Background
On July 7, 2022, police conducting surveillance near a safe injection site observed Jaiden Nicholls appearing to engage in drug trafficking. When officers attempted to arrest him, he fled and discarded his hooded sweater and black jacket. Police recovered a loaded firearm from his waistband, a firearm magazine from the ground, and from the discarded sweater, bulk quantities of fentanyl along with cellphones, cash, and a scale. Nicholls was convicted in Ontario Court of Justice on June 3, 2024, of possessing fentanyl for the purpose of trafficking, possessing property obtained by crime, and firearms-related offences.
Nicholls appealed on three grounds: that police violated his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms by questioning him at arrest before consulting a lawyer; that police breached the duty to hold off questioning during the police station interview; and that the trial judge erred by admitting evidence rather than excluding it under s. 24(2) of the Charter. The Court of Appeal heard the appeal on June 19, 2026.
The Court’s Holding
The Court found no error in the trial judge’s rejection of the appellant’s challenge to questioning at arrest. Questions police asked—”Why are you running?”, “Where’s the gun?”, and questions about firearm possession—appeared rhetorical or safety-related rather than investigative. Critically, Nicholls’ counsel had not cross-examined police on these interactions at trial and had not meaningfully pursued the issue, leaving it as a minor matter not properly before the court. The Court held the trial judge was not obliged to address an argument counsel abandoned at trial.
Regarding the police station interview at 11:59 p.m., the Court found no additional Charter breach beyond the one the trial judge identified. The trial judge had found police breached s. 10(b) by failing to facilitate a promised call to Nicholls’ mother after he spoke with duty counsel. However, by the time of the police station interview, Nicholls had been readvised of his right to counsel and expressly declined it. Although he again asked to speak with his mother, he never stated the purpose was to obtain a lawyer. Police offered him another opportunity to call his mother after the interview, which he declined. Under these circumstances, police did not violate the duty to hold off questioning.
On the s. 24(2) exclusion analysis, the Court found the trial judge committed no error. She properly applied the Grant factors, considering the seriousness of the breach (slightly favoring exclusion), impact on the appellant’s rights (minimal), and the seriousness of the offences and society’s interest in adjudication on the merits (strongly favoring admission). The Court afforded considerable deference and found her decision to admit the evidence was legally and factually sound.
Key Takeaways
- Questions at arrest that are rhetorical or safety-related, rather than investigative, do not trigger the duty to hold off questioning under s. 10(b) of the Charter.
- Trial courts are not obliged to address appellate arguments that counsel did not pursue at trial through cross-examination and meaningful closing submissions.
- Even where a Charter breach is found, evidence may be admitted under s. 24(2) where the breach is relatively minor and the offences are serious.
- Readvising an accused of the right to counsel and obtaining an express waiver can permit subsequent police questioning despite an earlier Charter breach.
Why It Matters
This decision clarifies the scope of the duty to hold off questioning under s. 10(b) by distinguishing investigative questions from safety-related or rhetorical ones—an important boundary for law enforcement practice. The Court reinforces that Charter protections depend on whether defence counsel actively pursues those issues at trial; appellate courts will not rescue arguments counsel abandoned or failed to develop.
Equally significant is the pragmatic application of the s. 24(2) balancing test. Even where police commit a Charter breach in facilitating counsel access, evidence arising from serious crimes such as fentanyl trafficking may be admitted if the breach is relatively minor and society’s interest in adjudication on the merits is strong. This approach avoids automatically stripping evidence from serious criminal convictions based on procedural shortfalls.