



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gignac, 2020 ONCA 42

DATE: 20200128

DOCKET: C64528

Pardu, Brown and Huscroft JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Steven
    Gignac

Appellant

Daniel Santoro and Nicola Fernandes, for the appellant

Jeremy Streeter, for the respondent

Heard: January 6, 2020

On appeal from the conviction entered on August 1, 2017 and the
    sentence imposed on February 28, 2018 by Justice Graham Wakefield of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of drug offences related to drugs found in a
    safe in the living room of his house where he lived with his wife. The
    appellant submits that the trial judge erred in failing to exclude a statement he
    made shortly after police violated his rights to counsel under section 10(b) of
    the
Canadian Charter of Rights and Freedoms
.

[2]

The trial judge concluded that the appellant was not a credible witness
    on the
Charter
motion. On that basis, he
    dismissed the appellants application to exclude the evidence. He did not
    expressly deal with the argument that the officers evidence alone was sufficient
    to establish
Charter
violations and result in
    the exclusion of the evidence and it falls to this court to consider that
    argument.

[3]

Upon arrest at 3:01 a.m. on January 22, 2016, the appellant indicated he
    did not wish to give a statement until after he had consulted counsel. The
    arresting officer continued to read from a pre-printed card to ask twice
    whether the appellant wished to make a statement. The appellant indicated that
    he did not.

[4]

The appellant was handcuffed and placed in the back of a van to await
    transport to the Durham police station. Shortly after, the appellant asked the
    arresting officer whether his wife was going to be arrested. The arresting
    officer told the appellant that there [was] a search warrant being
    executed...at his home in Oshawa and that he couldnt really give an answer
    as to whether or not [the appellants] wife was actually going to be arrested.
    The appellant then said there was a safe in the living room of his home, the
    safe had cocaine in it, and the cocaine was his. The appellant also advised the
    officer of the combination to the living room safe where the drugs were found.

[5]

The appellant submits that the officer violated his s. 10(b)
Charter
rights because 1) the officer asked twice
    whether the appellant wanted to make a statement, even though the appellant said
    he wanted to speak to counsel; and 2) the officers truthful response to the appellants
    question amounted to an elicitation of a statement.

[6]

The Crown concedes that the officer committed the error described in
R. v. G.T.D.
, 2018 SCC 7, [2018] 1 S.C.R 220 (
G.T.D.
), by twice asking the appellant whether he
    wished to make a statement after the appellant indicated he wished to consult
    counsel. However, the Crown disagrees that the officers truthful response to
    the appellants spontaneous question could in any way be construed as an elicitation
    of a statement from the appellant.

[7]

The Crown concedes that the temporal connection between the admitted
Charter
violations and the appellants incriminatory
    statements is sufficient to require a consideration of s. 24(2) of the
Charter
.

[8]

The Crown submits that the following factors
favour
admitting the appellants statements:

·

the individual good faith of the officer
    who read the rights to counsel and posed the questions from a pre-printed card
    some two years before the decision in
G.T.D
.;

·

the absence of any causal connection between the
Charter
violations and the incriminatory statements made;

·

the
Charter

violations negligible effect on the appellants
Charter
protected interests;

·

the reliability of the evidence; and

·

the strong societal interest in a trial on the
    merits.

Analysis

[9]

The appellant spontaneously asked police if his wife was going to be
    arrested. The officer answered truthfully that a search warrant was then being
    executed at the appellants home and that the officer did not know whether the
    appellants wife was to be arrested. This truthful answer cannot be construed
    as an attempt by the officer to elicit evidence from the appellant. The
    officers answer to the appellants question did not therefore violate the
    appellants s. 10(b)
Charter
rights.

[10]

However,
    we agree that the
Charter
violations conceded
    by the Crown and their temporal connection to the incriminatory statements,
    which the Crown also concedes, are sufficient to engage s. 24(2) of the
Charter
:
R. v. Plaha
(2004)
, 188 C.C.C. (3d) 289 (Ont. C.A.) at para. 45.

[11]

We
    therefore turn to whether admitting the evidence obtained in breach of the
Charter
would bring the administration of justice into
    disrepute. This requires assessing three factors: 1) the seriousness of the
Charter
infringing state conduct; 2) the impact on the
Charter
protected interests of the accused; and 3) societys
    interest in an adjudication of the case on the merits:
R.
    v. Grant
, 2009 SCC 32, [2009] 2 SCR 353 at para. 71.

[12]

In
Grant
at paras. 91-98, the Supreme Court of
    Canada pointed out that courts have tended to exclude statements obtained in breach
    of the
Charter
. Having said that, the court also
    noted at para. 96 that particular circumstances may attenuate a
Charter
breachs impact on the accuseds protected
    interests, for example:

[I]f an individual is clearly
    informed of his or her choice to speak to the police, but compliance with s.
    10(
b
) was technically defective at either the
    informational or implementational stage, the impact on the liberty and autonomy
    interests of the accused in making an informed choice may be reduced. Likewise,
    when a statement is made spontaneously following a
Charter
breach, or in the exceptional circumstances where it can confidently be said that
    the statement in question would have been made notwithstanding the
Charter
breach, the impact of the breach on the
    accuseds protected interest in informed choice may be less. [Citation
    omitted.]

Seriousness of the
Charter
infringing conduct

[13]

There
    is no real dispute that the arresting officer acted in good faith. We
    acknowledge that the officers pre-printed card, which indicated what was to be
    read to an arrested person, raises concerns about systemic failures to protect
Charter
rights. However, as the Alberta Court of Appeal
    noted, there was a degree of legal uncertainty on this issue that tempered the
    seriousness of the breach:
R. v. G.T.D.
, 2017 ABCA 274, 57 Alta. L.R. (6th) 213,
    at para. 93 (
G.T.D.
(ABCA))
. Although
G.T.D.
was based on long established Supreme Court of
    Canada jurisprudence, the decision only brought clarification some two years
    after the arrest in this case.

Impact on the appellants
Charter
protected interests

[14]

The
    police must hold off from attempts to elicit evidence from an accused until he
    or she has had a reasonable opportunity to consult counsel:
G.T.D.
at para. 2. This case is different from
G.T.D.
,
in which the accused made incriminatory statements in response to the questions
    posed from the flawed standard caution.

[15]

Here,
    there was no causal connection between the
Charter
violations and the appellants incriminatory statements. The appellant clearly
    understood that he did not have to speak to police and asserted his right to
    consult counsel. He refused to make any statement after asserting his wish to
    speak to counsel, despite the two questions about whether he wished to make a
    statement after that assertion. The breaches up to that point had no impact on
    his
Charter
protected interests.

Societal interest in a trial on the merits

[16]

There
    is no doubt the statement was voluntary. It was reliable evidence. The
    combination opened the living room safe in which the drugs were found. The
    statement was strong evidence of the appellants knowledge of the contents of
    the safe and control of those contents. Twelve 75 microgram per hour Fentanyl
    patches, as well as cocaine and other drugs, were in the safe. This court has
    reiterated the dangers that Fentanyl poses to the community on several
    occasions.

[17]

Balancing
    these factors, we conclude that admitting the appellants statement would not
    bring the administration of justice into disrepute. The appeal from conviction
    is dismissed.

[18]

The
    appeal from sentence concerns the sentences imposed for offences related to
    drugs found in the appellants car when he was arrested. In the event the
    conviction appeal related to the drugs found in the living room safe is
    dismissed, the appellant does not pursue the sentence appeal. Accordingly, the
    appeal from sentence is also dismissed.

G. Pardu J.A.

David Brown J.A.

Grant Huscroft J.A.


