



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Gonzalez, 2012
    ONCA 861

DATE: 20121206

DOCKET: C53320

Rosenberg, MacPherson and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Adrian Gonzalez

Respondent

Deborah Krick, for the appellant

Paolo Giancaterino and Marco Sciarra, for the respondent

Heard: December 3, 2012

On appeal from the acquittal entered on January 24, 2011
    by Justice Charles T. Hackland of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

The Crown appeals the acquittal of the respondent on five gun-related
    charges. The acquittals flowed from a
Charter
ruling made by the trial
    judge during the trial. The trial judge determined that various members of the
    Ottawa police force arbitrarily detained the respondent during a roadside
    vehicle stop contrary to s. 9 of the
Charter
and failed to properly
    advise the respondent of his right to counsel contrary to s. 10(b) of the
Charter
.
    The Crown also contends that the trial judge erred by excluding the evidence
    relating to the gun seized from the vehicle being driven by the respondent and
    the videotaped statement made by the respondent at the police station pursuant
    to s. 24(2) of the
Charter
.

[2]

On the
Charter
s. 9 issue, the appellant acknowledges that a trial
    judges determination as to the purpose of a traffic stop is a finding of fact
    and that this precludes the Crown from appealing a finding of arbitrary
    detention in many instances: see
R. v. Coates
(2003), 176 C.C.C. (3d)
    215 (Ont. C.A.) at para. 19. However, the appellant submits that in this case
    the trial judge committed three errors of law in his s. 9 analysis: (1) he
    improperly considered the arrival of other Direct Action Response Team officers
    as a basis to reject the evidence of the police officer who stopped the
    respondents vehicle; (2) he erred in holding that a valid
Highway Traffic
    Act
(
HTA
) stop required some articulable cause relating to the
    drivers own conduct; and (3) he failed to consider the totality of the
    evidence before making a factual finding that traffic safety was not a purpose
    for the stop.

[3]

We do not accept this submission. The factors above relating to the
    number and role of the police during the roadside stop and the totality of the
    evidence are, in our view, factual issues and, therefore, not subject to
    judicial review. In any event, the trial judge did consider the totality of the
    evidence but, having done so, he disbelieved the police officers testimony.

[4]

As to the second point, the trial judge did not suggest that the police
    needed an articulable cause in order to make an
HTA
stop. Rather, the
    trial judge reviewed the evidence and concluded that the stop was not made for
    an
HTA
purpose but rather was a pretext because of suspicions of
    gang-related criminal activity.

[5]

On the
Charter
s. 10(b) issue, in our view it is unnecessary to
    address this issue because the trial judge made a separate ruling that the
    respondents video statement was inadmissible on voluntariness grounds apart
    from the section 10(b) issues under discussion in this motion. The Crown has
    not appealed the voluntariness ruling. Accordingly, since the respondents
    statement must remain inadmissible, the
Charter
s. 10(b) issue becomes
    redundant. We decline, therefore, to comment on the trial judges analysis of
    this issue, including factors relating to the length of time between the
    initial s. 10(b) warning and the taking of the video statement, the increase in
    the number of charges in the same time frame, and the existence of a minimum
    sentence for one of the additional charges.

[6]

On the s. 24(2) issue, against the backdrop of an arbitrary detention
    and an inadmissible statement, we can see no basis for interfering with the
    trial judges application of the factors set out in
R. v. Grant
(2009), 245 C.C.C. 1 (S.C.C.).

[7]

The appeal is dismissed.

M. Rosenberg J.A.

J.C. MacPherson J.A.

S.E. Pepall J.A.


