



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.B., 2014 ONCA 527

DATE: 20140708

DOCKET: C55725

Rosenberg, Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.B.

Appellant

Mark Halfyard, for the appellant

Greg Skerkowski, for the respondent

Heard: March 24, 2014

On appeal from the convictions entered on April 26, 2012
    by Justice Brian Weagant of the Ontario Court of Justice, sitting without a
    jury.

Rosenberg J.A.:

[1]

The appellant young offender appeals his convictions by Weagant J. for
    numerous firearm and ammunition offences. The appellant raises two grounds of
    appeal. He submits that the trial judge erred in refusing to stay proceedings
    because of the delay in affording the appellant a bail hearing. Second, the
    appellant submits that the verdicts are unreasonable. For the following reasons,
    I would dismiss the appeal.

A.

THE BAIL HEARING DELAY

(1)

The Facts

[2]

Just after midnight on April 3, 2011, police executed a search warrant
    at the appellants home in Toronto. The appellant and another young man, K.A., were
    arrested. Firearms and ammunition were found in the bedroom that the appellant
    ordinarily occupied. I will refer in greater detail to the facts when I deal
    with the reasonableness of the verdicts. Later that day the appellant appeared
    at the Old City Hall Courthouse and the matter was adjourned to April 4. The
    adjournment was on consent. The appellant was not ready to proceed with the
    bail hearing at that time as his sureties were not available. The 17-year old
    appellant has no prior record.

[3]

On April 4, Crown counsel requested an adjournment of the bail hearing
    of the appellant and the co-accused to have the officer-in-charge available to
    testify and to have a guns and gangs Crown counsel available to take carriage
    of the matter. The justice of the peace adjourned the bail hearings for the
    appellant and his co-accused to Wednesday, April 6. The justice of the peace
    stated that he would attempt to protect April 6 to ensure that there was time
    to deal with the bail hearing. The justice of the peace was of the view that
    the bail hearing would take some time.

[4]

The proceedings on April 6 were delayed because Crown counsel did not
    arrive at court until 11:00 a.m. He explained that he had been looking for some
    material at another courthouse. He then went on to say that he was ready to
    proceed but did not think the bail hearing could be completed in the one day.
    Crown counsel was concerned that if the proceedings started but had to be
    adjourned, the adjournment might be lengthy because of the schedule of the
    justice of the peace. Counsel for the appellant stated that he did not believe the
    hearing would take more than a day but stated that he was fairly flexible this
    week and next week. Duty counsel, who was conducting the bail hearing for the
    co-accused, stated that she was also anxious to proceed. Both parties had their
    sureties present at the court.

[5]

At this point, the justice of peace stated that for any bail hearing
    that will last more than an hour and one-half or two hours there must be a
    special justice of the peace to conduct the hearing so as not to burden the
    regular bail court. Crown counsel stated that there was a directive from the
    administrative judge to that effect. The justice of the peace then stated that
    while he could start the bail hearing he was not available the next day or for
    the next two weeks. Crown counsel stated that he was not available the next two
    days. At this point, the justice of the peace suggested that they should
    follow the protocol and obtain a date for the bail hearing from the trial
    coordinator. The case briefly adjourned. When counsel returned, Crown counsel
    stated that they had obtained a date of April 14. Counsel for the appellant
    stated that he had one surety to call for the appellants bail hearing and that
    the appellant had a constitutional right to a bail hearing as soon as
    reasonably possible. He stated that he was available for the rest of the week
    and the following week, as well as April 14. The agent for the co-accuseds
    counsel stated that she understood that Friday, April 8 was available but that
    Crown counsel was not and could not find anyone to replace him. The justice of
    the peace stated that in light of the directive from the administrative judge,
    he would grant the adjournment to April 14.

[6]

The bail hearing for the appellant began on April 14. At the
    co-accuseds request, his bail hearing was adjourned to April 21 so that
    counsel would have an opportunity to deal with some material that had been
    disclosed by Crown counsel. The hearing of evidence and submissions finished at
    3:45 p.m. The justice of the peace required time to review the material and
    make the decision and asked that the matter be adjourned to Monday, April 18,
    if the parties were available. The matter was adjourned to April 18. On that
    date the justice of the peace gave very lengthy reasons and ordered that the
    appellant be released on conditions with his aunt as the surety.

[7]

The facts led at the bail hearing indicated that the police found two firearms
    in the appellants bedroom. Both firearms were loaded. The police also found an
    overcapacity magazine and ammunition in the residence. Crown counsel opposed
    release on the tertiary ground that detention was required to maintain
    confidence in the administration of justice. The justice of the peace found
    that this was not one of the rare cases where detention could be justified on
    the tertiary ground.

(2)

The Reasons of the Trial Judge

[8]

At the opening of the trial on February 1, 2012, the appellant applied
    for a stay of proceedings because of the delay in holding the bail hearing.
    Counsel made submissions as to whether there was a policy or directive from the
    Regional Senior Judge about special bail hearings. Counsel informed the trial
    judge that they had been unable to find any written directive or policy. The
    trial co-ordinator told counsel that if the matter is seen as a complex or
    lengthy matter it was advisable to schedule a special court date, especially if
    the matter could not be reached on the date that the person appears.

[9]

After reviewing the facts, the trial judge found that the appellants
    rights under the
Charter of Rights and Freedoms
were violated. He
    found that the justice of the peace should not have adjourned the bail hearing
    on April 6 to April 14. The trial judge pointed out that there was time in
    court on April 8 to hold the bail hearing and it should have gone ahead at that
    time. The trial judge found fault in the position of the Crown in not being
    able to proceed on April 8. The trial judge held that the Crown cannot deny a
    bail hearing because of the personal schedule of one Crown. As the trial judge
    stated, the matter should not have been adjourned to April 14 when on the
    evidence the appellant was ready to proceed with a bail hearing as early as
    April 4. The trial judge pointed out that had counsel for the appellant, not
    Mr. Halfyard, refused to consent to the adjournment and insisted that the bail
    hearing commence, an earlier bail hearing might have been obtained. The trial
    judge did, however, hold that it was the states responsibility to protect the
    young persons rights.

[10]

The
    trial judge applied the test as set out by the Supreme Court of Canada for a
    stay of proceedings as a remedy under s. 24(1) of the
Charter
. He
    found that there would be prejudice to the integrity of the justice system that
    would be manifested, perpetuated or aggravated through the conduct of the trial
    or going ahead with the case. The trial judge rejected the Crown submission
    that this was a one-time problem that would not happen again. He found that
    there was potential for recurrence. He referred to the supposed policy or
    practice direction that a special bail hearing is required if the hearing will
    take longer than two hours.

[11]

The
    trial judge considered whether there was an alternative remedy capable of
    redressing the prejudice. He found that at the opening of the trial there was
    no other remedy. While some remedy might become available at the end of the
    trial by reducing the sentence, such a remedy could only be granted if there
    was a finding of guilt. The trial judge noted that the only remedy sought by
    the appellant was a stay of proceedings and he was not seeking costs as a
    remedy.

[12]

The
    trial judge therefore turned to the final factor requiring a balance of the
    interests in favour of granting a stay against the interests that society has
    in having a final decision on the merits. The trial judge took into
    consideration that the appellant had no record and that the bail hearing should
    have been fairly straightforward. He pointed out that bail was contested only
    on the tertiary ground and indicated his view that it was a foregone conclusion
    that the appellant would have been released. However, the trial judge found
    that the most compelling aspect was the nature of the charges and the broader
    interest of the community in seeing that the charges were disposed of on their
    merits. He said as follows:

To a certain extent societys interest in the proper disposal
    of the litigation varies directly with the seriousness of the charges. These
    charges are on the serious end of the spectrum. In my view the communitys
    interest in seeing the proper disposal of such charges tips the balance.

[13]

The
    trial judge therefore refused to order a stay of proceedings. At the conclusion
    of the trial, having found the appellant guilty, the trial judge reduced the
    sentence that he might otherwise have imposed by six months in view of the
    violation of the appellants
Charter
rights.

(3)

Positions of the Parties

[14]

The
    appellant submits that the trial judge erred in refusing to order a stay of
    proceedings. He submits that the right to a bail hearing is fundamental. This
    is confirmed by provisions of the
Criminal Code
that require an
    accused be taken before a justice without unreasonable delay after arrest and
    limit the right of the Crown to obtain an adjournment. As a young person, this
    appellant had enhanced rights including the right to have his matter dealt with
    promptly. Section 29 of the
Youth Criminal Justice Act
S.C. 2002, c.1 also
    provides for enhanced rights of release. In this case, the trial judge erred in
    his assessment of the third criterion by focusing almost entirely on the
    seriousness of the offences with which the appellant was charged. The approach
    taken by the trial judge was inconsistent with the other remedial provision, s.
    24(2) of the
Charter
, which deals with exclusion of evidence, and
    where the seriousness of the offence must not be given disproportionate weight.
    Three factors required a stay of proceedings: that the appellant was a young
    person; that the Crown was responsible for the delay; and that there was a
    potential that an institutional policy mandating special bail hearings
    contributed to the delay.

[15]

The
    respondent submits that the 12 days from the date of the arrest until the bail
    hearing began must be carefully analyzed. The initial adjournment for one day
    and then the adjournment until April 6 were entirely justified. The case was a
    serious and complex one and initially involved two young persons. There was
    reason for some delay to ensure that the case was properly dealt with. The
    trial judge, having found that the test for a stay of proceedings was not made
    out, granted an appropriate remedy by reducing the sentence. When the trial
    judges reasons are read as a whole, it could not be said that he placed undue
    emphasis on the seriousness of the charges. There was a diminished problem of
    systemic delay since the delay seemed to have been the result of the calendar
    of a particular Crown counsel and misplaced reliance on a policy that did not
    exist. Finally, the trial judge was sensitive to the circumstances of the
    appellant as a young person.

(4)

Analysis

[16]

In
    a number of cases, most recently
R. v. Babos
, 2014 SCC 16, the Supreme
    Court of Canada has set out the test for when it is appropriate to stay
    proceedings as a remedy under s. 24(1), in circumstances other than a violation
    of the right to a trial within a reasonable time as guaranteed by s. 11(b) of
    the
Charter
. The remedy of a stay of proceedings is justified only in
    the clearest of cases, reflecting the fact that this is the most drastic of
    remedies available to a criminal court:
Babos
, at para. 30; and
R.
    v. Regan
, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53.

[17]

Whether
    an accused should obtain a remedy under s. 24(1) first turns on whether there has
    been a breach of the accuseds
Charter
rights. Where the
Charter
violation lies in a delay in holding a bail hearing, ss. 7, 11(d) or 11(e) can
    be implicated. In
R. v. Zarinchang
, 2010 ONCA 286, 254 C.C.C. (3d)
    133, this court found that unreasonably prolonged custody awaiting the holding
    of a bail hearing violates s. 11(e)  the right of any person charged with an
    offence not to be denied reasonable bail without just cause. In this case, a
    delay of 12 days before the appellant, with no prior record, could have his
    bail hearing was properly found by the trial judge to violate the
Charter
.
    Consistent with
Zarinchang
, this delay was a violation of s. 11(e).
    The difficult question is whether the trial judge erred in refusing to grant a
    stay of proceedings as a remedy under s. 24(1) because of this violation.

[18]

Generally,
    there are two categories of abuse of process cases: cases in which the state conduct
    compromises the fairness of the accuseds trial and cases in which the state
    conduct risks undermining the integrity of the judicial process. The
    appellants case falls within the second, or residual, category. As the trial
    judge recognized, in cases within this category the court must consider three
    requirements to determine whether a stay of proceedings is warranted. These
    requirements are summarized in
Babos
at para. 32, referring in
    particular to
Regan
:

1)       There must be prejudice to the accused's right to a
    fair trial or the integrity of the justice system that "will be
    manifested, perpetuated or aggravated through the conduct of the trial, or by
    its outcome" (
Regan
, at para. 54);

2)       There must be no alternative remedy capable of
    redressing the prejudice; and

3)       Where there is still uncertainty over whether a stay
    is warranted after steps 1) and 2), the court is required to balance the
    interests in favour of granting a stay, such as denouncing misconduct and
    preserving the integrity of the justice system, against "the interest that
    society has in having a final decision on the merits" (
ibid.
, at
    para. 57).

[19]

Where
    the accused relies upon the residual category, the first stage of the test
    requires the accused to show that the state has engaged in conduct that is
    offensive to notions of fair play and decency and that proceeding with the
    trial will be harmful to the integrity of the justice system. In
Babos
,
    Moldaver J. summarized this first requirement in these terms, at para. 35: state
    conduct will be so troublesome that having a trial - even a fair one - will
    leave the impression that the justice system condones conduct that offends
    society's sense of fair play and decency.

[20]

In
    this case, the trial judge found that this requirement was satisfied based on
    the practice direction that would necessitate an adjournment in every case
    where a bail hearing is more than two hours. On this appeal, there was some
    dispute as to whether there was such a practice direction but, on the evidence before
    him, the trial judge was entitled to make the finding that he did. In any
    event, little, if anything, turns on whether the practice direction actually
    existed. There can be no doubt that the justice of the peace believed that a
    special bail hearing was required, and remanded the appellant to custody on
    this basis. This state conduct is no less offensive to notions of fair play and
    decency in the event that it derived from a fictitious or misunderstood policy
    or practice direction, that could be implemented again.

[21]

In
    my view, there was other evidence to support the trial judges finding that the
    appellant satisfied the first requirement of the residual category. A number of
    circumstances that are not necessarily peculiar to this case could support the trial
    judges finding. Accepting that a special guns and gangs Crown had to be available
    to do the bail hearing, the circumstances did not demonstrate a commitment to
    ensuring such a Crown would be immediately available. The Crowns conduct failed
    to take into consideration the need, especially for young persons, for an early
    bail hearing. As the trial judge said: The fact that the declaration of
    principle in the
Y.C.J.A.
refers to special considerations which apply
    in respect to proceedings against young persons should compel all persons
    participating in the proceedings to guard against infringements.

[22]

The
    trial judge also found that there was no alternative remedy capable of
    redressing the prejudice to the appellants rights. The trial judges concern
    was that at this stage of the proceedings, the only alternative remedy, a
    reduction in sentence, was not available since the appellant had not yet been
    convicted. There does not appear to have been any suggestion that some other
    remedy, such as costs, would appropriately deal with the infringement, as was
    discussed in
Zarinchang
, at paras. 67-71 and
R. v. Brown
,
    2009 ONCA 633, 247 C.C.C. (3d) 11, at paras. 16-27. The trial judge rejected
    judicial condemnation of the abuse as an appropriate remedy. Although judicial
    condemnation of abuse may be an appropriate remedy in some cases, I cannot say
    that the trial judge erred in rejecting it in the context of this case. The
    need for expeditious bail hearings is reflected in s. 516 of the
Criminal
    Code
. The fact that, under this provision, no adjournment may exceed three
    clear days without the consent of the accused appears to have been ignored by
    the justice presiding on April 6 and, as pointed out by the trial judge, insufficiently
    pursued by counsel at that time.

[23]

Damages
    might have been an appropriate remedy to deter future breaches of the right to
    a prompt bail hearing:  see
Vancouver (City) v. Ward
, 2010 SCC 27,
    [2010] 2 S.C.R. 28, at para. 29. However, since the trial judge was in the
    provincial criminal court, he had no jurisdiction to award damages:
Ward
,
    at para. 58.

[24]

As
    is evident from his decision to consider the third requirement, the trial judge
    was obviously uncertain whether a stay was warranted. Although the trial judge
    did not articulate his reasons for this view, in my view the need for
    consideration of this third requirement was made out.

[25]

First,
    it was not obvious that the state conduct was so troublesome that having a fair
    trial would leave the impression that the justice system condones the conduct:
Babos
,
    at para. 35. It appears that the bail hearing could have been heard on April 8,
    but for Crown counsels schedule. There was no suggestion that a delay to April
    8 after an arrest on April 3 for serious charges was unreasonable. Realistically,
    the violation occurred because of the delay to April 14, a further delay of six
    days. This was a breach of the appellants rights, but it was not so obviously
    serious as to demand a stay of proceedings without considering the third
    requirement in
Babos
.

[26]

Second,
    in
Babos
, at para. 41, Moldaver J. suggests that the third balancing
    requirement must always be considered for the residual category:

When the conduct in question shocks the community's conscience
    and/or offends its sense of fair play and decency, it becomes less likely that
    society's interest in a full trial on the merits will prevail in the balancing
    process. But in residual category cases, balance must always be considered.

[27]

The
    appellants submissions about the trial judges treatment of the third
    requirement centred on his alleged overemphasis on the seriousness of the
    charges. In my view, the trial judge did not err. He considered all the
    relevant circumstances and his treatment of the seriousness of the charges as a
    factor was appropriate.

[28]

It
    is apparent from the trial judges reasons that he considered the relevant
    factors:

In [considering the third requirement] I am directed to look at
    the particulars of the case, the circumstances of the accused, the nature of
    the charges, and the broader interest of the community and having the
    particular charges disposed of on the merits.  Any factor can be a deciding
    factor when doing a balance. I keep in mind that the young person has no
    record, that the bail hearing in this matter should have been fairly
    straightforward.  Im saying it was a foregone conclusion that this young
    person was going to be released.

[29]

The
    trial judge proceeded to deal with what he considered the most compelling
    aspect of the balancing test: the nature of the charges and the broader
    interest of the community and seeing the charges disposed of on the merits.

[30]

The
    trial judges treatment of these factors is similar to the approach set out in
Babos
,
    at para. 41:

However, when the residual category is invoked, the balancing
    stage takes on added importance. Where prejudice to the integrity of the
    justice system is alleged, the court is asked to decide which of two options
    better protects the integrity of the system: staying the proceedings, or having
    a trial despite the impugned conduct. This inquiry necessarily demands
    balancing. The court must consider such things as the nature and seriousness of
    the impugned conduct, whether the conduct is isolated or reflects a systemic
    and ongoing problem, the circumstances of the accused, the charges he or she
    faces, and the interests of society in having the charges disposed of on the
    merits. Clearly, the more egregious the state conduct, the greater the need for
    the court to dissociate itself from it. [Footnote omitted]

[31]

In
    my view, the trial judge considered all the relevant factors. He was right to
    treat as important factors the seriousness of the charges and the broader
    community interest in having the charges disposed of on the merits. Absent an
    unreasonable conclusion, the weight to be attached to the various factors,
    including the seriousness of the offences, was a matter for the trial judge.

[32]

The
    appellant submits that the trial judge gave undue weight to the seriousness of
    the charges. The appellant further submits that an analysis similar to that
    taken with exclusion of evidence under s. 24(2) should be adopted. I disagree. That
    approach is inconsistent with the approach taken by the Supreme Court of
    Canada. As the excerpt from para. 41 of
Babos
shows, the seriousness
    of the charges is a proper consideration. The balancing that takes place as a
    result places an onerous burden on the accused, as held in
Babos
, at
    para. 44:

Undoubtedly, the balancing of societal interests that must take
    place and the "clearest of cases" threshold presents an accused who
    seeks a stay under the residual category with an onerous burden. Indeed, in the
    residual category, cases warranting a stay of proceedings will be
    "exceptional" and "very rare" (
Tobiass
, at para.
    91). But this is as it should be. It is only where the "affront to fair
    play and decency is disproportionate to the societal interest in the effective
    prosecution of criminal cases" that a stay of proceedings will be
    warranted (
R. v. Conway
, [1989] 1 S.C.R. 1659, at p. 1667).

[33]

Justice
    Moldaver emphasized the importance of the nature of the charges when
    considering the application of the accused for a stay in
Babos
, at
    para. 69:

This balancing requires weighing the seriousness of the
    misconduct against the societal interest in having a trial. At this stage, the
    very serious nature of the charges facing the appellants - 22 charges
    concerning firearms, illegal drugs, and organized crime - looms large. Society
    has a profound interest in seeing justice done by having the guilt or innocence
    of the appellants determined through a full trial on the merits. When the
    impugned misconduct - threats uttered more than a year before trial by a Crown
    no longer on the case - is weighed against society's interest in a trial, I am
    satisfied that this is not one of the "clearest of cases" where the
    exceptional remedy of a stay of proceedings is warranted. [Emphasis added.]

[34]

Undoubtedly
    this appears to lead to inconsistent results depending upon whether the accused
    is applying for relief under s. 24(1) or (2). In accordance with the decisions
    in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, and
R. v.
    Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, the seriousness of the offence
    plays a much diminished role in the s. 24(2) analysis. The court described the
    seriousness of the offence as follows in the two cases, beginning with
Grant
,
    at para. 84:

It has been suggested that the judge should also, under this
    line of inquiry, consider the seriousness of the offence at issue. Indeed,
    Deschamps J. views this factor as very important, arguing that the more serious
    the offence, the greater society's interest in its prosecution (para. 226). In
    our view, while the seriousness of the alleged offence may be a valid
    consideration, it has the potential to cut both ways. Failure to effectively
    prosecute a serious charge due to excluded evidence may have an immediate
    impact on how people view the justice system. Yet, as discussed, it is the
    long-term repute of the justice system that is s. 24(2)'s focus. As pointed out
    in
Burlingham
, the goals furthered by s. 24(2) "operate
    independently of the type of crime for which the individual stands
    accused" (para. 51). And as Lamer J. observed in
Collins
,
    "[t]he
Charter
is designed to protect the accused from the
    majority, so the enforcement of the
Charter
must not be left to that
    majority" (p. 282). The short-term public clamour for a conviction in a
    particular case must not deafen the s. 24(2) judge to the longer-term repute of
    the administration of justice. Moreover, while the public has a heightened interest
    in seeing a determination on the merits where the offence charged is serious,
    it also has a vital interest in having a justice system that is above reproach,
    particularly where the penal stakes for the accused are high.

In
Harrison
the court held, at para. 34:

While the charged offence is serious, this factor must not take
    on disproportionate significance. As noted in
Grant
, while the public
    has a heightened interest in seeing a determination on the merits where the
    offence charged is serious, the public also has a vital interest in a justice
    system that is beyond reproach, particularly where the penal stakes for the
    accused are high.

[35]

The
    use of these different tests can appear to produce anomalous results. Under s.
    24(2), where the seriousness of the offence is not to take on disproportionate
    significance, the evidence may be excluded, typically leading to an acquittal
    in most cases. Under s. 24(1) and the
Babos
test, a stay of
    proceedings - the functional equivalent of an acquittal - may be highly
    unlikely.

[36]

These
    inconsistent results can only be explained because the courts are concerned
    with different interests. Under s. 24(1) there are a variety of remedies
    available, only some of which will lead to a stay of proceedings. A stay of
    proceedings is exceptional because it is intended to remedy conduct that was
    not used to obtain evidence but which nevertheless is such an affront to fair
    play and decency as to be disproportionate to the societal interest in the
    effective prosecution of the case.

[37]

In
    contrast, s. 24(2) is concerned with the manner in which the evidence was
    obtained and with the single remedy of exclusion of the evidence. The tests
    from the
Grant
and
Harrison
cases require the court to
    consider, as the first inquiry, the seriousness of the conduct that lead to the
    obtaining of the evidence and, at the second inquiry, the seriousness of the
    breach from the perspective of the accused. The court is not considering
    whether the state conduct shocks the communitys conscience, as under s. 24(1):
Babos
at para. 41.

[38]

Further,
    while both ss. 24(1) and (2) engage the court in a consideration whether to
    dissociate itself from the impugned conduct, the focus is different. Under s.
    24(2), the courts exclude the evidence, in part, because of the need to
    dissociate themselves from the fruits of the unlawful conduct:
Grant,
at para. 72. However, under s. 24(1), the court is not considering the fruits
    of the unlawful conduct; under the residual category, the evidence has been
    obtained and the charge can proceed through a fair trial. The court is not
    providing redress to accused for wrongs done to them:
Babos,
at para.
    39.

[39]

I
    have not been persuaded that the trial judge gave unreasonable emphasis to the
    seriousness of the charges. He weighed the various factors. That the case
    involved a 17-year old who had no prior record and who would probably have been
    released had to be given considerable weight. However, some delay in the bail
    hearing was likely given the seriousness of the charges. The bail hearing
    itself took a day to be heard and then was adjourned to give the justice an
    opportunity to consider the decision. The lengthy delay before the bail hearing
    began was unacceptable, but it was open to the trial judge to balance all the
    relevant factors and decide that the case should proceed on its merits.

[40]

I
    would not give effect to this ground of appeal.

B.

The REASONABLENESS OF THE VERDICTs

(1)      The Facts


[41]

On
    the evening of April 2, 2011, around 9:00 p.m., the police began watching the
    appellants home in preparation for executing a search warrant. At 10:40 p.m.,
    they saw a light go on and off in the main floor bedroom. Then, 20 minutes
    later, a man left the house.  The police stopped him and learned that he was
    D.P., one of the appellants friends. Just after midnight, the Emergency Task
    Force executed the warrant. Inside the house was the appellant, his co-accused
    K.A., the appellants mother and his four young siblings. After the ETF cleared
    the house, other officers searched its three floors. On the upper floor were
    three bedrooms and a bathroom. On the main floor was another bedroom, a kitchen
    and living room/dining room. The basement had couches, a television set and a
    lot of clothing. The entire house appeared cluttered and chaotic.

[42]

The
    police found the firearms in a closet in the main floor bedroom, where the
    police had earlier seen the light go on and off. The closet had bi-folding
    doors, which were open when the search officers entered. The handgun was found
    inside a grey shoe box in clear view on a shelf. The handgun was loaded. Also inside
    the box was a plastic shopping bag containing ammunition, extra magazines, a
    set of handcuffs and an extendable baton. A loaded rifle was at the back of the
    closet leaning against a wall, behind hanging clothes, along with some bags and
    other clutter. The rifle was not visible looking directly at the closet with
    the doors opened. In the bedroom, the police found a backpack that contained
    personal effects and a prescription in the name of K.A. There was a Canadian
    passport in the dresser in the name of another person and some identification
    relating to three other people, including the appellants cousin.

[43]

The
    appellants mother testified for the prosecution. The main floor bedroom
    belonged to the appellant and she rarely went inside it. She testified that she
    did not know there were other people in the house the night of the police raid,
    including the co-accused K.A. She arrived home from work around 8:00 p.m. and
    went upstairs to watch a movie with the younger children. Sometime between 8:30
    and 9:00 p.m., the appellant had come upstairs, told her that he felt sick and
    went to sleep in his sisters room because it was closer to the bathroom. The
    appellants mother checked on him several times and found him asleep in his
    sisters bedroom. She learned D.P. was present when he knocked on the bathroom
    door around 10:00 p.m. She went to the kitchen around 10:45 p.m. She testified
    that people could have come in or out of the house without her knowing.

(2)      The Reasons of the Trial Judge

[44]

The
    trial judge found that the shoe box containing the revolver was in plain view
    of anyone using the closet. The closet contained clothing suitable for a young
    male. The trial judge inferred that the appellant knew of the storage of the
    weapons and consented to their being stored in the closet. He rejected the
    theory that one of the other young men stored the weapons in the closet while
    the appellant was asleep in his sisters bedroom. The weapons had to have been
    in the house before the police began surveillance at 9:00 p.m. If anyone else
    brought the firearms into the house, it would have to have been with the
    appellants permission. He found as follows:

The speculation in which I have to engage is that the invitee
    brought these weapons into the house unbeknownst to the accused, knew that he
    would abandon control of his room by going upstairs to sleep, and then place
    the contraband in his closet without his consent. This is now nothing but
    conjecture. There is an entire lack of logic in this conclusion, because anyone
    wanting to hide weapons in someone elses house without their knowledge would
    not put them in plain view, as was the case here. Thus, I cannot conclude that
    the alternative possible conclusion is rational.

The only rational conclusion that can be drawn is that S.B. was
    in possession of the weapons and the ammunition. There will be finding of guilt
    on the 11 outstanding charges.

(3)      Analysis

[45]

In
    my view, the trial judges conclusion that the appellant had possession of the
    weapons, ammunition and other contraband was supported by the evidence and is
    not unreasonable. The uncontradicted evidence was that these items were found
    in the appellants bedroom. There was no basis for finding that the appellants
    mother or his younger siblings had brought these items into the house. The
    other young men were present with the consent and permission of the appellant.
    It could be inferred that the clothing found in the closet belonged to the
    appellant and not any of his younger siblings. The rifle, as shown in
    photographs admitted at trial, is a large gun. The box containing the handgun
    was in clear view. As counsel for the respondent points out, these were not
    small items that could have been easily secreted by a casual visitor. These
    were large, dangerous goods in the appellants bedroom that were easily visible
    to anyone with regular use of the closet. As trial counsel for the appellant
    fairly conceded, if the appellant went into the closet he could not miss them.

[46]

The
    trial judge was entitled to reject the alternative theory that someone else had
    placed the materials in the closet without the consent of the appellant. It is
    not reasonable to believe that, without the appellants consent, someone else
    would have had the opportunity to bring these items into the house and hide
    them in the appellants bedroom. And, if they wanted to hide the weapons from
    the appellant, they would not have placed them in plain view of anyone,
    especially the appellant, using the closet.

[47]

I
    would not give effect to this ground of appeal.

C.

DISPOSITION

[48]

Accordingly,
    I would dismiss the appeal.

Released: MR July 8, 2014

M. Rosenberg J.A.

I agree. E.A. Cronk
    J.A.

I agree. R.G.
    Juriansz J.A.


