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Ont. C.A. dismisses an appeal from drug convictions, upholding the trial judge’s s. 24(2) ruling after a serious but unintentional s. 10(b) breach.
Bail pending appeal granted because the applicant satisfied s.679(3): his appeal is not frivolous (Charter grounds carry moderate weight and could realistically lead to acquittal), he is not a flight risk and does not pose a substantial public safety risk, and public confidence in the administration of justice supports release; the agreed form bail order may issue with the Crown's GPS warning appended.
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The application judge did not err: because the appellant failed to argue or tender the Statement or evidence linking it to the s.8 breach, there was no evidentiary basis to establish the requisite nexus under s.24(2); the judge therefore properly assessed exclusion of the Statement on the s.10(b) basis before her and declined to exclude it, and the appeal is dismissed.
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The appeal is dismissed because there was no error in the trial judge’s s.24(2) Grant analysis and the discretionary decision to admit the evidence should not be disturbed, so the convictions are upheld.
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The court dismissed a s. 24(2) Charter application to exclude two newspaper PDFs found on the accused’s phone, finding the breaches inadvertent and technical.
The trial judge did not err in her Grant analysis; the one-year delay in filing the s.489.1 report was explained as officer oversight which reduced the seriousness of the breach, the impact on the appellant's Charter interests was limited because the shotgun could not lawfully be returned and the items were required for trial, and on balance the Grant factors favoured admission of the evidence, so the s.24(2) application was properly dismissed.
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Court held police breached s.10(b) by failing to provide a reasonable immediate opportunity to contact retained counsel (single voicemail with no follow-up and 30-hour delay); applying the correct Grant analysis exclusion was required and the fanny pack and its contents were excluded, resulting in quashed convictions and acquittals on drug trafficking and proceeds counts. The Court rejected the appellant's claim that the trial judge misallocated the burden regarding excessive force, finding the trial judge made positive findings that the Crown satisfied its onus that the force used was necess…
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The search of the backpack was a lawful and reasonable inventory search incident to the lawful detention and planned towing of the vehicle under the Motor Vehicle Act given the observable defects, lack of insurance, recent dealings of the driver with police, visible cash and officer safety concerns; therefore there was no s.8 breach and the backpack contents, the defendant's voluntary statement and the expert evidence are admissible. Alternatively, even if the search were unlawful any Charter breach was minor and the Grant factors justify admission.
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The court held that Charter breaches during a 911 safety search were sufficiently linked to later seized evidence, but admitted the evidence under s. 24(2).
The trial judge erred by treating the issue as one of detention rather than whether Officer Manafo had reasonable and probable grounds to arrest when he left his cruiser; the objective facts observed did not support a reasonable belief of a drug transaction or grounds to arrest, so the arrest violated s.9; applying the Grant factors the breach was serious and the drugs must be excluded, therefore convictions quashed and an acquittal entered.
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