnecessary masked take-down at gunpoint.

·

The police misinformed Ms. Pino about her right to counsel, contrary
    to s. 10(b) of the
Charter
.

·

The police denied Ms. Pino her right to consult counsel without
    delay, contrary to s. 10(b) of the
Charter
,
by holding her incommunicado in a jail cell for nearly
    five and a half hours after her arrest.

[3]

The trial judge also found that the two police officers who testified
    about Ms. Pinos arrest lied to the court.

[4]

Nonetheless, the trial judge refused to exclude the marijuana seized
    from Ms. Pinos car under s. 24(2) of the
Charter
. He concluded this
    evidence was not obtained in a manner that infringed Ms. Pinos right to
    counsel because both s. 10(b) breaches of the
Charter
occurred after
    the police discovered the marijuana.

[5]

The trial judge then found that the breach of Ms. Pinos s. 8 right was
    of more than modest seriousness, but far from at the extreme end of
    seriousness; that the impact of the s. 8 breach on Ms. Pinos interests was
    of qualified significance; and that exclusion of the evidence would therefore
    gut the prosecution against her. After balancing these three considerations,
    the trial judge concluded that admitting the evidence would not bring the
    administration of justice into disrepute.

[6]

Ms. Pino appeals her conviction and raises three main issues:

(1)

Did the trial judge err in
    law by concluding that he could not exclude the evidence because of the two s.
    10(b) breaches?

(2)

Did the trial judge
    understate the seriousness of the s. 8 breach by speculating about why the
    police lied in their testimony?

(3)

If the answer to either or
    both question (1) and question (2) is yes, should the evidence be excluded
    under s. 24(2) of the
Charter
?

[7]

I would answer yes to all three questions. I would therefore allow Ms.
    Pinos appeal, set aside her conviction, and enter an acquittal.

B.

Events
    Leading to Ms. Pinos Arrest

(a)

21 St. Claire Avenue, Ottawa

[8]

In June 2010, the police received a tip about a suspected marijuana
    grow-op at a house at 24 St. Claire Avenue. In the course of their
    investigation, the police reviewed hydro records of electricity usage in the
    neighbourhood. In doing so, the police noticed that a house across the street
    from the target  at 21 St. Claire Avenue  also had a pattern of high
    electricity usage. Other signs suggested 21 St. Claire Avenue was being used as
    a grow-op: unusual heat patterns from the house; an unusual number of vents on
    the roof; and an odour of marijuana around the house.

[9]

On the strength of this information, the police obtained a search
    warrant for 21 St. Claire Avenue. They intended to execute the warrant along
    with a warrant to search the original target, 24 St. Claire Avenue, during the
    afternoon of June 25, 2010.

(b)

The arrest of Ms. Pino and the seizure of the marijuana

[10]

Before executing the warrants, the police set up surveillance in the
    area. Just after noon on June 25, 2010, Ms. Pino came out of 21 St. Claire
    Avenue carrying a box, which she put in the trunk of her car.

[11]

Ms. Pino drove away from the house at 12:48 p.m. The police followed
    her. She drove to Value Village where she met a man named Fernando Martinez.
    Ms. Pino moved out of the passenger seat of her car and Mr. Martinez took over
    the driving.

[12]

The lead police investigator, Det. Schoorl, then ordered Ms. Pinos
    arrest. The police stopped Ms. Pinos car just before 1:00 p.m. and arrested
    her and Mr. Martinez. Two officers, Cst. Dinardo and Det. Savory, made the
    arrest. I will discuss the details of the arrest and their evidence about it in
    the next section of these reasons.

[13]

After the arrest, the two police officers searched Ms. Pinos car. They
    seized the box from the trunk, opened the box, and found 50 marijuana clone
    plants.

(c)

Execution of the search warrant

[14]

At 3:34 p.m. on June 25, 2010, the police executed the search warrant at
    21 St. Claire Avenue. Inside the house they found a large marijuana grow
    operation.

C.

The
    Three
Charter
Breaches and the Polices Dishonesty

[15]

As I said in the overview, the trial judge found that the police
    breached Ms. Pinos
Charter
rights in three ways  a breach of s. 8
    and two breaches of s. 10(b)  and that Det. Savory and Cst. Dinardo lied in
    their testimony to the court. The Crown accepts these findings.

(1)

The s. 8 breach

[16]

Under s. 8 of the
Charter
,
everyone has the right to be secure against unreasonable search or seizure.

[17]

Ms. Pino, Mr. Martinez, and the two police officers testified about the
    arrest. The trial judge accepted the evidence of Ms. Pino and Mr. Martinez and
    rejected the evidence of Det. Savory and Cst. Dinardo as not credible. He
    concluded that the way the police carried out the arrest was unreasonable. Here,
    in brief, are the details of the evidence and the trial judges findings.

(a)

The evidence of Ms. Pino and Mr.
    Martinez

[18]

Ms. Pino and Mr. Martinez testified that they were pulled over by Cst.
    Dinardo, who was driving a marked police cruiser. Then, Det. Savory, in an
    unmarked car, drove across their path, cutting them off. Det. Savory got out of
    his car. He was dressed in black, his face was covered with a balaclava, and he
    was armed with a handgun. He wore a standard police issue vest with the word
    Police on it.

[19]

Det. Savory took out his gun and pointed it at Ms. Pino and Mr.
    Martinez. He was aggressive and shouting. Ms. Pino thought he was trying to
    scare her and she testified that she felt very scared. She complied with Det.
    Savorys demands, was arrested, handcuffed, and made to sit on the curb. Det.
    Savory and Cst. Dinardo then searched Ms. Pinos car, where they found the
    marijuana in the box in the trunk.

(b)

The evidence of the two police officers

[20]

Det. Savory denied that he drew his gun. He claimed he had not prepared
    a use of force report, and would have done so if he had used his gun. The
    trial judge rejected his denial.

[21]

Det. Savory also testified that he did not aggressively drive his
    unmarked car in front of Ms. Pinos car. He claimed that the arrest was like a
    regular traffic stop  it looked pretty routine to me. The trial judge
    rejected this evidence as not a credible account of what happened.

[22]

Cst. Dinardo had not drawn his gun, and when asked whether Det. Savory
    had, he claimed he could not recall. The trial judge found it unlikely Cst.
    Dinardo would forget whether Det. Savory drew his gun: his professed memory
    lapse is almost silent evidence in the affirmative.

(c)

The trial judges finding of a s. 8 breach

[23]

The trial judge found that the police had reasonable and probable
    grounds to arrest Ms. Pino and that the arrest itself, as well as the search
    incident to arrest, were lawful.

[24]

But the trial judge found that the masked take-down of Ms. Pino at
    gunpoint was unreasonable. As the trial judge noted, the police do not have a
    licence to pull a gun whenever they stop and arrest a suspected drug
    trafficker. When an accused challenges the manner of a search, the Crown must
    justify the polices conduct. Here, the police offered no specific
    justification for an armed take-down, as neither Det. Savory nor Cst. Dinardo
    admitted that a gun was used.

[25]

Moreover, Det. Schoorl, who oversaw the arrest, conceded that he did not
    expect a high-risk take-down. Nothing about the car or its occupants suggested
    a risk to the safety of the officers or the public. The trial judge concluded
    that the police did not have any justification for the way they arrested Ms.
    Pino or Mr. Martinez, and therefore the manner of her arrest and the subsequent
    search were unreasonable, contrary to s. 8 of the
Charter
.

(2)

The s. 10(b) breaches

[26]

Under s. 10(b) of the
Charter
, everyone has the right on
    arrest or detention to retain and instruct counsel without delay and to be
    informed of that right. The trial judge found two s. 10(b) breaches: the
    police failed to accurately inform Ms. Pino of her s. 10(b) rights; and the
    police failed to facilitate her access to counsel without delay.

(a)

The s. 10(b) information breach

[27]

After arresting Ms. Pino, Det. Savory advised her of her right to
    counsel. However, he admitted he was not carrying his duty book, which
    contained a pre-printed rights to counsel card. Instead he relied on his
    memory from his ten years on the police force. Yet, on cross-examination, he had
    difficulty describing what he told Ms. Pino.

[28]

The trial judge found that the information Det. Savory provided to Ms.
    Pino about her right to counsel was deficient in two ways. First, he failed to
    advise her of her right to consult counsel without delay; and second, he
    probably failed to advise her of her right to immediate, free legal advice.

(b)

The s. 10(b) implementation breach

[29]

Det. Schoorl decided to delay Ms. Pinos access to counsel because he
    did not want her to be able to make a phone call that could compromise the
    execution of the search warrant at 21 St. Claire Avenue. He had her placed in a
    jail cell, and he left her there by herself for nearly five and a half hours
    after her arrest.

[30]

The trial judge found that the delay in being able to consult counsel
    was appreciable. The following is the timeline:

·

1:02 p.m.: Ms. Pino is given her right to counsel, but given
    inadequate information

·

1:28 p.m.: She is placed in a cell by herself

·

3:34  3:40 p.m.: The police execute the search warrant at 21 St.
    Claire Avenue

·

6:24 p.m.: The police arrange for Ms. Pino to speak with a lawyer

[31]

Ordinarily the police must immediately facilitate a detained persons
    access to counsel. But the trial judge accepted that a solicitor-client
    consultation could compromise a pending search. To protect the integrity of
    their search at 21 St. Claire Avenue, the police could briefly delay Ms. Pinos
    access to counsel. Det. Schoorls initial decision was appropriate.

[32]

But the trial judge concluded that the delay was unjustified for two reasons.
    First, he was not satisfied a delay from 1:28 p.m. to 3:40 p.m. was minimal
    and necessary. He was given no explanation why the police did not expedite the
    search of 21 St. Claire Avenue after Ms. Pinos arrest, so they could minimize
    the impairment of her right to counsel.

[33]

Second, even if a delay to 3:40 p.m. could be justified, there was
    absolutely no basis for the delay from 3:40 p.m. until 6:24 p.m.. Det.
    Schoorl was quick to suspend Ms. Pinos right to counsel; he was far less
    focused on ensuring she could exercise that right. The trial judge found that
    the police disregarded Ms. Pinos right to counsel without delay long after any
    reasonable period of suspension had passed. Instead, the police left her in a
    jail cell. This breach was, in the trial judges words, a clear and serious
    breach.

D.

Analysis

[34]

Once evidence has been obtained in connection with a breach of one or
    more of the rights guaranteed by the
Charter
, the court must decide
    whether to admit or exclude the evidence at trial.

[35]

To obtain an order excluding the evidence, an accused must satisfy the
    two requirements of s. 24(2) of the
Charter
:

Where, in proceedings under subsection (1), a court
    concludes that evidence was obtained in a manner that infringed or denied any
    rights or freedoms guaranteed by this
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.

[36]

As the words of s. 24(2) indicate, an accused must show on a balance of
    probabilities that:

·

The evidence sought to be excluded was obtained in a manner that
    infringed a
Charter
right;

·

The admission of the evidence would bring the administration of
    justice into disrepute.

[37]

Ms. Pino contends that the trial judge erred in his findings and
    conclusions on each of these two requirements.

First Issue
: Did the trial judge
    err in law by concluding that he could not exclude the evidence because of the
    two s. 10(b) breaches?

(a)
Introduction
    and positions of the parties

[38]

The trial judge found that both s. 10(b) breaches occurred after the
    seizure of the marijuana from Ms. Pinos car. He then concluded: as a matter
    of law, I cannot exclude under s. 24(2) the marijuana seized during the search of
    the car because of right to counsel breaches that occurred subsequently, no
    matter how serious they may have been.
Charter
breaches after the
    discovery of the evidence do not meet the obtained in a manner requirement of
    s. 24(2).

[39]

In reaching his conclusion, the trial judge relied on what he considered
    clear and binding authority prohibiting courts in Ontario from excluding
    evidence discovered before a
Charter
breach has occurred. The
    principal authority he relied on was the decision of this court in
R. v.
    LaChappelle
(2007), 226 C.C.C. (3d) 518, but he also referred to the
    Supreme Court of Canadas judgment in
R. v. Strachan
, [1988] 2 S.C.R.
    980.

[40]

Ms. Pino contends that the trial judge erred in law in his conclusion. She
    makes two submissions in support of her contention. Her main submission is that
    it is not essential for a
Charter
breach to have occurred before the
    discovery of evidence to meet the obtained in a manner requirement in s.
    24(2). All that is required is that the breach occurs in the course of the same
    transaction or has a common link. Here, Ms. Pino says that the three
Charter
breaches occurred in the course of her arrest  the common link. And she adds
    that neither
Strachan
nor
LaChappelle
forecloses taking
    account of the s. 10(b) breaches.

[41]

Ms. Pinos secondary submission, a submission she acknowledges was not
    made at trial, is that the first s. 10(b) breach occurred before the discovery
    of the marijuana. She was entitled to be advised of her right to counsel
    immediately upon her arrest, not, as she was, after the search of her car.

[42]

On Ms. Pinos main submission, the Crown argues that the trial judge was
    correct. The case law, policy, and the wording of s. 24(2) all point to the
    conclusion that sequence matters
Charter
breaches after the
    discovery of the challenged evidence do not satisfy the obtained in a manner
    requirement. The Crown also makes a harmless error argument. Even if the
    trial judge was wrong about the s. 10(b) breaches, his error was of no
    consequence as he took account of these breaches when he discussed whether admitting
    the evidence would bring the administration of justice into disrepute.

[43]

Finally the Crown argues we should not entertain Ms. Pinos secondary
    submission because the record is incomplete: neither police officer was asked
    why he did not advise Ms. Pino of her right to counsel before the search of her
    car.

(b)
Did
    the trial judge err in finding that the first s. 10(b) breach occurred after
    the discovery of the marijuana
?

[44]

I will address briefly Ms. Pinos secondary submission. Her submission
    has merit. In
R. v. T.G.H.
, 2014 ONCA 460, 120 O.R. (3d) 581, at para.
    31, Doherty J.A. wrote that the polices obligation to advise detained persons
    of their right to counsel ordinarily is not affected by the polices intention
    to conduct a search incident to an arrest. They should be advised immediately.
    Here, the police officers only justification for the delay, albeit short, in
    advising Ms. Pino of her right to counsel could be their concern for their
    safety. If that was their concern, objectively it would seem to be
    unreasonable. Ms. Pino had no previous criminal record, the police had no
    evidence she was dangerous, and she was handcuffed before the officers opened
    the trunk of her car.

[45]

Still, I would not interfere with the trial judges finding that both
    the information and implementation breaches of s. 10(b) occurred after the
    discovery of the marijuana. Because the issue was not raised at trial, the two police
    officers were not given any opportunity to explain why they waited until after
    the search to advise Ms. Pino of her right to counsel. When an issue has not
    been raised at trial and the record on that issue is incomplete, this court
    generally will not entertain the issue on appeal: see, for example,
R. v.
    Ralph
, 2014 ONCA 3, 313 O.A.C. 384, at para. 21;
R. v. Richards
,
    2015 ONCA 348, 335 O.A.C. 26, at para. 49.

[46]

Also, even if the police should have advised Ms. Pino of her right to
    counsel before the search, their failure to do so would have had no impact on
    Ms. Pinos interests. The police were legally entitled to search Ms. Pinos car
    incident to arrest, and neither she nor a lawyer could interfere with their right
    to do so. The seriousness of the s. 10(b) breaches only became apparent after the
    search.

[47]

Thus, I prefer to accept the trial judges finding that both s. 10(b)
    breaches occurred after the discovery of the marijuana and focus on Ms. Pinos
    main submission and the main issue on this appeal: can
Charter
breaches that occur after the discovery of the evidence meet the obtained in a
    manner requirement in s. 24(2) of the
Charter
?

(c)
Did the trial judge err in law by holding that he could not

exclude the marijuana because of the two s. 10(b) breaches
?

[48]

This is a difficult issue. I have concluded that the trial judge erred
    in law by holding that
Charter
breaches after the discovery of the
    challenged evidence cannot meet the obtained in a manner requirement in s.
    24(2). He considered himself bound by appellate authority. I take a different
    view of that authority; I do not read it as precluding my conclusion. I think
    the Supreme Courts generous and increasingly broad approach to the obtained
    in a manner requirement allows the court, in an appropriate case, to exclude
    the evidence because of a
Charter
breach occurring after the evidence
    was discovered. I find support for my conclusion in the trial judges own
    extra-judicial writing as well as in other academic commentary.

[49]

In this case I accept Ms. Pinos submission that all three
Charter
breaches found by the trial judge satisfy the obtained in a manner
    requirement in s. 24(2). They are all temporally and contextually connected
    to the evidence sought to be excluded; and they all occurred in the course of
    the same transaction: Ms. Pinos arrest. Finally, as I will explain, I would
    not give effect to the Crowns harmless error argument.

(i)

The case law

[50]

On a superficial reading of s. 24(2) one might be tempted to conclude
    that the obtained in a manner requirement can only be met by a causal
    connection between the breach and the discovery of the evidence: but for the
    breach the evidence would not have been discovered. But the Supreme Court has
    long recognized that a causal connection is unnecessary.

[51]

Instead, beginning with
Strachan
, the Supreme Court has taken
    an increasingly generous and broad approach to the obtained in a manner
    requirement in s. 24(2)  an approach that looks to the overall purpose of the
    section, whether admission of the evidence would bring the administration of
    justice into disrepute.

[52]

So, in
Strachan
itself, Dickson C.J.C. held that obtained in a
    manner did not require a causal connection between the
Charter
breach
    and the evidence. A temporal connection would be enough, so long as it was not
    too remote and so long as the breach and the discovery of the evidence occur
    in the course of a single transaction. The Chief Justice emphasized that the
    court should look at the entire chain of events. And there should be no
    bright line rule; these situations should be dealt with on a case by case
    basis.

[53]

Two years after
Strachan
, in
R. v. Brydges
, [1990] 1
    S.C.R. 190, at p. 210, Lamer J. held that the connection between the
Charter
breach and the evidence should be looked at broadly: s. 24(2) is implicated
    as long as a
Charter
violation occurred in the course of obtaining the
    evidence.

[54]

Then, in 2004, in
R. v. Plaha
, 188 C.C.C. (3d) 289 (Ont. C.A.),
    at para. 45, Doherty J.A. added contextual to the list of connections that
    could satisfy the obtained in a manner requirement, and he succinctly
    summarized the Supreme Courts approach:

The jurisprudence establishes a generous approach to the
    threshold issue.  A causal relationship between the breach and the impugned
    evidence is not necessary.  The evidence will be obtained in a manner that
    infringed a
Charter
right if on
    a review of the entire course of events, the breach and the obtaining of the
    evidence can be said to be part of the same transaction or course of conduct.
    The connection between the breach and the obtaining of the evidence may be
    temporal, contextual, causal or a combination of the three. The connection must
    be more than tenuous. [Citations omitted.]

[55]

Four years later in
R. v. Wittwer
, 2008 SCC 33, [2008] 2 S.C.R.
    235, at para. 21, Fish J., for a unanimous court, adopted Doherty J.A.s
    formulation in
Plaha
, and stressed that the courts approach to the
    obtained in a manner requirement should be both purposive and generous:

In considering whether a statement is tainted by an earlier
Charter
breach, the courts have adopted a purposive and generous approach. It is
    unnecessary to establish a strict causal relationship between the breach and
    the subsequent statement. The statement will be tainted if the breach and the impugned
    statement can be said to be part of the same transaction or course of conduct:
Strachan
,
    at p. 1005. The required connection between the breach and the subsequent
    statement may be temporal, contextual, causal or a combination of the three:
R.
    v. Plaha
(2004), 189 O.A.C. 376, at para. 45. A connection that is merely
    remote or tenuous will not suffice:
R. v. Goldhart
, [1996] 2
    S.C.R. 463, at para. 40;
Plaha
, at para. 45.

[56]

A generous approach to the obtained in a manner requirement makes good
    sense because this requirement is just the gateway to the focus of s. 24(2)
    whether the admission of the evidence would bring the administration of justice
    into disrepute. And, as the trial judge in the appeal before us acknowledged,
    the addition of contextual to causal and temporal as connections,
    loosened the obtained in a manner requirement.

[57]

Despite the generous approach to obtained in a manner, the Supreme
    Court has never expressly said that the requirement can be met by a
Charter
breach that occurred after the discovery of the evidence sought to be excluded.
    And several Supreme Court decisions since
Strachan
have presumed the
Charter
breach occurred before the discovery of the evidence: see
R. v.

Goldhart
,
    at para. 35;
R. v.

Wittwer
, at para. 21; and
R. v. Mack
,
    2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38.

[58]

But the courts recent decision in
R. v. Mian
, 2014 SCC 54, [2014]
    2 S.C.R. 689, suggests that it may be inclined to take account of
Charter
breaches occurring after the discovery of the evidence in an appropriate case.
Mian
was decided after the trial of the case before us, and therefore the trial
    judge did not have the benefit of it when he wrote his reasons.

[59]

In
R. v.
Mian
, 2011 ABQB 290, 516 A.R. 368, the police
    stopped and detained the accused, a suspected drug trafficker, while he was
    driving his car. Within minutes of the accuseds detention, the police searched
    the car and found about a half a kilogram of cocaine. However, they waited 22
    minutes from the time the accused was stopped to arrest him and tell him the
    reason for his arrest, and a further 2 to 5 minutes to advise him of his right
    to counsel. The trial judge found that the delay breached the accuseds rights
    under s. 10(a)
[1]
and 10(b) of the
Charter
, excluded the seized evidence under s. 24(2)
    and acquitted the accused.

[60]

In the Supreme Court, the main focus of the argument was whether the
    Alberta Court of Appeal was justified in raising a new issue on appeal and
    overturning the acquittal. Rothstein J. held that it was not justified. When he
    came to discuss s. 24(2), Rothstein J. did not address the obtained in a
    manner requirement, but he nonetheless upheld the trial judges decision to
    exclude the evidence, and he restored the accuseds acquittal.

[61]

In
Mian
, the trial judge found that the s. 10(a) and 10(b)
    breaches occurred immediately upon the accuseds detention, and therefore
    before the cocaine was found in his car. Yet the gravity of the breaches was
    the extent of the delay in advising the accused of his
Charter
rights,
    and almost all that delay took place after the seizure of the cocaine.
Mian
then offers, at least implicitly, some support for my conclusion.

[62]

What then of the two principal authorities relied on by the trial judge:
    the Supreme Courts decision in
Strachan
and this courts decision in
LaChappelle
?
    I do not think either precludes the conclusion I have reached.

[63]

In
Strachan
, at p. 1005, Dickson C.J.C. did say:

So long as a violation of one of these rights precedes the
    discovery of evidence, for the purposes of the first stage of s. 24(2) it makes
    little sense to draw distinctions based on the circumstances surrounding the
    violation or the type of evidence recovered. A better approach, in my view,
    would be to consider all evidence gathered following a violation of a
Charter
right, including the right to counsel, as within the scope of s. 24(2).

[64]

Strachan
was decided in the early days of the
Charter
.
    The courts principal concern was to reject the proposition that a causal link
    was needed to meet the obtained in a manner requirement. The Chief Justice
    did not expressly consider and reject the proposition that evidence obtained before
    a
Charter
breach could not be excluded under s. 24(2). And since
Strachan
,
    the Supreme Court has interpreted the obtained in a manner requirement even more
    broadly.

[65]

In
LaChappelle
,
my late colleague, Rosenberg J.A., relied on
Strachan
in holding that
    evidence seized by the police before an alleged
Charter
violation
    could not be excluded under s. 24(2). But
LaChappelle
was a very
    different case on its facts.

[66]

There, the accused had been injured in a car accident and was taken to
    the hospital. On the orders of a doctor, a nurse drew five vials of his blood.
    Although the accused had been suspected of drinking, the trial judge found that
    the vials of blood were taken solely for medical purposes. Soon after the blood
    samples were taken, the police concluded they had grounds to arrest and charge the
    accused with impaired driving. While he was still at the hospital an officer
    read him his rights under s. 10(b) of the
Charter
and made a breath
    demand. The accused then asked to speak to duty counsel and had a private 15
    minute consultation with counsel. Two days later, the police obtained a warrant
    to seize the vials and the accompanying blood/alcohol analysis.

[67]

At trial, the accused sought to exclude the results of the breath test
    and the analysis of his blood samples on the ground, among others, that his s.
    10(b) rights had been breached because he did not receive competent advice from
    duty counsel. The trial judge found that the advice the accused received was
    competent. On appeal, Rosenberg J.A. held that even if the advice was
    incompetent he would not exclude the evidence. At paras. 46-47, he wrote:

Even if the appellant is right that merely showing that he
    received incompetent advice resulted in a s. 10(b) violation, on the findings
    of fact by the trial judge, no evidence was obtained by that violation.
    Accordingly, there was no basis for invoking s. 24(2) of the
Charter
and possibly excluding the results of the blood test.

But here the trial judge found that the vials had already been
    sealed and were no longer within the appellants control when he finished
    talking to duty counsel. There was no factual or temporal connection between
    the alleged breach and the obtaining of the evidence; the evidence had already
    been obtained before the alleged breach of the appellants rights because of
    the incompetent legal advice.

[68]

In
LaChappelle
, the alleged
Charter
breach and the obtaining
    of the evidence were not part of the same transaction. The evidence was lawfully
    seized before the breach, by persons who were not even state actors. As
    Rosenberg J.A. held, there was no connection, at least no close connection,
    between the evidence and the breach. In my view,
LaChappelle
does not stand
    for the sweeping proposition that a
Charter
breach after the evidence
    has been discovered can never meet the obtained in a manner requirement in s.
    24(2). That it may do so in an appropriate case finds support in academic
    commentary.

(ii)

Academic Commentary

[69]

The trial judge in
The Law of Evidence
, 7th ed. (Toronto: Irwin
    Law, 2015), which he co-authored with Professor Lee Stuesser, argues
    persuasively that as a matter of principle and policy, evidence obtained before
    a
Charter
breach may still be excluded under s. 24(2). In doing so,
    the authors rely in part on the French version of the text of s. 24(2)
[2]
.
    At p. 397, the authors write:

The French text of subsection 24(2) appears to contemplate the
    power in courts to address breaches that are linked to the same event, but
    occur after the discovery of the evidence. There are also sound reasons of
    policy for leaving this door open. Assume that the police discover marijuana
    during a lawful and reasonable pat-down search and then publicly and needlessly
    go on to strip search the suspect. Is a court to be deprived of the power to
    exclude the evidence because of the sequence of events? To insist on the breach
    preceding the discovery of evidence as an absolute precondition to exclusion
    means that
ex hypothesi
evidence can be admitted even where its
    admission would bring the administration of justice into disrepute, just
    because of the order in which things happened to occur.

[70]

In his text,
Constitutional Remedies in Canada
, loose-leaf, 2d
    ed.  (Toronto: Canada Law Book) at para. 10.880, Professor Kent Roach takes a
    similar view. He emphasizes that the admission of evidence obtained before a
Charter
breach may still bring the administration of justice into disrepute:

Does it matter in the temporal connection test whether the
    evidence is found after or before a
Charter
violation? Parts of
Strachan
suggest that it is necessary for the
    evidence to be discovered after a
Charter

violation, but this may be a hangover of the causation based test. From a
    regulatory perspective, it should not matter whether the evidence was obtained
    before or after a serious
Charter
violation. In both cases, the administration of justice could be brought into
    disrepute if the courts appear to condone a serious
Charter
violation. If the court is concerned with
    responding to serious violations, there is no reason why evidence discovered
    before a violation should not be considered for exclusion. [Footnotes omitted.]

[71]

I turn now to apply the principles from the case law to the appeal
    before us.

(iii)

This case

[72]

Based on the case law, the following considerations should guide a
    courts approach to the obtained in a manner requirement in s. 24(2):

·

The approach should be generous, consistent with the purpose of
    s. 24(2)

·

The court should consider the entire chain of events between
    the accused and the police

·

The requirement may be met where the evidence and the
Charter
breach are part of the same transaction or course of conduct

·

The connection between the evidence and the breach may be causal,
    temporal, or contextual, or any combination of these three connections.

·

But the connection cannot be either too tenuous or too remote.

[73]

Here, the two s. 10(b) breaches along with the s. 8 breach meet the
    obtained in a manner requirement. The marijuana seized from the trunk of Ms.
    Pinos car and all three
Charter
breaches are part of the same
    transaction. That transaction or the common link between the evidence and the
    breaches is Ms. Pinos arrest.

[74]

The connection between the evidence and the breaches is both temporal
    and contextual, and is neither too tenuous nor too remote. The connection is
    temporal because the three breaches are relatively close in time and are part
    of a continuum straddling Ms. Pinos arrest. The connection is also
    contextual. I take contextual  a word often used by lawyers and judges
    to mean pertaining to the surroundings or situation in which something happens.
    In this case, the something that happened is Ms. Pinos arrest. And the two s.
    10(b) breaches and the s. 8 breach surrounded her arrest or arose out of it. Indeed,
    the trial judge found that the s. 10(b) breaches form part of the context in
    which the s. 8 breach occurred.

[75]

The following hypothetical example helps to illustrate my point. Suppose
    the s. 10(b) breaches had crystallized before the search of Ms. Pinos car. The
    police advised Ms. Pino of her right to counsel without delay immediately upon
    her arrest, but gave her incomplete advice and decided to delay her access to
    counsel to prevent her from compromising the search of 21 St. Claire Avenue.

[76]

In this hypothetical example, the obtained in a manner requirement
    would unquestionably be met. Both s. 10(b) breaches occurred before the
    discovery of the marijuana. But as in
Mian
, the gravity of the s.
    10(b) breaches, especially the implementation breach, would occur after the
    search of the car.

[77]

So, should it make a difference whether the s. 10(b) breaches occurred
    before or after the discovery of the evidence? I do not think so. In either
    case, the administration of justice could be brought into disrepute if the
    court condoned serious
Charte
r violations.

[78]

On this issue, I therefore conclude that the evidence, the marijuana,
    was obtained in a manner that breached Ms. Pinos s. 8 and s. 10(b) rights.
    In concluding otherwise, the trial judge erred in law.

(iv)

The Crowns harmless error argument

[79]

The Crown argues that even if the trial judge erred in his analysis of
    the s. 10(b) breaches, his error was harmless because he took these breaches
    into account when he came to discuss the seriousness of the s. 8 breach. I do
    not accept the Crowns argument.

[80]

The trial judge did say: I also find that while I cannot exclude the
    evidence in question based on the right to counsel violations, they do form part
    of the context in which this breach occurred. And he held that there had been
    a pattern of violations, which further enhances the seriousness of the
    breach. But when he assessed the seriousness of the breach, he referred to
    breach in the singular, the s. 8 breach. He did not assess the seriousness of
    all three breaches.

[81]

The s. 10(b) breaches take on a very different colour when they are
    viewed not just as part of the context for the s. 8 breach, but as a basis for
    the exclusion of the evidence. That they would take on a different colour is
    evident from the way the trial judge framed the issue before him. He asked
    whether he could exclude the evidence because of these breaches and held that
    he could not because they did not meet the obtained in a manner requirement.
    Had the s. 10(b) breaches met this requirement, undoubtedly they would have
    elevated the seriousness of the polices breaches of Ms. Pinos
Charter
rights and had an impact on her
Charter
-protected interests. I will
    discuss the effects of the s. 10(b) breaches when I discuss the final issue on
    this appeal, whether the evidence should be excluded. I would not, however,
    give effect the Crowns harmless error argument.

Second Issue
: Did the trial judge
    understate the seriousness of the s. 8 breach by speculating about why the
    police lied in their testimony?

(a)
Introduction

[82]

The second branch of the s. 24(2) inquiry calls on a trial judge to
    assess whether the admission of the evidence sought to be excluded would bring
    the administration of justice into disrepute. In making that assessment the
    trial judge must take account of and balance the three factors stipulated by
    the Supreme Court in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353:

·

The seriousness of the
Charter
-infringing state conduct;

·

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

·

Societys interest in the adjudication of the case on its merits.

[83]

On the first
Grant
factor, the seriousness of the
Charter
breach, the trial judge found that:

·

There had been a pattern of violations but not a conscious
    disregard for the
Charter
;

·

The use of force in arresting Ms. Pino was the result of
    misjudgment;

·

The defective
Charter
advice she received was nothing
    more than a failure to recall the complete elements of proper advice;

·

The initial decision to delay Ms. Pinos exercise of her right to
    counsel was appropriate; the further delay was an oversight born of disinterest
    in her
Charter
rights;

·

The testimony of the police officers was misleading.

[84]

Overall, the trial judge found that the breach that triggered the s.
    24(2) analysis  the s. 8 breach  is of more than modest seriousness, yet,
    given that it is probably the product of an error in judgment, is far from at
    the extreme end of seriousness.

[85]

Before dealing with Ms. Pinos submission on the first
Grant
factor, I will briefly summarize the trial judges findings on the other two
Grant
factors.

[86]

On the second
Grant
factor, the impact of the s. 8 breach on
    Ms. Pinos
Charter
-protected interests, the trial judge held there was
    no impact on her privacy interests. At most, the breach had an impact on her
    security and integrity of the person. Nonetheless, in the trial judges view,
    three considerations diminished the impact of this breach: Det. Savory acted
    appropriately in running aggressively at Ms. Pinos car and barking commands;
    Det. Savory brandished his gun for a very short time, and the two officers were
    not otherwise abusive; and no causal connection existed between the manner of
    the search and the discovery of the marijuana. Overall the trial judge found
    that the impact of the breach on Ms. Pino arising from the manner in which the
    search took place was of only moderate or of qualified significance.

[87]

On the third
Gran
t
factor, the trial judge held that the
    marijuana was real evidence of demonstrable reliability, and its exclusion
    would have a significant impact on societys interest in the adjudication of
    the case on its merits.

[88]

After balancing the three
Grant
factors, the trial judge
    concluded that the admission of the marijuana would not bring the
    administration of justice into disrepute.

[89]

Even accepting the trial judges findings on the three
Grant
factors, in the light of my conclusion on the first issue  the obtained in a
    manner requirement  the first and second
Grant
factors will have to
    be reassessed. The two s. 8 breaches elevate the seriousness of the breach
    found by the trial judge, and have an impact on Ms. Pinos
Charter
-protected
    interests. I will reassess those factors when I discuss the final issue on this
    appeal.

[90]

But even apart from the reassessment required to take the two s. 10(b)
    breaches into account, Ms. Pino does not accept the trial judges finding on
    the seriousness of the s. 8 breach. She submits that the trial judge understated
    its seriousness by speculating about the polices dishonest testimony
    concerning her arrest.

(b)
Did the trial judge understate
    the seriousness of the police officers dishonest testimony
?

[91]

Ms. Pino submits that the trial judge unreasonably discounted the
    seriousness of the two police officers dishonest testimony about her arrest by
    speculating about their motives for lying. I agree with this submission.

[92]

The trial judge did not accept Cst. Dinardos proffered inability to
    remember whether his partner Det. Savory pulled his gun out and pointed it at
    Ms. Pino. In substance, the trial judge found Cst. Dinardo was not being candid
    with the court.

[93]

The trial judge expressly found Det. Savorys denial that he brandished
    his gun and his claim the arrest was like a routine traffic stop were not
    credible. In other words, the trial judge found that Det. Savory lied to the
    court.

[94]

But then the trial judge ascribed rather innocuous motives for Det.
    Savorys dishonest testimony. The trial judge suggested that Det. Savory drew
    his gun for reasons of officer safety. He speculated that the officer may
    have lied about doing so not because he knew all along his conduct was
    unlawful, but because he had not filed a use of force report.

[95]

I do not think the trial judge was justified in proffering these
    explanations for Det. Savorys testimony, explanations that had the effect of
    understating the seriousness of his dishonesty. No evidence was led at trial to
    show that the arrest of Ms. Pino posed any risk to either officers safety. And
    no evidence was led to explain why Det. Savory pulled his gun or why he lied
    about doing so. Indeed, neither officer could give any evidence about the gun
    because one denied and the other claimed not to remember whether Det. Savory
    had brandished his weapon during the arrest.

[96]

It seems to me that if the two police officers were going to justify
    their conduct, they were obliged to put forward evidence explaining why Det.
    Savory drew his gun and why he acted aggressively in carrying out the arrest of
    Ms. Pino. These explanations could only come from the officers. Although Ms.
    Pino had the ultimate burden under s. 24(2) to show the marijuana should be
    excluded, on this issue of the polices conduct, the Crown had the burden to put
    forward a plausible explanation:
R. v. Bartle
, [1994] 3 S.C.R. 173, at
    210. It did not and could not do so.

[97]

As Mr. Krongold, counsel for Ms. Pino, pointed out, by suggesting fairly
    innocent explanations for the police officers testimony, the trial judge
    allowed them to benefit from their own dishonesty. They were able to shield
    their true motives for the way they carried out the arrest of Ms. Pino by lying
    about their own misconduct. For the purpose of assessing the seriousness of the
Charter
breaches and the overall assessment of whether the marijuana
    should have been excluded from the evidence at trial, the officers dishonest
    testimony should not be understated by explanations unsupported in the
    evidence.

[98]

Although a trial judges findings of fact are entitled to deference from
    an appellate court, appellate intervention is justified in this case because
    the trial judges findings are speculative and do not take account of the onus
    on the Crown.

Third Issue
: Should the evidence
    be excluded under s. 24(2) of the
Charter
?

[99]

In the light of my conclusions on the first two issues, the first two
Grant
factors must be reassessed and the overall balancing of the factors
    reconsidered.

(a)
The seriousness of the
Charter
breaches

[100]

The trial judge
    found that the s. 8 breach, in context, was of more than modest seriousness,
    but far from at the extreme end of seriousness. That finding cannot stand for
    two reasons.

[101]

First, the s.
    10(b) breaches now directly affect the overall seriousness of the polices
    conduct. Instead of looking at the seriousness of the s. 8 breach alone, as the
    trial judge did, all three breaches must be assessed. Even accepting the trial
    judges finding that the first s. 10(b) was nothing more than a failure to
    recall, the second s. 10(b) breach was itself far more serious. The trial
    judge found that the polices failure to facilitate Ms. Pinos right to counsel
    without delay was a clear and serious breach of s. 10(b), reflecting the
    polices disinterest in her rights. That finding alone elevates the overall
    seriousness of the
Charter
breaches.

[102]

Second, the
    polices dishonest testimony about the arrest, though not an element of the
Charter
breach itself, is relevant to the first
Grant
factor. In my view, the
    trial judge understated its impact. The Supreme Courts decision in
R. v.
    Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, is directly on point. In that
    case, at para. 26, the Supreme Court endorsed the observation of my colleague
    Cronk J.A. in her dissenting reasons in this court:

The integrity of the judicial system and the truth-seeking
    function of the courts lie at the heart of the admissibility inquiry envisaged
    under s. 24(2) of the
Charter
. Few actions more directly undermine
    both of these goals than misleading testimony in court from persons in
    authority.

[103]

For these
    reasons, to adopt the trial judges phrase, the three
Charter
breaches
    are close to the extreme end of seriousness. This first
Grant
factor
    favours exclusion of the evidence. Admission of the evidence in the light of
    the seriousness of the breaches, and especially the officers dishonest
    testimony, may send the message that the justice system condones this kind of
    conduct.

(b)
Impact on the
Charter
-protected interests of the accused

[104]

This factor
    focuses on the extent to which a
Charter
breach undermines the
    interests protected by the right infringed. The trial judge found that the s. 8
    breach only had a moderate impact on Ms. Pinos interests, largely and
    correctly because s. 8 protects a persons privacy interests and Ms. Pinos
    privacy interests were not affected by the manner of her arrest.

[105]

But the s. 10(b)
    breaches have a much greater impact on Ms. Pinos interests. These breaches
    were neither technical nor fleeting. Being forced to sit alone in a jail cell
    for over five hours after her arrest without access to counsel undermined the
    very interests s. 10(b) seeks to protect: correct information about the right
    to counsel and the immediate ability to consult with a lawyer. Ms. Pino was vulnerable
    and she needed counsel, not just for legal advice, but as a lifeline to the
    outside world. This second
Grant
factor also favours exclusion.

(c)
Societys interest in an
    adjudication on the merits

[106]

I accept the
    trial judges finding on the third
Grant
factor. The evidence in
    question, the marijuana, is both real and reliable. Its exclusion would likely
    end the Crowns case against Ms. Pino. This third
Grant
factor favours
    admission of the evidence.

(d)
Overall balancing

[107]

After balancing
    these three factors, I conclude that the admission of the marijuana would bring
    the administration of justice into disrepute. As the Supreme Court emphasized
    in
Grant
,
at paras. 71
    and 84, s. 24(2) requires the court to consider the longer-term repute of the
    justice system and societys confidence in our system. This is one of those
    cases in which the courts need to disassociate itself from the polices
    conduct is greater than societys interest in prosecuting Ms. Pino for
    possessing 50 marijuana plants.

E.

Conclusion

[108]

I would allow
    Ms. Pinos appeal and set aside her conviction. The Crown did not suggest that
    if the marijuana were excluded it had other evidence to lead against her. I
    would therefore enter an acquittal. I thank counsel for their assistance on a
    difficult case.

Released: May 24, 2016 (J.L.)

John Laskin J.A.

I agree. M. Tulloch J.A.

I agree. G. Pardu J.A.

[1]
Under s. 10(a) everyone has the right on arrest or detention to be informed
    promptly of the reasons therefor.

[2]

Lorsque, dans une instance visée au paragraphe (1), le
    tribunal a conclu que des éléments de preuve ont été obtenus dans des
    conditions qui portent atteinte aux droits ou libertés garantis par la présente
    charte, ces éléments de preuve sont écartés sil est établi, eu égard aux
    circonstances, que leur utilisation est susceptible de déconsidérer
    ladministration de la justice.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robinson, 2016 ONCA 402

DATE: 20160530

DOCKET: C59599

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Troy Robinson

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

J. Sandy Tse, for the respondent

Heard:  February 17, 2016

On appeal from the convictions entered by Justice Brian Trafford
    of the Superior Court of Justice on December 10, 2013.

Doherty J.A.:

[1]

The appellant, Troy Robinson, and his girlfriend, Nicole Browne, were
    jointly charged with several offences involving the possession of drugs and
    guns.  One set of charges arose out of the seizure of guns and drugs found in a
    storage locker rented by Ms. Browne.  The second set of charges related to
    drugs and guns found during a search of an apartment rented by Ms. Browne.  It
    was the Crowns position that the appellant and Ms. Browne were jointly in
    possession of the guns and drugs found at both locations.

[2]

The trial judge acquitted both the appellant and Ms. Browne on the
    charges involving the guns and drugs seized from the storage locker.  He held
    that the Crown had failed to prove beyond a reasonable doubt that the guns and
    drugs found at the storage facility actually came from the unit rented by Ms.
    Browne as opposed to one of the other units being renovated at the same time.
    The acquittals are not challenged on appeal.

[3]

The trial judge convicted Ms. Browne on the charges relating to the
    drugs found in her apartment, but acquitted her on the gun charges.  She has
    not appealed and the Crown has not appealed her acquittals.

[4]

The trial judge convicted the appellant on the charges involving the
    guns and drugs seized from the apartment.  He sentenced him to 7 years after
    credit for presentence custody.  The appellant appeals his convictions, but
    does not appeal sentence.

[5]

The appeal focuses on two
Charter
rulings made by the judge
    assigned to hear the pretrial motions (the motion judge).  In her first
    ruling, the motion judge held that the search of the apartment rented by Ms.
    Browne violated s. 8 of the
Charter
because the affidavit relied on to
    obtain the warrant did not contain grounds justifying the execution of a warrant
    at night (after 9:00 p.m.).  The search occurred about 9:50 p.m.  The motion
    judge went on to hold, however, that the drugs and guns found in the apartment
    during the search should not be excluded from evidence under s. 24(2) of the
Charter
:
    see
R. v. Browne and Robinson
, 2013 ONSC 2141 (the Search Ruling).  The
    appellant submits that the motion judge correctly held that s. 8 was violated
    by the execution of the warrant at nighttime, but erred in holding that the
    evidence should not be excluded.

[6]

In her second ruling, the motion judge held that the police had
    reasonable grounds to arrest the appellant, rendering the detention lawful and
    the search of the appellant, conducted as an incident of that arrest, a
    reasonable search under s. 8 of the
Charter
.  During that search the police seized the appellants keys, including
    a key to Ms. Brownes apartment and a key to her storage locker.  The Crown
    relied on those keys, along with other evidence, to support the argument that
    the appellant was in possession of the guns and drugs found in the storage
    locker and the apartment.

[7]

The motion judge further
    held that even if the police did not have reasonable grounds to arrest the
    appellant, rendering the detention arbitrary and the search unreasonable, she
    would not have excluded the keys seized from the appellant from evidence under
    s. 24(2) of the
Charter
:
    see
R. v. Browne and Robinson
, 2013 ONSC 2041
(the Arrest Ruling).

[8]

On appeal, counsel for
    the appellant submits that the motion judges finding that the police had
    adequate grounds to arrest was unreasonable rendering the arrest and the search
    unconstitutional.  He further contends that if he convinces this court that the
    arrest and search were unconstitutional, then this court should do its own s.
    24(2) analysis.  Counsel argues that the analysis should lead to the exclusion
    of the key to the apartment.

The Search of the Apartment

[9]

Personnel at Yellow Self Storage were renovating several storage lockers
    at their facility.  The contents of the units to be renovated were temporarily
    moved to other units.  In the course of the move, employees found a handgun and
    ammunition.  Their manager called the police.  On May 26, 2011, the police
    obtained a search warrant for the relevant storage unit.  Their search revealed
    10 guns, including a machine gun, an assault rifle and a sawed off shotgun,
    over 4,000 rounds of live ammunition, and 1.5 kilograms of ecstasy.

[10]

The records at Yellow Self Storage identified Ms. Browne as the renter
    of the unit from which the police believed the guns and drugs had been removed.
    The police made efforts to locate Ms. Browne and a few days later learned that
    she rented apartment 610 at 135 Rose Avenue in Toronto.  The police decided to apply
    for a search warrant for the apartment.

[11]

Constable Todd Storey prepared the affidavit in support of the search
    warrant application.  He began working on the affidavit during the day on June
    1, 2011, but was also required to attend to other matters.  He eventually
    completed the affidavit and attended at the home of a justice shortly after 8:00
    p.m. that day.

[12]

In his affidavit, Constable Storey described the earlier search of the
    storage locker and Ms. Brownes connection to that locker.  Constable Storey indicated
    that he believed that a search of the apartment could yield Ms. Brownes rental
    agreement for the storage locker, keys to the storage locker, and documents pertaining
    to the ownership, purchase and sale, or transfer of the firearms found in the storage
    locker.  Constable Storey did not assert that he had reasonable grounds to
    believe that firearms would be found in the apartment.

[13]

The justice signed the search warrant just before 9:00 p.m.   Prior to
    signing it, he filled in the relevant blank indicating that the warrant could
    be executed between the hours of 9:00 p.m. June 1/11 to 9:00 p.m. June 3/11.
    According to Constable Storey, the justice knew that police were waiting near
    Ms. Brownes apartment.

[14]

Constable Storeys affidavit did not request permission to execute the warrant
    at night, that is, after 9:00 p.m.  Nor did the affidavit identify grounds
    justifying the execution of the warrant at night.  Constable Storey and the
    justice did not discuss the timing of the execution of the warrant.  Neither
    turned their mind to the specific provisions in s. 488 of the
Criminal Code
applicable to the execution of search warrants at night.

[15]

At 9:02 p.m., Constable Storey advised the officers who were watching
    Ms. Brownes apartment that the justice had signed the warrant.  At about the
    same time, some of those officers saw Ms. Browne and the appellant walking away
    from the Rose Avenue apartment building toward the subway a short distance away.
    Detective Michael Balint, the officer in charge of the surveillance detail,
    gave instructions to arrest Ms. Browne and the appellant.

[16]

The warrant authorizing the search of the apartment was executed at 9:50
    p.m.  By that time, the appellant and Ms. Browne were in custody and had been
    removed from the area.  The officers, thinking someone might still be in the
    apartment, broke the door down to gain entry.  Their subsequent search turned
    up two loaded handguns and crack cocaine.

[17]

The search occurred after 9:00 p.m. and was by definition in the
Criminal
    Code
a nighttime search.  Section 488 of the
Criminal Code
provides that search warrants must be executed by day unless the justice is
    satisfied, based on grounds set out in the affidavit in support of the warrant,
    that there are reasonable grounds to execute the warrant at night.  The terms
    of the warrant authorized its execution after 9:00 p.m., but there were no
    grounds set out in the affidavit to support executing the warrant at night.  The
    motion judge held that the failure to comply with s. 488 rendered the warrant
    invalid and the subsequent search of the apartment both warrantless and
    unreasonable.
[1]
The Crown does not challenge this finding.

[18]

Having found a breach of s. 8, the motion judge turned to the admissibility
    of the evidence found during the search.  She specifically applied the
    three-prong test enunciated in
R. v. Grant
, 2009 SCC 32
, [2009] 2 S.C.R. 353, at para. 71:  see
Search Ruling
, at paras. 86-102.  The motion
    judge ultimately concluded, at para. 102:

[O]n the facts of this case, to exclude the evidence,
    particularly the firearms, would undermine the
bona fide
, although not
    perfect, efforts of the police in investigating crime, and would bring the
    administration of justice into disrepute.

[19]

Counsel for the appellant acknowledges that the motion judges s. 24(2)
    ruling is entitled to deference as long as the motion judge has considered the
    proper factors and not made unreasonable or unsupported factual findings:  see
R.
    v. Cô
té
, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.  However,
    his submissions invite the court to redo the s. 24(2) analysis done by the motion
    judge, especially as it involves the characterization of the police conduct resulting
    in the
Charter
violation, and the impact of that violation on the
    appellants privacy interests.

[20]

Dealing first with the nature of the police conduct, the motion judge
    characterized the failure of the police to either execute the warrant in the
    daytime, or comply with s. 488 as due to inadvertence and more technical
    than substantive:
Search Ruling
,
    at para. 91.  In coming to that conclusion, the motion judge accepted Constable
    Storeys evidence that while he was aware of the nighttime requirement in the
Criminal Code
, he had forgotten about that requirement when he
    prepared his affidavit and applied for the warrant.  In considering Constable
    Storeys explanation, it should be recalled that he had begun the preparation
    of his affidavit earlier in the day and was not anticipating executing the
    search warrant at night.  He neglected to turn his mind to the timing of the
    execution of the warrant when events intervened and delayed the completion of
    the affidavit and the attendance before the justice until shortly before 9:00
    p.m.   Clearly, as 9:00 p.m. approached, Constable Storey should have realized
    that the timing of the execution of the warrant had to be addressed either by
    complying with s. 488, or by delaying the execution of the warrant to the next
    morning.

[21]

I would not use the word technical to describe the failure to comply
    with s. 488.  I do, however, think it was open to the motion judge in the
    circumstances to characterize the non-compliance as inadvertent. Accepting
    that characterization, Constable Storeys failure to comply with s. 488 is not
    the kind of police misconduct that requires the court to disassociate itself from
    that conduct by excluding the evidentiary fruits of the search.  I would not
    interfere with the motion judges treatment of the police failure to comply
    with s. 488 as it relates to an assessment of the seriousness of the
Charter
-infringing state conduct
.

[22]

I also see no reversible error in the motion judges assessment of the
    impact of the s. 8 breach on the appellants privacy interests.  The police had
    ample grounds to obtain a warrant to search the apartment.  Given the failure
    to comply with s. 488, the warrant should have been executed before 9:00 p.m.
    or after 9:00 a.m. the next morning.  However, the actual impact of the search
    of the apartment on the privacy interests of both Ms. Browne and the appellant
    was not affected by the timing of the execution of the warrant.  The entry and
    search at 9:50 p.m. as opposed to an hour earlier, or the next morning, caused
    no additional harm to the appellants dignity, personal autonomy or privacy.
    As the motion judge observed, the appellant was not present when the police
    entered and searched the apartment.

[23]

The motion judge concluded, at para. 95, that the failure to
    comply with s. 488 had no practical effect whatsoever on the
Charter
rights of Ms. Browne or Mr. Robinson.  I take the motion
    judge to mean no practical effect on the privacy interests of the appellant
    protected by s. 8.  That conclusion was open to the motion judge and I would
    defer to it.

[24]

The appellant has not
    satisfied me that the motion judge made any reversible error in her analysis of
    the admissibility of the evidence seized from the apartment.  I would not give
    effect to this ground of appeal.

The Arrest of the Appellant

[25]

Detective Balint was in charge of the officers assigned to watch Ms.
    Brownes apartment on Rose Avenue on the evening of June 1, 2011.  Detective
    Balint was an experienced officer with an extensive background in criminal
    investigations involving guns, drugs and gangs.  He also knew the Rose Avenue neighbourhood
    very well.

[26]

Detective Balint knew that Constable Storey was applying for a search
    warrant for the Rose Avenue apartment.  He anticipated executing that warrant
    if and when it was granted.  He and his fellow officers were also on the lookout
    for Ms. Browne.  It was their intention, if they saw Ms. Browne, to arrest her
    and charge her with possession of the firearms and drugs that they believed had
    been found in her storage locker a few days earlier.

[27]

Detective Balint knew of a prior association between the appellant and
    Ms. Browne.  They had known each other for some time and were together on one
    occasion when the appellant was arrested.  As of June 1, 2011, Detective Balint
    considered the appellant a person of interest in relation to the
    investigation pertaining to the firearms and drugs found in the storage
    locker.

[28]

Detective Balint also knew the appellant to be a player in the
    criminal sub-culture within the neighbourhood.  He knew the appellant had two
    prior convictions for firearm offences and had been the subject of an
    investigation in which it was alleged that the appellant had pistol whipped the
    victim.

[29]

Before he saw the appellant on the evening of June 1, Detective Balint
    did not have reasonable grounds to believe that the appellant was connected to
    the firearms and drugs that had been found in the storage locker.  He also did
    not have reasonable grounds to believe that the appellant was living at or
    otherwise connected to the Rose Avenue apartment.

[30]

At about 9:02 p.m. Detective Balint received word that the search
    warrant for the Rose Avenue apartment had been granted.  He believed that the
    search warrant would authorize a search for firearms.  In fact, as set out
    above, Constable Storey did not request a warrant to search for firearms, but
    had limited the warrant to a request to search for documents and other material
    connected to the firearms found in the storage locker.

[31]

Shortly after Detective Balint received word that the warrant had been
    granted, he was advised that Ms. Browne and a male person were walking away
    from the apartment building at 135 Rose Avenue toward the subway stop a short
    distance away.  As they were walking towards the subway, the male was
    identified as the appellant by another officer.  Ms. Browne and the appellant were
    holding hands.  Near the subway they stopped, embraced and kissed.  Ms. Browne
    and the appellant parted company.  She headed toward the subway and he headed back
    toward the Rose Avenue apartment.  Detective Balint instructed the officers to
    arrest both Ms. Browne and the appellant.

[32]

Two officers who had been following the appellant and Ms. Browne grabbed
    the appellant, forced him to the ground and handcuffed him.  Detective Balint,
    who was a few feet away when the appellant was forced to the ground, told the
    appellant that he was under arrest for possession of a firearm in relation to
    the Rose [Avenue] address.  Detective Balint told the appellant he had a right
    to counsel.

[33]

The officers searched the appellant as an incident of his arrest.  One
    of the officers found a set of keys in the appellants front pocket.  It turned
    out that one key was for the apartment and another was for the padlock on Ms.
    Brownes storage locker.

[34]

In deciding to arrest the appellant for possession of firearms at the
    Rose Avenue apartment, Detective Balint relied on the following:

·

he
    believed that a justice had just issued a warrant to search the Rose Avenue
    apartment for firearms;

·

he
    knew of the nature and variety of the guns found in the locker, the quantity of
    ammunition found there, and the drugs seized from the locker.  He believed that
    this locker was rented by Ms. Browne.  In his experience it was not uncommon
    for criminals to store guns in different places, so they dont keep all their
    eggs in one basket, so to speak;

·

he
    believed, based both on the information he received from the other officers at
    about 9:00 p.m., and his knowledge of their prior association, that the appellant
    and Ms. Browne had a close boyfriend/girlfriend relationship;

·

he
    believed, based on what the officers had told him, that Ms. Browne and the
    appellant had exited the Rose Avenue apartment moments before their arrest and
    that the appellant was returning to that apartment when he gave instructions to
    the other officers to arrest the appellant; and

·

he
    was aware of the appellants criminal lifestyle and, in particular, his prior
    involvement in firearms-related offences.

[35]

The defence accepted that Detective Balint honestly believed he had
    reasonable grounds to arrest the appellant.  The defence argued, however, that
    his belief could not be reasonably justified on the facts.  As noted by the motion
    judge, at paras. 62-66 of the Arrest Ruling, the defence arguments raised two
    specific issues.  First, was Detective Balints belief that there were
    reasonable grounds to believe that firearms would be found in the apartment
    reasonably justified?  Second, was Detective Balints belief that the appellant
    had sufficient knowledge of, and control over, any firearm found in the
    apartment to place him in possession of that firearm reasonably justified on
    the evidence?

[36]

Counsel for the appellant accepts that the motion judge properly
    identified the two relevant factual issues and the applicable legal
    principles.  He submits, however, that the motion judges findings are
    unreasonable and based on speculation rather than legitimate inferences
    reasonably available on the evidence.

[37]

This court can review the reasonableness of the motion judges
    findings.  In doing so, however, it does not make its own assessment of the
    evidence and the adequacy of the grounds relied on by the police officer, but
    instead considers only whether, on the totality of the evidence, the findings
    made by the motion judge were reasonably open to her.  I will address the two
    crucial findings separately.

Were there reasonable grounds to
    believe that there were firearms in the apartment?

[38]

When Detective Balint ordered the arrest of the appellant, he believed
    that a justice had just issued a warrant authorizing the entry and search of
    the apartment for firearms.  He had not yet seen the warrant as the officer
    delivering the warrant to the apartment had just left the home of the justice.
    If the warrant granted by the justice had authorized the police to enter the
    apartment and search for firearms, the issuance of the warrant would have
    provided Detective Balint with reasonable grounds for the belief that firearms
    would be found in the apartment.  However, as it turned out, the search warrant
    did not authorize a search for firearms.  Can Detective Balints mistaken
    belief that the warrant did authorize a search for firearms provide reasonable
    grounds to believe that firearms would be found in the apartment?

[39]

Detective Balint believed, based on his knowledge of the investigation
    and specifically the nature and quantity of material seized from the storage
    locker rented by Ms. Browne, that the warrant to search her apartment, if
    granted, would inevitably authorize a search for firearms.  As he put it in his
    evidence, he believed that a search for firearms would have been the first
    thing requested by the affiant on the application for the warrant.  He was
    surprised, to say the least, that Constable Storey, a more junior and less
    experienced officer, did not believe that he had reasonable grounds to obtain a
    warrant to search for firearms.

[40]

Section 495(1)(a) of the
Criminal Code
authorizes a peace
    officer to arrest without warrant a person who on reasonable grounds the
    officer believes has committed an indictable offence.  The language focuses on
    the officers state of mind and the reasonableness of the officers belief,
    rather than the actual state of affairs.  Reasonable grounds can be based on a reasonable
    belief that certain facts exist even if it turns out that the belief is
    mistaken:  see
Eccles v. Bourque
,
    [1975] 2 S.C.R. 739, at pp. 744-45
;
R. v. Herritt
, 2015 NBCA 33
, 325 C.C.C. (3d) 325, at
    para. 21.

[41]

In my view, it was reasonable in the circumstances for Detective Balint
    to believe that the warrant authorized a search of the apartment for firearms.
    The police had found an arsenal of unlawful weaponry in what they reasonably
    believed was Ms. Brownes storage locker a few days earlier. I think it was reasonable
    for a person of Detective Balints experience to infer that a person in
    possession of the number and kinds of weapons the police had found in what they
    believed was Ms. Brownes storage locker was a commercial trafficker in illegal
    firearms.  As Detective Balint testified, in his experience those persons kept
    their firearms in more than one place.  In my view, it was reasonably open to
    Detective Balint to believe that it was probable that Ms. Browne kept some of
    her firearms inventory in her apartment.

[42]

The motion judge considered the defence argument that Constable Storeys
    failure to request a warrant to search for firearms demonstrated that there were
    not objectively reasonable grounds to believe that firearms would be found in
    the apartment.  The motion judge did not agree that Constable Storeys judgment
    as to what might or might not be found in the apartment should be given equal
    weight to that of Detective Balint.  She noted that Constable Storeys
    affidavit was inconsistent as to his belief concerning the possibility that
    firearms would be found in the apartment.  She also observed that Constable
    Storey had much less experience in this kind of investigation than did
    Detective Balint.  Finally, the motion judge observed that Constable Storey was
    not aware of the observations made of Ms. Browne and the appellant shortly
    before 9:00 p.m. on June 1.  Those observations indicated that Ms. Browne had a
    very close relationship with the appellant, who had a significant history of criminal
    activity involving firearms.  The motion judge concluded that these factors
    placed Detective Balint in a position to make a different and more informed
    assessment of the likelihood of firearms being found in Ms. Brownes
    apartment:
Arrest Ruling
, at
    paras. 67-78.

[43]

The motion judges findings were reasonably open to her on the
    evidence.  This was not a case in which two officers with the same information
    arrived at different conclusions as to the existence of reasonable grounds:
    see
R. v. Brown
, 2012 ONCA 225, 286 C.C.C. (3d) 481.  Here, one more
    experienced officer, with additional information not available to the other less
    experienced officer, formed the opinion that there were reasonable grounds to
    arrest the appellant.

[44]

The motion judge was alive to the different assessments made by
    Detective Balint and Constable Storey.  The mere fact that Constable Storey did
    not believe there were reasonable grounds to believe there were firearms in the
    apartment did not mean that Detective Balints belief could not be reasonable. Constable
    Storeys assessment and the basis for that assessment were part of the larger
    evidentiary picture that the motion judge had to consider in determining
    whether Detective Balints belief that there were weapons in the apartment was
    a reasonable one.  The motion judge offered a full explanation for discounting
    to some extent Constable Storeys assessment and preferring the assessment of
    Detective Balint.  I see no error in her analysis.

Were there reasonable grounds to
    believe that the appellant had possession of any firearm found in the
    apartment?

[45]

The police could arrest the appellant only if there were reasonable
    grounds to believe that he was in possession, either alone or with Ms. Browne,
    of any firearms found in the apartment.  Possession, for the purposes of the
    criminal law, requires both knowledge of and control over the thing said to be
    possessed:
Criminal Code
s. 4(3);
R. v. Pham
(2005), 77 O.R.
    (3d) 401 (C.A.), affd 2006 SCC 26, [2006] 1 S.C.R. 940.

[46]

Although the motion judge used the somewhat general word connected to
    describe the relationship between the apartment and the appellant needed to
    establish possession, at para. 90, she also expressly and correctly instructed
    herself on the necessary elements of possession:  see Arrest Ruling, paras. 66,
    84.  Counsel for the appellant does not allege any legal error by the motion
    judge.

[47]

In concluding that the appellant was sufficiently connected to the
    apartment to provide reasonable grounds to believe that he was in possession of
    any firearm found in the apartment, the motion judge referred to the
    appellants close proximity to the apartment immediately before his arrest.  Detective
    Balint had reasonable grounds to believe that the appellant and Ms. Browne had
    just left the apartment and he had reasonable and probable grounds to believe
    that the appellant was on his way back to the apartment when Detective Balint
    gave instructions to arrest him.

[48]

The motion judge also referred to the relationship between the appellant
    and Ms. Browne.  They had been friends for some time and had been together when
    the appellant was arrested a year earlier.  Based on the police observations of
    them at 9:00 p.m. on June 1, Detective Balint reasonably concluded that they
    were involved in an ongoing romantic relationship.

[49]

The motion judge also referred to Ms. Brownes personal history and the
    nature of the investigation.  The police had found an arsenal of guns and
    ammunition.  Ms. Browne was a 23-year old with no criminal record.  The police
    reasonably concluded that she was probably not acting alone in assembling the
    weaponry found in her storage locker.  The appellant, a known criminal, with a
    close personal relationship with Ms. Browne, and a significant history
    involving firearms-related offences, was an obvious candidate to fill the role
    of Ms. Brownes partner in the possession of the weapons found in the locker.

[50]

The facts of this case demonstrate the need to examine the totality of
    the evidence said to provide reasonable grounds from the practical perspective
    of the officer making the decision.  An officer deciding to arrest necessarily
    brings to bear his or her personal experience in the assessment of the relevant
    factors.  While evidence that the appellant and Ms. Browne had a close personal
    relationship could not, standing alone, reasonably put the appellant in
    possession of any guns found in her apartment, that relationship could take on
    a different meaning when combined with Detective Balints reasonable belief
    that Ms. Browne was likely not acting alone in respect of her possession of the
    arsenal found in her locker, and Detective Balints knowledge that the
    appellant, unlike Ms. Browne, had a well-established history of firearms-related
    offences.  All these factors, taken together, painted a picture which could
    provide reasonable grounds to believe that the appellant was Ms. Brownes
    partner in the criminal enterprise relating to the guns found in the locker.  That
    inference justified the further belief that the appellant was in joint possession
    with Ms. Browne of any firearms found in her apartment.

[51]

The appellant has not shown that the motion judges findings were
    unreasonable or based on speculation.  On those findings, the arrest was
    lawful, the detention not arbitrary and the search reasonable.  The keys seized
    in the search were properly admitted into evidence.

Conclusion

[52]

I see no error in either of the motion judges rulings and would dismiss
    the appeal.

Released: DD  MAY 30 2016

Doherty J.A.

I agree E.A. Cronk J.A.

I agree H.S. LaForme J.A.

[1]
Various other arguments challenging the validity of the warrant were rejected
    by the motion judge.  None of these arguments were renewed on appeal.