R. v. Palmer, 2020 ONCJ 650

R. v. Palmer

Date: December 16, 2020

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Deandre Palmer

Before: Justice Susan Chapman

Heard on: October 28 and 29, 2020

Reasons for Judgment released on: December 16, 2020

Counsel:

• C. Moore, for the Crown
• J. Casey, for the accused Deandre Palmer

CHAPMAN J.:

I. Overview

1The Applicant, Mr. Palmer, is charged with a number of serious criminal offences arising out of his possession of a loaded, prohibited handgun and the consequent breaches of court orders prohibiting him from possessing weapons.

2At trial the defence filed an application pursuant to s. 24(2) of the Charter seeking exclusion of "any and all firearms and documentation" obtained in a manner said to violate s. 10(b) of the Charter. The written application points to the nearly 4.5 hours of delay between the time when Mr. Palmer was informed of his right to counsel and asked to speak to a lawyer and when he was given an opportunity to do so. The Crown agrees that there was a breach of the s. 10(b), with respect to part of the delay in implementation, but does not agree as to the nature and seriousness of the breaches alleged by the Applicant and resists the exclusion of the evidence.

3It is therefore necessary to determine the nature and extent of the Charter breaches that took place in this case as part of the overall s. 24(2) analysis.

II. The Agreed Statement of Facts

4At the outset of the voir dire, and for the purposes of the trial proper, an Agreed Statement of Facts was filed as Exhibit 1. It is agreed that Deandrea Palmer was arrested on December 23, 2018 and that at that time he was found to be in possession of a Glock Model 43, 9 mm luger caliber, semi-automatic handgun with a barrel length of 86 mm. The handgun was found to be functioning and is a "prohibited weapon" as defined in the Criminal Code. Further, the handgun was loaded. It contained six rounds of 9 mm ammunition: one "live" round in the chamber; and, five rounds in the magazine. The ammunition was tested and found to be "ammunition" as defined in the Criminal Code. Mr. Palmer was not the holder of a valid firearms acquisition certificate or license, or a firearms registration certificate, on December 23, 2018. At approximately 12:10 p.m., on that same date, the police sought and obtained a warrant to search the Mercedes Benz vehicle that could be opened by the key fob seized from Mr. Palmer.

5Further, on November 13, 2018 Mr. Palmer pleaded guilty to one count of having possessed cocaine for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, and was placed on a probation order for a period of 18 months, one of the conditions of which was that he not operate or have care or control of any motor vehicle. He was also placed on a weapons prohibition for a period of five years pursuant to section 51 of the Youth Criminal Justice Act. On November 16, 2018 Mr. Palmer pleaded guilty to one count of having possessed cocaine and was placed on probation for a period of 12 months, one of the conditions of which was that he not operate a motor vehicle for a period of 8 months.

III. The Nature of the Charter Application

6Prior to trial the defence brought a written application pursuant to s. 24(2) of the Charter, seeking the exclusion of evidence obtained in breach of s. 10(b) of the Charter rights of Mr. Palmer. It is alleged that from the time of his initial detention by the Loss Prevention Officer at the Canadian Tire, to the time that he was finally put in a position to contact his counsel some 4.5 hours later, there were a series of separate and ongoing breaches of the Applicant's s. 10(b) rights and in particular the obligation of the police to facilitate the arrestee's right to contact counsel. Then, on what was to be the first day of the voir dire, the defence received further significant disclosure and, with the consent of the Crown and the permission of the court, expanded the scope of the allegations of Charter breaches to include s. 10(a) of the Charter. This late disclosure includes the recently created will state of the officer in charge of this investigation revealing events that are directly relevant to the Charter application that he did not contemporaneously record in his notes. The Crown agrees that the delay in affording Mr. Palmer the right to speak with a lawyer, between approximately 3 and 4 pm (only), does amount to a breach of s.10(b) but submits that the evidence obtained should not be excluded pursuant to s. 24(2).

7The outcome of this application turns on the principles that animate s. 24(2) of the Charter. The timeline is not in dispute. However, it is necessary for me to determine the precise nature and extent of the Charter breaches that occurred during this timeline for the purposes of assessing at least the first two factors under the Grant analysis that governs s. 24(2). This requires a detailed analysis of the events that took place upon Mr. Palmer's arrest.

IV. The Evidence on the Application

The Initial Arrest for Shoplifting

8On December 23, 2018, Mr. Palmer was at the Canadian Tire, located at 3553 Lawrence Avenue East, Scarborough when, at approximately 11:18 a.m., the Loss Prevention Officer ("LPO"), Mr. Daniel Kwasny, saw him select two items, one of which he concealed in his jacket. At the cash register Mr. Palmer paid for one item but not the other. Then he left the store and Mr. Kwasny and one of his trainees followed him into the parking lot. There he approached Mr. Palmer, identified himself as store security, and told him he was under arrest for theft. This initial arrest took place at 11:24 a.m.

9Mr. Kwasny took control of Mr. Palmer's left arm and his trainee took control of Mr. Palmer's right arm. Mr. Palmer began to resist by pulling away while offering to pay for the item. Mr. Palmer dropped change from his recent transaction on the ground and continued to yell "I'll pay" and "let me go". After about 3 minutes, and at 11:27, Mr. Kwasny was finally able to place Mr. Palmer's hands in handcuffs behind his back. While the trainee continued to hold Mr. Palmer by the arm Mr. Kwasny picked up Mr. Palmer's money off the ground with a view to returning it to him.

10Then at 11:28, as is their usual practice, the security officers took Mr. Palmer to the security office in the Canadian Tire where they would type a report, perform a pat down search, and call for police to attend. In the office Mr. Kwasny began the pat down search of Mr. Palmer, starting with the right front pocket of his jacket and then moving to the left pocket. At that point Mr. Palmer grabbed Mr. Kwasny's arm and dug his nail into Mr. Kwasny's right index finger while yelling "let me go". When he realized he was bleeding Mr. Kwasny disengaged and took out his cellphone and called 911 at 11:29.

11After he called 911 he read Mr. Palmer his right to counsel from his notebook at 11:33 a.m. and as he did so Mr. Palmer continued to yell at him. Mr. Palmer made clear that he wanted to speak to a lawyer. Mr. Kwasny advised him that the Toronto Police would provide him with the opportunity to consult with a lawyer in private, something Mr. Kwasny did not feel he could do in the security office at that time and under those circumstances. At no time did he caution him to remain silent as that is not his practice nor something he was trained to do.

The Initial Police Involvement

12P.C. Astolfo arrived at the Canadian Tire at 11:40 and entered the security office. At 11:41, Officer Astolfo arrested the Applicant for theft and assault. Within a minute of entering the room he saw the butt of a handgun protruding from Mr. Palmer's pocket and seized and secured it. During the subsequent pat down search of Mr. Palmer the officer found, among other things, keys to a Mercedes.

13At 11:42 Mr. Palmer was arrested for possession of a firearm. At 11:43 Mr. Palmer was read his right to counsel and indicated that he wished to speak with counsel. Officer Astolfo did not caution the Applicant regarding the right to remain silent at this time or at any other time. Officer Astolfo provided the Mercedes keys to Officer Hugo and asked her to find the car in the lot. Prior to leaving the scene, Officer Hugo walked through the Canadian Tire parking lot in an attempt to locate the vehicle but was unsuccessful. Officer Hugo then followed Officer Astolfo back to 42 division at 11:58.

14On the way back to the station Officer Astolfo called Det. Hutchings in the detective's officer at 42 Division, to notify him of the circumstances of the arrest. Officer Astolfo arrived back at the station with Mr. Palmer in his custody at 12:05 but the parade did not happen until about 12:19, as other prisoners were being processed. After the parade, a level 3 search was done and completed by 12:35.

15Officer Astolfo testified that at 12:36 Det. Hutchings told him not to place any calls to counsel for Mr. Palmer due to safety concerns related to the car. Accordingly, Mr. Palmer was placed in an interview room. Because Mr. Palmer was kicking the door of the interview room and demanding to speak to counsel, he was moved to a cell where he remained for several hours. When Mr. Palmer was in the interview room Officer Astolfo had a conversation with him in an effort to calm him down. However, nothing about the content of that conversation, or for that matter any of Mr. Palmer's interactions with police during the next 3 hours, is recorded in his or any other officer's notes. In his testimony Officer Astolfo could not recall what was said but did not think that Mr. Palmer was asking to speak to a lawyer at that time. On the other hand, Det Hutchings, who's evidence is reviewed below, testified that Mr. Palmer was in the interview room yelling and demanding to speak to a lawyer and for that reason he spoke to him at 12:46 and told him that he would not be making any calls until his car was towed to a police facility.

Efforts to Find and Secure the Mercedes

16Back at the station Officer Hugo was tasked by an officer (who, she can't recall as she did not make a note of it) to return to the plaza to find the Mercedes. She was looking for the car because in her words "there was reasonable suspicion that because there was a firearm recovered… there could be another firearm. He was arrested for shoplifting. There could be property and he also has a history of violent offences." She arrived back at the plaza at 12:42. She could not recall what time she found the Mercedes but she called Det. Hutchings within a minute of doing so, at 12:43 p.m. That would mean she found it immediately upon her return to the parking lot. She was instructed to seize the car and to wait by it until further notice. She sealed the car doors. Officer Wooton was with her at the time. In cross-examination she could not recall whether Officer Tomaszeki was also with her at that time but agreed that was possible. She was told the vehicle would be towed to 42 Division. The tow truck arrived at 3:02 pm and left the parking lot with the Mercedes at 3:12 p.m. Officer Hugo had the car keys in her possession until she handed them to another officer at the station.

17Officer Hugo testified in cross-examination that there was a concern for her safety "me being alone" having regard to Mr. Palmer's history of "violent offences". However, she makes no mention of that history, or of the CPIC check she did at 1:25 p.m. that refers to certain hold up squad investigators names, in her notes. As for her safety concerns, she was advised that another police unit would attend with her but she did not make a note of who was with her or when during her time in the parking lot. She testified that Det. Hutchings would have been aware of the fact that at least Officer Wooten was with her in the parking lot because it was "over the air" for everyone to hear.

18What took place between 11:43 and 3:12 is significant and will be elaborated upon below. However, what is clear is that the tow truck was en route when it was cancelled by police at 12:58 p.m. and then was recalled at 2:26 p.m. and arrived at 3:02 and the finally left the lot at 3:12 p.m.

After the Car is Towed

19Meanwhile, back at the station, Officer Astolfo had all of the exhibits in his possession – the gun, the money, etc., and he brought them upstairs into the Major Crime Unit office which is a large shared room. There, he started to write up his notes. At approximately 3:00 p.m., Officer Astolfo was advised by Officer Pargetter that the car had been secured and that access to counsel could now be facilitated. However, it was not until 3:55 p.m. that he first called counsel for Mr. Palmer. It is this hour that the Crown concedes amounts to unjustified delay in implementation.

20Officer Astolfo explained that during this time frame he was dealing with the property seized from Mr. Palmer. Property seized needs to be logged first and a property receipt obtained at which point the lockers are unlocked remotely by the computer. He felt that he could not facilitate Mr. Palmer's access to counsel at that time because he was dealing with the exhibits. He agreed that he saw Officer Pargetter at the station during this time and there were other officers in the station. He didn't ask any of them for assistance with the exhibits because he was waiting on PC Wooten, who he understood to be on his way. He didn't want to involve other officers for reasons of continuity. He was waiting for Officer Wooten to arrive at the station so that he could attend to the exhibits while he facilitated Mr. Palmer's right to speak to counsel. Again, this did not happen until 3:55 p.m., at which time Officer Astolfo called counsel of choice for Mr. Palmer. It was at 4:05 p.m. that Mr. Palmer first spoke to counsel.

The Decision to Delay Implementation of the s. 10(b) Right

21Det. Cst. Pargetter testified that he was the officer in charge (OIC) of this investigation. He has been with the Toronto Police Service (TPS) for 13 years and at the time of this investigation was in the Major Crime Unit at 42 Division. Within hours of Mr. Palmer's arrest, it became clear that this would be a Major Crime Investigation and that he would be in charge of it.

22Officer Pargetter's notes in relation to the events of that day occupy a single page. Only two times are recorded in those notes – the start of his shift and the end of his shift. He could not say when he first received information concerning Mr. Palmer but it was shortly after he started his shift at noon. It wasn't too long after that, that he spoke with officers who had attended the scene and learned what the circumstances were. He knew that car keys had been found on Mr. Palmer at the time of his arrest and that the car would become part of the investigation. He testified in chief as follows:

A: At that point, basically, I was ascertaining for rights to counsel for the accused party, when he could speak to a lawyer. We were determining when it was safe for him to do that.

Q: Were there any particular concerns?

A: Yes. There were – the accused was part of a Hold Up investigation that was taking place, at the time. And it was an ongoing investigation. … There were concerns. There was an ongoing Hold Up investigation concerning the accused, Deandre Palmer. That investigation had to be taken into account and analyzed. And that affected when the accused was going to speak to counsel.

Q: And how did you find out about that investigation?

A: There were CPIC hits for the accused, with reference to this Hold Up Investigation.

Q: I see.

A: And asking to contact the Hold Up investigators when the accused was dealt with. In contact with police.

Q: I see. And did you contact the Hold Up investigators?

A: Yes, I did.

Q: Anyone in particular?

A: I don't remember the specific person that I spoke to on December 23. But I spoke with Hold Up officers who asked, basically – the motor vehicle that was associated to the accused party – once it was located. Our original intention was to tow it to the station, as soon as practicable. However, once we learned of the ongoing investigation by the Hold Up investigators, that factor had to be taken into account. And so the tow truck was cancelled, and then once it was determined that we were authorized to have the vehicle towed, the tow was ordered. And when the vehicle was actually hooked up and we knew that officer and public safety wasn't a concern, I instructed PC Astolfo he could make the call to duty counsel.

23As for the timing of these events, Officer Pargetter testified that the car was located at 12:43 p.m. and at 12:47 p.m. a tow truck was ordered to have the vehicle towed to a police facility pending a Criminal Code search warrant. Then at 12:58, while en route, the tow was cancelled "at the request of the Hold Up Squad, so that an analysis of the available information in this dynamic situation could … be taken into account." Then at 2:26 D.C. Pargetter "received information that the vehicle could be towed to a police facility." So the tow truck was re-ordered at 2:26 and arrived on scene at 3:02 at which time DC Pargetter notified PC Astolfo that Mr. Palmer could now make a call to duty counsel. Again, it took another hour after that to make that happen.

24When asked again in chief what if any safety concerns he was informed of with respect to the hold-up investigation, D.C. Pargetter testified:

A: Sorry. Regarding the other investigation or the situation at hand on December 23?

Q: We'll say both. I'm talking about December 23 now.

A: Okay. Safety concerns included the officer on scene holding the vehicle for the tow truck. Concerns that if the accused spoke with counsel, then the entirety of the circumstances regarding where he was arrested and what knowledge he had, that is unknown to us, regarding anything inside the motor vehicle, could be relayed to other persons, who may wish to try and obtain that motor vehicle, or the product that is unknown, inside the motor vehicle. And so for the safety of the officers and the public that were at the Cedarbrae Mall, where this took place, I believed that there was concern that could be mitigated by withholding counsel until the vehicle could be towed to a police facility.

Q: And are those concerns that you had, based on your knowledge of the current investigation?

A: Yes. Well, there is the current investigation by the Hold Up Squad, as well as the fact that he was found with a firearm, that was loaded, on December 23, 2018. We were unsure what other material could be inside that motor vehicle that he, or any of his associates, would want.

Q: Was there any other information you had about any other associates at the time?

A: Yes. There was the fact that his brother, Trayvon Palmer, was also, potentially, involved in the Hold Up Investigation and he remained outstanding. And there was information in the actual radio call that there was a possibility that Trayvon was in the area, at the time.

When asked by the Crown whether or not he was made aware of anything else by either Hold-Up squad or the officers on scene, he testified "I don't believe so".

25It is noteworthy, and will be the subject of further analysis below, that virtually none of this information (concerning the contact this officer made with officers from the Hold Up Squad and/or any information received from them, conversations with officers on scene or at the station, the fact that the tow was cancelled, etc.) was contained in D.C. Pargetter's original notes. When asked "why not?" in chief, the officer testified that he decided not to include any of this information in his notes out of a concern that its disclosure would potentially compromise the Hold Up Squad investigation. It was only the day before he testified, which was to have been the first day of the voir dire, and nearly two years after the events, that disclosure of this additional information was made to the Crown or the Defence. It was triggered by a further defence request based on a hunch, and resulted in Officer Pargetter preparing a will state based on his recollection of events.

26The day the voir dire was to commence Officer Pargetter spoke to Det. Palermo of Hold Up and was advised that the information could be disclosed as that investigation had concluded. In cross-examination it became clear that it had actually concluded prior to the preliminary hearing in this matter in May of 2019, though D.C. Pargetter testified that he was not aware of that. He made no prior inquiries in this regard, despite being the officer in charge of this investigation and it being the purported reason for non-disclosure of relevant information.

27In cross-examination, Officer Pargetter confirmed that he did not make any notes of his interactions with hold-up squad in relation to this case, and therefore had to do his best to reconstruct events. The officer testified that he knew the Crown could redact sensitive information through the disclosure process and testified that "in hindsight" he should have included in his notes his communications with Hold Up, that animated his decision to hold off facilitating the right to counsel. He also agreed with defence counsel that this is not the first time that she has cross-examined him on a failure to made adequate notes of an investigation. Officer Pargetter agreed that he chose not to include any of this information in his notes out of a concern for their disclosure apparently to both the Crown and the defence.

28Officer Pargetter testified that he was concerned that if Mr. Palmer spoke to counsel, counsel might (perhaps unwittingly) relay information to the associates of Mr. Palmer and then they would know about the car in the lot, and "if they had knowledge of what was inside that car, they could take steps to try and obtain the property back." The officer was concerned about "officer safety and public safety, at the time, in this dynamic situation" and held off trying to elicit a statement from Mr. Palmer until this was accomplished. He agreed that he did have concerns about delaying Mr. Palmer's access to counsel and it was for that reason that, as soon as the car was hooked up to the tow truck, he advised Officer Astolfo to facilitate the call.

29As to whether it was his decision to delay implementation of the Charter right, Officer Pargetter testified "Detective Hutchings, initially, he had advised regarding the accused having a delay in counsel, because of the vehicle being near the location" and he is his superior. He denied that Det. Hutchings instructed him to not make notes in relation to the hold- up squad investigation. He testified that he could not recall whether or not he mentioned the hold- up investigation to Det. Hutchings and had no notes to refresh his memory from.

30In the will state he prepared the day before he testified, D.C. Pargetter states that the tow truck was cancelled at 12:58 pm "because of new circumstances that needed to by analyzed". As for what those circumstances were, "The Hold Up Squad needed to analyze, based off of their investigation, that was ongoing, at that time. I don't know the particulars of what they were analyzing, but that was their reason for the delay". He agreed in cross-examination that he knew at least one officer stayed with the car after it was found, but couldn't say whether in fact there were three officers with the car at all times because he didn't know now and made no note of it. It's not clear he made any inquiries as to how many uniformed, armed officers were on scene, despite his purported concerns for officer safety.

31When asked in cross-examination whether anybody has ever expressed concern to him about holding off counsel in this case or other cases, the officer testified:

A: Yes.

Q: In terms of the towing of the vehicle, that was all, sort of, being managed by Hold Up? Correct?

A: Well, it was being managed by myself, but Hold Up had put in a request to delay, in order to analyze this new situation.

Q: Okay. And ultimately, the delay in towing the vehicle, resulted in the delay to access to counsel?

A: Correct.

Q: And that ultimate delay stemmed from the Hold Up investigation?

A: Correct.

32Det. Hutchings has been with TPS for 25 years and was in the detective's office at 42 division on December 23, 2018. He testified on the voir dire that he made the call to delay Mr. Palmer's right to speak to counsel and that he relayed that decision to the Major Crime officers officers he was dealing, that is D.C. Pargetter and D.C. Tanner. He testified that on December 23, he got a phone call in the Detectives office and was told, apparently by an officer on the road, that a man was arrested at Canadian Tire for shoplifting was found to have a gun on him. He relayed that information to the Major Crime Unit, as this would be an appropriate case for them to investigate. His only further involvement in this case was "I delayed the phone call for the accused, until the officer who was at scene was towing the car. And once that car was towed and the officer safety was no longer an issue, I was fine with any phone calls to be made." He informed Mr. Palmer of this decision at 12:46 p.m. because he was trying to get work done in the CIB and "I just recall him going berzerk in the [interview] room and disrupting the CIB". He described Mr. Palmer as smashing and pounding on the door and yelling and screaming. He told Mr. Palmer that he would not be making any phone calls until his car had been towed. In cross-examination he agreed that during this "tantrum" Mr. Palmer was asking to speak to counsel, but he made no note of what was actually being said by the detainee and suggested to defence counsel that "you would have to ask him that."

33Det. Hutchings could not testify as to the time that he made the decision to hold off on the s.10(b) right as he did not record it in his notes. However, he "probably" had that discussion with the officers prior to notifying Mr. Palmer of it at 12:46. In cross-examination Det. Hutchings testified that he made the call to hold off on calling counsel, even though it was not his investigation, because "he [Mr. Palmer] was disturbing my work area and the people that work in my work area… So I was letting him know that he could hold down the temper tantrum, the yelling and swearing and screaming for a lawyer. It would come shortly but it's not coming right now."

34Det. Hutchings elaborated on his reasons for delaying implementation of the right to counsel, namely officer safety concerns as "the car came back associated to armed persons, and one of those persons that was arrested that day did have a firearm on him." According to Det. Hutchings, that ended his involvement in this case. He testified in chief:

Q: So are you involved in determining when that those officer safety concerns had been dealt with, or was that something that you left someone else to determine?

A: So I go – to the best of my recollection, it was either I got on the air, or I had an officer get on the air, to relay to Officer Hugo to let us know when she was no longer on scene, so we could facilitate that phone call to a lawyer.

Q: And was that your responsibility to follow up on that, or was that someone else's? Was another officer going to be overseeing all of that?

A: Well, I had taken on that decision, so I would have followed up with the decision that once that car was towed, I didn't have a problem with a lawyer being called. So my delay was – I don't know what time the tow card was, but once that car was towed, as far as I am concerned, he can speak to a lawyer. Because the officer safety issue is no longer in play, and anything after that would be up to investigators that were taking over, or that took over the case from the onset.

35Det. Hutchings testified that he believed he was made aware of the car being towed and let the investigators in major crime know. He couldn't recall whether or not he consulted with other officers concerning the decision to delay implementation of the right to counsel. In cross-examination Det. Hutchings testified that he had been involved in cases where other officers had made the decision to delay the call to counsel but that he made this decision on the specific facts of this case. When asked whether or not he had contemplated informing Mr. Palmer's lawyer of the need to keep the information private for the time being, Det. Hutchings testified "That didn't concern me. This is not my investigation" and:

A: If this was my investigation, I may have given it some thought. It is not my investigation. Like I said, my involvement in this is simply a 30 - minute delay on a phone call to counsel , while an officer is solo in the Canadian Tire, dealing with a car that is associated to armed criminals. As soon as that car is gone, then that conversation that you were just telling me right now would be something that the investigators of Mr. Palmer's case, they could have had. [emphasis added].

Det. Hutchings testified that he spoke to Officer Pargetter about the decision to delay the right to counsel but did not recall anything about a hold up investigation. He made no notes of his discussions with D.C. Pargetter.

36In cross-examination Det. Hutchings agreed that he was charged with assault on January 13, 2020 in relation to his interactions with a TTC passenger. At this point in his evidence Det. Hutchings turned to the court and stated that he had been charged with assault and obstruct justice and that he plans on pleading not guilty and will vehemently deny the charges in court. The obstruct justice allegations relate to the notes he made concerning the events giving rise to the assault charge. His partner is also charged with obstruct justice concerning his notes in relation to that same incident. When asked what the allegations are concerning his notes, he testified that he could not answer the question as he did not know whether omission, additions or deletions were the subject of those allegations. He further testified "I am going to have to wait until court to find out what the actual allegation is. If it's an addition, if it's a discrepancy, I have no idea."

37In cross-examination Det. Hutchings was asked whether he had a discussion with D.C. Pargetter in relation to Mr. Palmer's brother Trayvon, and whether or not he may or may not be in the area of the vehicle and he responded:

A: It's possible. I mean, I don't have anything down here, in my notes. There was nothing noteworthy. But the problem that I run into here is, the officer' is telling that, "hold up is going to come in, in this investigation, or other players that are involved in this". Like I said, my interest in this was zero. Like, I'm not involved in this case. So I feel that I've written my fulsome notes. My involvement in this case, where it went to and what was being spoken around the station, or whatever – I have my own caseload. I was next to zero interest in this case. It had nothing to do with me."

V. The Legal Principles that Govern: Charter Sections 10(a) and (b)

38Section 10(b) of the Charter guarantees to anyone arrested or detained the right "to retain and instruct counsel without delay and to be informed of that right". The guarantee of the right to counsel in section 10(b) of the Charter imposes three obligations on the police: the first is informational, and the second and third are implementational. If a detainee chooses to exercise his or her section 10(b) right by contacting a lawyer, the police must provide the detainee with a reasonable opportunity to exercise the right and must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity. In accordance with the Supreme Court of Canada decision in R. v. Suberu, 2009 SCC 33, [2009] 2 SCR 460 at paras. 38, 42, the words "without delay" must be interpreted to mean "immediately" for the purposes of s. 10(b). See also, R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at pp. 191-92; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 at para. 20-26.

39The rights created by s.10(b) are engaged immediately upon detention and proactive steps are required to turn the right to counsel into access to counsel. The s. 10(b) jurisprudence has, however always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, or the preservation of evidence. For example, in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.

40However, as pointed out by Justice Doherty on behalf of the Court of Appeal for Ontario in R. v. Rover, 2018 ONCA 745, [2018] O.J. No. 4646 at paras. 22 to 28, these cases also emphasize that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel and the Court in Rover cites as examples: R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.

41The decision of Justice Di Luca in R. v. Wu, cited with apparent approval in Rover, provides (at para. 78) a helpful summary of the law, the following excerpts of which have particular relevance to this case:

"The assessment of whether a delay or a suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Effectively, the right to counsel should not be suspended unless exigent circumstances exist: see R. v. Bartle, at p. 19; R. v. Suberu, at para. 42; and R v. Learning, 2010 ONSC 3816 at para. 75.

b. There is no closed list of scenarios where a delay or suspension of the right to counsel is justified. However, the following general categories emerge from the case law:

i. Cases were there are safety concerns for the police, see R. v. Grant, 2015 ONSC 1646 at para. 107, R. v. J.J., 2010 ONSC 735 at paras. 276-8, and R v. Learning, at para. 75.

ii. Cases where there are safety concerns for the public, see R. v. Thind, 2011 ONSC 2054 at paras. 113-115 and 122.

d. A general or bald assertion of "officer safety" or "destruction of evidence" concerns will not justify a suspension of the right to counsel, see R. v. Patterson, 2006 BCCA 24 at para. 41-2, and R. v. Proulx, 2016 ONCJ 352 at para. 47.

e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.

f. The suspension of the right must be for so long as is reasonably necessary, see: R. v. Mazza, 2016 ONSC 5581, at para. 83. In this regard, the police should be vigilant to ensure that once the decision has been made to suspend the right to counsel, steps are taken to review the matter on a continual basis. The suspension is not meant to be permanent or convenient. The police must still comply with the implementational component as soon as circumstances reasonably permit. A decision to suspend rights that is initially justifiable may no longer be justified if the police subsequently fail to take adequate steps to ensure that the suspension is as limited as is required in the circumstances.

g. The longer the delay, the greater the need for justification. The right to counsel must be given "without delay". The case law addressing the length of time the right to counsel has been suspended has examined periods of time as short as several minutes up to an extreme example of a suspension of the right to counsel for a period of approximately 26 hours: see Blakely v. Parker, 2007 CanLII 33123 (ONSCDC). In the latter case, the police were executing a warrant to seize multiple firearms from a known violent family and the target of the search was known to be part of a criminal organization that was willing to confront and shoot police.

h. The suspension of the right to counsel must be communicated to the detainee, see: R. v. Rover, 2018 ONSC 4785 at para. 70."

42In Rover the police followed a practice that routinely prevented arrested persons from accessing counsel if the police intended to obtain a warrant to search a place for drugs and believed that the place had a connection to the arrested person. The rationale behind that practice was that there is always a possibility that allowing an arrested person to speak to their lawyer could put the officers executing the warrant at risk or jeopardize the preservation of evidence. Under that practice, Mr. Rover, as the occupier of the place to be searched, was prevented from contacting his lawyer, as were two women who had been arrested after seen leaving the premises earlier in the evening. This police practice was found to have replaced the narrow, case-specific exception to the constitutional right to speak to counsel without delay upon arrest with a protocol that routinely delays an arrested person's access to counsel for an indeterminate period, usually hours, whenever the police, for whatever reason, deem it appropriate to arrest them before applying for a search warrant. In Rover the Court of Appeal concludes at paras. 33 - 4:

"In my view, to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance. Furthermore, if the police determine that some delay in allowing an arrested person to speak to counsel is justified to permit the execution of the warrant, then they must consider whether it is necessary to arrest the individual before they execute the warrant. The police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining, and executing a search warrant. Police efficiency and convenience cannot justify delaying an arrested person's right to speak with counsel for several hours.

The effective implementation of the right to counsel guaranteed by s. 10(b) depends entirely on the police. The police must understand that right and be willing to facilitate contact with counsel. The practice under which the officers involved in this case operated demonstrates a disregard of a fundamental constitutional right. The appellant's right to speak with counsel was denied at the time of his arrest, when the police refused his request to speak with counsel."

43In R. v. Noel, 2019 ONCA 860, [2019] O.J. No. 5612, the Court of Appeal recently set aside a convictions for drug related offences, having found that the trial Judge erred in her s. 24(2) analysis by diminishing the nature and extent of the impact of a s. 10(b) implementation breach on the Charter applicant. In that case the police executed a dynamic entry into a residence armed with a search warrant. Mr. Noel was present in the home and brought to a certain place in the house within five minutes of the police entry. He was read his right to counsel and asked to speak to a lawyer but no steps were taken to facilitate his right to counsel at that time. Then after he was taken to the station it would seem that no officer took charge of facilitating his right to counsel, though there was some evidence that duty counsel was eventually called and the trial judge inferred that Mr. Noel had spoken to counsel eventually.

44The Court of Appeal found that the trial judge committed errors in principle in her s. 24(2) Charter ruling one of which was in relation to her evaluation of the impact of the breach on Mr. Noel. In particular, the court found that the trial judge had misunderstood the relevant protected Charter interest which was not that the right to counsel was denied, but rather that it was delayed. The nature of the right is explained at paras. 23 to 27 as follows:

The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of the detention: R v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 191; R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41; R. v. Rover 2018 ONCA 745, 143 O.T. (3d) 135 at para. 34.

For example, an arrest and the search of one's home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity of the search warrant and the scope of the authority that the search warrant gives police. Such information could be useful in preventing an unjustified search, before it happens: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1144.

Detention also raises questions of immediate importance relating to the detainee's rights during detention, including the right against self-incrimination: Bartle, at p. 191; R v. T.G.H., 2014 ONCA 460, 120 O.R. (3d) 581, at para. 4.

Beyond this, the right to counsel is also important in providing "reassurance" and advice, on such questions as to how long the detention is apt to last, and what can or should be done to regain liberty: Debot, at p. 1144; Suberu, at para.41. As Doherty J.A. said in R. v. Rover, 2018 ONCA 745, 143 O.R. (ed) 135, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

45Further, the Court in Noel makes clear that the Charter applicant was not required to testify or offer direct evidence why he required access to counsel. He asked to speak to counsel promptly but that right was denied. The Court makes clear at para. 27 that:

In assessing the impact of such breaches, it is not appropriate for courts to plumb the content and significance of the conversations a detainee would have had, if his right to consult counsel without delay had been respected, or to treat such breaches as "quite neutral" in the absence of such evidence. The impact of the loss of the right to consult counsel without delay can be evaluated base on the interests it is meant to protect along with the length of the delay.

46In Noel the Court of Appeal determined that the s. 10(b) violation in that case was serious. Three hours passed between the time of arrest and the first confirmed attempt by the police to secure counsel for Mr. Noel. The appellate court was also concerned that no one officer took charge of ensuring that Mr. Noel could speak to counsel as he had requested. Instead he was placed in a cell and left there. The Court was concerned that "from the beginning, the police appear to have had a somewhat cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay" and found the breach in the case "significant" not neutral, as Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance and advice that counsel would provide.

47On the other hand, in R v. Hobeika, 2020 ONCA 750, the police offered no real explanation for delaying the implementation of the defendant's right to counsel when he was held for over four hours before the police took steps to put him in touch with counsel. The trial judge found no breach of s.10(b) in these circumstances but the Court of Appeal reversed that ruling and found it to be a significant breach of the Charter right. Afterall, there could be no suggestion that the police were operating in an area of constitutional uncertainty. However, the Court of Appeal conducted a de novo s.24(2) analysis and decided not to exclude the evidence. The Court makes clear that there is no automatic exclusion rule, upon the finding of a breach of the right to counsel, as the inquiry is specific to the circumstances of the case.

VI. Findings of Fact and Analysis

48For the purposes of assessing the 10(b) Charter claims, it is useful to break down into three segments the approximately 4.5 hours between the time of Mr. Palmer's initial arrest to the time that he actually spoke with a lawyer:

1. 11:24 – 11:40 – the time between the initial detention/arrest of Mr. Palmer by Canadian Tire Security officers and the arrival of the police;

2. 11:40 to 3:00 – the time between Officer Astolfo's arrival at the security office in the Canadian Tire, his arrest of Mr. Palmer on theft, assault and gun related charges, and the time that Det Hutchings notifies him that he can now facilitate Mr. Palmer's access to counsel; and

3. 3:00 to 4:05 – the time between when Officer Astolfo is told that he can facilitate the right to counsel and the time that Mr. Palmer is permitted to speak with his lawyer.

Interactions with the Lost Prevention Officers: 11:24 to 11:40

49Mr. Palmer was arrested by lost prevention officer (LPO) Kwasny at 11:24 a.m. He was then informed of his right to counsel at 11:33 a.m. After he was handcuffed but before a pat down search could be completed Mr. Palmer assaulted Officer Kwasny causing him to call 911 for emergency police assistance.

50I find that the LPO acted reasonably in delaying reading the right to counsel until after Mr. Palmer was handcuffed and taken to the security office at the Canadian Tire for a pat down search. It is true that the LPO stopped to pick up money that Mr. Palmer dropped to the ground in the parking lot but he did so as a courtesy to Mr. Palmer and this took less than a minute. It was also reasonable for the officer to wait until Mr. Palmer was in the security office before reading him his right to counsel given the need for privacy and the security officer's desire to read the rights verbatim from his notebook. The delay between the arrest and the reading of the rights was approximately 9 minutes in total and I find that it was reasonable under the circumstances, and particularly in light of the fact that Mr. Palmer was agitated and resisting arrest.

51Similarly, it was reasonable for the LPO to not facilitate a private consultation with counsel in the security office while Mr. Palmer continued to resist arrest and after he had already assaulted Mr. Kwasny. The security officers were justified in waiting for police assistance in these circumstances. I find that there was no breach of s. 10(b) between 11:24 and 11:40 am.

The Arrest by Police and the Towing of the Car: 11:40 a.m. to 3:00 p.m.

52At 11:41 a.m. Officer Astolfo arrived at the security office in the Canadian Tire and arrested Mr. Palmer for a theft but did not read him his right to counsel, or caution him, at that time because he almost immediately observed the butt of a firearm in Mr. Palmer's jacket pocket. After finding a firearm Officer Astolfo conducted a pat down search of Mr. Palmer and then at 11:43 a.m. read him his right to counsel. I find that it was entirely reasonable for Officer Astolfo to proceed in the manner that he did during this period of time. The delay of a couple of minutes between the initial arrest for theft and the reading of the right to counsel in relation to his subsequent arrest for possession of a firearm was entirely appropriate in all of the circumstances known to the officer. When he walked into the room it was clear that the security officers were continuing to struggle with Mr. Palmer, who was himself sweating profusely and resisting arrest. The officer new that the lost prevention officers had been unable to complete a pat down search as Mr. Palmer had already assaulted Mr. Kwasny. Having found a loaded firearm on Mr. Palmer the officer needed to secure that weapon for the safety of all present before proceeding to administer the rights. I find that there was no breach of s. 10(b) during this time frame, that is to 11:43. Upon being informed of his right to counsel Mr. Palmer made it very clear that he wished to speak to a lawyer immediately.

53It would seem that the original plan was to take Mr. Palmer back to the station, parade him, and then facilitate access to counsel. The officers arrived at the station and Mr. Palmer was paraded at 12:19 and in the ordinary course, the Applicant would have been put in touch with a lawyer not long after that. However, the plan changed. Why did it change and result in nearly 4.5 hours delay in facilitating Mr. Palmer's right to consult with counsel following his initial arrest?

54In relation to this period of time, that is between 11:40 and 3:00 p.m., the Crown seeks to justify the delay pursuant to the exception for "officer or public safety". They assert that there was a need to prevent any communication by the accused to third parties, including his lawyer, prior to the Mercedes being towed to the police division, out of a concern for the safety of the officers and the public. Though Mr. Palmer has the ultimate burden under s. 24(2) to show the evidence should be excluded, on the issue of the police's conduct, the Crown has the burden to put forward a plausible explanation: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at 210. I find that they have failed to do. Though the reasons for the delay remain somewhat mysterious, what is clear is that the delay was fundamentally born of a shared disinterest in Mr. Palmer's Charter rights.

Who Made the Call to Delay Implementation of the Right to Counsel and for What Reason?

55The evidence of the various officers appears to conflict as to who made the decision to hold off the implementation of the 10(b) rights and/or for what reason.

56At the time of the police pat down search of Mr. Palmer, keys to a Mercedes were seized by Officer Astolfo and provided to Officer Hugo. Officer Hugo remained in possession of the keys until she turned them over to another officer back at 43 division after the car had been towed at 3:12 p.m. Officer Hugo originally looked around the parking lot, couldn't find the car, and returned to the station. She was subsequently tasked to go back to the parking lot (she can't say when or by whom), and within a minute located and secured the car and called Det. Hutchings at 12:43 to let him know. I would note that there was very little explanation in the evidence as to why the officers couldn't initially find the car and were content to leave the scene without it, and the fact that the car was apparently located within a minute of their return to the scene at 12:42. In any event, shortly thereafter a tow truck was called and was en route. However, the tow truck was cancelled at 12:58 p.m. Approximately two hours later the tow truck was recalled and arrived at the lot at 3:02. At that time, Officer Hugo notified Det. Hutchings that the car was being towed and he in turn notified Cst. Astolfo that Mr. Palmer could now speak with a lawyer.

57Detective Hutchings testified that it was his decision to hold off implementation of the right to counsel, based solely upon the facts of the current investigation, namely that Mr. Palmer was arrested with a loaded firearm and his car was parked in the lot and needed to be towed to a police facility. Det. Hutchings testified that he knew nothing about the hold-up squad investigation, despite having conversations with both D.C. Pargetter who did know about it and who was relying upon it as the principle reason for delaying the right to counsel. The hold-up investigation played no part in Det. Hutching's decision. According to Det. Hutchings, there was no allegation that the Applicant was in the company of another individual at any point.

58If Detective Hutchings made the decision not to facilitate the right to counsel until the tow truck arrived, he did so based upon his assumption that Officer Hugo was alone at the scene and that the delay in towing the car would be about 30 minutes. However, he did not confirm his assumptions or do any real follow up. In particular, he testified that he did not know that a tow truck had been called but was cancelled en route and not recalled for another couple of hours. He didn't find out how many officers were on scene with Officer Hugo as she waited for the car and he assumed she was alone, when in fact she was with at least one other officer and possibly two officers, all of whom were in uniform and armed. Detective Hutchings testified he made the decision to not allow Mr. Palmer to contact counsel until the officers on scene were safe, but failed to make adequate inquiries of the situation on the ground and repeatedly testified that this was not his investigation so there would be no reason for him to do so.

59Based on Det. Hutchings' evidence, and assuming it was his call, did the need to tow the car justify suspending Mr. Palmers right to counsel? This could well be a reason to delay the implementation of the right to counsel. However, I doubt the bona fides of the explanation in this case in light of the fact that the tow truck was cancelled by police en route. If the reason for delay was security concerns, they could have been readily resolved by about 1:00 pm with the arrival of the tow truck. Instead, the decision to cancel the tow truck would have the effect of extending the period of time during which the safety of the officers and the public would be in jeopardy. Certainly after about 1:00 any concerns for officer safety would have been extinguished with the arrival of the tow truck. Further, there are problems with Det. Hutching's credibility. He failed to take proper notes of his interactions with other officers in this case. His suggestion that it was up to Mr. Palmer to fill in any evidentiary gaps as to what he said to police while in police custody during the hours that his right to contact counsel were suspended, show a lack of understanding of his professional obligation to take notes. He clearly conveyed to the court at best a disinterest as to when any concerns he purportedly had were resolved such as to facilitate the right to counsel.

60Alternatively, was it the officer in charge's call to suspend implementation of the Charter right? In the will state he prepared the day before he testified on the voir dire, D.C. Pargetter discloses for the first time that the tow truck was cancelled at 12:58 pm "because of new circumstances that needed to be analyzed". As for what those circumstances were, "The Hold Up Squad needed to analyze, based off of their investigation, that was ongoing, at that time. I don't know the particulars of what they were analyzing, but that was their reason for the delay". He agreed in cross-examination that he knew at least one officer stayed with the car after it was found, but couldn't say whether in fact there were three officers with the car at all times because he didn't know now and made no note of it then. As for why he excluded information in his notes, such as the cancelling of the tow truck, he testified "I didn't want to compromise that investigation" referring to the hold-up investigation. No officers from hold up were called to testify on the voir dire. Accordingly, no explanation was put forward as to why the towing of the car was delayed for a couple of hours at the request of the hold-up squad. Indeed, there was a deliberate effort on behalf of at least Officer Pargetter to conceal the fact, even from the Crown, that it was at the request of the hold-up squad that the tow of the Mercedes was delayed.

61If this was the purported reason for cancelling the tow truck and holding off implementation of the right to counsel for at least two more hours, it was wholly inadequate. The fact that the hold-up squad wanted to "analyze" the situation is much too vague to support the extraordinary step of suspending the right to counsel. Analyze what? Further, D.C. Pargetter deliberately omitted including this information in his original notes apparently for the express purpose of thwarting disclosure. In fact, there is no mention of the hold-up investigation in the notes of any of the officers involved in this case, though most of them seemed to have some awareness of it. I will have more to say about that below in my analysis of s. 24(2). Suffice to say that, even if the time period between the securing of the car and the towing of the car raised security concerns, those concerns would have disappeared had the tow not been cancelled at 12:58. The decision to cancel the tow was a police decision and cannot now be relied upon as a reason to justify delaying the implementation of Mr. Palmer's rights. I find that on either narrative, that of Det. Hutchings or that of Officer Pargeter, or some combination thereof, the delay in the implementation of the right to counsel during this time frame was unjustified.

The Further Delay in Contacting Counsel: 3:00 to 4:05 p.m.

62The Crown concedes that the delay in facilitating access to counsel between 3:00, when there were no security concerns, and 3:55 when the first call was made to a lawyer, amounts to a breach of s.10(b), though not one that warrants the exclusion of evidence.

63I agree that there was a breach of the right to counsel during this time frame. There was no good reason for not facilitating Mr. Palmer's right to contact counsel during this time frame. If the officer could not find anyone to attend to the processing of property items obtained from Mr. Palmer and put Mr. Palmer in touch with a lawyer, then he should have had another officer in the station either facilitate the call or watch over the property. The officer's concerns about involving another officer in the chain of continuity should not have outweighed the need to facilitate Mr. Palmer's Charter rights. This was a whole additional hour after what had already been excessive delay in facilitating access to counsel.

Conclusion on the s. 10(b) Breaches

64The alleged breach is delay in implementing Mr. Mr. Palmer's right to speak to counsel. The timeline is not in dispute. His right to counsel was not facilitated until 3:55 pm and he did not speak to a lawyer until 4:05 p.m. on December 23, 2018. By this time he had been under arrest since approximately 11:24 a.m., that is some 4.5 hours earlier. When rights to counsel were provided to Mr. Palmer, he made very clear his desire to speak to a lawyer. In fact, he became very agitated and was kicking the door to the room he was in at the police division to get the attention of the officers, yelling that he wanted to speak to his lawyer. It is true that he was informed of the decision to delay his right to contact counsel until after the car was secured. However, this was only done in response to his repeated demands to speak to counsel and to avoid him disturbing people working at the division. It was not done for the purposes of mitigating the impact on Mr. Palmer of the suspension of his Charter rights, much less out of a recognition that the law requires the police to inform the detainee of the reasons for the delay of implementation of the right to counsel: R v. Rover, at para. 70. The unreasonable delay in implementing the right to counsel was primarily between 12:58 and 3:55 p.m. However, that time frame must be seen in light of the overall delay of 4.5 hours between arrest and the call to counsel, as the cumulative events added a level of urgency to getting around to facilitating the right.

Section 10(a) of the Charter

65The Applicant also takes the position that there was a breach of his s.10(a) Charter right because he was not informed of the Hold-Up Squad investigation at or around the time of his arrest. At the conclusion of submissions, and over the objection of defence counsel, I granted leave to the Crown to make further written submission on whether or not Mr. Palmer should have been advised of, and given his rights to counsel specifically in relation to the Hold Up investigation. The Crown takes the position that there was no such obligation because Officer Pargetter was merely doing due diligence on "another matter that was brought to this attention that could have impacted his decisions in his investigation." It is the Crown's position that nothing needed to be done in relation to the hold-up squad investigation and indeed nothing was done in relation to it.

66A detainee is not entitled to be informed of any and all other ongoing investigations for which they are a target, merely because they have been arrested on a particular charge: see for eg. R v. CJJ (2018), 2018 ABCA 7, 358 C.C.C. (3d) 163 (ABCA) at paras. 19-22 and 25-28; R v McCalla (2019), 156 W.C.B. (2d) 433 (SCJ). In this case it would seem that the police took no steps to participate in the Hold-Up Squad investigation, though admittedly it's difficult to say this with any confidence in light of the decision to deliberately not record their communications with officers at the Hold-Up Squad. Officer Pargetter testified that the tow truck was cancelled at the direction of the Hold Up Squad. However, Mr. Palmer was not being detained in relation to the hold-up squad investigation. Nor is there any evidence that these officers took steps in furtherance of that other investigation in any manner beyond delaying the tow truck. Therefore, I do not agree that the police were required to advise Mr. Palmer of the ongoing hold up investigation at that time. Had the police taken steps, such as interviewing Mr. Palmer or seeking his consent to provide a bodily sample, without informing him of their intention to use any incriminating evidence in both investigations, I would take a different view of the matter: see for eg, R v. Borden (1994), 44 C.C.C. (3d) 404 (SCC) at pp. 419-420. The Applicant has not demonstrated a breach of his s.10(a) Charter rights.

Section 24(2): Should the Evidence be Excluded?

67The Applicant bears the burden on a balance of probabilities to show that the admission of the evidence obtained in a manner that violated the Charter would bring the administration of justice into disrepute: R v. Fearon, 2014 SCC 77, [2014] 3 SCR 621 at para. 89; R v. Yu, 2019 ONCA 136, 2019 ONCA, at para. 136.

68Section 24(2) of the Charter mandates exclusion of unconstitutionally obtained evidence if its admission would bring the long-term administration of justice into disrepute. The Supreme Court of Canada explains this concept in R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353 at para. 68:

The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

69Section 24(2) of the Charter permits exclusion of evidence where that evidence was "obtained in a manner" that infringed or denied any rights guaranteed by the Charter. While the "obtained in a manner" component of the s. 24(2) analysis is most often established where there is a causal connection between the evidence seized and the Charter right violated, that is not always the case. The courts have interpreted the "obtained in a manner" requirement to include both temporal and contextual connections: see, R. v. Wittmer, 2008 SCC 33 at para. 21.

70In R. v. Pino, Laskin J.A. following the decision in R. v. Strachan, directed the courts to consider the entire "chain of events" between an accused and the police to assess whether the evidence seized and the Charter breach are part of the same transaction or course of conduct. As long as there is a causal, temporal or contextual connection that is not too onerous or remote, then the evidence may be subject to a section 24(2) remedy. In this case, both parties agree that the evidence was "obtained in a manner" that violated the constitutional rights of the accused. This is an entirely appropriate concession and a conclusion I would have inevitably reached on the facts of this case. While there was no causal connection between the discovery of the gun and the s.10(b) breach, there was a close temporal connection. That connection is sufficient to engage s.24(2): see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561.

71I turn now to my findings on the three prongs of the Grant analysis.

The Seriousness of the Charter-Infringing State Conduct

72The seriousness of the breach inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending the message that the courts condone state conduct in breach of the Charter by refusing to disassociate themselves from the product of that conduct: R v. Khan, [2019] O.J. No. 3265 at para.95. The more serious or deliberate the conduct, the greater the need for the courts to dissociate themselves from it in order to preserve public confidence in the justice system and the rule of law: Grant, at paragraphs 72-72.

73In Noel, the Court of Appeal recently reiterated the importance of the immediate implementation of the Charter right to counsel at paragraphs 23 to 27 it states:

23 The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention: R. v. Bartle, [994] 3 S.C.R. 173, at p. 191; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41; R .v Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 34.

25 Detention also raises questions of immediate importance relating to the detainee's right during detention, including the right against self-incrimination: Bartle, at p. 191; R v. T.G.H., 2014 ONCA 460, 120 O.R. (3d) 581, at para. 4.

26 Beyond this, the right to counsel is also important in providing "reassurance" and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty: Debot, at p. 1144; Suberu, at para. 41. As Doherty J.A. said in R. v. Rover, 2019 ONCA 745, 143 O.R. (3d) 135, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

In Noel, the Court found that the s.10(b) violation was serious. Three hours passed between the time of the arrest and the first confirmed attempt by the police to secure counsel for Mr. Noel. After Mr. Noel arrived at the station and was entirely under the control of the police, no one took charge of ensuring that he could speak to counsel as he had requested. The same can be said in this case.

74I find that there are multiple and serious violations of s. 10(b) in this case. Mr. Palmer was detained in police custody for nearly 4.5 hours before an attempt was made to put him in contact with counsel. He made known his desire to speak to a lawyer early and often. As indicated, I find that the initial delay in facilitating the right to counsel was justified, that is up until approximately 12:30 (after the parade and level 3 search at the station). After that, the Crown has failed to meet its onus of demonstrating that the subsequent delay in facilitating the right to counsel was justified. I reject the justifications for the delay as either bona fides or adequate in all of the circumstances of this case. From the beginning, the police appear to have had a somewhat cavalier attitude about a fundamental important and long-settled Charter right to consult counsel without delay.

75The purported reason for delaying the right to counsel was the need to secure the Mercedes, and officer and public safety concerns that would exist until this was done. Even assuming that is so, the police made the decision to cancel the tow truck. This was a decision made by them and one that had the impact of further suspending Mr. Palmer's s.10(b) rights. Yet, no real reason is given for the suspension. Apparently that was a decision made based on what the hold-up squad wanted and D.C. Pargetter obliged. But because D.C. Pargetter didn't make any contemporaneous notes of his interactions with the hold-up squad we don't know what their reasoning was beyond giving them time to "analyze the situation". That is not an adequate reason for suspending the right to counsel. The Crown chose not to call any officers from the hold-up squad to put before the court their purported justification for suspending the accused's rights, if indeed they even knew that their request of D.C. Pargetter would have that effect. D.C. Pargetter testified that he had his own reason for suspending the right to counsel and it was a reason shared by Det. Hutchings, namely that until the car was towed to a police facility there would be officer and public safety concerns. Again, these were vaguely articulated and without reference to the hold-up squad investigation make little sense. If the event giving rise to the right to counsel was the towing of the car, why did they cancel the original towing of the car? This is a decision made by the police, not unlike the one in Rover, where the officers chose to arrest and then execute a search warrant, thereby creating a reason to delay the right to counsel that they then seek to rely upon as justification.

76It is true that there is no real causal connection between the s.10(b) breach and the obtaining of the evidence and that is a factor that often mitigates the impact of the breach on the appellants Charter protected interests: R. v. Rover, at para. 43; R. v. Grant, at para. 122. In fact, the presence of a strong causal link can be a very important factor in some cases warranting the exclusion of evidence pursuant to s.24(2): R. v. Dhillon, 2010 ONCA 582; R. v. Rocha, 2012 ONCA 707; R. v. Gonzalez, 2017 ONCA 543. I do take the absence of a causal connection into account in evaluating the magnitude of the breach in this case. However, I find that the other aspects of the ongoing s.10(b) breach render it very serious despite the reality that the gun would have been found without the Charter breach. There was no effort to elicit a statement during the period of delay. However, that would amount to a separate breach of the Charter right and its absence does not mitigate the significant breaches that actually took place in this case.

77None of the officers made any notes of their conversations with Mr. Palmer while he was in their custody. And none of them cautioned him as to his right to remain silent. I agree with the Crown that had Mr. Palmer just been sitting in a cell after having spoken to counsel, everything he said and did would not necessarily need to be recorded. However, in these circumstances, when the police took the extraordinary step of deciding to delay implementation of the right to counsel, there was a heightened need to record events, including any concerns being expressed by Mr. Palmer to the officers during this period of delay. Det. Hutching's testimony in cross-examination, that counsel would have to ask Mr. Palmer what he was saying during his detention since he made no notes of it, significantly diminishes and deflects what is the important responsibility of police officers to record the events in their notes for the purposes of reconstructing those events at a later date.

78Further, the decisions made by the police in this case were not systemic in that they were based on slavish adherence to protocol rather than a consideration of the facts of a particular case. However, the breaches are systemic to the extent that they reflect a shared indifference not only to the right to counsel but also to the need to properly and fully record events in their notes. What the basis for that decision to delay implementation of the right has been deliberately shielded by the decision of senior officers to not record those circumstances in their notes, in one case for the express purpose of thwarting disclosure even to the Crown. In any event, a serious breach of a long-established and well-understood constitutional right can lead to exclusion of evidence, even when the breach is not systemic in nature or part of a pattern of police misconduct: R. v. Hobeika, 20202 ONCA 750, at para. 82.

79As explained in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 70:

"Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

80In Pino, the police decided to delay Ms. Pino's access to counsel because they did not want her to be able to make a phone call that could compromise the execution of a search warrant at a residence. She was placed in a jail cell and left there for nearly five and a half hours after her arrest. The trial judge accepted that a solicitor client consultation could compromise a pending search and that to protect the integrity of that search, the police could briefly delay Ms. Pino's access to counsel. However, the trial judge found that at least part of that delay was unjustified for two reasons. First it was not of a duration that was minimally necessary as no explanation was given as to why the search could not be expedited. Second, even if some of the delay was justified there was absolutely no basis for a delay of approximately 3 hours after the search was complete. As the Court of Appeal notes, the police were quick to suspend Ms. Pino's right to counsel but far less focused on ensuring she could exercise that right. The same can be said in the instant case.

81The Charter-infringing state conduct was very serious and demonstrated a disregard for the right to counsel that was flagrant. Further, the reasons for suspending the implementation of Mr. Palmer's Charter rights were deliberately obscured by the failure of the senior officers to make notes in relation to the hold-up squad investigation that apparently animated the delay in implementation. The failure of the senior officers in this case to make proper notes of the ongoing investigation, particularly in relation to their interactions with the accused, with the hold-up squad or with one another, is very troubling. Though all four police officers testified that they were, or might have been, aware of the involvement of the hold-up squad in the investigation, not one of them included that information in their notes. D.C. Pargetter deliberately omitted this information to thwart its disclosure to either the Crown or the defence. Of course, officers have a duty to make proper notes and provide them to the Crown for vetting for disclosure. Because D.C. Pargetter made no notes at all of his interactions with the Hold Up Squad he had to do his best to reconstruct his memory of those conversations some nearly 2 years later and on the day that the voir dire was to commence. He was largely unsuccessful. The Crown and the defence received his will say just hours before he testified. As a result of the failure to make a contemporaneous record, the officer could not say who he spoke to at hold up or what they told him. He could not testify as to what officers he passed this information on to, such as Det. Hutchings or the others. He didn't remember much about the call at all, and yet it was this call that is relied upon as justification for delaying the right to counsel.

82This was a serious violation of s. 10(b) and it was made more serious by the decision of the officers involved to not properly record how or by whom the decision to delay implementation was made. As Laskin J.A. notes in Pino at para. 103:

Admission of the evidence in light of the seriousness of the breaches, and especially the officers' dishonest testimony, may send the message that the justice system condones this type of conduct.

83The police's lack of candour with respect to the circumstances of the arrest, though not an element of the Charter breach itself, is relevant to the first Grant factor. In R. v. Harrison, 2009 SCC 34 the Supreme Court of Canada endorsed the observation of Cronk J.A. in her dissenting reasons in the Court of Appeal for Ontario, as follows:

The integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority.

84For these reasons, I find the breach of Mr. Palmer's right to counsel was very serious. This factor strongly favours the exclusion of the evidence.

The Impact on the Charter-Protected Interests of the Accused

85The second branch of the Grant analysis focusses on the seriousness of the impact of the breach on the Charter protected interests of the defendant, and the extent to which the breach actually undermined the interests the right at issue is designed to protect. The more serious the impact on the defendant, the more strongly this factor will weigh in favour of exclusions: Grant, at paragraphs 76-78.

86The right to retain and instruct counsel is "meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination": R. v. Suberu, at para. 40. In this case, not one officer cautioned Mr. Palmer about the right to remain silent. Further, they did not record anything that he said while he was in custody prior to speaking to counsel. It is clear however that during this time Mr. Palmer was very upset and demanding to speak to a lawyer. More than that we don't know because again, contrary to their obligation, none of the officers took any notes. Further, Mr. Palmer was under no obligation to offer direct evidence as to why he required access to counsel without delay. He asked to speak to a lawyer promptly but that right was denied. As stated in Noel at para. 27: "it is not appropriate for courts to plumb the content and significance of the conversations a detainee would have had, if his right to consult counsel without delay had been respected, or to treat such breaches as 'quite neutral' in the absence of such evidence. The impact of the loss of the right to consult counsel without delay can be evaluated based on the interests it is meant to protect along with the length of the delay."

87At the time of his arrest Mr. Palmer was a young man, 19 years old. He was arrested for very serious offences and made it well known that he wanted to speak to counsel immediately. Indeed, he was having what Det. Hutchings described as a "tantrum" in the cells, demanding to speak to counsel. I find that it was only for the purposes of quieting Mr. Palmer down so that he was not disturbing personnel at the station that Det. Hutchings decided to tell him that he would not be permitted to call a lawyer until his car was towed. It was not a step taken to mitigate the ongoing breach of the s.10(b) right or the uncertainty that Mr. Palmer was feeling being held in at the station incommunicado. That being said he was notified of the delay. But he was not advised as to how long it would take for the tow truck to arrive and was not told that it had actually been cancelled while the hold-up squad was apparently considering its options. As such, Mr. Palmer's right to security of the person was compromised. As stated in Rover at para. 46: "the significant psychological pressure brought to bear on the appellant by holding him without explanation and access to counsel for hours must be considered in evaluating the harm done to his Charter-protected interests." Laskin J.A.'s comments in Pino, at para. 105, are again particularly apt:

Being forced to sit alone in a jail cell for over five hours after her arrest without access to counsel undermined the very interests s.10(b) seeks to protect: correct information about the right to counsel and the immediate ability to consult with a lawyer. Ms. Pino was vulnerable and she needed counsel, not just for legal advice, but as a lifeline to the outside world.

88This factor also strongly favours exclusion of the evidence.

Society's Interest in an Adjudication on the Merits

89The third branch of the Grant analysis requires the court to consider the societal interest in a trial on the merits. Admission of reliable physical evidence may be more likely to support the societal interest in the truth-seeking function of a trial than will admission of a statement. This factor favours admission. Mr. Palmer was found in possession of a loaded, prohibited firearm, namely a Glock with ammunition in the chamber and the clip, while walking around the Canadian Tire at Cedarbrae Mall. This was extremely dangerous conduct and the resulting charges are very serious. The evidence is reliable and its exclusion will end this prosecution.

90Before turning to the overall balancing that is at the heart of the Grant analysis I will briefly address the Crown's suggestion of an alternative Charter remedy, namely a reduction in sentence pursuant to s.24(1).

An Alternative Remedy to Exclusion: A Reduction in Sentence

91At the conclusion of the hearing, and over the objection of defence counsel, I gave the Crown permission to put forward in written submissions a possible alternative remedy for the breach of Charter rights, namely the reduction in sentence rather than the exclusion of evidence. He advances this argument based on the line of cases born of the Supreme Court's decision in R v. Nasogaluak (2010), 2010 SCC 6, 251 C.C.C. (3d) 293. In that case, the highest court made clear that incidents alleged to constitute a Charter violation, such as police violence or other state misconduct, may be considered in sentencing provided that they bear the necessary connection to the sentencing exercise. Those facts are relevant circumstances within the meaning of the sentencing provision of the Code and can be taken into consideration within the parameters of the Code without a need to turn to s.24(1) of the Charter. In exceptional cases involving particularly egregious state misconduct in relation to the offence or the offender, s. 24(1) of the Charter may provide a remedy to impose a sentence outside statutory limits.

92The Crown also relies upon the recent decision of the Supreme Court of Canada in R. v. Omar, (2019) SCC 32. A majority composed of Chief Justice Wagner, Justices Moldaver, Cote and Rowe allowed the appeal "substantially for the reasons of Brown, J.A. in the Court of Appeal" to admit an unconstitutionally obtained loaded gun and drugs. In an off-the bench summary judgment the Court states as follows:

A majority of this Court would allow the appeal, substantially for the reasons of Brown J.A. at the Court of Appeal. The majority adds this. It may be that consideration should be given to the availability under s. 24(1) of the Canadian Charter of Rights and Freedoms, of remedies other than exclusion of evidence when dealing with s. 24(2), but the majority would leave this for another day.

93Professor Kent Roach discusses the impact of the Omar decision in an article entitled "Off the Bench Judgments and the Section 24(2) Lottery", 2019 67 C.L.Q. 1 and concludes that at first blush it could be said to herald a new approach to determining the adverse effects of excluding unconstitutionally obtained evidence, "a factor that has rarely been determinative in prior Supreme Court jurisprudence". However, the learned author points out that one week later the Supreme Court released its judgment in R. v. Le, 2019 SCC 34 and in that judgment reversed an Ontario Court of Appeal decision relied upon by Brown, J.A. in his Omar dissent "substantially agreed to by a four Justice Supreme Court majority in Omar. The majority in Le at paras. 147-149 upholds what was previously long settled law that police good faith under s. 24(2) must be both honest and reasonable or non-negligent. It also follows established jurisprudence on the third test by affirming that the focus is on the long-term repute of the administration of justice. Brown and Martin JJ. Specifically warn that this third test "cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown's case at this stage".

94As for the Court's obiter comments concerning alternative remedies under s. 24(1) of the Charter, the Crown properly points to the long line of cases that suggest otherwise: R v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 at p. 21; R v. Genest (1989), 1989 CanLII 109 (SCC), 45 C.C.C. (3d) 385 (SCC) at p. 403; R v. Ndaye (2019), 158 W.C.B. (2d) 121 (SJ) at paras. 54-55. However, even more recently, the Supreme Court of Canada has signaled its openness to alternative remedies under s. 24(1) in response to Charter breaches. Notably, the Court is explicit in R v. Reilly 2020 SCC 27, that a remedy under s.24(1) can address systemic issues rather than simply those of the individual claimant.

95While acknowledging that a reduction in sentence is in the s.24(1) arsenal of remedies, I find that it is not appropriate in this case. The seriousness of the s. 10(b) breaches in this case, and their impact on Mr. Palmer's rights, warrant the exclusion of the evidence.

Overall Balancing of Factors

96When the first two branches of the Grant analysis strongly favour exclusion, the third branch will rarely, if ever, tip the balance in favour of admission: R. v. McGuffie, 2016 ONCA 365 at para. 63. In this case, I find that the balance is tipped in favour of exclusion. I am satisfied that Mr. Palmer's section 10(b) rights were violated. The violations were very serious as was their impact on Mr. Palmer. Though the charges are very serious and would ordinarily warrant a hearing on the merits, the admission of the evidence obtained in these circumstances would bring the administration of justice into disrepute. The evidence is excluded.

Released: December 16, 2020

Signed: "Justice S. Chapman"

Footnotes

1Daniel Kwasny testified at the preliminary hearing and a transcript of his evidence was filed with the court for the truth of its contents with the consent of both parties. He also testified before me on the voir dire.

2Officer Tania Hugo testified at the preliminary inquiry and a transcript of her testimony was filed with the consent of both parties for the truth of its contents. She also testified before me on the voir dire.

3I find that 1:00 is the approximate time that the tow truck would have arrived at the parking lot if it had not been cancelled by police at 12:58, given that it was en route and based upon the time that it ultimately arrived when recalled.