



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Masci, 2022 ONCA 296

DATE: 20220411

DOCKET: C69103

van Rensburg, Nordheimer and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christian Masci

Appellant

Christian Masci, acting in person

Dan Stein, appearing as duty counsel

Avene Derwa, for the respondent

Heard: April 7, 2022

On appeal from the conviction entered on September 24,
    2020 by Justice Mary Teresa E. Devlin of the Ontario Court of Justice, sitting without
    a jury.

REASONS FOR DECISION

[1]

The conviction appeal was dismissed for reasons to follow. These are our
    reasons.

[2]

The Crown acknowledged a s. 8
Charter
breach based on the
    failure to comply with s. 489.1 of the
Criminal Code
, when the required
    report was not filed until a year after the seizure from the appellant of a
    shotgun, a cell phone and other items following a search incident to arrest. On
    application under s. 24(2) of the
Charter
, the trial judge declined to
    exclude the gun and the cell phone from evidence at the appellants trial on a
    number of charges. The issue on the conviction appeal is whether the trial
    judge erred in her
Grant
analysis (
R. v. Grant
, 2009 SCC 32, [2009]
    2 S.C.R. 353), and if so, whether the items ought to have been excluded.

[3]

Mr. Stein, as duty counsel, fairly acknowledges that, based on the trial
    judges reasons for conviction, the exclusion of the cell phone would have no
    impact on any of the appellants convictions, and that the exclusion of the gun
    would only affect counts 16 to 20, in respect of which the appellant received a
    consecutive sentence of 12 months. He argues that the trial judge erred in her
    assessment of the
Grant
factors, each of which she found supported
    admission of the evidence. His submissions focussed on the first two factors:
    the seriousness of the
Charter
-infringing state conduct, and the
    impact of the breach on the appellants
Charter
-protected interests.

[4]

The trial judges findings of fact based on the evidence on the
voir
    dire
are entitled to deference, as are her evaluation and weighing of the
    factors: Where a trial judge has considered the proper factors and has not
    made any unreasonable finding, his or her determination is owed considerable
    deference on appellate review:
R. v. Côté
, 2011 SCC 46, [2011] 3
    S.C.R. 215, at para. 44.

[5]

We see no error of law or principle, or palpable and overriding error of
    fact, that would justify intervention in this case.

[6]

On the first
Grant
factor, while we would not necessarily agree
    with the trial judges characterization of the one-year delay in filing the s.
    489.1 report as a technical breach, we agree that, where this occurred as a
    result of the officers oversight, it lessens the seriousness of the breach and
    thus weighs in favour of the admission of the evidence. Contrary to counsels
    submission, the trial judge did not misapprehend the officers evidence at
    para. 16 of her reasons. The officer believed he had filed a report, and
    offered an explanation for his oversight, while acknowledging that this did not
    justify his failure to meet the timelines.

[7]

As for the second
Grant
factor, we see no error in the trial
    judges analysis. As she noted, the shotgun could never have been returned to
    the appellant as he was not its lawful owner, and since the seized items were
    required for the trial, the inevitable outcome of the report would have been an
    order for the continued detention of the items.

[8]

Accordingly, we would not interfere with the trial judges conclusion
    that all three
Grant
factors favoured admission of the evidence, her
    balancing of the factors, and her dismissal of the appellants
Charter
application.

[9]

For these reasons we dismissed the conviction appeal.

K. van Rensburg J.A.

I.V.B.
    Nordheimer J.A.


L. Sossin J.A.


