Law360 Canada (May 5, 2026, 11:33 AM EDT) --

John L. Hill

Sometimes it is not a defence lawyer who is responsible for an acquittal. Sometimes an acquittal may result from police actions.

Police obtained a warrant for L.G., a young suspect linked to organized crime, drug trafficking and weapons offences. Although officers were told L.G. was not at the residence, they observed a suspicious vehicle arrive nearby and a man, later identified as T.G., L.G.’s brother, exit carrying a satchel. Despite notable differences from L.G.’s description (facial hair, height, complexion and no confirmed tattoo), officers believed he was L.G., citing changing appearances and limited viewing conditions. Police knew they were looking for a Black man, and T.G. was Black.

Acting on safety concerns and the possibility that the man they suspected was L.G. was armed, officers stopped and arrested T.G. He appeared nervous, provided a different name and failed to comply with instructions. During a search incident to arrest, T.G. admitted he had a gun and crack cocaine. Officers recovered a loaded handgun, small quantities of crack cocaine, cash and multiple cellphones. Expert evidence suggested the drugs, cash, phones and firearm were consistent with trafficking, though each factor could have innocent explanations.

It was later confirmed that he was not L.G. but his brother. T.G. requested to speak to a lawyer, but access to counsel was delayed for several hours, resulting in a breach of his Charter right to counsel under s. 10(b). However, the trial judge admitted the evidence under s. 24(2), finding the arrest lawful.

The trial judge sentenced T.G. to three years for possession of a prohibited firearm, eight months consecutive for possession of narcotics for the purpose of trafficking and three months concurrent for possession of the proceeds of crime. T.G. received a total of 14 months’ credit for presentence custody and time spent on restrictive bail conditions. T.G. appealed his conviction and sentence to the Ontario Court of Appeal. The decision was delivered on April 29 (R. v. T.G., 2026 ONCA 298).

The three-judge panel agreed that the appeal arose from a case of mistaken identity. There was no disagreement that mistakes can occur during investigations. Sometimes, the mistake will involve an error of law. Investigators may misapprehend the scope of their authority or perceive such authority where none exists. Police are expected to know the law they are to enforce and to obey it: R. v. Tim, 2022 SCC 12; R. v. Grant, 2009 SCC 32; R. v. Le, 2019 SCC 34. Where police search, detain or otherwise interfere with a person’s liberty without lawful justification, such conduct will invariably breach the Canadian Charter of Rights and Freedoms.

Nonetheless, one panel member wrote a lengthy dissent. Justice Renee Pomerance agreed with the trial judge that the officers honestly believed T.G. was L.G. and that this credibility finding deserved deference. However, she disagreed that this belief was objectively reasonable, a requirement for a lawful arrest.

Her core reasoning held that mistaken identity alone is not fatal, but the mistake must be reasonable. Here, it was not. The officers relied on weak circumstantial indicators, including a vague resemblance, proximity to the target house, early-morning timing and suspicious movement. Still, these did not support a probable inference that T.G. was L.G. Key exculpatory signs were ignored. The officers had a poor vantage point, observed notable physical differences and failed to take simple steps to confirm identity. They could have checked for a distinctive tattoo or asked for ID.

The inference of identity was logically flawed. T.G. was dropped off at the target address and walked away, weakening any geographic link. His presence in the area provided only a minimal link to the investigation. His post-stop behaviour was panicked. That added little. People may react nervously to police for many reasons, so this could not meaningfully support the arrest. The police acted too quickly. While they had reasonable suspicion justifying an investigative detention, they escalated it to an arrest, the most intrusive option, without first confirming identity.

As a result, the arrest was unlawful, in breach of s. 9 of the Charter. The subsequent search was also unlawful, in breach of s. 8, because it depended on a valid arrest. However, despite finding these Charter breaches, Justice Pomerance concluded that the evidence consisting of a gun and drugs should still be admitted under s. 24(2). She found that the police acted in good faith, close to the line between suspicion and reasonable grounds. The availability of lawful detention mitigated the impact on liberty. The evidence was reliable and crucial, and the offences were serious.

After balancing these factors, she found that admitting the evidence would not bring the administration of justice into disrepute. She ultimately agreed to dismiss the appeal of the conviction and to uphold the sentence.

The majority agreed with Justice Pomerance that the police violated T.G.’s Charter rights (ss. 8, 9 and 10(b)) and that the trial judge did not err on the trafficking issue. However, the majority sharply disagreed on the 24(2) analysis and reached the opposite result: the evidence should be excluded and the appellant acquitted.

Key points of the majority’s reasoning relied heavily on the Grant decision and included:

• Serious Charter breaches (first Grant factor): The majority rejected the view that the police conduct was on the borderline or merely a good-faith mistake. Instead, it found the breach serious. The officers ignored clear discrepancies in appearance (height, complexion, hair, facial hair and a distinctive tattoo), relied on a poor vantage point and failed to take simple steps to confirm identity. T.G. was not near the target house and was walking away from it. In these circumstances, the police effectively “shut their eyes” to exculpatory information. Even if not deliberate, this demonstrated a clear disregard for Charter rights and strongly favoured exclusion.
  
• Severe impact on the appellant (second Grant factor): The majority found the intrusion on liberty and privacy to be very significant. T.G. was blocked, surrounded, handcuffed, searched and strip-searched without lawful grounds. Unlike Justice Pomerance, the majority did not accept that this impact was mitigated by the possibility of a lawful investigative detention; it questioned whether even that lower threshold was met. In any event, police immediately escalated to arrest without justification, even though they could easily have confirmed identity. This factor also strongly favoured exclusion.
• Society’s interest (third Grant factor): The majority acknowledged that the evidence (a handgun, drugs and cash) is reliable and relevant to serious offences, which favoured admission. It also recognized heightened public safety concerns associated with firearms. However, the majority judgment stressed that there is no “firearms exception” to Charter protections.
• Balancing: Where the first two factors strongly favour exclusion, the third will “seldom” outweigh them. Admitting the evidence here would have effectively normalized serious Charter breaches, especially in gun cases, and risked creating a de facto exception. A reasonable observer would see admission as undermining the integrity of the justice system.

Accordingly, the majority held that admitting the evidence would bring the administration of justice into disrepute. It excluded the gun, drugs and related evidence, leaving the Crown without a case. It therefore allowed the appeal and entered acquittals on all counts.

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). His most recent book, Acts of Darkness, (Durvile & UpRoute) has been shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.

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