Minor Charter breaches fail to outweigh serious firearm offence, Appeal Court rules

Law360 Canada (March 27, 2026, 9:08 AM EDT) --

John L. Hill

Gun

Does any Charter breach bring the administration of justice into dispute? That was the essential question posed to the Ontario Court of Appeal and answered in the recently released decision in R. v. Hosang, 2026 ONCA 51.

On Feb. 19, 2022, at 1:52 a.m. Durham Regional Police responded to a report of a car idling in a parking lot for several hours. When an officer approached, cannabis smoke and open packages were observed inside. Jim Hosang, then 19, was seated in the passenger seat, while his friend was in the driver’s seat. Both were questioned, and Hosang provided his name and date of birth after briefly asking to call his mother.

A database check revealed Hosang had an outstanding robbery charge and was subject to conditions, although officers focused on a cannabis-related investigation under the Cannabis Control Act (CCA). Within minutes, police searched the vehicle and its occupants. In Hosang’s satchel, they found a loaded firearm with an obliterated serial number. He was arrested, and after a brief delay, was advised of his right to counsel. An officer improperly asked him a question about the gun before doing so, but Hosang did not respond.

Hosang challenged the police conduct under various sections of the Canadian Charter of Rights and Freedoms, alleging unlawful search and seizure, arbitrary detention and breaches of his right to be informed of the reasons and to access legal counsel. The application judge dismissed most of these claims, ruling that the search was lawful under the CCA and that the initial detention was justified. However, the judge recognized a breach of Hosang’s right to counsel when the officer questioned him about the gun before informing him of that right.

Although the judge initially found that Hosang’s right to counsel had been temporarily “suspended” during the investigation, this was later recognized as incorrect based on subsequent case law. Using the test from R. v. Grant, 2009 SCC 32, it was determined that, despite some Charter breaches, their impact was limited, and the seriousness of the firearm offence supported admitting the evidence. As a result, the firearm was not excluded. Hosang was convicted and sentenced in the Superior Court of Justice.

Hosang’s appeal centred on three main issues: whether obtaining and using his identification violated s. 8; whether his right to counsel under s. 10(b) was infringed at the start of detention; and whether the firearm should have been excluded under s. 24(2). The court found no error in the s. 8 analysis, acknowledged that the s. 10(b) analysis was flawed in light of recent case law (in R. v. McGowan-Morris, 2025 ONCA 349), but ultimately upheld the admission of the firearm after conducting a new s. 24(2) analysis.

On the s. 8 issue, the court held that although Hosang had a reasonable expectation of privacy in his identifying information, the police conduct was reasonable. Unlike in R. v. Harris, 2007 ONCA 574, where police conducted a broad and unrelated background check, here the officers requested Hosang’s identification to determine who they were dealing with before carrying out a lawful search under the CCA. This connection between the identification request and the imminent search made the database check reasonable, particularly given officer safety concerns.

The court rejected arguments that the identification request was unjustified, not authorized by the CCA or improperly based on another officer’s direction. It determined that establishing identity before a lawful search is a practical and reasonable step, especially during a nighttime investigation involving a physical search.

On the s. 10(b) issue, the court agreed that Hosang’s right to counsel was violated more broadly than the application judge had determined. Based on the later decision in McGowan-Morris, there is no automatic suspension of the right to counsel during CCA searches. Hosang should have been advised of his right to counsel as soon as the police had grounds and intent to search. The approximately 12-minute delay, therefore, amounted to a Charter breach, in addition to the improper questioning about the firearm.

On the s. 24(2) analysis, the court rejected Hosang’s claims that the trial judge failed to consider police dishonesty or the cumulative effect of breaches. The judge had not found the officer dishonest and explicitly considered the breaches together.

In conducting a new analysis, the court identified several breaches of the Charter: a brief arbitrary detention (s. 9), a minor delay in explaining the detention (s. 10(a)), and a more serious violation of s. 10(b). However, the severity of the s. 10(b) breach was mitigated because the law at that time was unsettled.

The impact of the breaches was minor, as Hosang did not make any incriminating statements and the firearm was found independently of the violations. Finally, the court emphasized society’s strong interest in the fair adjudication of serious firearm offences.

After considering all factors, the court concluded that admitting the firearm would not prejudice the administration of justice. Consequently, Hosang’s appeal was dismissed.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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