R. v. Yaghoubi-Araghi, 2025 ONCA 314
[22] The appropriate appellate approach to a trial judge’s analysis of the Grant factors is one of deference. As this court stated in R. v. Hamouth, 2023 ONCA 518, 167 O.R. (3d) 682, at para. 37:
A trial judge’s assessment of the Grant factors in light of the facts must be afforded “considerable deference by an appellate court”: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 87. Where the trial judge has considered all proper factors and has not made any unreasonable findings, then appellate courts must show deference to the “ultimate determination”: Grant, at para. 86; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.
[26] The trial judge was aware of the police officer’s experience and carefully considered the circumstances. She was clearly aware of his incorrect understanding of the constitutional tests. Although she characterized P.C. Bigger’s explanation of the fast-moving situation as perspective-giving but inadequate on the question of delay on its own, she completely rejected the suggestion that there was any acceptable explanation for his egregious failure to hold off questioning. The fact that she did not call the problem “systemic” does not mean she minimized it. It is not necessary for infringing police conduct to be part of a systemic problem for such conduct to rise to the serious breach category, as the absence of a systemic problem is not mitigating: R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 48; R. v. Whittaker, 2024 ONCA 182, 435 C.C.C. (3d) 221, at paras. 44-45.
[27] A systemic disregard by a police force of their constitutional obligations may make a serious breach “worse still”: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 92. But here there was no evidence that delays in the provision of rights to counsel or failures to hold off questioning were repeatedly committed by P.C. Bigger or members of his police force in a fashion similar to the systemic breaches by the Peel Regional Police identified in Thompson.
[28] With respect to the second Grant factor, the impact of the breaches, the appellant submits that the trial judge did not expressly consider the “lifeline" interest protected by the right to counsel. We note however, that the delay in advising of the right to counsel in this case was found to be 6 to 10 minutes, and that no argument was made that there was a delay in implementing the right to counsel once the appellant was advised of the right. This case is not similar to those in which the “lifeline” interest was determinative, such as Jarrett (a 30-hour delay), or R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 (a six-hour delay).
[29] Two matters that the case law has confirmed lessen the negative impact of a Charter breach were present in this case. The first is that the Crown would not rely on any statements made by the appellant. Such voluntary exclusion lessens the impact of a breach: Hamouth, at paras. 42-45, 48-49; R. v. Truong, 2025 ONCA 69, at paras. 57-58. The second is the absence of a causal connection between the Charter-infringing conduct and the discovery of the evidence sought to be excluded. The handgun and drugs had been discovered by a lawfully performed search rather than as a result of the s. 10(b) breaches. This also lessens the impact of those breaches: Grant, at para. 122; Rover, at para. 43; Hamouth, at para. 54-55; Truong, at paras. 52-53.
[30] The appellant also points out that the trial judge concluded that the second factor weighed in favour of inclusion, whereas in R. v. Zacharias, 2023 SCC 30, 487 D.L.R. (4th) 571, at para. 75, Rowe and O’Bonsawin JJ. expressed the view that neither of the first two Grant factors could ever favour admission – at most they could weakly favour exclusion. In this case, the trial judge’s mode of expression, which is also used in jurisprudence of this court, does not warrant interference with the result she reached. The point she was making was essentially the one made in Grant, at para. 119, that where evidence could have been obtained in any event without Charter-infringing conduct, the impact of the breach is lessened and “admission [is] more likely”.
[31] The appellant did not contest the trial judge’s view that the third Grant factor favoured admission. Indeed, it did so strongly. The handgun and drugs were real, reliable, and crucial to the Crown’s case and there was a strong societal interest in the adjudication of the case on its merits.
[32] Nor is there any reversible error in the balancing the trial judge engaged in.
[33] In summary, we see no error in the trial judge’s assessment of any of the Grant factors, or in the ultimate weighing, that would justify appellate interference.
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