COURT OF APPEAL FOR ONTARIO
Feldman, Tulloch and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
James Leonard
Appellant
Erik Van Drunen, for the appellant
Marina Elias, for the respondent
Heard: December 1, 2020, by video conference
On appeal from the conviction entered on February 27, 2019, by Justice Ian F. Leach of the Superior Court of Justice.
REASONS FOR DECISION
Introduction
1The appellant, Mr. Leonard, was convicted of one count of trafficking of a controlled substance, contrary to section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19(“CDSA”), and one count of possession of a controlled substance for the purposes of trafficking, contrary to section 5(2) of the CDSA. He appeals his convictions, arguing that the trial judge erred in his s. 10(b) Charter analysis.
2As will be explained, we see no error in the trial judge’s s.10(b) analysis. He correctly articulated and applied the test to determine whether the deliberate delay of facilitating access to counsel was justified in the circumstances. Accordingly, we dismiss the conviction appeal.
Background Facts
3Investigators with the Stratford Police’s Street Crime Unit (“SCU”) suspected that Mr. Leonard supplied cocaine to a street-level trafficker in Stratford, Ontario. The officers prepared a high-risk takedown of Mr. Leonard because a confidential informant disclosed that he possessed a long firearm. At 22:35 on June 4, 2016, officers arrested Mr. Leonard at gunpoint at a traffic stop. The officers conducted a search incident to arrest and found 56g of cocaine in his shorts and two mobile phones in his vehicle. No gun was found as a result of the search. Mr. Leonard was advised of his rights, and he immediately expressed a desire to speak with counsel.
4Mr. Leonard was transported to the police station, where at approximately 22:55, Officer McMillan left a voicemail for Mr. Leonard’s counsel of choice, Arakua Lamptey. Upon learning that Ms. Lamptey was unavailable, Mr. Leonard asked to speak to a different lawyer, Amy Robern. Officer McMillan placed a call to Ms. Robern at approximately 22:59 but did not reach her. Again, Officer McMillan left a voicemail. Mr. Leonard then requested to speak to duty counsel, and at approximately 23:16, Officer McMillan left a voicemail message on the duty counsel hotline requesting that a lawyer call back and speak to Mr. Leonard.
5At approximately 23:00, the ranking officer of the SCU, Officer Clarke, decided to apply for a search warrant to be executed at Mr. Leonard’s residence. The fact that a search warrant was being sought was subsequently communicated to Officer McMillan, along with instructions that Mr. Leonard should not be permitted to speak with counsel for the time being. When duty counsel called back at 23:38, he was advised by Officer McMillan that he could not speak to Mr. Leonard because of an outstanding warrant.
6Officer Serf prepared a search warrant application and faxed it to the justice of the peace at approximately 00:54 on June 5, 2016. Officer Serf then attended in the cellblock at the police station with Officer Weyers to interview Mr. Leonard. From 01:59 to 02:05, the officers questioned Mr. Leonard. Officer Serf testified that the goal of this questioning was to determine whether the police would discover a firearm at Mr. Leonard’s residence when they executed the search warrant and if anyone else was expected to be in the home. In addition to these questions, the officers also asked about the presence of marijuana and other drug paraphernalia at the house.
7At approximately 03:00, a justice of the peace authorized the Stratford Police to execute the search warrant at Mr. Leonard’s residence at 07:00. Officer Clarke then instructed Officer McMillan to facilitate Mr. Leonard’s communication with duty counsel. At approximately 03:10, Officer McMillan called duty counsel and left a voicemail. Mr. Leonard spoke with duty counsel at approximately 03:21. The total delay in speaking to counsel was about 3.5 hours.
8At a blended trial and voir dire, the trial judge found that police breached Mr. Leonard’s s. 10(b) rights when they questioned him in the holding cellblock. The Crown conceded this breach and indicated that it had no intention of adducing into evidence Mr. Leonard’s statements or the fruits of the resulting search of Mr. Leonard’s residence. The trial judge found that the delay of Mr. Leonard's right to speak to counsel was constitutionally compliant because it responded to the case's specific circumstances.
9The trial judge declined to also exclude the cocaine evidence that was found on the appellant’s arrest pursuant to s. 24(2) of the Charter, reasoning that the s. 10(b) breach occasioned by the interview in the cellblock fell within the mid-range of seriousness, had little or no impact on Mr. Leonard’s Charter-protected interests, and that society’s interest in an adjudication on the merits favoured the admission of this reliable and non-conscriptive evidence.
Analysis
10Mr. Leonard raises the following grounds of appeal:
The trial judge erred in his s. 10(b) analysis by not considering whether the officers’ decision to withhold counsel was reasonable; and
The trial judge misapprehended the evidence by failing to consider Officer Clarke’s testimony suggesting that it was “common practice” for police to delay access to counsel when preparing search warrants for arrested persons’ homes and by finding that no s. 10(b) breach occurred because police had turned their minds to the specific circumstances at hand.
11We are not persuaded by these arguments.
12Regarding the first ground of appeal, the trial judge was alive to the concern that any delay in granting access to counsel must be reasonable. Indeed, he specifically referenced that the delay must be reasonable when he articulated the test to determine whether the deliberate delay of facilitating access to counsel was justified. He then conducted a detailed review of the circumstances of this case and found a demonstrated and justified basis for the police’s actions based on concerns for officer safety due to credible information about an outstanding firearm. Implicit in his reasoning was a finding that the police acted reasonably.
13With respect to the second ground of appeal, Officer Clarke referred to a “common practice” of police delaying access to counsel when preparing search warrants for arrested persons’ homes. However, that statement has to be considered in the context of other evidence that demonstrated that the police had turned their minds to the specific concern about a long firearm being in Mr. Leonard’s residence. That evidence included: the fact that the police engaged in a high-risk takedown because they were concerned about the firearm; the discussions that took place among the officers about delaying Mr. Leonard's contact with counsel because of concerns about the firearm; the interview in the cellblock included questions about the firearm; and Officer Clarke’s testimony that his primary motivation in delaying contact between Mr. Leonard and counsel was public and police safety.
14The facts of the case at bar are distinguishable from the facts of R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, which was relied on by Mr. Leonard. In that case, there was “no evidence that any of the officers turned their mind to the specific circumstances of this case before deciding that the appellant would be arrested and denied access to counsel for several hours while the police sought, obtained, and executed a search warrant”: Rover, at para. 32.
15Based on the foregoing, we see no error in the trial judge’s conclusion that the delay in Mr. Leonard speaking to duty counsel was not a s.10(b) violation. Given this conclusion, it is unnecessary to undertake a fresh s. 24(2) analysis, as Mr. Leonard does not take issue with the s.24(2) analysis conducted by the trial judge on the conceded s.10(b) breach.
Disposition
16The appeal is dismissed.
“K. Feldman J.A.”
“M. Tulloch J.A.”
“C.W. Hourigan J.A.”
