Case: R. v. Ali, 2026 ONCA 186
Keywords: rental car; right to counsel; evidence of flight
Synopsis:
The Appellant is stopped by two Peel Regional Police officers. Driving a rental car (Appellant, not the police); police “ostensibly” wish to check whether he is a properly licenced driver. The officers observe “what they believed was cannabis packaging and a joint in the vehicle” and, thereafter, search the car pursuant to s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sch. 1. Prior to the search, the Appellant is not advised of his right to counsel or given an opportunity to speak with a lawyer. (See para. 1). During the search, the officers discover a loaded handgun in the space under the centre console. The Appellant runs away, but is apprehended after a brief foot chase. (See para. 2).
The Trial Judge (McPherson J.) convicts the Appellant of multiple firearms offences, all relating to the loaded handgun. (See par. 5). The Trial Judge dismisses the Appellant’s Charter application, finding no breach of ss. 8, 9, and 10(b). (See para. 3). Importantly, however, the decision is made before R. v. McGowan-Morris, 2025 ONCA 349, in which the Court of Appeal held detainees’ s. 10 Charter rights are not suspended during CCA searches, absent exceptional circumstances. On appeal, the Crown accordingly concedes the Trial Judge erred by not finding a s. 10(b) breach. (See para. 4). The Court of Appeal allows the appeal, but orders a new trial leaving the admissibility of the evidence under s. 24(2) to be determined later. (See paras. 10-11).
Importance:
The Court of Appeal affirmed its decision in McGowan-Morris (i.e., that s. 10(b) rights are not suspended during CCA searches), and found it was a “wrong decision on a question of law” to not find a breach of s. 10(b) in the circumstances. (See paras. 18, 33).
As stated by the Court of Appeal, counsel for the Appellant “with his customary candor”, appropriately acknowledged this was insufficient on its own to support excluding the gun under s. 24(2), having regarding to R. v. Grant, 2009 SCC 32. However, it was argued that evidence of the Appellant’s flight should be excluded, as this evidence was relied on by the Trial Judge to support the inference that the Appellant had knowledge of the gun’s presence in the car. (See para. 19).
In this case, the Trial Judge relied on 5 factors supporting the conclusion. (See para. 21). For the Court of Appeal, however, “we cannot be sure that she would inevitably have reached the same conclusion if she had not relied on the flight evidence”. (See para. 22).
As outlined by the Court of Appeal, evidence may be excluded under s. 24(2) when it was “obtained in a manner that” infringed the accused’s Charter rights (i.e., where there is a “temporal, contextual and causal” connection between the breach and the obtaining of the evidence at issue). (See para. 24; R. v. Plaha, 2004 CanLII 21043 (ON CA) at para. 45; R. v. Pino, 2016 ONCA 389, at paras. 50-78). The Court accepted there was “plainly a close temporal contextual link between the breach…when the search commenced, and his flight a few minutes later”, and counsel for the Appellant argued there was a causal connection (i.e., had the Appellant been advised of his right to counsel, and exercised that right, he might have acted differently). (See para. 24).
Regarding this latter point, citing Lamer C.J.C. in R. v. Bartle, 1994 CanLII 64 (SCC) at pp. 209-210, the Court of Appeal emphasized that it is not the Appellant’s burden to demonstrate that he would have called counsel if he had been advised of his right or acted differently upon receiving the advice of counsel. Instead, it is “the Crown’s burden to disprove one or both of these things on a balance of probabilities”. In this case, the Court of Appeal noted that the Trial Judge made no findings in favour of the Crown on this issue as she had found no Charter violation. (See para. 27).
Ultimately, the Court of Appeal set aside the Appellant’s convictions and ordered a new trial. For the Court, it would be inappropriate to conduct a s. 24(2) analysis “when the evidential record and findings of fact in the court below are insufficient for this purpose”. (See para. 31; United States v. Ighedoise, 2019 ONCA 937, at para. 52; R. v. Bruyere, 2012 ONCA 329, at paras. 16-18). And further, “if we were to find that the evidence of [the Appellant’s] flight should have been excluded under s. 24(2), the remedy would be to order a new trial rather than enter acquittals…we find it preferable to leave the question of exclusion under s. 24(2) to the new trial judge, who will be able to make the required findings of fact on a proper record”. (See para. 32).
As a final point, while the Court of Appeal declined to engage with the Appellant’s racial profiling claim, it indicated that the new trial judge can do so (i.e., because under s. 686(2)(b) of the Criminal Code, the new trial will be a full trial de novo). (See para. 34).
Counsel for the Appellant: Chris Rudnicki and Theresa Donkor (Rudnicki & Company, Toronto)
Counsel for the Respondent: Deepa Negandhi