Her Majesty the Queen v. Orville Palmer, 2021 ONSC 1675

COURT FILE NO.: CR-19-90000765-0000 DATE: 20210305

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ORVILLE PALMER Applicant

COUNSEL: Elizabeth Bellerose, for the Crown Catherine Szpulak, for the Applicant

HEARD: March 1, 2021

A.J. O’Marra J. (Delivered Orally)

RULING ON AN APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTION 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS

[1] The Applicant Orville Palmer has applied for an Order pursuant to s. 24(2) of the Charter of Rights and Freedoms to exclude evidence seized at the time of his arrest on March 6, 2019 as a result of violations of his s. 10(b) rights to retain and instruct counsel without delay.

[2] Specifically, the applicant claims that his s. 10(b) Charter right was breached as a result of the police having failed to provide him with an opportunity to speak with counsel for approximately two hours after his arrest. In addition, he claims that his s. 10(b) Charter right was breached when the police failed to hold off questioning him at various times throughout their interaction with him before he had an opportunity to speak with counsel.

Factual Background

i) The Arrest

[3] In early March 2019 police began an investigation with respect to suspected drug activity at 100 High Park Avenue, Toronto, a Toronto Community Housing apartment complex. During the course of the investigation officers of the Toronto Police Service in viewing screen shots from CCTV security videos of the TCH identified Mr. Palmer. Further investigation revealed that Mr. Palmer was subject to a recognizance of bail with a house arrest condition and requirement that he had to be in the presence of a surety when away from his residence.

[4] On March 6, 2019 Constable John Sianos and partner Constable Martin Waz members of the neighbourhood policing program and general patrol arranged to attend to 100 High Park Avenue and continue the investigation with the assistance of Constables Zahir Nanji and his partner Brett Buchanan, bail compliance officers. All officers were acting in a plain clothes capacity at the time.

[5] Constable Sianos parked their unmarked sedan in the parking lot to maintain a watch at the front entrance of the building for the applicant. His partner, Constable Waz attended inside to the Superintendent’s office where he was met by Buchanan and Nanji to view the CCTV surveillance video.

[6] At 3:20 p.m. Constable Sianos observed the applicant enter the building carrying a plastic bag. He notified the officers who were already inside the building to meet and arrest the applicant. Constable Waz approached Mr. Palmer in the lobby and advised that they were police officers and at 3:21 p.m. told him he was under arrest for breach of recognizance and handcuffed him. Constable Nanji read the applicant his rights to counsel and when asked if he wanted to call a lawyer he stated, “I have my lawyer”.

[7] When Constable Sianos entered the building front entrance he was shown the contents of the plastic bag carried by Mr. Palmer. It contained a white powdery substance, later found to be 86.2 grams of powder cocaine. At 3:25 p.m. Constable Sianos placed him under arrest for possession of a Schedule 1 substance and read him his rights to counsel again. On a search incidental to arrest he was found to have in his pockets 8 oxycodone pills, two glass jars containing 9.7 grams of crack cocaine and $190.25 cash.

[8] Constables Sianos and Waz had driven there in a standard sedan and Constables Nanji and Buchanan had arrived in an unmarked police cruiser with a cage in the rear. However, their vehicles were not equipped with an in-car camera system (ICC) which Constable Sianos felt would be necessary to ensure a recorded and safe transport of Mr. Palmer to the Division where his arrest would be continued. A scout car with an ICC system was requested from the Division. The scout car arrived at approximately 3:41 p.m. at which time Constable Nanji placed Mr. Palmer in the rear of the cruiser. He can be heard on the ICC audio confirming that Mr. Palmer had been advised of the charges, failure to comply with his recognizance and possession of a Schedule 1 substance, provided rights to counsel and that he has his own lawyer.

[9] During the approximate 20-minute delay awaiting the dispatch and arrival of the scout car all officers stood by at the front of 100 High Park Avenue with the applicant. Constable Nanji acknowledged in cross-examination that he might very well have inquired of the applicant as to whether the drugs were heroin. He said he would have done so for safety concerns regarding possible contact with lethal drugs such as fentanyl. However, he made no note having made the inquiry or whether there was any response from Mr. Palmer.

ii) Transport to 11 Division

[10] At 3:44 p.m. Mr. Palmer was transported from 100 High Park Avenue to 11 Division. They arrived at the sally port entrance at 3:53 p.m. On arrival the officers were advised that they could not enter the building as there were technical problems with the Versadex system which records the particulars of the accused and arrest as entered by the officers’ in their scout car computer and then used during the booking process.

[11] At 4:14 p.m. an officer asked Mr. Palmer sitting in the rear of the police cruiser whether he was “okay” to which he responded “Yeah, I want my phone call.” The officer responded “Yeah, as soon as practical”.

[12] They had to wait in the scout car outside the sallyport door for approximately 26 minutes until it was rectified. At 4:19 p.m. the sally port door opened, and Mr. Palmer was taken into the booking room.

Events at 11 Division

i) Booking

[13] The booking process commenced at 4:20 p.m. during which Mr. Palmer inquired about his rights to counsel. He was told he would be put in touch with a lawyer. A level III strip search was requested by the officers and authorized by the booking sergeant.

[14] He was taken to a private area where the search began at 4:27 p.m. It was completed at 4:34 p.m. The officers, Sianos and Waz were then directed by the booking sergeant to place the applicant in interview room #5.

ii) Interview Room #5

[15] Mr. Palmer had told Constable Waz that his lawyer’s name was Corey Nishio. Constable Waz attended to the Criminal Investigation Bureau (CIB) office to locate the phone number of the lawyer in order to put Mr. Palmer in contact with him. The telephone used for the purpose are positioned outside of the interview room door and handed inside to the accused when contact is made with the lawyer. The door is closed to ensure the privacy.

[16] Constable Waz testified that on his return to the interview room with the lawyer’s number he observed another officer in the interview room with Mr. Palmer. He felt he could not facilitate a call to counsel at that time. He went off to do something related to the case although he had no recollection as to what it would have been. It was not until 5:15 p.m. that he returned to interview room #5 and made the call to provide Mr. Palmer with access to counsel. He testified the delay in returning to give Mr. Palmer access to his lawyer was not done “purposely or maliciously”. It slipped his mind.

[17] Constable Waz testified if there was an arrest of an accused for drug offences by 11 Division patrol officers, investigators from the Major Crime Unit or Intelligence would attend to interview the subjects.

[18] Constable Scott Kangas, an officer with Major Crime Unit (MCU) of 11 Division was the officer observed by Constable Waz who attended and spoke with Mr. Palmer some time after 4:34 p.m. Constable Kangas testified that he had heard that there was an accused who had been arrested for drug offences, and without checking to see whether he had been provided with access to counsel, went to speak with him to see if he was willing to provide information about other criminal activity in the community.

[19] He testified he entered the interview room, closed the door, introduced himself and asked Mr. Palmer his name. He said that it appeared clear to him on seeing Mr. Palmer, based on his body language that he did not wish to speak to him, and he told him to leave. The officer said he did not discuss the charges Mr. Palmer was facing as he did not have the information about them, and he left the interview room. He stated he spent no more than 60 seconds with Mr. Palmer.

[20] Constable Kangas made no notes of his contact or interaction with Mr. Palmer that day, although he claimed to have an independent recollection of the brief encounter and what he did. It was not until February 19, 2021, two weeks before the pre-trial motion proceedings that he provided a will-say statement as to his recollection of his contact two years previously with Mr. Palmer.

[21] Constable Kangas stated that it was a usual practice for members of his unit to speak with an accused, but only after they had spoken with counsel, if they agree to do so. The purpose was to obtain information which they may have about other criminal activity in the community. He recognized that it was an error on his part not to have inquired as to whether Mr. Palmer had been given access to counsel and in failing to hold off asking him any questions until he had a reasonable opportunity to exercise his rights. He gave no explanation as to his failure to have done otherwise.

Section 10(b) Breaches

[22] Pursuant to s. 10(b) of the Charter of Rights and Freedoms everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

[23] In R. v. Suberu, 2009 SCC 33 at para. 40, the Supreme Court stated that the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, have access to it in situations where they may suffer a significant deprivation of liberty due to state coercion, which leaves them vulnerable to state power and legal jeopardy. It protects their right against involuntary self-incrimination.

[24] The Supreme Court in R. v. Manninen, 1987 1 SCR 1233 at para. 23 and R. v. Prosper, [1994] 3 SCR 236 at para. 49 observed that the constitutional duty of police officers to hold off questioning or eliciting evidence from detainees until detainees have had a reasonable opportunity to retain and instruct counsel.

[25] Section 10(b) imposes three constitutional obligations on the police. The Supreme Court in R. v. Willier, 2010 SCC 37 at para. 29 summarized those obligations as follows:

Section 10(b) requires the police, 1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; 2) 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 3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[26] It was held in Suberu at para. 41 that “without delay must be interpreted as immediately”. However, it was noted that “what constitutes a permissible delay is abstract and difficult to quantify whereas the concept of immediacy leaves little room for misunderstanding. “In our view the words “without delay” means “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and the duty to facilitate that right immediately upon detention. ” (Emphasis added.)

[27] In this matter, I find that there are three breaches of s. 10(b) Charter rights – two of which involved the officers’ failure to hold off asking questions prior to Mr. Palmer exercising his right to speak with counsel and the third is the unreasonable delay in affording him the opportunity to speak with counsel.

i) Failure to Hold off Questioning

[28] The first breach, which I consider likely to have occurred, was when Constable Nanji inquired of Mr. Palmer as to whether the substance was heroin, which was the subject of his arrest. There was no evidence of a response.

[29] The second breach occurred when Constable Kangas attended into the interview room sometime after 4:34 p.m. with the purpose of questioning Mr. Palmer which may or may not have had an impact on the offences with which he was charged. Although there was no responses by Mr. Palmer, both instances involved the officers failing in their duty to hold off any questioning until he had consulted with counsel.

[30] As noted by Trotter J.A. in R. v. Pileggi, 2021 ONCA 167 at para 72:

Once a detainee has been informed of his rights under s. 10(b) of the Charter, and that person indicates that they wish to retain counsel, the police have a “duty to hold off questioning or otherwise attempting to elicit evidence from the detainee”: R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 17. See also R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 26; R. v. Manninen, [1987]1 S.C.R. 1233, at pp. 1242-1244; R. v. Prosper, [1994] 3 S.C.R. 236, at pp 269-278. This duty also prevents the police from interacting with an accused person, short of questioning, in a manner that that triggers a response from the accused - i.e., something that is a “functional equivalent” of an interrogation: R. v. McKenzie (2002), 167 C.C.C. (3d) 530 (Ont. C.A.), at para. 36.

[31] With respect to Constable Nanji’s inquiry as to the nature of the substance, out of safety concerns, it could well have resulted in self-incrimination by Mr. Palmer. If the concern was for safety, there are other means by which the officers can self-protect in the handling of the illicit and possibly lethal substances without enlisting the accused’s participation. The fact that the inquiry did not yield inculpatory evidence does not neutralize the Charter breach. It could have triggered an incriminating response.

[32] Similarly, when Constable Kangas spoke with Mr. Palmer while confined in interview room #5 without him having had benefit to counsel, even though he has not done so with respect to the charges Mr. Palmer faced there was the potential for self-incrimination. The Crown conceded and as the officer acknowledged it was a breach of Mr. Palmer’s s. 10(b) right by the officer’s failure to hold off making any inquiries of an accused prior to him having access to counsel. While I may be skeptical as to Constable Kangas’ recollection of his brief contact with Mr. Palmer, other than his account there is no evidence as to anything else having occurred.

[33] As with the circumstances of Constable Nanji’s breach, that it did not result in any inculpatory evidence, and can be considered “fleeting and inconsequential” is properly considered in the s. 24(2) assessment.

ii) Delay in Providing Access to Counsel

[34] With respect to the issue of delay, defence counsel argued that there was opportunity at the scene during the 20-minute wait for the scout car with the ICC equipment to arrive for the officers to have provided Mr. Palmer with a phone and allowed him to use a portable phone seated in the caged compartment of the unmarked police cruiser operated by officers Nanji and Buchanan.

[35] Constable Sianos had what he described as a “community connect phone” he used for his neighbourhood policing responsibilities. Counsel suggested it could have been used for that purpose. The officer testified that it was his practice to have an accused transported to the Division where the accused would have certain privacy to speak with counsel.

[36] Counsel argued there was no issue as to the behaviour of Mr. Palmer. He was described by the officers as being calm and co-operative. However, he could have been placed in the rear of the unmarked police car if a call had been made to his lawyer, assuming the phone number was available.

[37] It was clear in the evidence the officers gave no thought to the possibility of the accused having access to counsel other than at the Division where privacy would be provided in one of the interview rooms, and where it was certain that the call was to counsel, because the call would be made by an officer and the telephone receiver handed into the accused.

[38] The 26-minute delay waiting to enter the police station due to the technical difficulties with the Versadex system was unanticipated. Any suggestion the accused could have used a mobile phone from the police scout car was unrealistic.

[39] In my view, the unreasonable delay of approximately 40 minutes occurred at the Division as a result of the thoughtless attendance of Constable Kangas to interview Mr. Palmer in an attempt to information/intelligence, or to cultivate an informant. It interfered with Mr. Palmer having access to counsel. His presence deterred Constable Waz, from providing the call when he observed Constable Kangas in the interview room speaking with Mr. Palmer.

[40] There is no explanation for Constable Waz’s having waited to 5:15 p.m. before providing Mr. Palmer with access. There is no justification for this delay to have occurred at 11 Division.

[41] Accordingly, where there is a delay in facilitating access to counsel the Crown bears the onus of showing that the delay was reasonable in the circumstances, (see R. v. Hobeika and Sanchez, 2020 ONCA 750 at para. 73).

[42] In this instance the delay was unreasonable, and it occurred as a result of the officers having little regard, if any, to having facilitated access to counsel without delay.

[43] The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice which they cannot access without help because of their detention. There are of course exceptions where there is a reasonable basis to delay because of police or public safety concerns, the need to preserve evidence or some other urgent or dangerous circumstance. However, none of which existed in this case. As noted by Doherty J.A. in R. v. Rover, 2018 ONCA 745 at para. 45:

The right to counsel is a lifeline. 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.

[44] The Crown contends that the evidence at issue was not obtained in a manner that infringed or denied the accused’s Charter of Rights. There was no temporal or contextual connection between the 10(b) breaches and the discovery of the drugs at the time of arrest.

[45] However, as noted in R. v. Pino, 2016 ONCA 389 that the courts had taken a generous view of “obtained in a manner” threshold. As described by Laskin J.A., the requirement is “just the gateway to the focus of s. 24(2) – whether the admission of the evidence would bring the administration of justice into disrepute”.

[46] Laskin J.A. noted that courts should examine “the entire chain of the events” between the accused and the police and that “the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct”. Further, any connection between the breach and the discovered evidence may be “causal, temporal or contextual, or any combination of these connections” as long as the connection is not too tenuous or too remote.

[47] The first breach of s. 10(b), the duty to hold off, with respect to Constable Nanji’s inquiry, occurred within moments of the accused’s arrest and discovery of the substances in his possession. It related directly to the substance for which Mr. Palmer was arrested in part.

[48] The second breach of s. 10(b), the attendance of Constable Kangas to question Mr. Palmer, occurred as a result of his alleged involvement in illicit drug activity and which resulted in the delay of him speaking with counsel.

[49] In my view, there is a temporal connection between the discovery of the evidence and the following breaches as contemplated by the court in Pino that is not too remote in this instance.

[50] While there is no direct connection between the infringements and the discovery of the evidence, as observed in R. v. Strachan, [1988] 2 SCR 980 a causal connection is not required to pass through the s. 24(2) “gateway”. It was noted in R. v. Lenhardt, 2019 ONCA 416 at para. 11 that “ there need not be a causal relationship to establish a case for exclusion under s. 24(2), but the absence of any such connection is a factor weighing against exclusion”. The lack of any connection is a relevant consideration in the s. 24(2) analysis.

[51] The applicant contends that in considering the entire “chain of events” between the applicant and police and applying the generous approach required by s. 24(2) of the Charter the infringing police conduct is part of the same course of conduct as that which resulted in the seizure of evidence from the applicant.

Section 24(2) Considerations

[52] In R. v. Grant, 2009 SCC 32 the Supreme Court of Canada set out the factors to determine as to whether the admission of evidence at trial would bring the administration of justice into disrepute:

(a) the seriousness of the Charter infringing state conduct; (b) the impact of the breach on the Charter-protected interests of the accused; and (c) society’s interest in the adjudication of the case on its merits.

(i) Seriousness of the Charter infringing state conduct

[53] In combination the s. 10(b) infringements, the failure to hold off asking questions in two instances, and delay in providing access to counsel are serious. The first breach with respect to Constable Nanji’s inquiry was both “fleeting and inconsequential”. The second holding off breach by Constable Kangas was also fleeting and inconsequential in that there was nothing incriminating from the contact however, it had a consequential effect in that it further delayed Mr. Palmer’s access to counsel. His attendance prevented Constable Waz from providing access to counsel when he observed him in the interview room with Mr. Palmer.

[54] The police demonstrated a cavalier attitude and they were negligent in failing to comply with their well-established obligations and duties in dealing with a person in custody.

[55] However, this was not a case as in R. v. Rover, 2018 ONCA 745 in which there was a systemic breach of the accused’s s. 10(b) rights. In Rover, the accused was held for six hours as a result of the police following a routine practice of preventing arrested persons from accessing counsel where they intended to obtain a search warrant to search a place for drugs and believed that the place had a connection to the arrested person.

[56] This is a case of negligence, particularly on the part of Constable Kangas in not inquiring as to whether Mr. Palmer properly had access to counsel – not a systemic practice.

[57] I would add parenthetically, obtaining of information of ongoing criminal activity and cultivating informants and developing information concerning criminal activity in the community is an appropriate and necessary police investigative activity in advancing the duty of the police to serve and protect the community, but it must be done when dealing with an accused in full compliance with their duties and obligations to protect the accused’s rights.

[58] In considering this factor the seriousness of the breaches in combination favour exclusion.

(ii) Impact on the Accused’s Charter Protected Interests

[59] In consideration of this factor, while there may be a temporal connection that surpasses the “obtained in a manner” threshold regarding the breaches to hold off and delay in providing access to counsel, there is no discernible causal connection between the discovery of the evidence and the s. 10(b) breaches.

[60] Notwithstanding, I am mindful of the observation made by Doherty J.A. in Rover that the right to counsel is to be seen as a “lifeline for detained persons” in providing them with legal advice and guidance, but “also in the sense that they are not entirely at the mercy of the police while detained”. Further, he noted that “the psychological value of access to counsel without delay should not be underestimated”.

[61] It should be noted that in Rover the accused was held for six hours “without any indication of when he might be allowed to speak with someone” which the court considered to have a serious impact on his Charter-protected interest. Here, Mr. Palmer provided the name of counsel to Constable Waz who in turn went to obtain the number. There is no evidence as to any detrimental impact resulting from the additional 40-minute delay.

[62] This case bears some similarity to that of R. v. Pileggi. There the accused raised two concerns regarding his s. 10(b) rights – failure to hold off questioning and more than three hours before he was given access to counsel. An officer asked him a question after the accused’s arrest at his house but before he had access to counsel. He declined to answer. The question did not elicit any evidence. It was a breach of his right, nonetheless. The delay of over three hours in providing access to counsel was described as having resulted from a lack of communication between the officers. The breaches were considered serious however, having occurred as a result of a “fact specific, if not idiosyncratic, scenario”, unlike the systemic and institutional conditions that drove the result in Rover. The same can be said in this case.

[63] Also, here there is no causal connection between the breaches and the discovery of the evidence. The impact of the combined s. 10(b) breaches on the interests of the applicant are relatively minor. This factor does not favour exclusion.

(iii) Society’s Interests in Adjudication of the Case on its Merits

[64] The evidence, at issue, seized during a search incidental to arrest, is reliable and not compromised by the s. 10(b) infringements.

[65] The Crown’s case is based on the evidence seized and its admission at trial would enhance the truth-seeking function of the trial.

[66] An exclusion of the evidence, the discovery of which had no causal connection and only remotely connected to the Charter breaches would damage the repute of the administration of justice. Further, an exclusion of the evidence, which would only serve to indirectly punish the officers for their negligence, and not as a consequence of institutional or systemic breaches, in these circumstances would not enhance, the long-term repute of the administration of justice. This factor favours inclusion.

[67] In balancing the factors, no one of which is determinative, the admission of the evidence would not bring the administration of justice into disrepute.

[68] The evidence shall not be excluded under s. 24(2).

A.J. O’Marra J. Released: March 5, 2021