Court File and Parties

Court File No.: CR-23-9/245 Date: 2024-03-08 Ontario Superior Court of Justice

Between: His Majesty the King – and – Victoria Manna-Silva & Ralph George

Counsel: Elisa Mastrorillo and David Quayat, for the Crown Thomas Shoniker, for Ms. Manna Silva Christian Pearce, for Mr. George

Heard at Toronto: January 22, 23, 24 and 26, 2024

Before: Penman J.

Overview

[1] Ms. Manna-Silva and Mr. George stand charged with a series of drug and firearm offences on June 15, 2022. Specifically, they are charged with possession for the purpose of trafficking cocaine, possession for the purpose of trafficking methamphetamine, possession for the purpose of trafficking fentanyl, possession of a loaded firearm and related charges, possession of a weapon for a dangerous purpose, and failure to comply with a release order. Mr. George is also charged with failing to comply with a firearms prohibition order.

[2] On June 15, 2022, the police received a 911 call from a resident of 1070 Sheppard Avenue who claimed that there were sounds of a fight between a man and woman going on in unit 221. The sounds included screaming, that a woman was being thrown around, and a woman screaming, “[S]top it”.

[3] Four police officers attended the building at 1:16 a.m. and knocked on the door of unit 221. All the officers were wearing body worn cameras (“BWC”). A crashing sound was heard coming from the unit. A woman identified as Ms. Manna-Silva responded to the door knock and asked for time to get dressed. She did not initially open the door but, at 1:18 a.m., did so once the officers told her they needed to see her to make sure she was okay.

[4] Once inside the unit, officers spoke to the female who indicated that her boyfriend had left the apartment and that they had been having an argument about him cheating on her. While one of the officers spoke with the female, other officers walked through the unit to confirm there were no other occupants. The unit was described as approximately 600 square feet and mostly empty with very little furniture.

[5] The officers almost immediately observed on the kitchen counter a large quantity of cash, and a rolled-up bag with a ball of white powder believed to be drugs inside. On another part of the counter the officers observed a digital scale with white residue on it, another rolled-up bag with a ball of white powder inside, a bag with translucent white shards in it, and another digital scale.

[6] The four officers who attended the radio call were all relatively new police officers with between one and three years' experience. At 1:35 a.m., Officer Ley phoned his supervisor Sergeant Quinn as was mandated given the possible intimate partner violence. Officer Ley also knew that Sergeant Quinn had experience as a drug officer and was looking for guidance as to how to handle the situation now that suspected drugs and cash had been observed.

[7] Ms. Manna-Silva was detained at 1:32 a.m. and provided with her rights to counsel and caution. Sergeant Quinn arrived and confirmed that the items on the counter in his view were drugs and instructed Officer Ley to arrest Ms. Manna-Silva. She was arrested at 1:57 a.m. and provided with her rights to counsel and caution. Ms. Manna-Silva indicated she wished to speak with duty counsel. The officers remained in the unit with Ms. Manna-Silva until she was removed from the apartment at 2:45 a.m. and transported to the police station at 3:03 a.m.

[8] The items found in plain view were seized, specifically 202.39 grams of cocaine, 41.46 grams of methamphetamine, 85.80 grams of fentanyl and $14,765 in cash.

[9] Once Ms. Manna-Silva was removed from the apartment, Sergeant Quinn detailed two of the officers to remain in the apartment pending a search warrant, provided they kept their BWC running, and not conduct any kind of search. It was agreed at the hearing that the officers did leave their BWC running, they did not conduct any kind of search, and they left the apartment at 6:51 a.m. because the batteries in their BWC were running low. The search warrant was executed at 9:00 a.m. and a further quantity of methamphetamine, a loaded firearm and ammunition were located.

[10] Mr. George brings an application to have the drugs and firearm excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms, alleging that his s. 8 rights were violated. Counsel argues that the police did not have authority to search the apartment as the safety concerns no longer existed. Mr. George also takes the position that the police had no authority to then remain in the apartment while waiting for the search warrant. As a result, counsel argues that given these breaches the only appropriate remedy is the exclusion of the evidence.

[11] Ms. Manna-Silva also argues that her s. 8 Charter rights were infringed on the same basis as Mr. George. In addition, counsel argues that her s. 10(b) Charter rights were breached when she was not immediately told she was detained and provided with her rights to counsel. They also argue that there was an unnecessary delay in facilitating Ms. Manna-Silva’s access to counsel by keeping her in the apartment, rather than taking her to the division. At the end of the hearing, counsel also argued that the manner of her detention was unreasonable, resulting in a s. 9 violation. Given these violations, they argue that the only appropriate remedy is the exclusion of the evidence.

[12] Crown counsel argues that the police had legal justification to enter the apartment without a warrant after receiving a high priority 911 call. Once the officers observed the drugs in plain view, they were entitled to remain in the apartment to preserve the evidence, notwithstanding there were no longer any safety concerns. The Crown concedes there is a violation of s. 8 for the time frame from when Ms. Manna-Silva was taken to the station, and when the officers left the apartment at 6:51 a.m. The Crown also concedes that the delay in facilitating Ms. Manna-Silva’s access to counsel constitutes a violation of her s. 10(b) rights. In the circumstances however, they argue that when considering the Grant factors, the evidence should not be excluded.

Section 8

i) Standing Issue

[13] The Crown initially took the position that Mr. George did not have standing to challenge the search. Mr. George filed and adopted the contents of an affidavit which outlined his connection to the apartment. As a result of this, the Crown counsel conceded Mr. George’s standing to challenge the search.

ii) Did the Police Lawfully Enter the Apartment under Exigent Circumstances?

[14] Given this was a warrantless entry, the onus falls on the Crown to demonstrate that what the police did was reasonable in the circumstances: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 29.

[15] Section 529.3 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 authorizes police officers to enter a dwelling house without a warrant where exigent circumstances exist. These include circumstances in which an officer either has reasonable grounds to suspect that entry is necessary to prevent imminent death or bodily harm, or where entry into the house is necessary to prevent the imminent loss or destruction of evidence related to the commission of an indictable offence: see Criminal Code, s. 529.3(2)(a) and (b).

[16] The Supreme Court has stated that in cases of 911 calls, police may enter a dwelling even where the nature of the distress is unknown. They are also not required to take the word of the person who answers the door without further investigation: see R. v. Godoy, [1999] 1 S.C.R. 311, at paras. 16, 21. This is a commonsense proposition as one of the hallmarks of intimate partner violence is its private nature.

[17] In the case of R. v. Lowes, 2016 ONCA 519, police received a 911 call from someone reporting that she heard her neighbours arguing, including threats by the male to kill the female. Police arrived at the residence and eventually a woman came to the window. She asked the officers to leave but eventually opened the door. There was no noise from the apartment, nor did the police observe any injuries. Police entered the residence out of concern for her safety and the safety of anyone else in the apartment. Drugs were observed in plain view. The police continued their search and located additional contraband. Mr. Lowes was eventually removed, and the residence was secured until a warrant was granted. The Court of Appeal found that “the police acted entirely within the law in entering the premise as they did.”

[18] Officer Ley testified that the 911 caller had reported hearing from unit 221 sounds of a male and female fighting, sounds as though the woman was being thrown around, and a woman yelling, “[P]lease stop”. The officers believed that there was a serious domestic violence situation happening in unit 221. Just prior to knocking on the door, the police heard a crashing sound coming from inside the apartment. Ms. Manna-Silva spoke to the officers through the door. While she did not initially let them in, once the officers indicated they needed to confirm she was not in distress, she opened the door.

[19] Defence counsel conceded that the police did have a limited authority in the circumstances of this case to enter the home, given the serious nature of the concern conveyed by the 911 caller. Although I appreciate the defence argument that the police were in the unit beyond what was authorized under s. 529.3 of the Criminal Code, I am satisfied that the initial police entry into unit 221 was lawful. The police had a reasonable belief that they needed to enter the apartment to prevent imminent bodily harm or death. The police were not obligated to follow up or investigation the information from the 911 call, nor were they obliged to take the word of Ms. Manna-Silva at the door that she was fine: see Lowes paras 10-14.

iii) Were the Drugs and Cash in Plain View?

[20] The defence did not dispute that the cash and suspected drugs on the counter that were first observed were in plain view. Counsel takes the position, however, that Officer Ley’s observations of the items on the other counter amounted to an exploratory search as there is no explanation for why Officer Ley was in the kitchen.

[21] The plain view doctrine is a seizure doctrine, not a search doctrine. There are four criteria to be applied in determining if items are in plain view: i) whether the police were lawfully positioned relative to where the items were found; ii) whether the nature of the item was immediately apparent as constituting an offence; iii) whether it was discovered inadvertently; and iv) whether the items were visible without any exploratory search: R. v. Stairs, 2020 ONCA 678, 153 O.R. (3d) 32, at para. 62.

[22] Given that the police were lawfully in the apartment due to existent circumstances relating to possible imminent death or bodily harm, I am satisfied that a safety search was necessary in the circumstances. I accept the evidence of Officer Ley that as he moved into the apartment and passed the kitchen island, he was able to observe a large stack of cash and what appeared to be drugs. I am also satisfied that when Officer Ley turned around after speaking with Ms. Manna-Silva he was able to observe on the other counter additional drugs and two digital scales. The apartment was quite small and as is evident on the video, the bag containing the drugs, the clear bag with shards of crystal meth and the two digital scales were just sitting out on the counter.

iv) Were the Police Entitled to Remain in the Apartment pending Seizure of the Drugs and Judicial Authorization?

[23] There are two components to this argument. First, that the police exceeded their authority in remaining in the apartment until the decision was made to seize the drugs that were in plain view. And second, that the police exceeded their authority in remaining in the apartment after Ms. Manna-Silva was taken to 32 Division pending the granting of the search warrant. The defence has argued that the police should have immediately left the apartment once it was determined that Ms. Manna-Silva was alone and not in distress. The Crown has conceded a breach of s. 8 with respect to the second time frame, from 2:45 a.m. when Ms. Manna-Silva was taken to the station, until the officers left the unit at 6:51 a.m.

[24] When police enter a residence due to exigent circumstances, the subsequent police actions will depend on the particular facts of the case. There is no time limitation necessarily associated with the entry and any additional investigation: see Godoy, at paras. 21-22.

[25] Any warrantless search incident to an exigent entry must be justified by imminent risk of the loss, removal, destruction, or disappearance of evidence, or where there is an imminent safety risk to the police or public: see R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 32-33.

[26] The case of R. v. Depace, 2014 ONCA 519, 317 C.R.R. (2d) 296, is instructive. In that case, five police officers entered the residence following a 911 call. A man, woman and a child were in the apartment. One of the officers then conducted a visual search of the other levels of the home, for safety reasons and to determine that there was no one else who needed assistance. Drugs and other paraphernalia were in plain view. The court found that the police were not required to halt their investigation after locating the occupants that were the subject of the 911 call: at para. 8.

[27] I am satisfied in the circumstances of this case that the police were entitled to remain in the apartment once the drugs were observed, to preserve the evidence until a decision was made as to whether to seize the drugs in plain view or wait for a warrant. I am not persuaded that in these circumstances the police were obligated to leave the residence while Ms. Manna-Silva and the drugs remained inside. Ms. Manna-Silva was detainable, if not arrestable at this point, and while it may be that the process took too long, I find there was nothing unreasonable in the police remaining in the apartment until the items were seized and Ms. Manna-Silva was taken to the police station.

[28] I also accept the evidence of the officers that they were still investigating the domestic violence incident. Although Ms. Manna-Silva was not in distress, the police were obliged to investigate given the 911 call, the information from Ms. Manna-Silva that someone else had been in the apartment, that she had been punching the walls, and her reluctance to provide any information. It was suggested that the police should have removed Ms. Manna-Silva from the apartment and interviewed her in the hallway. I am not persuaded that it would be reasonable to interview a potential domestic violence victim in the hallway of her apartment building given safety and privacy concerns.

[29] Once Ms. Manna-Silva was transported to the division, Sergeant Quinn directed Officers Ayres and Dugar to remain inside the apartment pending the search warrant. He made the comment, “Legally, I don’t think it matters.” The officers were also told by Sergeant Quinn to leave their BWCs on and not to conduct any further search.

[30] Sergeant Quinn testified that his rationale was to protect the integrity of the apartment and it was safer for the officers to remain in the unit, rather than be exposed in a hallway that was open at both ends. He was comfortable leaving the officers in the unit on the understanding they would leave their BWCs running.

[31] The Crown has conceded, and I agree, that there were no exigent circumstances warranting the officers to remain inside the unit once it was secured and Ms. Manna-Silva had been transported to the division: see R. v. McCalla, 2019 ONSC 3256. I find that the officers had no lawful basis to remain in the unit after securing the premises and that in so doing, both Ms. Manna-Silva and Mr. George’s right to be free of unreasonable search was violated.

[32] Although Sergeant Quinn’s comment, “Legally, I don’t think it matters” and his direction that the officers remain in the apartment resulted in a violation, I am unable to find this was done in bad faith when considering his instructions to the officers to leave their cameras on and not to conduct any search. Sergeant Quinn was attempting to balance officer safety with the need to preserve the integrity of the apartment.

v) Did Sergeant Quinn conduct an Unlawful Search?

[33] It was argued that after Sergeant Quinn arrived at the unit, he conducted an unlawful search by opening and going through the drugs and bags on the kitchen counter. The officer explained that these items had been found in plain view, needed to be itemized at some point in any event and did so at that time as a teaching exercise for the other junior officers.

[34] At another point, the Sergeant opened a cupboard door and slightly moved some hats on the kitchen counter. The Sergeant acknowledged that this was wrong. He was also asked about emptying out and using food container bags from the counter as evidence bags. Sergeant Quinn also used his flashlight and looking into a bag that was in the den. The bag and items surrounding it appeared to contain dried tobacco leaves. Shortly afterwards, Sergeant Quinn left the apartment.

[35] I accept Sergeant Quinn’s evidence that it initially was not clear what the items were in the den, and he was confirming whether they were drugs to be seized or not. In Depace, the court found no issue with a search pursuant to an exigent entry where the officers went into the basement, found drugs in plain view, tested what was believed to be cocaine, and then obtained a search warrant: at paras. 5, 9.

[36] I am satisfied that Sergeant Quinn was entitled to look in the bags of drugs that were on the kitchen counter as the drugs were visible in the bags. These items were going to be seized and itemized and I do not find in these circumstances that this constituted an unlawful search. If I am incorrect in this finding, I would characterize these searches as minor in nature.

[37] I am persuaded that Sergeant Quinn’s opening of the cupboard, moving the hats, and using the food container bags does constitute an unlawful search and was a violation of both Ms. Manna-Silva and Mr. George’s s. 8 rights.

Section 9

i) Was Ms. Manna-Silva’s Detention Arbitrary?

[38] In submissions, counsel argued that Ms. Manna-Silva’s detention and the manner of her detention was arbitrary and thus a breach of her s. 9 rights.

[39] As I have already indicated, I am satisfied that very quickly upon entry to the apartment, police were able to observe large amounts of cash and what was suspected to be drugs on the kitchen island. Ms. Manna-Silva was the only person in the apartment at the time and there was a predominance of women’s clothing throughout the apartment. I do not find that Ms. Manna-Silva’s detention was arbitrary. I find in fact that not only was she detainable, but she was also arrestable for the drugs and cash that were observed.

[40] While Ms. Manna-Silva was detainable very quickly after the police arrived in the apartment, she was not told of her detention until 1:32 a.m. It was argued that the delay in detaining Ms. Manna-Silva was arbitrary, resulting in a s. 9 violation. I accept that Officer Ley did not initially advise Ms. Manna-Silva that she was detained because of the concern that she was a victim of domestic violence and a potential suspect in a drug investigation, and he was uncertain as to how to proceed.

[41] I agree, however, that Ms. Manna-Silva should have been told that she was under detention as soon as the cash and potential drugs were observed. At this point, she would have been provided with her rights to counsel and caution. I do note, however, that up until the point Ms. Manna-Silva was advised she was under detention, she was moving through the apartment of her own accord, making phone calls, and not otherwise behaving as though she believed she was detained.

[42] Both Officers Ley and Rosero testified, and I am satisfied, that they were concerned for Ms. Manna-Silva and whether she was the victim of domestic violence. Their concern for her was only heightened upon learning she was 15 weeks pregnant. When she was first advised of her detention, there is no question she became quite upset and began crying. The officers tried to calm and reassure Ms. Manna-Silva. The officers asked her more than once whether she would like an ambulance to be called, to which she responded no. Ms. Manna-Silva was never handcuffed and was able to sit or lie on her bed as she wished.

[43] Once Ms. Manna-Silva was arrested, she became even more upset and indicated she was having heart palpitations and appeared to be hyperventilating. At that point she did indicate she wanted an ambulance called. The officers did not immediately call an ambulance and I accept the officer’s evidence that her reaction was not that unusual for someone who has just been arrested. Within a few minutes Ms. Manna-Silva did calm down. Notwithstanding this, the officers asked again if she wanted an ambulance, to which she responded no.

[44] While Ms. Manna-Silva should have been advised she was under detention earlier, I am satisfied that the delay was not arbitrary or unreasonable. It was borne out of the lack of experience of Officer Ley, not an attempt to elicit information or otherwise manipulate Ms. Manna-Silva’s situation. I couple that with Ms. Manna-Silva’s conduct suggesting she was not psychologically detained in any event. Once she was detained, the police made every effort to minimize the impact of her detention. I am not satisfied that there was a breach of Ms. Manna-Silva’s s. 9 Charter rights.

Section 10(b)

i) Was the Delay in Facilitating Ms. Manna-Silva’s Rights to Counsel Reasonable?

[45] It is well established that 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. Noel, 2019 ONCA 860; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135; and R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460.

[46] Police must facilitate contact with counsel at the first reasonably available opportunity once the right has been invoked. Delays must be reasonably necessary and assessed on a case-by-case basis. There may be practical impediments to police ability to facilitate access to counsel: see R. v. DeSilva, 2022 ONCA 879, 421 C.C.C. (3d) 177, at paras. 73-75. Whether the steps taken by the police to make a telephone available to a detainee, in circumstances where he or she can speak with counsel, turns on the facts of the specific case.

[47] When Ms. Manna Silva was detained at 1:32 a.m. she was immediately read her rights to counsel and caution. She indicated that she did wish to speak with duty counsel. Ms. Manna-Silva was kept in the apartment pending a decision about the warrant, and at no time in the apartment was her phone call to duty counsel facilitated.

[48] Officers Rosero and Ley both testified that it was not practicable to provide Ms. Manna-Silva her access to counsel at that time both for safety and privacy reasons. Ms. Manna-Silva was in police custody at that time, having been detained and then arrested. The police would have had to allow Ms. Manna-Silva privacy to speak to counsel which would have involved the police leaving the room. The apartment had not yet been searched and it was unknown if there were weapons secreted in other locations in the apartment.

[49] The apartment was not that large, and I agree that even had the officers left and stood just outside the room, the phone call would not have been private. This was evident from the BWC footage of Sergeant Quinn, where snippets of conversation between Ms. Manna-Silva and Officers Rosero and Ley were captured and audible.

[50] I agree, however, that given the practical issues facilitating access to counsel for Ms. Manna-Silva in the apartment, she should have been transported earlier. While I appreciate Officer Ley needed to phone the criminal investigations bureau about the basis for the search warrant, parallel steps should have been taken to address Ms. Manna-Silva’s need to speak with counsel.

[51] Ms. Manna Silva was removed from the apartment at 2:45 a.m. and transported to the division at 3:03 a.m. They arrived at the station at 3:13 a.m. and Ms. Manna Silva was escorted from the car and into the division at 3:24 a.m. Between 3:37 a.m. and 3:45 a.m. she was paraded and re-advised of her rights to counsel to which she again indicated she wished to speak with duty counsel. At 3:49 a.m., a call was placed to duty counsel. Ms. Manna-Silva spoke to duty counsel between 4:04 a.m. and 4:20 a.m.

[52] The Crown has conceded that Ms. Manna-Silva’s rights to counsel were breached given the delay of two hours and seventeen minutes from the time she was detained until the time at which a call to a lawyer was first placed. I find that there is an additional period of delay of five minutes when Ms. Manna-Silva should have been told she was under detention and advised of her right to counsel and caution at that point.

[53] While any delay in obtaining access to counsel is serious, I find that the delay was not borne out of bad faith or part of an intentional course of action designed to deprive Ms. Manna-Silva of her access to counsel.

Section 24(2) Analysis

[54] Section 24 of the Charter states the following:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[55] The Supreme Court stressed in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, that the focus of s. 24(2) is the long-term repute of the justice system. It further cautioned in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, that “[t]o appear to condone willful and flagrant Charter breaches that constitute a significant incursion on Charter rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it”: at para. 39.

[56] The criteria for excluding the tainted fruits of unconstitutional conduct under s. 24(2) of the Charter are based on the following:

(i) The seriousness of the Charter-infringing state conduct;

(ii) The impact of the breach on the Charter-protected interests of the accused; and

(iii) Society’s interest in the adjudication of a case on its merits: Harrison, at para. 2.

[57] It is well established that a pattern of Charter breaches may cumulatively increase the seriousness of the Charter-infringing state conduct: Grant, at para. 75. The determination of whether there has been a pattern of misconduct is a factual one and must be done on a case-by-case basis: see R. v. Zacharias, 2023 SCC 30, at para. 49.

[58] The Supreme Court in Zacharias stated the following, at para. 2, with respect to an initial violation and its connection to any subsequent breaches:

Where the court finds that a breach of the Charter has occurred, the breach must be considered in the s. 24(2) analysis. However, absent additional or independent state misconduct, a breach that is entirely consequential on an initial violation is unlikely to significantly increase the overall seriousness of the Charter-infringing state conduct under the s. 24(2) analysis.

i) Seriousness of the Charter-Infringing Conduct

[59] The seriousness of the state’s infringing conduct deals with (a) whether the conduct was willful or inadvertent, and (b) the need for the court to dissociate itself from the conduct. Minor violations occurring in good faith may minimally undermine public confidence if the evidence is admitted. On the other side of the spectrum, willful or reckless disregard for Charter rights may risk bringing the administration of justice into disrepute if the evidence is admitted. An officer may be found to be acting in good faith, even if she is manifestly mistaken in her understanding of the law. A conclusion of good faith must consider all the circumstances surrounding the police conduct: see R. v. Beaver, 2022 SCC 54, at para. 120.

[60] And, importantly, “It should also be kept in mind that for every Charter breach that comes before the courts, many others go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern tends to support exclusion”: see Grant, at para. 75.

[61] I am satisfied that the officers had a reasonable belief that there was a risk of evidence being destroyed if they did not remain in the apartment until the items were seized and Ms. Manna-Silva was taken to the police station. The Crown has conceded, however, that once Ms. Manna-Silva had left the apartment, the police should not have remained in the unit pending the execution of the search warrant. They have also conceded a breach of Ms. Manna-Silva's s. 10(b) rights with respect to the delay in facilitating access to counsel.

[62] Notwithstanding these violations, I am persuaded that the police otherwise attempted to conduct themselves with due regard for Ms. Manna-Silva’s and Mr. George’s Charter rights. Officer Ley immediately contacted a more senior officer when he realized the investigation had taken on a different complexion based on the observations of the drugs and cash on the counter. With the exception of Sergeant Quinn, who arrived after the items had been found in plain view, the officers did not otherwise search the apartment.

[63] I also do not find that the officers acted in a careless or cavalier manner in their dealings with Ms. Manna-Silva. To the contrary, when Ms. Manna-Silva was advised of her detention, the officers demonstrated compassion and concern for her well-being notwithstanding her dual status as a potential victim and suspect. The officers allowed Ms. Manna-Silva to remain unhandcuffed lying or sitting on her bed as she chose, for the duration of time that she remained in the apartment.

[64] While I appreciate the seriousness of her not having the benefit of the advice of counsel, she was in a more comfortable situation than she would have been at the police station. The police did not attempt to question her and in fact reiterated that she should not speak to the police until she had an opportunity to speak with counsel. I do not find that the conduct of the police in this situation to be systemic but rather fact specific, with less-experienced officers and an uncertainty as to how to proceed given the original domestic violence call. Once Ms. Manna-Silva was at the station, there was no delay in facilitating her access to counsel.

[65] While police officers are expected to know the law, other than Sergeant Quinn the officers had between one and three years’ experience with very little prior involvement in drug investigations. I find that this also lessens the seriousness of the breaches: see R. v. Tim, 2022 SCC 12, at para. 84.

[66] With respect to the s. 8 violation, Sergeant Quinn directed Officers Ayres and Dugar to remain in the apartment once Ms. Manna-Silva had been taken to the station pending the search warrant. He made the comment, “Legally, I don’t think it matters.” Sergeant Quinn’s comment is problematic as he is incorrect, and it is indicative of a somewhat cavalier attitude towards privacy interests. This is mitigated, however, by his instructions to the officers to keep their cameras on and not to conduct any search. I would not characterize Sergeant Quinn’s conduct as in good faith, but at the time I am not persuaded that it was in bad faith.

[67] Sergeant Quinn’s conduct in the apartment of opening the cupboard door, moving the hats, looking at the bag in the den and on the kitchen counter is troubling. He has many years as a police officer and while he quickly acknowledged his mistake, he should have known better. However, I find that overall, these searches were minor in nature.

[68] In the circumstances, I am satisfied that the police decision to remain in the apartment, in combination with Sergeant Quinn’s search pending the issuance of the search warrant, is on the low to moderate end of seriousness. The delay in facilitating counsel for Ms. Manna-Silva I find was serious. In combination with the s. 8 violation, these together favour exclusion.

ii) Impact of the Charter Violation on the Protected Interests of the Accused

[69] The second branch of the test is outlined in Grant, at para. 76:

This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interest protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[70] There is no greater expectation of privacy than in the home. Ms. Manna-Silva and Mr. George had a high expectation of privacy in the apartment and that privacy was compromised while the police remained in the apartment from 2:45 a.m. until 6:51 a.m. I agree that while the police did not conduct a further search of the apartment, they could view personal effects and property amounting to a potentially significant intrusion on their privacy.

[71] Although there was no causal connection between the discovery of the evidence and the breach of either Ms. Manna-Silva’s right to counsel or the two applicants’ s. 8 rights, I adopt the reasoning of Monaghan J. in McCalla, at para. 80, that the initial warrantless entry followed by the waiting for the warrant and the ultimate execution of the warrant all amounted to a single transaction and must be viewed as a whole.

[72] Notwithstanding the police improperly remaining in the apartment, they kept their BWCs on, they did not conduct any further search, they left when the BWC batteries were running low, and no evidence was discovered as a result of the breach. Sergeant Quinn’s opening of the cupboard door, moving of the hats and using the food container bags, although concerning, did not result in any evidence being found and occurred after the drugs had already been observed in plain view.

[73] With respect to Ms. Manna-Silva’s right to counsel, there is no question that the right is a “lifeline for detained persons” in terms of delivering legal advice and guidance: see Rover, at para. 45. But unlike the facts in Rover, Ms. Manna-Silva was not left alone for a lengthy period of time with no indication as to when she would speak to counsel. She remained in her room, on her bed with the officers doing their best to ensure her comfort. She was told she would speak with duty counsel when they arrived at the station. It was repeated to her that she should not speak to the police until she had an opportunity to speak with counsel. Finally, the police did not attempt to elicit any information from her, and no evidence flowed from the breach of Ms. Manna-Silva’s s. 10(b) rights: R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 71.

[74] In addition, the impact of the delay in facilitating Ms. Manna-Silva’s access to counsel was less significant than in other cases in which evidence has been excluded: see for example R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, where the delay was over 4 hours; Griffith, where the delay was 3 hours and 45 minutes; and R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, where the delay was 3 hours.

[75] Given there is no causal connection between the breach and the discovery of evidence, and Ms. Manna-Silva did not incriminate herself, the impact of a s. 10(b) breach is not sufficiently serious to warrant exclusion of the evidence: R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at paras. 112-16. In addition, ultimately the drugs and firearm were in fact discovered by a Charter-compliant search. As noted in Grant, “If the derivative evidence was independently discoverable, the impact of the breach on the accused is lessened and admission is more likely”: at para. 125.

[76] Given these findings, I do not see the actual impact of the breach on the appellant's Charter-protected interests as being particularly serious.

iii) Society’s Interest in Adjudicating a Case on its Merits

[77] In considering this factor, the question to be asked is “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” The reliability of the evidence is an important factor in this line of inquiry: Grant, at para. 79.

[78] This factor weighs strongly in favour of the admission of the evidence. The evidence is clearly reliable and consists of a loaded firearm and large amounts of cocaine, fentanyl, and methamphetamine. Excluding this evidence would mean the end of the Crown’s case. While the seriousness of the offence cuts both ways when assessing this factor, there is no question that there is a strong interest in the adjudication of this offence on the merits.

iv) Balancing

[79] The final steps in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry. The balancing is a qualitative one, one that is not capable of mathematical precision: see Harrison, at para. 36.

[80] The breach of Ms. Manna-Silva’s s. 10(b) rights, while serious, appears to have been situation specific and isolated, rather than institutional or systemic. The officers were junior and uncertain as to how to proceed, and I find that when looking at their conduct as whole, the violations were not intentional or deliberate. The officers attempted to comply with their constitutional obligations while at the same time being sensitive to Ms. Manna-Silva’s circumstances.

[81] When looking at the police conduct overall, I am satisfied that the officers acted in good faith and attempted to respect both Ms. Manna-Silva and Mr. George’s Charter rights. A search warrant was obtained for the apartment and “[a]pplying for and obtaining a search warrant from an independent judicial officer is the antithesis of willful disregard of Charter rights” and “tells in favour of admitting the evidence”: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at para. 28. Excluding the evidence in these circumstances would not properly reflect what occurred in this case.

[82] The discovery of the gun and drugs were not causally related to either the s. 10(b) or s. 8 violations and were obtained ultimately through a lawful, plain view seizure and a lawfully obtained search warrant. In addition, there is no doubt a “heightened interest in seeing a determination on the merits where the offence charged is serious”, as it is here: Harrison, at para. 34; Zacharias; and Keshavarz. Exclusion of the evidence in the circumstances would bring the administration of justice into disrepute.

Section 24(1)

[83] Counsel for Ms. Manna-Silva argues that given the number and cascading effect of the breaches, the only remedy in the circumstances is a stay of proceedings pursuant to s. 24(1) of the Charter.

[84] A stay is reserved for the clearest of cases. It’s a drastic remedy and one of last resort and should be granted only where the accused’s right to make full answer and defence cannot be remedied or where the prejudice is irreparable, and continuation of the prosecution would bring the integrity of the judicial system into disrepute: see R. v. Babos, 2014 SCC 16 at paras. 30-47.

[85] The issues were particular to the circumstances of this case and do not represent a systemic issue that would occasion a prejudice to the integrity of the judicial system if the proceedings were to continue.

[86] The application for a stay of proceedings is dismissed.

Disposition

[87] The applications under s. 24(2) and s. 24(1) are dismissed.

Penman J. Released: March 8, 2024