R v Tarapaski, 2022 MBCA 74

Citation: R v Tarapaski, 2022 MBCA 74 Date: 20220921 Docket: AR20-30-09535 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Christopher J. Mainella Madam Justice Karen I. Simonsen BETWEEN : ) A. L. Sansregret, Q.C. and HER MAJESTY THE QUEEN ) M. R. Raffey ) for the Appellant Respondent ) ) C. R. Savage and - and - ) L. Nair ) for the Respondent ) ROBERT MICHAEL TARAPASKI ) Appeal heard: ) June 8, 2022 (Accused) Appellant ) ) Judgment delivered: ) September 21, 2022 On appeal from 2020 MBPC 36 STEEL JA [ 1 ] What will constitute a firearm for the purposes of

section 2 of the Criminal Code (the Code )? That is the focus of this appeal. The item in question was found by the trial judge to be a non-commercial, improvised inoperable firearm, which, after adaptation, became operable and met the definition of a firearm under the Code . Improvised firearms have become increasingly common in Manitoba in the last few years. [ 2 ] The accused appeals his convictions for one count of possession of a non-restricted firearm without being a holder of a licence to possess it and two counts of possession of firearms while bound by an order prohibiting him from doing so.

He asserts that the trial judge erred by not finding that his Charter rights were breached (see the Canadian Charter of Rights and Freedoms (the Charter )) and, therefore, not excluding an inculpatory comment that he made to the police to the effect that the gun belonged to him. [ 3 ] He also contends that the trial judge’s decision in finding that the item was a firearm within the definition of

section 2 of the Code was unreasonable. [ 4 ] The accused withdrew his appeal as to sentence. Facts [ 5 ] Police attended in response to a 911 call that the accused was “going crazy and just trashed the house.” The accused’s parents owned the home where the accused was living and allowed police to walk through it and observe the damage. [ 6 ] The accused was arrested twice at the scene. The first time occurred at 4:11 p.m., mere minutes after the police arrived at the residence. Constable Lorenz arrested the accused for mischief and placed him in handcuffs. While walking the accused to

the police car, he informed the accused of his right to counsel and advised that he “need not say anything” and that anything he said, “may be used as evidence.” [ 7 ] The accused was searched incidental to arrest and the police found several pieces of identification on him that were not his. This was later found to be stolen identification. They also found several rounds of .22 calibre ammunition in his pockets. [ 8 ] While walking through the home, one of the police officers found what looked like a makeshift firearm in plain view on a futon.

He picked it up, left the home and placed it on the hood of the police car. When the accused saw it on the hood of the car, he made the unsolicited statement to the police officer, “That is my BB gun. It’s just a BB gun, not a real one.” [ 9 ] The accused was then arrested for a second time for failing to comply with his recognizance, mischief, uttering threats, and possession of property obtained by crime. He was given his right to counsel again and cautioned. He was not arrested for a firearm offence at that time. The accused confirmed he understood and stated he wanted to speak to a specific lawyer.

His girlfriend gave the police the name and phone number of that lawyer. That arrest occurred at 4:49 p.m. [ 10 ] He was then transported to the police station and within five to ten minutes of his arrival, he was given the opportunity to speak with counsel. When police attempted to call the number, there was no answer. The police officer offered to call another lawyer or duty counsel. He also offered to call the accused’s parents for the correct name and number and, as well, gave the accused a telephone book.

However, the accused became upset, ripped the cable for the interview room microphone off the wall and wrapped it around his neck. He was screaming and took off all of his clothes. He was lodged in a cell and did not speak to his lawyer until about 9:30 a.m. the next day. [ 11 ] The accused pled not guilty to a 12-count information. At the trial, however, he conceded that several charges were proven beyond a reasonable doubt, arguing for acquittals only with respect to the mischief and firearms offences.

The Trial Judge [ 12 ] A blended voir dire was held where the accused argued that his Charter rights had been infringed, including his right to counsel and right to silence. He argued that his incriminating statement to police should be excluded. [ 13 ] The trial judge concluded that he was not satisfied on the balance of probabilities that any Charter breaches occurred.

Looking at the totality of the circumstances, including the dynamic nature of the initial arrest and the subsequent evidence found incidental to that arrest, the trial judge found that the accused’s utterances to the police were unsolicited after he was cautioned and that there was a lack of due diligence on the part of the accused in exercising his right to counsel at the police station. The trial judge also found the accused’s statement to be voluntary and that finding has not been challenged on appeal.

The evidence, including the incriminating statement made by the accused, was applied to the trial proper. [ 14 ] An expert testified at trial. He described the seized item as an improvised firearm, having a firing pin, frame and receiver, but no barrel. The expert adapted the firearm to be able to fire .22 calibre ammunition (the same calibre of ammunition found on the accused).

He described these adaptations as “simple,” using parts readily available at retail stores, and successfully test-fired the firearm. [ 15 ] The Crown stayed the four utter threats charges, and the accused was acquitted of the mischief charge. He was convicted on the remaining charges. [ 16 ] On appeal, the accused argues that the trial judge erred in failing to find Charter breaches on the basis that the police failed to (1)inform him that he was being arrested for firearms charges as required by

section 10(

a) of the Charter ; (2) inform him of his right to counsel for all charges and allow him to speak with his lawyer in a timely fashion as required by

section 10(

b) of the Charter ; and (3) clearly and explicitly explain the right to silence, thereby breaching

section 7 of the Charter . He submitted that three convictions should be set aside: possession of a non-restricted firearm without being a holder of a licence to possess it contrary to

section 91 of the Code , and two counts of possession of a firearm while bound by an order prohibiting him from doing so contrary to

section 117.01 of the Code . Analysis Was the Item Found by the Police a Firearm as Defined in

Section 2 of the Code ? [ 17 ] At the crux of the offences involving the use, possession and transfer of firearms in

Part III of the Code is the term “firearm” as defined in

section 2 . [ 18 ]

Section 2 of the Code defines a firearm as follows:

Definitions 2 . . . . . . firearm . . . a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.

[19] The item in question was an improvised firearm, not an inoperable commercially manufactured firearm. It did not havea barrel. Therefore, the question becomes whether it could be adapted for use as a firearm to fall within the Code’s definition. [20] In R v Covin and Covin, (SCC), [1983] 1 SCR 725, the Supreme Court of Canada considered thelimits of the statutory definition, and concluded that the amount, nature and time span for adaptation must be determined by reference tothe purpose of the particular

section of the Code under consideration. Operability played a major role, as the weapon had to be “capableof causing serious bodily injury or death to a person” to qualify as a firearm (at p 727). In that case, the issue was whether a pellet gunfrom which several essential parts were missing could be considered a firearm within the meaning of the

section (see also R vHasselwander, (SCC), [1993] 2 SCR 398 at 414-15). [21] The Court in Covin set out a three-step process undertaken when a court considers whether a firearm can be adapted foruse, which is summarized in R v Vader, 2012 ABQB 288, as follows (at paras 103-105): [The court:] 1. identifies the purpose of a particular Criminal Code prohibition on use or possession of a firearm or other weapon; 2. evaluates the relevant time and degree of difficulty for repair or conversion of a firearm, for example: a.) for use of a firearm in the commission of an offence, the firearm must be capable of repair or conversion during the commission ofthe offence, and b.) for a possession offence, the firearm must be capable of repair or conversion in “a relatively short period of time with relativeease”; 3. determines whether either: a.) an ordinary person could repair or convert the firearm during that time, or b.) the accused could make operable or convert the firearm during that time. [22] Thus, in possession offences, as in this case, the factors of adaptability and length of time are of lesser importance thanin use offences.

So, in Regina v Ferguson (1985), (ON CA), 20 CCC (3d) 256 (Ont CA) the accused was inpossession of a sawed-off rifle with a missing firing unit. Expert evidence was adduced confirming that the parts necessary to make therifle fully operable were readily available at an Army Surplus dealers or could be ordered from them in the United States and Torontoand could be inserted within thirty seconds to a minute. The Court confirmed that the acceptable amount of adaptation and time spanwas longer in a possession offence than in a charge of using a firearm during the commission of an offence.

The same reasoning wasfollowed in this court in R v Cook (1989), (MB CA), 48 CCC (3d) 61 (Man CA); and in R v Stacey, 2009 NLCA 68. [23] The concept of adaptability in the context of the offence of possession of a firearm has been considered in severalsubsequent cases. Consistent with the decision of the Supreme Court in Covin, the focus in those cases has been determining theamount, nature and the time span necessary for the adaptation of the device in question to become a functional weapon.

Where the itemhas been substantially altered, it may be too remote to be considered a firearm within the meaning of the Code (see R v Boissoneault,[1999] OJ No 3371 (Sup Ct J); R v Lacombe, 2004 ABPC 90; and R v Brown, 2005 Carswell Ont 5235 (Sup Ct J)). [24] Moreover, “the ability of the accused himself to adapt the weapon is not really a crucial factor.

There are many peopleknowledgeable about guns who could readily assist him in that endeavour” (Cook at pp 63-64). [25] In R v Grant, 2006 Carswell Ont 1232 (Sup Ct J), Stinson J summarized these cases (at para 24): The cases reviewed above suggest that where the evidence establishes that a gun can be made operational through the straight forwardinstallation of readily available parts in a relatively short period of time, the courts are disposed to find it to be a firearm for purposes ofthe offence of possession.

By contrast, where the effort to make the gun operational requires special expertise, considerable time, or partsthat are not readily available, the courts are less disposed to find it to be a firearm for purposes of that offence.

[ 26 ] The above body of case law relates to inoperable commercially manufactured firearms. That case law can usefully be applied and developed to deal with inoperable improvised firearms, such as the one in this case. [ 27 ] The accused argues that the evidence of adaptability was insufficient, and that the decision of the trial judge was unreasonable. The standard of review for an unreasonable verdict is whether the verdict was one that a properly instructed jury could have reached.

In judge-alone trials, a verdict may also be found to be unreasonable where the trial judge made a finding of fact that is directly contradicted by other evidence relied on in support of that finding or it is incompatible with evidence not otherwise contradicted or rejected by the trial judge.

The decision may also be unreasonable if the trial judge reached their verdict by an illogical or irrational reasoning process that essentially vitiates the verdict (see R v Sinclair , 2011 SCC 40 at para 22 ; R v RP , 2012 SCC 22 at paras 9-10 ; and R v Hominuk , 2019 MBCA 64 at para 4 ). [ 28 ] Therefore, there has to be a sufficient evidentiary base from which the court can draw reasonable inferences as to adaptability (see Stacey at para 35 ).

The trial judge had such an evidentiary base here in the form of expert evidence. [ 29 ] At the time it was seized, the item consisted of two long metal tubes similar in diameter. The tubes were welded together and held with zip ties. The barrels were not of the same length. At one end of both barrels, the paint was either unfinished or worn off. At the finished end of each of the long tubes there were additional smaller tubes crimped inside. The crimped-in metal inside the top tube was slightly larger in diameter than the one in the bottom tube.

What is especially significant is that, when the item was seized, also found within the top tube was an item referred to as a firing pin. The firing pin was made up of a bolt with a screw fastened to one end. In addition to the tubes and the firing pin, the item had a plastic handle slid onto it. The trial judge found that it resembled a “sawed-off double barrel pistol grip shotgun” (at para 57). [ 30 ] Corporal Hurley was accepted as a firearms expert and testified as to the availability of the necessary parts and the expertise and time necessary to adapt the instrument. The trial judge noted (at para 64): . . .

The only necessary steps [Cpl. Hurley] took was to source a barrel, cut the barrel with a hacksaw, and drill a hole into the end of the barrel for the chamber. All of the other steps he conducted were unnecessary. He took the other steps to preserve the evidence and for safety purposes. . . . [ 31 ] The accused argues that the evidence of the expert supports an inference that the method used to modify the firearm was not relatively easy. It is submitted that the steps taken by Cpl.

Hurley were that of an expert who reverse-engineered the item, that the parts sourced by him were only available to him as a police officer and that there were too many steps over too long a period of time to adapt the item. It was therefore too remote. [ 32 ] However, this inference was rejected by the trial judge. There was evidence from which it could be reasonably inferred that an ordinary person could modify the item for firing within a reasonable time. [ 33 ] The trial judge held that the steps taken to make the firearm operable were not complex and were actually quite straightforward.

None of the tools itemized were sophisticated power tools. The steps taken were not complicated and could easily be done by anyone. Not only were there people who could assist the accused, but with the growth of social media and video sharing websites, such as YouTube, there is much information on the issue of adaptability of improvised firearms within easy access. [ 34 ] The time required to make the firearm operable was reasonable. It took Cpl.

Hurley approximately 30 minutes to determine what he would have to do and overall, no more than two hours to make it into an operable improvised firearm, which included the driving time required to source the barrel. [ 35 ] The parts to make the device operable were readily available to the public. The expert testified that a barrel needed to be sourced that could fit within the top of the tube to create a chamber for the ammunition. He also emphasised that he could have obtained a metal tube from a number of sources, but ultimately decided to use a .22 calibre pellet gun barrel.

He did so because they are readily available without a licence at any hardware store that sells them. It was only for convenience that he obtained one from the Winnipeg Police Headquarters. Unlike commercially manufactured firearms, there are no specific parts required for crude improvised firearms. These facts are in sharp contrast to the cases that required very specific parts from particular manufacturers that would take significant efforts to obtain. [ 36 ] A verdict is not unreasonable simply because different inferences might have been drawn from the evidence other than those which the trial judge drew.

Provided the inferences drawn by the trial judge are reasonably supported by the evidence, the reviewing court cannot reweigh the evidence by substituting an inference of its own for that drawn by the trial judge (see R v Nguyen , 2020 BCCA 166 at para 23 ). [ 37 ] A careful perusal of his reasoning suggests it was available to the trial judge to come to the conclusion that he did. I see no palpable or overriding error in such a finding, nor do I find that the verdict was unreasonable.

The trial judge’s finding that the item was adaptable for use as a firearm was open to him on the whole of the evidence. [ 38 ] One further point should be made. The accused argues that the trial judge erred in adding a preliminary test to the three steps mentioned above. This case dealt with an improvised firearm or as the trial judge referred to it a “non-commercially manufactured firearm” (at para 50).

The trial judge held that there is an additional step for determining whether an item is a firearm where the item under consideration is not a commercially manufactured firearm, but rather an improvised firearm (at para 52-53):

However, an additional step must be taken with an alleged improvised firearm. I say this because nearly any item can be made into a firearm, but not every item is a firearm. The Court must determine whether the item is substantially altered and at a stage where the item is converted to a frame or receiver of a barreled weapon given the circumstances. Therefore, an analysis has to be done to determine if it has an alternate rational purpose in the state it was found, not in what it was originally designed for. . . .

If the item has undergone sufficient transformation and there is no other rational purpose for the item in the state it was found other than that it has become the frame or receiver, only then would the Court embark on the analysis as contemplated by the current case law involving inoperable commercially manufactured firearms. [ 39 ] I agree with the accused that this was an unnecessary step.

It is true that “it is very different for an expert to adapt, modify, or fix a commercially manufactured firearm to make it operable than it is for an expert to determine whether an item has been designed to be a firearm and then to engineer how to make the item operable” (at para 50). However, the three-step test as it presently exists in the case law can be adapted to consider improvised firearms.

The factors taken into account when determining adaptability include such issues as alternative rational purposes for the item, the degree of alteration required, and the time and knowledge required to do so. [ 40 ] Although I believe it was not necessary, it was not used to the detriment of the accused. Rather, by placing another step onto the three-step test set out in the jurisprudence, it was to the benefit of the accused, not to his detriment. Were the Accused’s Charter Rights Breached? [ 41 ] The judge admitted the accused’s statement that the gun was his.

The accused argues that this statement was inadmissible since it was admitted in breach of his Charter rights and that his statement is the only evidence of his possession of the gun. The trial judge also held that the spontaneous utterance of the accused was the only evidence of his possession of the firearm. I disagree. [ 42 ] The accused was found with ammunition in his pocket matching the ammunition used in the firearm. One of the identification documents found on his person was a firearm possession and acquisition licence (PAL) and the accused’s photograph had been fraudulently adhered to it.

The accused did not hold a valid PAL permitting him to have possession of a non-restricted firearm, a fact admitted to by defence counsel during the trial. An affidavit from the Chief Firearms Officer of Manitoba, Christopher Ballard, confirmed that no one else who lived in that house had a valid firearms licence. The gun was found in open view in the home in which he was living. At the time of his arrest, he was bound by two orders preventing him from possessing any firearms or ammunition.

Based on that evidence, a reasonable inference arises that the firearm belonged to him, and his admission becomes unnecessary. [ 43 ] However, if I am wrong, I will address the Charter arguments raised in the case. [ 44 ] In examining a judge’s decision on whether a Charter breach occurred, the appellate court will examine the application of the legal principles to the facts to determine whether they were correctly stated and properly applied.

The application of a legal standard to the facts of the case is a question of law and the standard of review is correctness (see R v Farrah (D) , 2011 MBCA 49 at para 7 ; and R v Shepherd , 2009 SCC 35 at para 20 ). [ 45 ] The appellate court will then review the evidentiary foundation of the decision for error. Absent palpable and overriding error, the facts as found will not be disturbed.

Like findings of fact, inferences are reviewed on the basis of palpable and overriding error (see R v MacLeod (JM) et al , 2013 MBCA 48 at para 16 ). [ 46 ] The accused argues that police failed to: 1. i nform him as to why he was being arrested so that he could properly determine his jeopardy and his course of action, as required by

section 10(

a) of the Charter ; 2. inform him of his right to counsel and allow him to speak with a lawyer in a timely fashion, as required by

section 10(

b) of the Charter ; and 3. clearly and explicitly explain the right to silence, thereby breaching

section 7 of the Charter .

Section 10(

a) Reasons for Arrest [ 47 ] Once triggered by detention or arrest

section 10(

a) requires police to promptly advise the detainee of the reasons for that detention or arrest (see R v Nodrick , 2010 MBQB 128 at paras 164-65 ). The determination as to whether there has been compliance with

section 10(

a) is a fact-specific inquiry. In the case at bar, the trial judge found that the accused was not detained or arrested for firearms-related charges but, rather, was arrested for mischief. The firearm charges were only laid the next day. . . . . . . Constable Lorenz advised the [accused] of his notice of arrest for mischief and then found the bullets and identification documents in his pocket. He was not even certain at the time an offence had been committed. The alleged makeshift firearm was seized, was so unusual the police were unsure whether it was a firearm at all. It certainly looked like a firearm, it looked like there was a homemade

firing pin and handle but they were unsure what they were dealing with. The basis for their investigation was the mischief. . . . [48] The police do not have to arrest an accused on every offence they may be charged with, nor are they expected toarticulate every charge.

Section 10(

a) is satisfied if the suspect understood the basis for their apprehension and the sort of jeopardy theyfaced. They need not be aware of the precise charge faced nor all the factual details in the case. [49] In this case, the investigation was dynamic and, at the point of arrest for mischief, the police were not certain as to anyfirearm charges. The makeshift item seized was so unusual the police were unsure whether it was a firearm at all. The charges that theaccused was informed of upon his arrest were reasonable at the time of the arrest, and he knew the jeopardy he was facing.

Section 10(

b) Right to Counsel [50]

Section 10(

b) of the Charter states that “[e]veryone has the right on arrest or detention to retain and instruct counselwithout delay and to be informed of that right”. [51] Once there is an arrest or detention,

section 10(

b) imposes a number of positive duties on the detaining officer: the dutyto inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and dutycounsel; if a detainee has indicated a desire to exercise this right, the duty to provide the detainee with a reasonable opportunity toexercise this right and; the duty to refrain from eliciting evidence from the detainee until they have had that reasonable opportunity toexercise that right (see R v Bartle, (SCC), [1994] 3 SCR 173 at 192, as affirmed in R v Willier, 2010 SCC 37). [52] The accused bears the onus of establishing both that he was not provided with a reasonable opportunity to exercise hisright to counsel and that he was reasonably diligent in exercising it (see R v Duerksen, 2018 BCCA 46 at para 41).

Unless a detaineeinvokes the right and is reasonably diligent in exercising it, the correlative duty on the police to refrain from eliciting evidence will eithernot arise in the first place or will be suspended (see R v Knoblauch, 2018 SKCA 15 at para 32). [53] The first time the accused was arrested, he was told he had a right to counsel, therefore, the informational component ofsection 10(

b) was complied with. However, he was not specifically asked if he wanted to speak to a lawyer until the second arrest. Thefact that the police officer did not specifically ask the accused whether he wanted to speak to a lawyer in the first arrest was not a breachof

section 10(

b) of the Charter. The right to retain and instruct counsel and to be advised of those rights without delay does not includean obligation to ascertain whether a detainee wishes to exercise such right (see Willier at paras 29-31; and Knoblauch at para 29). [54] After the second arrest, the accused told police he wanted to speak to a lawyer at 4:49 p.m.

He was given anopportunity to do so sometime between his arrival at the police station at 5:19 p.m. and being lodged in cells at 5:39 p.m. [55] While attending officers testified in cross-examination that they had their personal cellphones with them when attendingthe accused’s residence, they were under no legal duty to provide their own cellphone to an arrested or detained individual to facilitatecontact with counsel (see R v Taylor, 2014 SCC 50 para 27). [56] It is true that there were three police officers with two vehicles at the scene.

It is also true that one of the vehicles couldhave possibly transported the accused to the detachment immediately or police could have inquired as to whether there was a telephoneinside the house. The accused had just trashed that home. The police officers were continuing to take pictures of the damage todetermine whether the damage was over or under $5,000 for the purposes of charging. The investigation was ongoing. The accused wasobviously intoxicated and, given their past experience with this accused, they had some concerns with respect to officer safety.

Constable Dickens testified, “anytime I’ve dealt with him, I like to have a partner with me.” [57] The delay between his request at 4:49 p.m. and 5:19 p.m. was held to be reasonable in the circumstances by the trialjudge, and I see no error in that finding. The questions of “reasonable opportunity” and “due diligence” are matters best left to the trierof fact for assessment based on the context or circumstances arising from the evidence before the court (see R v Dufault, 2014 ABCA271 at para 15). [58] There was no answer when the accused attempted to contact his lawyer at the police station.

The police officersuggested several alternatives including calling his parents to check the lawyer’s name and number and giving him a telephone book. The accused became increasingly upset. He took the cord from the microphone and wrapped it around his neck so tightly that it broke. The police decided that he should be lodged in the cells at that point because he was not being reasonable.

Once inside the cells, he tookoff all his clothes and began kicking and punching the cell door and walls. [59] The accused’s behaviour in taking off his clothes and putting a cord around his neck justified his being placed into thecells without further attempts to contact a lawyer. An accused’s difficult behaviour may amount to a lack of diligence (see R v ARM,2011 ABCA 98 at para 43, leave to appeal to SCC refused, 34682 (12 July 2012)).

If a detainee is not being reasonably diligent in theexercise of their rights, the duty imposed on the police in a situation where a detainee has requested the assistance of counsel issuspended (see R v Sinclair, 2010 SCC 35). It should be noted that this is not a situation where the police attempted to interrogate theaccused after attempts to contact counsel were unsuccessful. [60] Constable Dickens was advised by a note left by Cst. Lorenz that the accused had not been able to consult with counselon May 9, 2019.

Constable Dickens was on duty until 2:00 a.m. on May 10, 2019, but he did not return to the Selkirk detachment toattempt to provide the accused with another opportunity to consult counsel. When asked why, he indicated that when detainees are underthe influence of alcohol or drugs they are usually given a length of eight to ten hours to sober up before further attempts are made tocontact counsel.

[61] It is not clear who was left at the Selkirk detachment to check on the accused and whether he was in a condition earlierthan 9:30 a.m. to contact counsel. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry. As Dickson JAobserved in R v Fan, 2017 BCCA 99, “[t]he touchstone is reasonableness, given all of the circumstances of the case” (at para 55).

Itshould be noted that this was a further attempt not an initial opportunity—and the initial opportunity was abbreviated because of theaccused’s behaviour. [62] The accused contends that the failure of the police to inform him that he was being arrested for the charge of possessinga prohibited weapon breached his right to counsel since the essence of

section 10(

b) is to allow the accused to make an informed choiceas to whether he will make a statement or not. He could not make a free choice as to whether to remain silent or speak to police if he didnot know all the charges against him. The accused was not charged with the firearm offences until later. [63] In this case, there is no evidence that the spontaneous utterance was part of an active effort by the police to acquire astatement between the first and second arrest. The evidence was that they did not even know what they had, or whose it was, when theweapon was placed on the hood.

The spontaneous comment that the gun was the accused’s had already occurred before the policedecided to charge him with the firearm offences. [64] It may be that the police were under a duty to restate the right to counsel when he was charged with the firearm offencessince the accused’s jeopardy had changed (see R v Borden, (SCC), [1994] 3 SCR 145; and R v Sawatsky (1997), (ON CA), 118 CCC (3d) 17 (Ont CA). A change in jeopardy may trigger a renewed requirement upon the police to advise asuspect of his right to counsel.

Those situations usually deal with a situation where the police, having initially complied with section10(b), later seek to elicit information with respect to a different or more serious offence without affording the detainee anotheropportunity to consult with counsel. However, there was no evidentiary foundation laid for this argument.

Section 7 Right to Silence [65]

Section 7 of the Charter ensures that “[e]veryone has the right to life, liberty and security of the person and the right notto be deprived thereof except in accordance with the principles of fundamental justice.” The general language of

section 7 has beenfound by the Supreme Court to incorporate and require respect for certain procedural rights that are not specifically guaranteed bysections 8 to 14 of the Charter. The right to silence, as a facet of the principle against self-incrimination, was a part of the common lawconfessions rule when the Charter came into force. With the advent of the Charter, this common law right to remain silent becameconstitutionalized and has been held to be a principle of fundamental justice under

section 7. (See R v Hebert, (SCC),[1990] 2 SCR 151). [66] The accused argues that the caution given to him by the police was not sufficient and that, consequently, his right tosilence under

section 7 of the Charter was violated. [67] The police warning given was, “You need not say anything. You have nothing to hope for any promise or favour andnothing to fear from any threat whether or not you say anything, anything you say may be used as evidence.” The accused argues thatthe right to remain silent is not the same as the right not to say anything.

Given that breach, it is submitted that the statement should havebeen excluded under section 24(2) of the Charter. [68] Even if I were to agree with that argument, the failure of police to notify the accused that he had the right to remainsilent would not have breached the Charter because, “once the police have met their constitutional duties under sec[tion] 10(b), there isno further obligation on them to inform a detainee of the right to silence” (R v Lamirande; R v Guimond, 2002 MBCA 41 at para 50; seealso R v Singh, 2007 SCC 48; and Peter W Hogg & Wade K Wright, Constitutional Law of Canada, 5th ed Supp (Toronto: Carswell,2022) (loose-leaf updated 2022, release 1), pt III, ch 50, at

section 50:6). [69] The accused argues that there was no evidence to support the conclusion that he had an awareness of the consequencesof waiving the right to silence. However, as the Supreme Court noted in Bartle (at 9 175): . . . [P]olice are not required to assure themselves that a detainee fully understands his or her rights, absent special circumstancesindicating that a detainee does not understand the s. 10(

b) caution. . . . . . . [70] The accused had the right to remain silent. While the police were not obligated to, they told him he had that right. Hechose not to exercise it. He was aware that his statement could be used as evidence.

While the phrase “used against you” may have beenpreferable, it was not required (Krista Davis, C Lindsay Fitzsimmons & Timothy E Moore, “Improving the Comprehensibility of aCanadian Police Caution on the Right to Silence” (2011) 26 J Police Crim Psych at 87-99, online: Glendon York Uwww.glendon.yorku.ca/timmoore/wp-content/uploads/sites/222/JPCP-right-to-silence.pdf (date accessed 19 September 2022)). Acaution does not need to be in any specific form, and there are not any magic words the police must use in a caution (see R v GTD, 2017ABCA 274 at para 113).

Section 24(2) [71] Even if I had found a Charter breach because of lack of timely access to counsel between the afternoon of May 9, 2019and the morning of May 10, 2019, I would not have excluded the statement under section 24(2). [72] In R v Grant, 2009 SCC 32, the Supreme Court established the three factors that the trial judge must consider whendetermining whether to exclude evidence pursuant to section 24(2).

The court must assess and balance the effect of admitting theevidence on society’s confidence in the justice system having regard to: the seriousness of the Charter-infringing state conduct; theimpact of the breach on the Charter-protected interests of the accused; and society’s interest in the adjudication of the case on its merits

(see para 71). The court’s role on a section 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 73 ] Lack of timely access to counsel is a serious Charter breach. However, in this case, the accused had been given an opportunity to contact counsel, which did not prove successful through no fault of the police. His behaviour after that attempt justified his detention in the cells until he sobered up.

The police officer returned to the East St. Paul detachment, and the accused was detained in the cells in the Selkirk detachment. Should he or someone else have returned earlier in the middle of the night to ascertain whether the accused had sobered up? Perhaps. But, I would hardly call the extra few hours in these circumstances a serious breach, given there was no attempt to question him. [ 74 ] The impact of the breach calls into question the nexus between the breach and the statement.

For section 24(2) to be called into play, there must be a nexus between the constitutional infringement and the evidence that is tendered for admission. The Charter violation must occur during the course of obtaining the evidence (see David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2022) at

section 41.01 (online: WL Can (date accessed 13 September 2022)). [ 75 ] Courts have taken a fairly generous approach to the question as to whether the evidence was obtained in a manner that infringed or denied Charter rights. The required connection between the breach and the statement may be temporal, contextual, causal or a combination of the three. Establishing a strict causal relationship between the breach and the subsequent discovery of evidence is unnecessary (see R v Mack , 2014 SCC 58 at para 38 ).

So evidence that was obtained before the Charter breach may still be excluded, depending on the circumstances (see R v Pino , 2016 ONCA 389 ). Where there is a sufficient temporal and contextual link between the evidence and either prior or subsequent police breaches of Charter rights, the evidence can be said to have been “obtained in a manner” that infringed those rights. [ 76 ] On appeal, the accused does not challenge the finding of fact that the incriminating statement he made to police was both voluntary and spontaneous.

The statements were not responsive to police questioning or conduct of any kind (see R v Henrikson (WO) , 2005 MBCA 49 at para 26 ). Even if it could be said that there was a nexus between the statements and the timeliness of access to counsel, it would not be such as to bring the administration of justice into disrepute and require the exclusion of the evidence.

Conclusion [ 77 ] Improvised firearms similar to the one in this case have become a more common problem in the last two to three years and, apparently, Winnipeg and Manitoba have become the epicentre of this increasingly common phenomenon. [ 78 ] Nonetheless, the jurisprudence developed in Covin and subsequent cases is sufficient to deal with this phenomenon.

Depending on the offence charged, a determination as to whether an item is a firearm under the Code can be made by consideration of such facts as adaptability, time for implementation and skill required, in the context of the particular case. [ 79 ] Given the expert evidence in this case, the finding of the trial judge that this was a firearm within the definition of

section 2 of the Code was not unreasonable. [ 80 ] Given the evidence of the ammunition in possession of the accused and the falsified licence, the statement of the accused that the gun was his was not necessary. However, even if it were, I do not find that there were any Charter breaches with respect to

section 7. There is no constitutional obligation under

section 7 of the Charter that requires a police officer to advise a person who is under arrest or detention of their right to silence, unlike the right to counsel. In practice, Canadian police do warn suspects of their right to silence at the same time as they warn suspects of their right to counsel. However, there is no particular wording required in a police caution. [ 81 ] The accused was informed of the charges for which he was arrested. He was not charged with the firearm offences until the next day.

He was provided with an opportunity to contact counsel at the first reasonable opportunity in the circumstances of the case. He did not exercise that opportunity with due diligence. Given his behaviour, it was reasonable for the police not to attempt another opportunity to contact counsel until the next morning. Even if it could have occurred earlier and that constituted a breach of

section 10(b), I would not have excluded the evidence pursuant to section 24(2). [ 82 ] The appeal is dismissed. JA I agree: JA I agree: JA