ONTARIO COURT OF JUSTICE DATE: 2023 03 17 COURT FILE No.: 20-45001516 Metro North, Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Kenton LEE-DIGGS

Before Justice Cidalia Faria

Heard on September 7, 8, 2021, December 5, 6, 13, 2022 Oral Reasons for Ruling on Charter Application March 13, 2023 Written Reasons for Ruling on Charter Application, March 17, 2023

Counsel: Barry Stagg............................................................................... ……. Counsel for the Crown Raj Vijan [i] , Jamie Kopman, Cole Perry counsel for the defendant Kenton LEE-DIGGS

Faria J.:

I. Overview

[1] Kenton Lee-Diggs is charged with impaired driving, refusing to provide a breath sample, mischief under $5000 pursuant to ss. 320.14(1)(a), 320.15(1), and 430(4) as well as cruelty to animals contrary to s. 445(1)(a) of the Criminal Code.

[2] This is a Charter application alleging a s. 7 and s. 10(b) violation of Mr. Lee-Diggs’ rights regarding the first three charges only.

[3] On April 30, 2020, police received a 911 call alleging a male who had killed a cat. The complainant informed police of what had occurred, provided a description of the male, the vehicle he was driving, and the direction he drove away. An officer located Mr. Lee-Diggs and pulled him over. The officer called for back up and made observations at the roadside. Fellow officers attended the scene. They made further observations at the roadside and arrested Mr. Lee-Diggs for impaired driving and cruelty to animals. An officer transported Mr. Lee-Diggs to a police station, they waited to enter the station and after being paraded, while he was in an interview room, Mr. Lee-Diggs allegedly urinated on the floor. When taken to the Breath Technician, it is alleged he refused to provide a breath sample.

II. Position of the Parties

[4] Mr. Lee-Diggs is alleging a violation of his s. 7 Charter right because he submits he was not provided an opportunity to use the washroom. This led to the indignity of having to urinate in the interview room. He claims his 10(b) right to retain and instruct counsel within a reasonable time was violated because it took almost three hours to speak to Duty Counsel. He also claims his 10(b) right to consult with counsel of choice was violated because he spoke to Duty Counsel rather than his own lawyer. As a result, the Applicant submits the observations of the officers at the scene of arrest, the evidence related to his urination, and the evidence related to his refusal to provide a breath sample should be excluded pursuant to s. 24(2).

[5] The Respondent Crown submits that none of the Applicant’s Charter rights were violated. First, he submits the Applicant did not inform any officer he needed to use the washroom, and so the opportunity could not be provided. Second, the delay to consult counsel was reasonable, as much of it was the result of the Applicant’s conduct, and the short remainder, was the result of a busy police station. Third, the Applicant did not provide the officers with the name of counsel for them to facilitate contact with such counsel, and when he did so, they acted on it immediately but received no response. The Respondent submits the Application should be dismissed. In the alternative, the Respondent submits, if the court does find one or more breaches of the Applicant’s Charter rights, the impugned evidence should not be excluded pursuant to s. 24(2) of the Charter.

III. Legal Principles

[6] Section 7 of the Charter protects the Applicant’s right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[7] Section 10(b) of the Charter requires that upon his arrest or detention the Applicant has the right to retain and instruct counsel without delay and to be informed of that right.

[8] Police have three duties to ensure they do not breach a person’s s. 10(b) Charter rights, and pursuant to R. v. Bartle, [1994] 3 S.C.R. 173 at para. 17, they are:

i. to inform the detainee of his/her/their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; ii. if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and iii. to refrain from eliciting evidence from the detainee until he/she/they has had that reasonable opportunity to consult with counsel (again, except in cases of urgency or danger).

[9] In R. v. George, [2004] O.J. No. 3287 (C.A.) at para. 55, the Court stated:

“However, where an officer is not in a position to require that a breath sample be provided immediately after a demand for such a sample, the court, in determining whether the detainee had a realistic opportunity to consult counsel during the period of delay, must consider the ready availability of a telephone as a relevant factor in making that determination.”

[10] Regarding the issue of counsel of choice, in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, the Supreme Court stated at para. 35:

“Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s.10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak to other counsel and wait a reasonable amount of time for their lawyer of choice to respond.”

[11] If a breach is found, the court must follow R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and balance the following factors to determine whether the impugned evidence should be excluded or not:

i. The seriousness of the conduct that led to the breach. ii. The impact of the breach on the Applicant. iii. Society’s interest in a trial on the merits.

[12] The onus is on the Applicant to demonstrate a breach of his Charter rights on a balance of probabilities pursuant to R. v. Collins, [1987] S.C.J. no. 15.

IV. Evidence

[13] The Respondent called 5 officers on the voir dire. The Applicant did not testify on the application.

[14] The Applicant was on camera from the moment he was pulled over on the roadside to the end of his time in the breath room but for two events: during the Level 3 search; and when he was in the interview room to speak to his counsel in private. The Crown filed the in-car camera video of the first scout car that arrived on scene, the second scout car that arrived on scene and transported the Applicant, the Booking video, and the breath room video as Exhibits. They total over 3 hours of interaction between the Applicant and all 5 officers who testified.

[15] Officer Avishar Judah testified he located the Applicant, pulled him over, called for back up, made observations of indicia of alcohol impairment, specifically that he had slurred speech, was uneasy on his feet, and had very red eyes. He assisted with the arrest. He followed the Applicant in Officer Galloway’s scout car, in his own scout car, to 23 Division. He waited in the sally port with Officer Galloway to get into the station and did so when permitted entry. He assisted with the parade and the level 3 search. He escorted the Applicant to an Interview room to speak to counsel privately. While in the interview room, Officer Judah observed the Applicant through a live camera feed bring his handcuffed arms from behind his back, to the front of his body, pull down his pants and urinate against the door. He escorted the Applicant to the breath room and remained with him during the breath sample procedure.

[16] Officer Mathew Galloway testified he attended the scene, made observations of indicia of alcohol impairment, and arrested the Applicant. He provided the Applicant with Rights to Counsel and made a Breath Demand. He was told to transport the Applicant to 23 Division for the breath sample and did so. He assisted with parading the Applicant and conducting the level 3 search. He obtained the number of the Applicant’s counsel, called the number, and was unsuccessful. He then called Duty Counsel. After the Applicant spoke to Duty Counsel, he escorted the Applicant to the breath room and remained there.

[17] Sergeant Sheraz Arshad, a supervisor, attended the roadside to assist and brought an Approved Screening Device (ASD). Once on scene, he determined there was no need for an ASD, as he believed the Applicant was impaired. He assisted the other officers and repeated the Breath Demand again and the consequences of a refusal. He provided the Applicant with an opportunity to speak to counsel of his choice while he was in the back of the scout car. The Applicant declined the offer.

[18] Sergeant Ramesh Parsram testified he was the Officer In Charge of the station that day. He explained officers attend at the 23 Division parking lot and then request entry into the sally port (a garage). Once in the sally port, officers contact the Booker to advise they are awaiting entry into the building. There is a central booking station that manages different officers from different stations bringing in prisoners to process, as well as court officers who are taking prisoners out of the building. Officers must wait until the Booker advises the room is clear and they are to enter. As he put it, there was a “myriad of things going on at the time.”

[19] Sgt. Parsram testified he was called from the front office by the Booker, Officer Karpinski, to be the parading Sergeant and book a prisoner. He went to the Booking Hall and processed the Applicant. He was told there was a weapon in the vehicle, the Applicant was confrontational during the arrest, back up was required, the Applicant was non-responsive to questions asked, and argumentative. These circumstances gave rise to safety concerns. He authorized a Level 3 search and directed the Applicant be put in the interview room with a live camera feed to consult with counsel in private.

[20] Officer Eric Poge, a designated qualified Breath Technician, was notified to attend 23 Division for a breath test and did so. At the station he explained the process to the Applicant, how to blow into the Intoxilyzer 8000c, and the consequences of refusing to do so. After several explanations, one attempt and the Applicant’s outright refusal, the Officer concluded the Applicant was refusing to provide a suitable sample and charged him.

[21] Officer Poge described the Applicant to have bloodshot, glassy, and watery eyes, perspiration on his forehead, and fast speech. He did not smell alcohol as he was wearing a mask. He also made the following observations: the Applicant was confrontational, argumentative, and agitated. His overall attitude was restless, impolite, angry, cocky and uncooperative. He was aggressive, talkative, used vulgarities and swore. As the interview room was across from the breath room, Officer Poge also saw the Applicant’s urine come through the bottom of the door into the hallway.

[22] A summary of the relevant times is as follows:

• 7:36 a.m. Radio Call received by both Officer Judah and Officer Galloway for unknown trouble regarding a male who killed a cat. They received a description of the male, the vehicle he was driving, and the direction he drove. Both officers in separate scout cars began looking for the vehicle.
• 7:44 a.m. Officer Judah located the vehicle on Caledonia. He activated his lights, his siren and already had his in-car camera system on.
• 7:36 a.m. to 7:43 a.m. Upon being pulled over, the Applicant immediately opened his door, got out of his vehicle, and screamed at the officer demanding to know why he was pulled over. He was aggressive, reached into his car, and grabbed at his pockets. He pulled out his cell phone, waved it at the officer and continued to yell. Officer Judah told him he was investigating the killing of a cat and repeatedly instructed the Applicant to get back into his vehicle. He did not. Officer Judah did not move away from behind the open front door of his own scout car until back up arrived.
• 7:43 a.m. to 7:47 a.m. Officer Galloway arrived on scene, parked in front of the Applicant’s truck, and observed the Applicant disregard Officer Judah’s instructions. As both officers approached the Applicant, they both testified they smelled alcohol on him. They both arrested the Applicant and informed him it was for Impaired Driving and Cruelty to Animals. Officer Galloway handcuffed the Applicant and both officers searched the Applicant incident to arrest. Officer Galloway also noticed the Applicant to have slurred speech and be unbalanced, though his shoes were tied, and they were on paved ground. The Applicant was un-cooperative, and the officers called for assistance.
• 7:47:54 to 8:02 a.m. Officer Araujo arrived to assist. The Applicant continued to demand to know why he was pulled over, why he was detained and why he was arrested. All three officers repeatedly answered his questions. All three officers tried to get the Applicant into Officer Galloway’s scout car. Using his size and weight, the Applicant refused to enter the vehicle, placing his foot against the door so as not to be forced in. The officers called for more assistance and an ASD at 7:53 a.m.
• 8:02 a.m. to 8:05 a.m. Sgt. Arshad arrived with the ASD. He smelled alcohol on the Applicant, observed his demeanour and determined an ASD was not required as he believed the Applicant was impaired by alcohol. All four officers tried to persuade, instruct, demand, and request the Applicant get into the scout car.
• 8:05:39 a.m. It took 4 officers and 20 minutes to get the Applicant into the scout car from the time of his arrest.
• 8:07 a.m. to 8:08 a.m. Officer Galloway from the front seat of his scout car read the Applicant his Rights to Counsel and explained them in colloquial language. The Applicant confirmed he understood and indicated he wanted to speak to his lawyer. Officer Galloway then read the Breath Demand for the Applicant to provide a breath sample into an approved instrument. As the Applicant stated he did not agree, Officer Galloway explained if he chose to refuse he would be charged with a new and separate charge.
• 8:09 a.m. to 8:25 a.m. Officer Galloway contacted Traffic Services while Officer Judah contacted 13 Division CIB as directed by Sgt. Arshad to ascertain where to transport the Applicant.
• 8:25 a.m. In response to repeated questions, Officer Galloway and Sgt. Arshad again explained why the Applicant was detained and arrested. The Breath Demand was made again and the consequences of refusing repeated.
• 8:26 to 8:32 a.m. While the Applicant was in the back of the scout car, Sgt. Arshad took out his phone, and asked the Applicant for the number of the lawyer the Applicant wished to call, and if he did not know the number, to provide him with a name so he could look for the number to call. Sgt. Arshad informed the Applicant he could speak to his lawyer right then. The Applicant did not provide a number, or a name. He stated he did not want to use the officer’s phone and stated he would wait to speak to his lawyer at the station. Sgt. Arshad testified that should the Applicant have wished to speak to counsel while in the scout car, the officers would have stood outside, the camera and audio would be turned off for privacy, another scout car’s in-camera system would be turned on to observe the Applicant, and the Applicant could have consulted his counsel.
• 8:35 a.m. While alone in the scout car, with the windows rolled up, the Applicant said he wanted to go to the bathroom.
• 8:38 a.m. Dispatch directed the officers to 23 Division for the breath test.
• 8:39 a.m. Officer Poge, the Breath Technician was at Islington and the Gardiner. He was directed to attend 23 Division to perform a breath test and went directly there.
• 8:40 a.m. Officer Galloway transported the Applicant to 23 Division, and Officer Judah followed in his own scout car. The Applicant spoke the whole way. He made inquiries, challenged the officer, and complained.
• 9:04 a.m. Both Officer Galloway, with the Applicant and Officer Judah behind him arrived at 23 Division as did Officer Poge, the Breath Technician.
• 9:06 a.m. Officer Galloway requested entry into the building and was informed they must wait as the Booking Hall was not available and the OIC was not ready.
• 9:21 a.m. Officer Poge completed the series of quality assurance checks and was ready to proceed with a breath test.
• 9:06 to 9:42 a.m. Officers Galloway and Judah waited in the sally port by the scout car, while the Applicant, inside the scout car, yelled, muttered, complained, and demanded to be let out.
• 9:42 am. Sgt. Parsram, attended the Booking Hall to process the Applicant after being requested to do so minutes before. Officers Galloway and Judah escorted the Applicant inside.
• 9:42 am. - 9:50 a.m. Sgt. Parsram booked the Applicant in the station and attempted to ascertain the Applicant’s health. The Applicant was either unresponsive to questions or rude and vulgar.
• 9:50 a.m. to 10:06 a.m. Officers Galloway and Judah conducted a Level 3 search.
• 10:06 a.m. The Applicant was taken to the Interview room to speak to counsel privately. Officer Galloway obtained the number of the Applicant’s counsel and called it. He was unsuccessful in reaching anyone. Officer Galloway observed the Applicant urinate in the room through the live CCTV feed.
• 10:18 a.m. Officer Galloway left a message with Duty Counsel.
• 10:37 a.m. Duty Counsel called back, and the call was transferred to the interview room for the Applicant to consult counsel privately.
• 10:47 a.m. After having spoken to Duty Counsel, Officer Galloway escorted the Applicant to the breath room.
• 10:47 a.m. to 10:59 a.m. Officer Poge attempted to obtain a suitable sample of the Applicant’s breath. He was unable to do so, and the Applicant was charged with Refuse.

V. Analysis

A. S. 7 Right to Security of Person

[23] The Applicant relied on R. v. Samayoa, [2018] O.J. No. 640, a case where, after repeated requests, an accused person was not allowed to use the bathroom, forcing him to urinate on himself. He was then in the wet clothes for hours; the court issued a stay of proceedings.

[24] That is not the case here. At 8:35 a.m. once, while in Officer Galloway’s scout car at the scene, the Applicant said he wanted to go to the bathroom. There was no officer in the scout car, the windows were up. Officer Galloway, who was outside the scout car at the time, testified he did not hear the Applicant say he needed a bathroom.

[25] The Applicant demonstrated no hesitation in expressing himself freely to every officer he engaged with. He asked questions, insisted on answers, and repeatedly challenged those answers, the process, and their knowledge. He insulted the officers, laughed at them, screamed at them, taunted them, and mocked them. During the ride from the scene of the arrest to 23 Division, the Applicant did not tell Officer Galloway he needed to use the washroom. In the sally port, he screamed while in the scout car demanding his handcuffs be loosened and he be let out of the vehicle. He did not once say he needed the washroom. When he was paraded and asked questions by the Sgt. about his well being, he did not say he needed the washroom.

[26] After having urinated on the interview room floor, upon entering the breath room, the Applicant stated that he urinated because he had asked the officers “five times” that he needed the washroom, and now, he said contemptuously, the officers would have to “clean it up”. During the extensive interactions the Applicant had with 5 officers from 7:44 a.m. to 10:47 a.m. while on camera, he did not inform any one of them he needed the washroom.

[27] I do not accept the Applicant asked an officer “five times” to go to the washroom while he was alone in an interview room to speak to counsel in private. I do accept Officer Galloway’s testimony he did not hear the one statement made when the Applicant was alone in the scout car with the windows rolled up at the roadside.

[28] I find the Applicant did not inform an officer he needed to use the washroom. I find he was not denied such an opportunity. I find the Applicant’s s. 7 rights were not violated.

B. S. 10(b) Right to Counsel of Choice

[29] At 8:26 a.m., Sgt. Arshad attempted to facilitate and enable the Applicant to consult with his counsel of choice while he, and the other officers waited to be informed where to transport the Applicant to the closest available location for a breath test. While the Applicant sat in the back of the scout car by the roadside, Sgt. Arshad specifically opened the back door of the vehicle, pulled out his cell phone and asked the Applicant for the number of his counsel so he could call the lawyer. Sgt. Arshad then informed the Applicant that if he did not know the number, that he himself would look for the name of the lawyer and get the number.

[30] The Applicant did not provide Sgt. Arshad with the number or the name of his counsel. He did not want to use the officer’s cell phone, and specifically declined the offer to have the Officer contact his counsel at the roadside. The Applicant stated he wanted to wait until he got to the station to speak to his counsel.

[31] When a detainee wants to call a specific lawyer, he has a duty to tell the police whom he wants to call, R. v. Williams, [2014] O.J. No. 2559 (C.A.) at para. 39.

[32] At the station, Officer Galloway asked the Applicant for the number of his counsel and the Applicant wrote it down. Once he obtained it, Officer Galloway called the number but could not reach anyone. He testified that as he was unsuccessful with the number provided, he called Duty Counsel.

[33] There is no evidence the Applicant wanted to wait any longer for a response from the number he provided, or wanted to provide another number, or even another name. There is no evidence he did not want the assistance of Duty Counsel or had any concerns with the advice he received. The Applicant confirmed he had spoken to Duty Counsel and received legal advice when he was asked by Officer Poge before the breath sample procedure was commenced and expressed no issue, again in a context where he expressed his numerous complaints throughout his interactions with every officer.

[34] As the Court stated in R. v. Willier 2010 SCC 37, [2010] S.C.J. No. 37 at para. 42, “…unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel…”

[35] I find the Applicant’s s. 10(b) right to counsel of choice was not violated.

C. S. 10(b) Right to Counsel without Delay

[36] The time between the Applicant’s arrest at 7:47 a.m. and 10:37 a.m. when he consulted counsel, 2 hours and 50 minutes can be divided into 5 periods.

i. The time it took 4 officers to arrest the Applicant and put him in the scout car: 7:40 a.m. to 8:05 a.m., 25 minutes. ii. The time it took 3 officers to give the Applicant his Rights to Counsel, make the Breath Demand, and locate where the breath samples would be taken: 8:06 a.m. to 8:38 a.m., 32 minutes. iii. The time it took to drive from the roadside to 23 Division sally port and request entry: 8:38 a.m. to 9:06 a.m., 28 minutes. iv. The time waiting in the sally port awaiting entry into the station: 9:06 to 9:42 a.m., 36 minutes. v. The time between entry into the Booking Hall and speaking to counsel: 9:42 a.m. to 10:37 a.m., 55 minutes.

[37] The Applicant submits this was an unreasonable delay, however, when the evidence in this case is examined, both in detail and totality, that is not the case.

i. The Arrest and Getting into the Scout Car

[38] The first officer on scene, Judah had to wait for a second officer, Galloway to effect an arrest. Both officers requested the assistance of a third officer, Araujo. The three officers then needed the assistance of a fourth officer, supervisor, Sgt. Arshad, to get the Applicant into the scout car. It took 21 of those 25 minutes for 4 officers to convince the Applicant to get into the scout car. They worked diligently and patiently, repeatedly informing the Applicant why he was arrested, in the face of his repeated interruptions and insults so as not to escalate his belligerence and agitation. I find these 25 minutes, observed on camera, were a reasonable amount of time to ensure the Applicant entered the scout car voluntarily and without force or injury.

ii. Rights to Counsel, Demand, and Waiting for Breath Test Location

[39] Immediately upon the Applicant being secure in the scout car, Officer Galloway provided the Applicant with Rights to Counsel (8:07 a.m.) and made a Breath Demand (8:08 a.m.) and then repeated them in colloquial language. He went on to explain the consequences of a refusal to the demand in response to the Applicant’s “disagreeing” with it.

[40] Sgt. Arshad assisted by repeating much of what had been said and responded to the Applicant’s numerous questions and demands, identifying himself as the “commanding officer” who was “in charge” as the Applicant inquired. He listened to the Applicant’s concerns and repeated himself as often as the Applicant required a response.

[41] At this point, for 8 minutes, (8:26 to 8:32) Sgt. Arshad provided the Applicant an opportunity to exercise his right to counsel by offering to call the number of his counsel or look up the number of his counsel if given a name.

[42] It took the officers 39 minutes to facilitate contact with his counsel, which included the arrest, getting him into the scout car and at least another 20 minutes of repeating themselves as to why he was pulled over, detained, and arrested, and explaining his rights. Every one of those minutes are on camera where the officers can be seen meeting their obligations fairly and repeatedly, making their best efforts to facilitate the Applicant’s right to consult with his counsel.

[43] The Applicant declined the offer.

[44] Given the circumstances, these 39 minutes were not an unreasonable delay in facilitating the Applicant’s opportunity to consult with counsel, an opportunity he rejected.

iii. Taking the Applicant to 23 Division

[45] Sgt. Arshad directed Officer Galloway to contact Traffic Services to obtain the location of the closest available Breath Technician, and Officer Judah to contact the 13 Division to obtain the same information. He contacted Traffic Services himself to clarify the situation, that an ASD was not required, and though the Applicant was refusing to comply with the Breath Demand, he should be given the opportunity to provide a sample to a Breath Technician at a police station. He testified there are three locations, 23 Division, Traffic Services and 13 Division for such testing. The closest was 23 Division at that time with an available Breath Technician.

[46] Officer Galloway took the most direct route to 23 Division which took 24 minutes. Officer Poge testified he was located and notified when he was at Islington and the Gardiner and made his way directly to 23 Division as well.

[47] The Applicant argues a “staff shortage” caused a 20-minute delay to locate a Breath Technician and another 25-minute drive to the location to take the breath test. He submits this is a “a constitutionally insufficient reason” and “delayed” his opportunity to consult with counsel.

[48] However, the Applicant had already been provided an opportunity to consult counsel at the roadside and declined it. The locating of a Breath Technician and a breath sample location did not delay the Applicant’s ability and opportunity to exercise his right to consult counsel.

iv. Waiting at the Sally Port

[49] Officer Galloway arrived at 23 Division at 9:04 a.m. and requested entry into the building at 9:06 a.m. He was advised that the Booking Hall was not available and the Officer In Charge was not ready. He and Officer Judah were not permitted entry with the Applicant until 9:42 a.m., a period of 36 minutes. Neither officer elicited any evidence during this time.

[50] The evidence is that Officer Poge the Breath Technician, who arrived at 23 Division at 9:04 a.m. was not ready to receive the Applicant till 9:21 a.m. Therefore, of those 36 minutes, I find the 15 minutes is reasonably explained to be the Breath Technician getting the instrument ready to operate.

[51] The question of whether this delay of 21 minutes in the sally port (from 9:21 a.m. to 9:42 a.m.) in facilitating access to counsel is reasonable in the circumstances. This is a factual inquiry and depends on the specifics of the case. If officers turn their mind to the issue, a justifiable delay will not result in a Charter breach, R. v. Griffith, 2021 ONCA 302 at para. 41.

[52] Sgt. Parsram testified there is a central booking station that manages different officers from different stations bringing in prisoners to process, as well as court officers who are taking prisoners out of the building. The officers must wait until the room is clear to enter. Officer Galloway testified the OIC was not ready to receive the prisoner.

[53] I accept Sgt. Parsram’s testimony that the station was busy.

[54] In addition to the fact the Applicant had already been afforded an opportunity to consult with counsel at the roadside and declined it, a review of the Applicant’s conduct while the parties awaited entry into the station is required to determine the issue.

[55] While in the back of the scout car in the sally port, the Applicant was screaming, rambling, angry, and aggressive. He fixatedly complained about how tight his handcuffs were and insisted his wrists and his hands were bleeding. They were not. He demanded the officers open the vehicle door, threatening to kick it open. He was loud, combative, argumentative, and agitated.

[56] In the words of Officer Galloway, given the Applicant’s demeanour and his behaviour towards them, he did not feel that “loosening the cuffs was in anybody’s interest because if he decides he’s going to start to fight us we are going to have to fight back, and someone could get hurt.” The Applicant is taller, heavier, and bigger than both Officers Galloway and Judah.

[57] The police can postpone a Defendant’s consultation with counsel until a controlled and suitable environment is available, R. v. Pileggi, 2021 ONCA 4 at paras. 75-78. In this case, that is exactly what was required they do.

[58] The Applicant urges the court to find that the officers could have done more to expedite the Applicant’s consultation with counsel, and in not doing so, breached his s.10(b) right to counsel without delay.

[59] However, the Superior Court in R. v. Antoninas, 2014 ONSC 4220, [2014] O.J. 5226 (S.C.J.) articulates the test, not as what more the police could have done, but rather, if what they did was provide the necessary information and assistance to allow the detainee to exercise his rights considering the circumstances of the case, and puts it as follows at para. 93:

“While the officers could have done more, whether there was a breach is not determined by making a finding that they did not do everything they could possibly have done. Rather, the question is whether what the police did to facilitate the rights resulted in a breach of s. 10(b).

[60] As a result, I do not find the wait in the sally port of the station unreasonable given the reasons and the context. Both officers acted diligently to ensure the safety of the Applicant and themselves and appropriately awaited a safe opportunity to again facilitate the Applicant’s right to consult with counsel.

v. Inside 23 Division

[61] The Applicant did not take issue with the efficiency of police conduct once he entered 23 Division from 9:42 a.m. to 10:37 a.m. The Applicant was paraded and searched in a timely manner. He was taken to an interview room. The number of his counsel was obtained. Efforts to reach counsel were made. Duty Counsel was contacted. The officers waited for the return call of the Duty Counsel and transferred the call to the Applicant. The Applicant was given the opportunity to consult with counsel in private.

[62] On the totality of the evidence, I do not find a s. 10(b) violation.

VI. Conclusion

[63] As I do not find any Charter violation, I need not embark on a s. 24(2) analysis.

[64] I dismiss the Charter application and the observations made by the officers at the roadside, their observations of the urine in the interview room, and the their observations of Mr. Lee-Diggs’ conduct in the breath room are all admissible evidence at his trial.

Released: March 17, 2023 Signed: Justice Cidalia C. G. Faria

[i] Counsel for Mr. Lee-Diggs, Mr. Raj Vijan passed away in November 2021. He was a well-respected counsel and will be much missed. Counsel Jamie Kopman took on the matter but became ill and continuing trial dates in March 2022 were vacated. Counsel Cole Perry then proceeded with the voir dire in December 2022