



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jarrett, 2021 ONCA 758

DATE: 20211026

DOCKET: C65726

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Melville Jarrett

Appellant

Riaz Sayani, for the appellant

Amanda Hauk, for the respondent

Heard: April 19, 2021, by video conference

On appeal from the conviction entered by Justice Robert
    B. Reid of the Superior Court of Justice on March 7, 2018.

Zarnett J.A.
:

INTRODUCTION

[1]

The appellant appeals his convictions for assaulting a police officer;
    failing to comply with a recognizance; possession of cocaine, oxycodone
[1]
, and hydromorphone
    for the purpose of trafficking; and possession of proceeds of crime. The appeal
    centres on the trial judges refusal
[2]
to stay charges or exclude evidence as a result of what the appellant contends
    were breaches of his protected rights under the
Canadian Charter of Rights
    and Freedoms
.

[2]

The trial judge dismissed the appellants application to stay
    proceedings on the basis that excessive force was used by police when he was
    arrested, thus violating his rights to life, liberty and security of the person,
    and to not be subjected to cruel and unusual punishment, under ss. 7 and 12,
    respectively, of the
Charter
. The appellant argues that the trial
    judge misallocated the burden of proof relating to whether excessive force was
    used, fatally tainting his conclusion that there was no
Charter
breach. He submits that the question of whether there was a violation of these
Charter
rights should be re-heard, and that the convictions for assaulting a police
    officer (which followed from the same evidence considered on the stay
    application) and breach of recognizance should be set aside and a new trial
    ordered.

[3]

The appellant also submits that the trial judge, after finding that
    there had been a violation of the appellants right, following his arrest, to
    retain and instruct counsel without delay under s. 10(b) of the
Charter
,
    erred in refusing to exclude evidence discovered by the police at the scene of
    the arrest. Since that evidence was the basis of the convictions for drug
    trafficking and possession of proceeds of crime, he asks that those convictions
    be set aside and acquittals entered.

[4]

I would not give effect to the argument that the trial judge erred in
    his approach to whether there was a breach of the appellants ss. 7 and 12
    rights. Contrary to the appellants argument, reading the trial judges reasons
    as a whole, he did not actually decide the matter by applying an incorrect
    burden of proof. He accepted the evidence proffered by the Crown, considered
    whether the force used was reasonable, and concluded that the force used was
    not excessive in the circumstances. His findings show that he concluded that
    what was the Crowns evidentiary burden was satisfied.

[5]

I would, however, allow the appeal from the drug trafficking and
    proceeds of crime convictions and substitute acquittals on those charges. As
    the trial judge noted, there was little dispute about the facts relevant to the
    s. 10(b) breach. The trial judge found that there had been a breach of the
    appellants right to counsel since although the police had made an initial
    effort  leaving a voicemail message with the appellants counsel of choice  they
    did not follow up or make any further efforts, leaving the appellant with no
    contact with counsel for 30 hours following his arrest, 20 of which he spent
    handcuffed to a hospital bed. As the trial judge also noted, whether exclusion
    of evidence was warranted turned on how the law applied to those facts. In my
    view, the trial judges analysis of the factors relevant to exclusion of
    evidence, set out in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353,
    was legally flawed. Performing the correct analysis, the evidence seized at the
    scene of the arrest ought to have been excluded under s. 24(2) of the
Charter
as a remedy for the s. 10(b) breach.

BACKGROUND

A.

The Arrest

[6]

On June 25, 2015, three plainclothes Niagara Regional Police detectives
    in an unmarked police car pulled up next to the appellants vehicle at an
    intersection in St. Catharines. The officers saw the appellant using a cell
    phone. They directed the appellant to pull his vehicle over to the side of the
    street. The appellant complied. Meanwhile, a fourth officer, in uniform,
    arrived at the scene.

[7]

One of the officers requested identification from the appellant and the
    three passengers in his vehicle. The appellant provided his drivers licence
    and registration in response to the request. Two of the officers performed
    database searches and learned that the appellant was on bail and a term of his
    release was to not possess a cell phone if it had not been registered with the
    Niagara Regional Police. As the cell phone had not been registered, the
    appellant was advised by one of the officers that he was being placed under arrest,
    and was asked to get out of his car.

[8]

As the trial judge noted, the circumstances of the arrest from that
    point forward were the main factual dispute between the parties. He described
    the evidence of the appellant and that of the police officers as diametrically
    opposed.

[9]

The appellant testified that as he got out of the car, he stumbled. A
    fanny pack he was wearing was caught in the seatbelt and he reached around to
    take it off and threw it back into the car. As he stumbled out of the car, the
    police officers did the following: administered a knee strike to his chest,
    causing excruciating pain; administered a knee strike to his head; wrestled him
    to the ground; tasered him three times; held him on the ground; and handcuffed
    him. He denied ever resisting the police or fighting with them.

[10]

The appellants girlfriend, Stacy Lamb, who was one of the passengers in
    his car, also testified. The trial judge noted that Ms. Lamb did not see
    exactly what happened. She said that the appellant stumbled as he got out of
    the car, that he fell into one of the officers who hit him multiple times,
    including a knee strike to the chest, and that the appellant was tasered three
    times and pepper sprayed two or three times. She believed the police
    incapacitated the appellant for no reason. She said that she had asked the
    appellant for the fanny pack before the officer returned to the car to tell the
    appellant he was under arrest, and that when he gave it to her, she tried to
    hide it so that the police would not find it. She testified that she had given
    an incorrect statement to the police on the day of the arrest, to the effect
    that the appellant had thrown it at her and that she did not know what to do
    with it and had panicked.

[11]

The police officers gave a different version of the events.

[12]

Det. DiFranco was the officer who took the licence and registration from
    the appellant and returned to arrest him. He described the appellant as
    aggressive and confrontational. He testified that as the appellant was getting
    out of his car, he reached for a fanny pack around his waist, leading Det.
    DiFranco to reach for it as well due to safety concerns, as he did not know
    what it contained. Det. DiFranco administered a knee strike to the appellants
    upper body area to create distance between them.

[13]

Cst. Poirier, the officer in uniform, was also at the appellants
    vehicle when he was asked to get out of it. He described the appellant as argumentative
    and extremely hostile, and also testified that he reached for the fanny pack
    while getting out of the car. Cst. Poirier grabbed the appellants left arm to
    arrest him, at which point the appellant began to struggle. Cst. Poirier applied
    knee strikes to the appellants leg to bring him to the ground, so as to
    handcuff him and complete the arrest. The appellant broke free, got up, charged
    at Cst. Poirier, headbutted him and put his hands around Cst. Poiriers waist
    in a bear hug, and they fell back onto the road.

[14]

Det. DiFranco and Cst. Poirier struggled with the appellant across the
    street, over a curb and sidewalk, and into a flower bed. Both described the
    arrest as one of, or the most, difficult they had ever had to make.

[15]

Det. Sgt. Knevel was at the scene initially focussing on the passengers
    in the appellants vehicle. He observed the struggle to subdue the appellant
    and joined it to assist. He described the appellant fighting violently to get
    away.

[16]

According to the three officers, when the knee strikes and wrestling did
    not bring the appellant under control to allow them to apply handcuffs, a
    decision was made to use a taser. Cst. Poirier deployed it three times within
    about 30 seconds. All of the officers testified that no pepper spray was used.

[17]

The evidence of the three officers was in part confirmed by the fourth
    officer at the scene, Det. Cunningham. The trial judge noted he was minimally
    involved in the interaction with the appellant but confirmed the dynamic
    nature of the situation and the struggle between the officers and [the
    appellant].

[18]

Mr. Eaton, a civilian who observed the confrontation, also testified. He
    saw an individual resisting efforts by the police to hold him down, and pushing
    himself up off the ground even after a taser was used. The trial judge
    considered his evidence to be generally consistent with that of the police
    officers, although his estimate that the entire struggle took 1.5 hours was
    grossly at odds with what was otherwise described as a brief but dynamic
    interaction.

B.

The
    Opportunity to Retain and Instruct Counsel

[19]

As the trial judge noted, there was relatively little dispute about the
    facts on this issue.

[20]

The appellant was advised of his right to counsel upon his arrest. He
    requested the opportunity to contact counsel, whom he identified by name.

[21]

The appellant was then taken to the hospital for medical attention as a
    result of the circumstances of his arrest. He remained there, in police
    custody, handcuffed to his bed, for about 20 hours. He had no contact with
    counsel, and was not offered the opportunity to contact counsel from the
    hospital, although there was no health reason that would have prevented him
    from having that contact.

[22]

The appellant only had contact with counsel sometime after being
    returned from the hospital to the police station or courthouse. The trial judge
    accepted that this occurred about 30 hours after the arrest.

[23]

Although the appellant asked the police for the opportunity to consult
    counsel at the time of his arrest, the only step taken to facilitate that was
    Det. DiFranco leaving a voicemail message for the appellants counsel after the
    detective returned to the police station, about an hour and a half after the
    arrest. The police did not tell the appellant they had made this call, or
    follow up when the call to counsel was not returned. Nor did the police make any
    further efforts to facilitate contact with counsel for the entire time the
    appellant was at the hospital, or until they facilitated contact from the
    police station or courthouse some 30 hours after the arrest.

[24]

The appellant was not asked for nor did he give any statement to the
    police prior to contacting counsel.

C.

The Fanny
    Pack

[25]

The police recovered the fanny pack at the scene. After the appellants
    arrest, it was searched. The fanny pack contained, among other things, 13 grams
    of cocaine, 40 oxycodone pills and 25 hydromorphone pills, and $125 in cash.

THE DECISIONS OF THE TRIAL JUDGE

A.

The Trial
    Judges Decision on the
Charter
Issues

[26]

The appellant applied for a stay of proceedings or that evidence be
    excluded on the basis of breaches of his
Charter
rights. He asserted
    that his rights under ss. 7 and 12 of the
Charter
were infringed when
    the arresting officers used excessive force, and that his rights under s. 10(b)
    of the
Charter
were infringed when he was not allowed to contact
    counsel for about 30 hours after the arrest.

[27]

The trial judge stated that: It is undisputed that [the appellant]
    bears the onus of establishing any
Charter
violation on the balance of
    probabilities.

[28]

Dealing with the issue of excessive force, the trial judge referred to
    ss. 7 and 12 of the
Charter
and observed that [i]t is trite to say
    that a section 7
Charter
breach will be established where excessive
    force is used in arresting a person. He noted that s. 25 of the
Criminal
    Code
, R.S.C. 1985, c. C-46 authorizes the police to use as much force as
    is necessary when lawfully arresting a person and case law also supports the
    use of reasonable force to maintain the state of being under arrest. He
    identified the key question after examining all the circumstances to be what
    amount of force was necessary and whether the actual force used was excessive.
    He referred to a list of factors from case law relevant to determining whether
    force used was reasonable or necessary in the circumstances.

[29]

The trial judge found the appellants evidence that he did not resist
    arrest to be inconsistent with the preponderance of evidence. He found that a
    struggle ensued immediately outside the drivers door of the appellants
    vehicle, and that even if there was an inadvertent stumble and a painful first
    knee strike, it was not reasonable to conclude that the appellant was compliant
    with subsequent efforts to arrest him. He accepted the evidence of the police
    officers concerning the struggle, and found it was supported by the evidence of
    Mr. Eaton. He did not consider the evidence of Ms. Lamb to be helpful to the
    appellant for various reasons relating to its reliability, including that Ms.
    Lamb had a limited view of the scene and an ongoing personal relationship with
    the appellant. He concluded that the appellant was in a physical condition to
    have represented a threat to the police officers, and I accept their evidence
    that it was not possible to physically subdue him despite the best efforts of three
    of them until the Taser was applied.

[30]

He stated that the appellant did not satisfy his onus of proving on a
    balance of probabilities that excessive force was used against him by the
    police. I find that the police used only the force necessary to effect the
    arrest in the circumstances. Therefore, there was no breach of [the appellants]
    section 7 or section 12
Charter
rights.

[31]

On the question of whether the appellants s. 10(b) right was infringed,
    the trial judge began by noting that the right had an informational and an
    implementational component, both aspects of which were to be provided
    immediately. He held that the implementational component was engaged when the
    appellant requested the opportunity to consult with a specific lawyer. It was
    reasonable for Det. DiFranco to assist by leaving a message for the lawyer, but
    not reasonable for the police to consider the matter ended there, leaving the
    appellant in the hospital for almost a day without being afforded the
    opportunity to contact counsel. Further efforts were required and were not
    taken. There was no evidence that proper arrangements could not have been made
    to facilitate contact from the hospital. He found that the appellants s. 10(b)
    right was violated.

[32]

Although the fanny pack was recovered at the scene of the arrest before
    the s. 10(b) breach occurred, he was satisfied that the breach that followed
    the arrest was part of the same transaction or chain of events that included
    the seizure of that evidence, and the temporal connection between the two was
    not too remote. Therefore, he found that the precondition to the exclusion of the
    fanny pack evidence under s. 24(2) of the
Charter
 that the evidence
    was obtained in a manner that infringed or denied
Charter
rights 
    had been met.

[33]

However, the trial judge rejected the claim that the s. 10(b) breach
    justified the exclusion of the fanny pack evidence recovered at the scene,
    under s. 24(2) of the
Charter,
because he was not satisfied that
    admitting the evidence would bring the administration of justice into disrepute.
[3]


[34]

In considering whether admitting the evidence would bring the
    administration of justice into disrepute, the trial judge followed the method
    of analysis set out in
Grant
, at paras. 72-86, which requires
    consideration of the seriousness of the
Charter
-infringing state
    conduct, the impact of that conduct on the
Charter
-protected interests
    of the accused, and societys interest in an adjudication on the merits.

[35]

The trial judge found the breach arguably inadvertent, but not
    trivial, and that the serious nature of the breach militates against the
    admission of the evidence  while its apparently inadvertent nature militates
    toward admission of the evidence. He considered that this factor did not
    clearly require the exclusion of evidence. He found the breach had little
    practical effect as the appellant was aware of why he was arrested and was not
    requested to give a statement, and even if he had contacted counsel, the search
    would have continued and the fanny pack would have been found. He considered that
    the public interest would not be offended by the admission of evidence under
    this factor. And he found that the exclusion of relevant evidence would have
    rendered the trial unfair from the publics perspective, favouring the
    admission of the evidence. He concluded that the admission of the evidence
    would not bring the administration of justice into disrepute in the eyes of a
    reasonable person informed of all the relevant circumstances and the values
    underlying the
Charter
.

B.

The
    Convictions

[36]

After the
Charter
applications were dismissed, the drug
    trafficking, possession of proceeds of crime, and breach of recognizance
    charges proceeded with an agreed statement of facts. The agreed facts included
    that the contents of the fanny pack were in the appellants possession, that
    the contents included oxycodone and hydromorphone that he sold from time to
    time, that he had a cell phone in his possession, that he knew he had an
    obligation to ensure any cell phone in his possession was registered with the Niagara
    Regional Police and that this cell phone was not, and that the cash in the
    fanny pack included money from cocaine sales.

[37]

The charge of assaulting a police officer  Cst. Poirier  proceeded on
    the basis of the evidence in the
Charter
application, with further
    submissions. The trial judge repeated the findings made in his
Charter
decision. He directed himself that it was not simply a case of preferring the
    evidence of the officers to that of the appellant and Ms. Lamb. Applying
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742, he concluded that the evidence of the
    appellant was not believable, and that it did not raise a reasonable doubt. He
    then considered whether on the evidence he did accept, the appellants guilt
    was proven beyond a reasonable doubt. He found that the appellant had applied
    force  a bear hug and headbutt  to Cst. Poirier, in the course of resisting
    lawful arrest by the police.

[38]

As a consequence, the trial judge entered the convictions appealed from.

[39]

The trial judge sentenced the appellant to 25 months in custody on the
    drug trafficking charges (counts 2, 3, and 4), two months concurrent on the
    proceeds of crime charge (count 9), one month consecutive for breach of
    recognizance (count 10), and three months consecutive for assaulting a police
    officer (count 1). Various ancillary orders were also made.

THE ISSUES

[40]

The appeal raises the following issues:

a.

Did the trial judge err in failing to exclude the fanny pack evidence as
    a remedy for the breach of the appellants right under s. 10(b) of the
Charter
?

b.

Did the trial judge misallocate the burden of proof as to whether
    excessive force was used in considering whether the appellants ss. 7 and 12
    rights under the
Charter
were breached, and if he did, should the
    curative proviso be applied?

ANALYSIS

A.

The
    Section 10(b) Issue

[41]

Section 10(b) guarantees to anyone arrested or detained the right to
    retain and instruct counsel without delay and to be informed of that right.
    Where, upon being informed of the right, the detained person exercises it, the
    police must immediately provide the detainee with a reasonable opportunity to
    speak to counsel:
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at
    paras. 38, 42.

[42]

The appellant exercised his s. 10(b) right by expressing the desire to
    speak to counsel immediately upon his arrest. The police breached the duty to
    immediately provide him with a reasonable opportunity to speak to counsel. The
    single message that was left with counsel, without any follow-up, did not
    actually provide an immediate opportunity for the appellant to speak to
    counsel. No such opportunity was provided for 30 hours. Nor was the single
    message, without any follow-up, reasonable, judged in all of the circumstances.
    The trial judge appropriately observed that it was unreasonable for the police
    to consider the single message sufficient and the matter ended there − further
    efforts were required. Yet the police took none. They did not explore whether
    there were other means of making contact with the counsel the appellant had
    specified. Nor was the appellant told that a message had been left with the
    counsel he had specified, or that it had not been answered. Thus, he was not
    given the opportunity to provide other contact information for that counsel if
    he had it, or to specify another counsel who might be more immediately
    responsive.

[43]

There are a number of ways in which the police may facilitate a
    detainees right to immediate contact with counsel. Where the police assume the
    responsibility of making first contact, rather than providing the detainee with
    direct access to a phone or internet connection, they must be taken to have
    assumed the obligation to pursue [the detainees] constitutional right to [access
    counsel] as diligently as she would have:
R. v. OShea
, 2019 ONSC
    1514, 372 C.C.C. (3d) 352, at para. 42;
R. v. Doobay
, 2019 ONSC
    7272, 61 M.V.R. (7th) 225, at paras. 29-33. Anything less would encourage
    token efforts by the police and imperil the right of those in detention to
    consult a lawyer of their choosing:
Doobay
, at para. 30. In this
    case, where the police undertook to contact a lawyer on the appellants behalf,
    it was unreasonable for them to have left a single voicemail and ended their efforts
    there.

[44]

Although there was no causal connection between, on the one hand, the
    discovery of the fanny pack and its contents, and on the other hand, the s.
    10(b) breach, there was, as the trial judge appropriately found, a sufficient
    temporal connection to consider the evidence to have been obtained in a manner
    that infringed a
Charter
right within the meaning of s. 24(2):
R.
    v. Pino
, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72;
R. v.
    Rover
, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 35.

[45]

I accept the argument of the appellant that, against the backdrop of
    this breach, the trial judge erred in failing to find that having regard to
    all circumstances, the admission of [the evidence] in the proceedings would
    bring the administration of justice into disrepute within the meaning of s. 24(2),
    and therefore in failing to exclude the fanny pack evidence. Although the trial
    judge referenced the three-prong test articulated in
Grant
to assess
    this question, he made legal errors in its application, leading to an
    unreasonable determination. Appellate intervention is therefore warranted:
R.
    v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. In fairness to
    the trial judge, he did not have the benefit of this courts more recent
    decisions on the
Grant
analysis relating to s. 10(b) breaches.

[46]

The first
Grant
factor is the seriousness of the
Charter
-infringing
    state conduct. On this factor, the trial judges findings were equivocal. He
    referred to the breach as not trivial, and in one passage noted the serious
    nature of the breach. But he also referred to the breach as inadvertent or
    arguably inadvertent, because there had been an initial attempt to contact
    counsel. Because of this latter characterization of inadvertent, he held that
    this factor did not clearly require the exclusion of the evidence. In my view,
    the trial judge made two interrelated errors in coming to that conclusion.

[47]

First, the breach ought not to have been viewed as anything other than
    serious, given the extent the police conduct departed from the content of the
    appellants constitutional right. The duty of the police was to
immediately
provide the appellant with a reasonable
    opportunity to speak to counsel. Viewed from that perspective, the breach was
    very substantial  the delay in providing the opportunity to speak to counsel
    was about 30 hours.
[4]

[48]

Second, although the breach was arguably inadvertent  that is, not
    intentional and there was no evidence the delay was caused by a systemic
    practice  the circumstances did not take the case out of the serious breach category.
    The single, unsuccessful attempt to contact counsel referenced by the trial
    judge pales in comparison to the length of time over which the police failed to
    take any further steps to fulfill their duty. Indeed, immediately after
    describing the breach as arguably inadvertent, the trial judge noted that
    after their initial attempt to contact counsel, [n]o officer made any further
    attempt to either contact counsel, to ascertain whether counsel had contacted [the
    appellant], or to assist [the appellant] with contact from the hospital. The
    police are expected to comply with the
Charter
. The absence of
    evidence that the polices failure to comply with the
Charter
was
    systemic is not a mitigating factor when assessing the seriousness of the
    breach:
McGuffie
, at para. 67.

[49]

In
R. v. Noel
, 2019 ONCA 860, the fact that a police officer
    left a message with duty counsel without following up to ensure contact
    occurred did not attenuate the seriousness of a s. 10(b) breach, and was viewed
    by this court as part of a somewhat cavalier attitude about a fundamental,
    important, and long-settled
Charter
right to consult counsel without
    delay: at para. 32. In
R. v. Pileggi
, 2021 ONCA 4, 153 O.R. (3d) 561,
    this court concluded that a three-hour delay in providing the opportunity to
    consult counsel, resulting from collective negligence  in allowing the
    appellants s. 10(b) rights to fall through the cracks was a serious breach
    even though a police officer not only contacted duty counsel, but kept the
    accused informed of the efforts to engage counsel so that he was not left to
    languish alone interminably: at paras. 114, 119 and 124.

[50]

In this case, the sheer length of the delay, and the fact that over that
    lengthy period, nothing was done to inform the appellant that any effort to
    contact counsel was made, or to follow up on the contact, should have led the
    trial judge to conclude that the breach was serious and favoured exclusion of
    the evidence.

[51]

Moreover, the trial judge erred in his analysis of the second
Grant
factor, the impact of the breach. He viewed the breach as one that had little
    practical effect, as the appellant was aware of the reasons for his arrest, was
    not requested to give a statement, and the search and seizure of the fanny pack
    would have happened anyway.

[52]

Although the right to immediately consult counsel exists in part so that
    the accused can obtain advice about self-incrimination and the legality of
    searches, it extends to considerations beyond these, including obtaining
    reassurance and advice about how long detention may last and how liberty may be
    regained. The right to counsel is a lifeline for detained persons. Through
    that lifeline, detained persons obtain, not only legal advice and guidance
    about the procedures to which they will be subjected, but also the sense that
    they are not entirely at the mercy of the police while detained. The
    psychological value of access to counsel without delay should not be
    underestimated:
Rover
, at para. 45;
Noel
,

at paras.
    22-26. Holding a person without any explanation for why they cannot access counsel
    or any indication of when that might occur compromises their security of the
    person:
Rover
, at para. 46.

[53]

If the police had taken a statement or otherwise obtained evidence as a
    direct result of the s. 10(b) breach, that may have made the impact of the
    breach even more significant. But neither the fact that the police do not take
    a statement from the arrested person while violating the right to counsel, nor that
    there is no causal connection between the breach and evidence discovered, means
    that the breach will always lack a significant negative impact on the
    appellants
Charter
-protected rights:
Rover
, at paras. 43-47.
    The impact must be considered given the nature of the interests protected by
    the right to counsel, and the length of delay in providing it:
Noel
,
    at para. 27.

[54]

In
Rover
, this court considered the impact on the accused to be
    serious because he was held for almost six hours without any indication of
    when he might be allowed to speak to someone: at para. 46.

[55]

Here, the appellant was without the benefit of the immediate right to
    counsel, or any indication of when he might be allowed to speak to someone, for
    about 30 hours, 20 of which he spent handcuffed to a hospital bed. The
    trial judge failed to consider all of the interests the appellants immediate
    right to counsel is to protect in his evaluation of the impact of this lengthy
    breach. He placed undue emphasis on the lack of a causal connection between the
    seizure and search of the fanny pack and the s. 10(b) breach, and on the fact
    that the police did not take a statement. Moreover, his observation that the
    appellant knew why he was arrested was, with respect, beside the point. The
    appellant was entitled to consult counsel; he was not required to be his own
    legal adviser when he wanted to speak to a lawyer.

[56]

The trial judges conclusion that the second
Grant
factor did
    not favour exclusion is accordingly flawed. It did favour exclusion.

[57]

The trial judge correctly considered that the third
Grant
factor, the effect of excluding relevant reliable evidence, here pulled in
    favour of admission of the evidence. However, a proper analysis of the first
    two factors pulls strongly in favour of exclusion, and makes this one of those
    cases in which the long-term repute of the administration of justice requires
    the sacrifice of the short-term benefit of an adjudication on the merits of
    this case:
Rover
, at para. 49.

[58]

The fanny pack and its contents ought to have been excluded. I would
    accordingly allow the appeal and quash the convictions on counts 2, 3, 4, and
    9, and substitute acquittals on those counts.

B.

The
    Excessive Force Issue

[59]

The appellant argues that the trial judge, in considering whether his
Charter
rights were violated by the use of excessive force during his arrest, made the
    error identified in the dissenting reasons in
R. v. Davis
, 2013
    ABCA 15, 295 C.C.C. (3d) 508 (
Davis
), which were upheld by the
    Supreme Court of Canada: 2014 SCC 4, [2014] 1 S.C.R. 78 (
Davis
(
SCC
)).
    The error in
Davis
involved misallocating, to the accused, the burden
    of proving that excessive force was used. As this error may have tainted the
    assessment of the evidence as to whether excessive force was used, it could not
    be saved by the application of the curative proviso in s. 686(1)(b)(iii) of the
Code
.

[60]

The appellant relies on the first sentence of the following statement in
    para. 35 of the trial judges reasons to identify where he located the
    burden of proof
:

I conclude that [the appellant] has not
    satisfied his onus of proving on a balance of probabilities that excessive
    force was used against him by the police
.
I find that the police only used
    the force necessary to effect the arrest in the circumstances. Therefore, there
    was no breach of [the appellants] section 7 or section 12
Charter
rights. [Emphasis added.]

[61]

Davis
establishes that an accused only has the burden of
    demonstrating that a
Charter
remedy should be granted
. The accused
    does not have the burden of showing that excessive force was used. Rather, once
    an accused shows that the police used deadly force, a
prima facie
breach of s. 7 exists, and the evidentiary burden shifts to the Crown to prove
    the force used was justified. This requires a subjective-objective analysis.
    The court has to be satisfied that the police officer subjectively believed
    that the use of force was necessary in the circumstances to protect the officer
    or others from death or grievous bodily harm, and the belief must have been
    objectively reasonable:
Davis
, at paras. 76-78.

[62]

The appellant argues that the first sentence of the trial judges
    statement in para. 35 of his reasons  that the appellant has not satisfied
    his onus of proving on a balance of probabilities that excessive force was used
    against him by the police  shows he misallocated the burden of proof.
Rather
    than requiring the respondent to show the force was justified, he placed the
    burden on the appellant to demonstrate the force was excessive.

[63]

The appellant also submits that the error reflected in this sentence is
    neither corrected nor salvageable by the next sentences in the same para
.
    35, in which the trial judge said, I find that the police only used the force
    necessary to effect the arrest in the circumstances. Therefore, there was no
    breach of [the appellants] section 7 or section 12
Charter
rights. The
    appellant points out that the trial judge in
Davis
also made a finding
    on the evidence that the police officer was justified in acting as he did and
    did not breach [the accuseds
Charter
] rights. In
Davis
, the
    existence of that finding did not detract from the error in allocating the
    burden of proof, or justify applying the curative proviso, because as a product
    of misallocating the burden of proof, the trial judge did not properly process
    the evidence, relying only on the police officers subjective beliefs without
    addressing their objective reasonableness. This processing error may have
    tainted the trial judges ultimate finding on whether excessive force was used:
Davis
, at paras. 81-82 and 86-87;
Davis
(
SCC
), at
    para. 1. The appellant says the same approach should be taken here.

[64]

I would not give effect to this ground of appeal
. This is a materially
    different case than
Davis
.

[65]

In
Davis
, there was no question about where the trial judge had
    placed the burden of proof, and how she applied it.
She stated that the
    burden of showing a
Charter
violation rests on the accused, a statement
    that was correct as far as it goes:
Davis
, at para.

77. The
    trial judge in
Davis
then went further to say that that meant the
    burden of proving the force was excessive was on the accused, and further still
    to explain exactly what that meant. She said that the burden was on the accused
    to demonstrate that [the police officer] did not reasonably believe that force
    was necessary to preserve himself or others from death or grievous harm and
    that he could have prevented [the accuseds] flight by reasonable means less
    violent. This was an error of law, as the burden was on the Crown to prove
    that the force used was justified in the circumstances. To hold otherwise would
    be unfair to the accused, who would have to prove a negative, i.e., that the
    force was not justified. Moreover, her finding that she believed the police
    officer was the product of her focussing exclusively on the officers
    subjective belief, without adverting to the requirement of reasonableness. Any conclusion
    drawn from it may have been tainted by the misallocation of the burden of proof:
Davis
,

at paras. 76-79 and 86-87.

[66]

Here, although the trial judge referred to the appellant not having met
    a burden of showing that excessive force was used, that sentence stands alone
    in the reasons as a description of the burden the trial judge was actually
    applying to decide the excessive force issue
.
[5]
The reasons contain no elucidation of exactly what that burden required, as did
    the trial judges reasons in
Davis
. It did not, as in
Davis
,
    articulate the burden in such a way as to make it clear the appellant had been
    required to prove a negative  that the officers lacked a subjective belief
    that the force they used was necessary, or that if they did hold such a belief,
    that the belief was not objectively reasonable.

[67]

A review of the reasons as a whole does not support the view that the
    sentence in para. 35 of the reasons relied on by the appellant, rather than the
    one that follows, reflects the burden the trial judge actually applied in coming
    to his conclusion about a
Charter
breach.
The statement relied on
    by the appellant is immediately followed by a positive finding that would be
    unnecessary if the trial judge was reaching his conclusion on the basis of a
    failure of the appellant to have satisfied his burden. The trial judges statement
    that I find that the police used only the force necessary to effect the arrest
    in the circumstances is consistent with what is the evidentiary burden of the Crown
    having been fulfilled: to show that the force used was justified in the
    circumstances. As discussed below, unlike in
Davis
, that statement was
    not the product of a singular focus on the subjective beliefs of the officers
    because the trial judge did not advert to the requirement of reasonableness.
    Given how the trial judge arrived at his conclusions, they cannot be taken to
    have been tainted by a misapprehension of the burden of proof.

[68]

Before discussing the evidence, the trial judge referred to the
    authorization in s. 25 of the
Code
for the police to use as much force
    as is necessary when arresting an individual.
(Section 25 places the burden
    on the Crown to justify a police officers use of deadly force on a
    subjective-objective analysis:
Davis
, at paras. 41-45 and 78).
    Although his analysis of it was brief, he identified the key questions to be
    what force was necessary and whether the actual force was excessive after
    examining all of the circumstances as they existed at the time the force was
    used.

[69]

The trial judge also referred to case law, cited to him by both parties,
    that identified factors to be considered in assessing the reasonableness of,
    or necessity for, force used by the police in any particular situation.
Accordingly,
    the trial judge was alive to the need to look at the force used through the
    lens of reasonableness, not simply the subjective beliefs of the police
    officers.

[70]

When analysing the evidence, and before making the statements in para. 35
    of his reasons, the trial judge expressed himself more consistently with his
    having been satisfied the force used was justified, rather than on the basis
    that the appellant had the burden of showing the force used was not justified,
    but had fallen short of meeting that burden
. He did not express himself
    concerning the evidence on the basis that the appellant had been required, but
    had failed, to prove a negative.

[71]

The trial judge rejected the appellants evidence that he did not resist
    arrest as inconsistent with the preponderance of evidence.
He stated that
    he was satisfied about what had occurred based on the evidence of the
    officers that he accepted and the confirmation of Mr. Eaton. He did not limit
    himself to saying he was not satisfied that what the appellant contended had occurred.

[72]

His findings, although not always broken down between what the police
    officers believed and the reasonableness of their behaviour, covered matters
    that pertained to both, and were responsive to the arguments that were made
    before him.
He found that the police had engaged in a wrestling match with
    the appellant that covered some distance because he was satisfied on the
    evidence that that occurred. But he went on to find that there was no reason
    for them to have done so, or to apply a taser, other than the appellants
    non-compliance. On the evidence that he accepted, that non-compliance was
    aggressive, physical, confrontational, and continuing, and included an assault
    on one of the officers. He found, considering the height, weight, and physical
    condition of the appellant, that he represented a threat to the police
    officers, and stated that he accepted the officers evidence that it was not
    possible to physically subdue [the appellant] despite the best efforts of [the
    officers] until the Taser was applied. His positive finding that lesser
    measures than the force actually used were not possible is quite different than
    saying that the appellant had fallen short of proving excessive force was used.

[73]

The trial judges factual findings, read in light of his having prefaced
    them by his instruction to determine what amount of force was necessary and
    whether the actual force used was excessive, and to consider the
    reasonableness of, or necessity for, force used by the police reflect
    positive findings as to what the police believed and the reasonableness of
    those beliefs, rather than about a failure of the appellant to prove an absence
    of either.

[74]

All of those findings precede the impugned sentence in para. 35 of the
    reasons.
In my view, taken in context of what preceded it and what follows
    it, the sentence relied on by the appellant, while unfortunate, does not
    indicate the burden of proof the trial judge actually applied in coming to his
    decision. The better indicator of the burden of proof actually applied is in
    the sentences that follow. In them, the trial judge rejected the allegation of
Charter
breach (which the appellant had the onus of proving) because he made a positive
    finding, consequent on the positive findings he had made earlier in his reasons,
    that the police had used only the force necessary to effect the arrest in the
    circumstances. This is consistent with the Crowns onus of proof. The trial
    judge was satisfied the force used was justified.

[75]

As the Crown points out, in his reasons for sentence, the trial judge
    summarized what he had determined in dismissing the
Charter
application. He said: I accepted the evidence of the prosecution that [the
    appellant] aggressively resisted arrest and that reasonable force was used
    during the course of the arrest, including the application of a taser on three
    separate occasions.
This further supports the view that the trial judge
    actually decided the matter on a basis consistent with the Crowns onus of proof.

[76]

Because of the view I take on whether the burden of proof was
    misallocated, it is not necessary to address the argument as to whether, if
    that error had occurred, it should be viewed as harmless and the curative
    proviso applied.

CONCLUSION

[77]

On consent, the guilty plea to count 4 is set aside. The appeal is
    allowed as to counts 2, 3, 4, and 9, and the convictions on those counts are
    set aside and acquittals are entered. The appeal is dismissed as to counts 1
    and 10. Only the sentences and ancillary orders connected to counts 1 and 10
    remain in place.

Released: October 22, 2021 D.W.

B. Zarnett J.A.

I agree. David Watt J.A.

I agree. L.B. Roberts J.A.





[1]

The appellant pled guilty to the oxycodone possession charge,
    but the Crown consents to the admission of fresh evidence which shows that the
    plea was uninformed, and consents to the plea being set aside. The Crown and
    defence agreed that the appellant would preserve his appeal rights respecting
    the
Charter
ruling at issue in this appeal by not contesting the Crowns
    evidence relating to the drug charges, and the appellant pled guilty to the
    charge without appreciating the consequences of the plea.



[2]

R. v. Jarrett
, 2018 ONSC 1178.



[3]

He also rejected the claim that the s. 10(b) breach justified
    a stay under s. 24(1) of the
Charter
. That issue is not pursued on this
    appeal.



[4]
In
Rover
, this court characterized a delay of almost six hours as one
    that seriously impacted the rights of the arrested person: at para. 44.



[5]

The trial judge had earlier referred to the burden being on
    the appellant to prove
Charter
breaches, a statement that was correct
    as far as it goes:
Davis
, at para. 77.


