Court File and Parties

COURT FILE NO.: CR-22-90000474-0000 DATE: 20240715

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JERROME SWABY

Counsel: Chris Kalantzis and Connor Macorin, for the Crown Pharah Bacchus, for the Applicant

HEARD: November 20-24, 28 & 30, 2023.

Reasons on Charter Motions

GARTON J.

[1] The accused, Jerrome Swaby, age 31, was charged under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA) with possession of the following four drugs for the purpose of trafficking: Cocaine (Count 1), Fentanyl, (Count 2), MDMA (Count 3), and Oxycodone (Count 4). He was also charged with possession of the proceeds of crime not exceeding $5,000, contrary to s. 355(b) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] At the outset of the trial, the defence brought motions to exclude the drugs and money as evidence on the basis that Mr. Swaby’s ss. 7, 10(a) and 10(b) Charter rights had been breached. At the completion of the voir dire, I dismissed the motions, with reasons to follow. The trial then proceeded before me without a jury. The evidence at the voir dire was applied to the trial proper. At the end of the trial, I found Mr. Swaby guilty on all counts in the indictment. These are my reasons on the Charter motions.

[3] The charges arose from events that took place at the intersection of Spadina Avenue and Front Street on July 4, 2021, at around 9:30 a.m. Mr. Swaby was in the driver’s seat of a rented Mazda minivan (the Mazda), which was facing north and blocking traffic in the left turn lane on Spadina. According to the civilian witness, Samantha Capone, Mr. Swaby failed to make the turn, even though there was an advanced green light permitting it.

[4] Ms. Capone’s vehicle was the second vehicle behind the Mazda. When Mr. Swaby failed to turn left, she and the driver of the vehicle directly behind him, as well as other drivers, started honking their horns. The Mazda, however, remained stationary.

[5] The driver ahead of Ms. Capone drove around the Mazda and turned left. Ms. Capone was then directly behind Mr. Swaby. When the light turned green again, Mr. Swaby again failed to execute the turn. At that point, Ms. Capone drove up beside the Mazda and observed Mr. Swaby through her driver’s side window. Mr. Swaby appeared to be passed out – his head was back and his eyes were closed. Ms. Capone pulled in front of his vehicle to block it from rolling into traffic. She then exited her vehicle, and called 911.

[6] While speaking to the 911 operator, Ms. Capone opened the driver’s door of the Mazda, which was running and in drive. Mr. Swaby’s hands were in his lap, his head was tilted back against the headrest, his eyes were closed, and his foot was on the brake. He was only wearing one shoe.

[7] The 911 operator asked Ms. Capone to put the Mazda into park. Ms. Capone went around to the passenger side and opened the front passenger door to execute this task. She explained that she did not want to put the minivan into park from the driver’s side for fear of startling Mr. Swaby and causing him to take his foot off the brake. At that point, two officers from Toronto Fire Services (TFS) had arrived on scene, one of whom put the vehicle into park.

[8] Two officers from 52 Division, Police Constables Tyutyunnik and Mutlu, were dispatched to the scene and arrived in separate scout cars shortly after 9:30 a.m. An ambulance and a TFS vehicle were already on site. Officers Tyutyunnik and Mutlu testified that the dispatch call was a high priority or “hotshot” call as it involved a driver who was asleep or unconscious at the wheel while in a live lane of traffic at an extremely busy intersection. These circumstances posed a danger to the drivers and occupants of other vehicles, as well as to pedestrians in the area.

[9] Two officers from 14 Division, Police Constables Di Tommaso and Malley, also attended the scene shortly after 9:30 a.m., and parked their scout car behind the Mazda. They had been heading north on Spadina on their way to another call, but stopped to offer assistance when they saw the ambulance, the TFS vehicle and the 52 Division officers.

[10] Officer Tyutyunnik roused Mr. Swaby by knocking on the driver’s side window of the Mazda a couple of times. Mr. Swaby responded on the second knock by opening the driver’s door. Mr. Swaby testified that he would normally have rolled down the window in response to the officer’s knocking, but the ignition was turned off and he could not find his car keys, presumably because the TFS worker had removed them when he turned off the ignition.

[11] At 9:33 a.m., after Mr. Swaby had opened the door, Officer Tyutyunnik asked him to step out of the car. Mr. Swaby complied. He recalled Officer Tyutyunnik asking him, “Can you please step out of the vehicle, sir?” Mr. Swaby testified that in his mind, “there was no thought that the police were detaining [him] at that time,” and he had “no reason to think that the police car was for [him] as he had not done anything wrong.” However, he also stated: “If an officer asks me to do something in a traffic stop, I would listen to it.” He added that he did not believe he was being investigated for a traffic violation, although his driver’s license was suspended at the time.

[12] Mr. Swaby testified that he neither saw nor heard the arrival of the scout cars, the TFS vehicle or the ambulance. It is also apparent that he had no recollection of the TFS worker trying to rouse him a minute or so earlier, as described by Ms. Capone.

[13] Officers Tyutyunnik, Mutlu and Di Tommaso all noticed an odour of marijuana emanating from the vehicle when the driver’s door was opened. Officer Mutlu observed an open Ziploc bag containing what he believed to be marijuana on the front passenger seat. Officer Di Tommaso described seeing a dispensary marijuana bag and some ashes on that seat.

[14] When Mr. Swaby stepped out of the Mazda, an Emergency Medical Service (EMS) worker directed him to stand behind the vehicle: “Just stand back here sir so you don’t get run over. Stand back here.” This direction made sense as there was no other safe place for Mr. Swaby to stand. The driver’s side of the Mazda was right beside the streetcar platform. There was a live lane of traffic on the passenger’s side. Officer Tyutyunnik’s scout car was parked in front of the Mazda, and ahead of it was the intersection of Spadina and Front Street, which is one of the busiest intersections in Toronto. Mr. Swaby agreed in his testimony that the area behind his car was a safer place to stand than on the train tracks.

[15] Very shortly after Mr. Swaby reached the back of the Mazda, Officer Malley signalled to the other officers that he saw Mr. Swaby putting something down the front of his waistband. The other officers responded immediately. At 9:34 a.m., Mr. Swaby was handcuffed to the rear by Officer Tyutyunnik with the assistance of Officers Di Tommaso and Mutlu.

[16] Officers Mutlu and Di Tommaso then conducted a frisk search of Mr. Swaby. They located a quantity of cash and a cell phone, but did not find the object that Officer Malley described. Officer Malley did not have his body worn camera (BWC) on at the time. However, his description of the object was recorded on Officer Tyutyunnik’s BWC:

So just for the record, what he had was a, ah, looked like a grey plastic that was wrapped up, torn loose plastic, right? It was balled up. It looked like there was something inside of that plastic, wrapped up. When I saw he had it in his right hand, right here, he was trying to figure out what to do with it. And when it was brought to attention, he stuffed it, it looked like it went into his waistband. I didn’t have my camera rolling at the time obviously, because we didn’t know what was going on here. That’s when I let you know he had something in his hand. I’m just saying that right now for the record.

[17] The object described by Officer Malley was never located. However, the credibility and reliability of his evidence with respect to his observations of this object were not the subject of attack in cross-examination. There is no ss.8 or 9 Charter application before the court.

[18] At 9:36 a.m. and following the frisk search, Officers Tyutyunnik, Malley, and Mutlu walked a short distance away from Mr. Swaby and had a discussion with their BWCs muted. Officer Di Tommaso remained with Mr. Swaby.

[19] At 9:36 a.m., Officer Di Tommaso told Mr. Swaby that he was under investigative detention and not allowed to go anywhere. He also told him that “anything you say can be used against you in court if you’re charged.” He did not advise Mr. Swaby why he was under investigative detention. Nor did he read him his rights to counsel.

[20] Officer Di Tommaso asked Mr. Swaby if he had a lawyer. Mr. Swaby replied that he did have a lawyer. Officer Di Tommaso did not ask him for the lawyer’s name.

[21] Mr. Swaby testified that he knew he had the right to speak to counsel. I note that Mr. Swaby had previous interactions with the criminal justice system and was therefore aware of his right to speak to a lawyer. Mr. Swaby also knew that anything he said would be recorded as Officer Di Tommaso told him that the BWCs were activated.

[22] Officer Di Tommaso had been a police officer for about 18 months at the time of this investigation. When asked why he did not tell Mr. Swaby that he was under investigative detention when he handcuffed him, Officer Di Tommaso explained that it was a “dynamic situation” for a “brief moment” and he was focussed on what he was doing. He saw that other officers were grabbing Mr. Swaby and he reacted by assisting them in taking physical control of him. He testified that his first priority was to ensure that Mr. Swaby did not have anything on his person that could be used to hurt himself or another officer. After everything had settled down and he was standing beside Mr. Swaby in his role of maintaining physical control over him, he realized that no one had told Mr. Swaby that he was under investigative detention. He therefore advised him at that time.

[23] Officer Di Tommaso did not advise Mr. Swaby of his rights to counsel. He testified that he needed his memo book to read those rights in order to ensure that everything he said was accurate. It was his understanding at the time that it was very important that the script from the memo book be read word for word. However, he did not want to free up one of his hands to pull out his memo book because of his responsibility to maintain physical control of Mr. Swaby.

[24] In cross-examination, Officer Di Tommaso acknowledged that at the preliminary inquiry, he testified that he “made a mistake” and forgot to read Mr. Swaby his rights to counsel. He acknowledged during this voir dire that he should have made an effort to advise Mr. Swaby of his rights to counsel in his own words, and that if he could go back in time to that day, he would have done things differently.

[25] In re-examination, Officer Di Tommaso explained that when he testified at the preliminary inquiry that he “forgot” to give Mr. Swaby his rights to counsel, what he meant to convey was that he was distracted at the time in the sense that he was thinking more about his responsibility to control Mr. Swaby. He had physical control of him and if he ran away, he (Officer Di Tommaso) would be in serious trouble.

[26] At 9:40 a.m., Officer Tyutyunnik, after conversing with Officers Mutlu and Malley and unmuting his BWC, advised Mr. Swaby that he was under arrest for “impaired operation” and gave him his rights to counsel. Mr. Swaby asked him several times what he was being charged with as Officer Tyutyunnik had quite a heavy accent and was wearing a mask. Officer Di Tommaso then interjected and clarified that he was under arrest for “impaired operation.” Mr. Swaby was not told whether he was being arrested for being impaired by alcohol or whether he was under arrest for being impaired by a drug.

[27] Officer Tyutyunnik advised Mr. Swaby of his right to remain silent, and read him the Drug Recognition Evaluation (DRE) demand. He told Mr. Swaby that he would be taken to a place where the testing would be done, and that the test would indicate if he had any drugs or alcohol in his body.

[28] At 9:44 a.m., several paramedics approached Mr. Swaby and offered to check him out medically because he had been found asleep at the wheel. Mr. Swaby accepted this offer. Officer Di Tomasso walked him over to the ambulance. Officer Tyutyunnik went into the ambulance with Mr. Swaby.

[29] At 9:46 a.m., Officer Di Tomasso muted his BWC as he assumed that his involvement with the investigation of Mr. Swaby was over and he saw no need to record the audio. He then chatted with Officer Malley and a paramedic but the conversation was unrelated to the investigation. Other than standing beside Mr. Swaby after Mr. Swaby left the ambulance and was placed in Officer Tyutyunnik’s scout car, Officer Di Tommaso had no further involvement with Mr. Swaby.

[30] At 9:56 a.m., the medical assessment was completed and Mr. Swaby exited the ambulance.

[31] At 9:57 a.m. and after a pat-down search, Mr. Swaby was placed in Officer Tyutyunnik’s scout car. The cruiser departed for the Toronto Police Traffic Services Unit (TSU) at 10:16 a.m. after Officer Tyutyunnik called the dispatcher to learn the location of the nearest TSU. Prior to this date, Officer Tyutyunnik had never taken an accused to a TSU. Office Tyutyunnik had only been a police officer for six months at that time, and prior to July 4, 2021, he had never arrested anyone for impaired operation of a vehicle.

[32] At 10:25 a.m., Officer Tyutyunnik and Mr. Swaby arrived at the TSU located at 9 Hanna Avenue, where they were put on “standby” for 40 minutes.

[33] While waiting in the sally port, Officer Mutlu, who was in a different scout car, advised Officer Tyutyunnik that he had received information that drugs were located in the Mazda during an inventory search. At 11:00 a.m., Officer Tyutyunnik advised Mr. Swaby that he was also under arrest for “drug trafficking.” He also advised him of his rights to counsel and cautioned him again. Mr. Swaby stated that he understood his rights to counsel and the caution.

[34] At 11:05 a.m., Mr. Swaby was paraded before Staff Sergeant Lentsch at Traffic Services. Upon entering the building, Officers Tyutyunnik and Lentsch provided Mr. Swaby with a more accurate description of the new charges that he was facing – that is, possession of drugs for the purpose of trafficking, in addition to the charge of impaired operation of a vehicle.

[35] Officers Tyutyunnik and Mutlu requested permission to conduct a Level III search of Mr. Swaby as they were concerned that he may still be in possession of the item described by Officer Malley but which had not been located during the frisk searches conducted at the scene. For some reason, Staff Sergeant Lentsch only allowed a frisk search, which was conducted from 11:34 a.m. to 11:39 a.m. Following the search, Mr. Swaby was permitted to use the washroom.

[36] At 11:50 a.m., Mr. Swaby spoke to duty counsel.

The Inventory Search

[37] Officer Carder conducted the inventory search of the Mazda, which was required before the vehicle could be towed. She was assisted in her search by Officer Samantha Fermo.

[38] When Officer Carder arrived on scene, Mr. Swaby had already been arrested for impaired operation of a vehicle. She had no contact with Mr. Swaby.

[39] Officer Carder testified that she smelled marijuana as soon as she opened the door to the Mazda. During her search of the vehicle, she located a cloth bag in the glove compartment which contained the following substances:

• Cocaine: 27.88 grams
• Fentanyl: 7.15 grams
• MDMA: 2.29 grams

[40] Officer Carder also located a satchel on the floor in the front passenger area, which contained 7.05 grams of Oxycodone, a cell phone, and $755.00 cash. There was a scale on the front passenger seat. The cabin of the vehicle contained an open bag of fresh cannabis, and a large quantity of packages labelled as cannabis edibles.

The Muting of the BWC

[41] During her submissions, defence counsel reviewed in detail the muting that was done by each officer with respect to their BWC. I do not propose to reproduce all those occasions in these reasons, but I have taken all of them into consideration.

[42] Officer Mutlu had only been a police officer for about a year at the time of this investigation. He had been using a BWC for only a month prior to July 4, 2021, and had received two days of training.

[43] Officer Mutlu muted all but 5 of the 41 minutes when his BWC was turned on. During most of that time, he was doing background computer checks on Mr. Swaby. He was also on mute during some conversations with Officer Carder while she was searching the Mazda. Officer Mutlu was never in the presence of Mr. Swaby when his BWC was on mute.

[44] As stated earlier, Officer Tyutyunnik had only been a police officer for six months at the time of this investigation and, prior to July 4, 2021, had never arrested anyone for impaired driving. He had been using a BWC for a period of two months prior to that date and had received one day of training.

[45] Officer Tyutyunnik did not give a reason as to why he muted his conversation with Officers Mutlu and Malley just prior to his decision to arrest Mr. Swaby for impaired driving. It is reasonable to assume that the officers were speaking about the investigation. The muting did not take place in the presence of Mr. Swaby, who was standing some distance away and in the custody of Officer Di Tommaso at that time.

[46] Officer Tyutyunnik stopped the practice of muting the audio of his BWC six or seven months prior to this trial as a result of “new case law.” He testified that if he could go back to July 4, 2021, he would not have used the mute button.

[47] Officer Di Tomasso had been a police officer for 18 months at the time of this investigation. He received training with respect to the BWC about one month prior to July 4, 2021. He testified that he should have activated his BWC earlier in this investigation. He currently never mutes his BWC unless, for example, he is receiving sensitive information from a victim. When he does mute, he provides a reason for it.

[48] Officer Malley had been an officer for about 21 years as of July 4, 2021, and had received training on the use of a BWC about one month prior to that date. Of the 25 minutes that his BWC was on during this investigation, only four-and-a-half minutes were unmuted. He testified that he was chatting with a paramedic during most of the muted time and that their conversation had nothing to do with the investigation.

[49] Officer Malley arrived at the scene at 9:30 a.m. but did not activate his BWC camera until 9:34:32 p.m. As a result, his observations of Mr. Swaby trying to conceal something in his waistband were not recorded. Officer Malley explained that he and Officer Di Tommaso, who were from 14 Division, had not been dispatched to the scene and were unaware of the nature of the investigation. They were on their way to another call, but stopped to offer assistance, if needed, to the 52 Division officers after they saw the scout cars, ambulance, and TFS vehicle at the intersection of Spadina and Front Street. As a result, he and Officer Di Tommaso were more in a “standby” mode. However, Officer Malley testified that if he were in the same situation today, he would have activated his BWC while approaching the scene.

[50] Officer Carder had been an officer for 18 months in July 2021. Her BWC was on for 53 minutes, but she muted it for 46 minutes, during which time she is seen actively searching the Mazda and seizing items. She testified that she no longer mutes her BWC as she has heard from other officers that she ought not to mute.

Issue: Whether Mr. Swaby’s s.7 Charter rights were violated

[51] Section 7 of the Canadian Charter of Rights and Freedoms provides that “Everyone has the right to the life, liberty and security of the person and the right not to be deprived thereof in accordance with the principles of fundamental justice.”

[52] The onus is on Mr. Swaby to prove the alleged s.7 violation on the balance of probabilities.

[53] The principles of fundamental justice include the right to make full answer and defence, which includes a duty of the Crown to make full disclosure of evidence in their possession or control, and a duty on police to preserve relevant material in their possession or control so that the Crown can disclose it. Where an applicant shows disclosable evidence has been lost, this violates s.7 unless the Crown can explain the loss, and show that it did not occur through unacceptable negligence (the loss may also amount to abuse of process but this is not necessary to show a violation of s. 7): R. v. Aim, 2023 ONSC 5305, at para. 48, citing R. v. La, [1997] 2 S.C.R. 680, at paras. 20-22; R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 30; and R. v. Janeiro, 2022 ONCA 118, 501 C.R.R. (2d) 142, at para. 107.

[54] The position of the defence is that Mr. Swaby’s s.7 right to make full answer and defence was breached by the failure of the officers to turn on their BWCs 30 seconds prior to arriving on scene when they knew that the audio does not start working until 30 seconds after the BWC is activated. Defence counsel submits that without the recording of the audio for the first 30 seconds of the investigation in this case, it cannot be determined with any certainty whether Mr. Swaby’s detention began before he was asked to stand behind the Mazda. She submits that to allow muting of a BWC is the equivalent of allowing police to only disclose some, rather than all of their notes.

[55] Defence counsel further submits that the officers breached Mr. Swaby’s s. 7 Charter rights by muting portions of the audio of their BWCs while on scene. She argues that BWC should not be turned off at all, and that if there are police tactics or investigative procedures that need to remain confidential, those portions can be vetted by the Crown, just as Crowns vet search warrants before they are disclosed. The loss of any information results in a breach of the right to make full answer and defence.

[56] Defence counsel asserts that the officers in this case were breaking their own policy and procedures directive, “Chapter 15-20 Body Worn Camera”, dated July 6, 2022. This directive replaced the earlier directive dated June 25, 2021. The 2021 directive is not before the court and was not made an exhibit. Defence counsel advised that she could not locate a copy of it. I note that whatever the 2021 document contained, it only came into force ten days before the day of Mr. Swaby’s arrest.

[57] According to the 2022 directive, officers are now required to start a BWC recording “prior to arriving at a call for service” and “at the earliest opportunity, prior to any contact with a member of the public, where that contact is for an investigative or enforcement purpose …”. It is not known whether this was a requirement in the 2021 version.

[58] The 2022 directive also requires that a BWC recording not be stopped, muted, or deliberately repositioned in various scenarios with a number of exceptions, including discussions between Service Members about protected investigative techniques.

[59] The thrust of the defence argument is that the officers’ use of the mute button led to an incomplete record of Mr. Swaby’s interaction with police, and compromised his right to make full answer and defence as a result.

[60] With respect to the issue of police policy, I first note that the 2022 policy directive that is before the court is not temporally connected to the events in this case, which took place in 2021. The officers who testified at this trial appeared to have some familiarity with the 2022 directive but not with the 2021 directive.

[61] Second, police policy does not elevate the creation of a BWC recording to a constitutionally protected right. In R. v. Kurmoza, 2017 ONCJ 139, 9 M.V.R. (7th) 151, which dealt with the failure of the police to utilize an available In Car Camera System, the trial judge, at para. 17 stated as follow:

There is no constitutional obligation on a police officer to utilize an available ICCS to create an audio and/or video recording of interactions with the subject of an impaired driving investigation. A police directive that recommends or requires officers to record such interactions is an internal policy. It is not a statutory obligation, and it does not elevate the creation of an ICCS audio/video recording to a constitutionally protected right.

[62] The trial judge in Kurmoza referred to the decision in R. v. McCoy, 2016 ABQB 240, 320 Alta. L.R. (6th) 73, at paras. 58 and 59:

Further, while often the issue of admissibility of a confession is a s. 7 Charter issue dealt with in a voir dire due to questions of voluntariness, that does not equate to any lapse in videotaping resulting in a Charter violation. Voluntariness of a confession is a separate issue to the consequence of not recording interactions.

This finding – that there is no Charter violation due to non-recording of an interaction with police – holds true regardless of the existence of a police policy, mandatory or not. I fail to see how the RCMP through construction of policies can create Charter rights in these circumstances.

[63] The defence in the present case relies primarily on the decision of Justice Porter in R. v. Azfar, 2023 ONCJ 241, 530 C.R.R. (2d) 279, in support of the submission that the officers’ muting of their BWCs resulted in a s.7 breach.

[64] In Azfar, the issue was whether the investigating officers’ deliberate decision to mute the audio on their BWC for a brief period of time – 26 seconds – prior to making the Approved Screening Device demand constituted a breach of the accused’s s.7 right. Justice Porter found that the muting was done by the officers for the specific purpose of withholding from the defence information about the officers’ observations and amounted to a deliberate suppression of evidence.

[65] Crown counsel argues that Azfar was wrongly decided and that the analysis is mistaken. In support of that position, the Crown relies on Aim, where Justice Roberts explicitly rejected the notion that an officer selectively muting their BWC amounted to a s. 7 violation.

[66] In Aim, the three co-accused were stopped by police for a traffic violation. The officers formed grounds to search the car under the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1, leading to the seizure of a firearm. The officers recorded the entire interaction, but muted their audio feed for certain periods of time. One of the co-accused alleged that the selective muting of the BWC constituted a s. 7 violation.

[67] Justice Roberts, at para. 49, noted that it is well established that there is no common law or constitutional right to have the state create particular evidence, or record what is obviously relevant in a particular way. For example, the Supreme Court of Canada has recognized that there are many significant benefits to recording statements, but they have declined to mandate that it be done: R. v. Oickle, [2002] 2 S.C.R. 3, 2000 SCC 38, at para. 46. The Court of Appeal for Ontario has affirmed this approach, even where police deliberately bring a suspect into a police station to take a statement, and have readily available recording equipment, though the court noted that the failure to record in such circumstances will “inevitably [make] the non-recorded interrogation suspect (emphasis in original): R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 (Ont. C.A.), at paras. 61-65.

[68] Justice Roberts, at paras. 50-53 of her decision, reviewed the decisions in R. v. Piko (2000), 6 M.V.R. (4th) 117 (Ont. S.C.) and R. v. Khan, 2010 ONSC 3818, 97 M.V.R. (5th) 35, both of which involved convictions for failing to provide a breath sample. In both cases, the police failed to videotape interactions with the accused in a breath room. In Piko, the police equipment broke down. In Khan, the police detachment ran out of videotapes.

[69] In Piko, at para. 6, Justice Durno affirmed the trial judge’s conclusion that the failure to videotape did not violate s. 7 or s. 11(d) of the Charter:

This is not a case where police lost or destroyed evidence. Here the evidence never existed. While the trial judge would have benefited from a tape of the Appellant’s condition, comments and efforts at providing a sample, there is no requirement the proceedings be recorded. Absent police negligence regarding evidence which they possessed or a deliberate avoidance of recording when the facilities were available, there was no Charter violation. [Underlining added,].

[70] In Khan, Justice MacDonnell noted that “a failure to create evidence cannot be equated, for constitutional purposes, with a failure to preserve evidence”: at para. 12. After referring to Oickle, Moore-McFarlane, Piko, and R. v. Brownlee (2008), 70 M.V.R. (5th) 61 (Ont. S.C.), and affirming that there is no “constitutional or common law requirement that the police record, videotape or audiotape custodial interrogations,” Justice MacDonnell added that “the absence of a constitutional obligation to videotape proceedings in a breath room does not mean that a failure to do so can never lead to an infringement of the Charter”, for example where there has been a deliberate decision not to record, or the failure to record rendered the trial unfair”: at paras. 13, 15.

[71] In Aim, Justice Roberts, at para. 53, observed that in cases involving a failure to comply with a breath demand, the breath room recording is significant not just for what an accused says but for how the accused appears and behaves. It is itself potential evidence. Justice Roberts expressed the view that this context informs the obiter comments of Justices Durno and MacDonnell. In Azfar, Justice Porter relied on Piko and Khan in concluding that there was a s. 7 violation in that case.

[72] Justice Roberts, at paras. 53-55, went on to observe that in other contexts, the Court of Appeal has emphasized that there is no requirement on the state, constitutional or otherwise, to conduct a particular investigation. In R. v. Darwish, 2010 ONCA 124, 73 C.R. (6th) 121, the trial judge held that an accused is entitled, as an aspect of the right to make full answer and defence, to have the police pursue a line of investigation if the defence could show a realistic possibility it would yield information that could assist the defence. The Court of Appeal rejected this, explaining as follows at paras. 28-30:

This formulation of the right to make full answer and defence goes far beyond any description of that right previously recognized in the case law. It is unworkable in practice. Further, it is inconsistent with the philosophy underlying the criminal justice system.

An accused does not have a freestanding constitutional right to an adequate investigation of the charges against him or her: R. v. Barnes, 2009 ONCA 432, at para.1. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or a civil remedy. Those inadequacies do not, however, in and of themselves constitute a denial of the right to make full answer and defence.

An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target.

[73] Justice Roberts also referred to R. v. Dawkins, 2021 ONCA 235, where the deliberate non-disclosure of the fact that information from a confidential informant formed part of the basis for a traffic stop was potentially problematic, not because of a possible s.7 violation (due to late disclosure or trial fairness concerns), but because the trial judge did not sufficiently address the effect of this non-disclosure on the credibility and reliability of the officer involved in the stop.

[74] Based on the appellate authorities, Justice Roberts found in Aim that the police officers’ muting of their BWCs when speaking with each other, even if deliberate and selective, did not violate s. 7 of the Charter. There must be a link to the right to make full answer and defence in order to engage s. 7. She found that the link was not established by lost evidence, as no evidence was lost. However, the police-to-police conversations were suspicious, which required an assessment of the reliability and credibility of their evidence.

[75] I agree with and adopt the reasoning of Justice Roberts. A BWC that is muted does not result in a s. 7 violation. Rather, it results in a potential credibility problem for the witness if the witness is challenged.

[76] As in Aim, no evidence can be said to be “lost” in the present case because it never existed. I turn then to the issue as to whether any prejudice resulted from the muting of the BWCs.

[77] The defence has not demonstrated any prejudice as a result of the fact that the first 30 seconds of the BWCs were muted. The muting of the first 30 seconds was, for the most part, inconsequential but for a few seconds when Mr. Swaby was interacting with the officers before he stepped out of his vehicle. However, the evidence of Mr. Swaby and Officer Tyutyunnik is basically the same with respect to that brief period: the officer knocked on the window twice, and Mr. Swaby opened the door after the second knock. Mr. Swaby testified that he opened the door as opposed to rolling down the window because he could not find his car key. Both Officer Tyutyunnik and Mr. Swaby testified that when he opened the car door, Officer Tyutyunnik asked him to step out of the vehicle. Mr. Swaby recalled the officer saying, “Can you please step out of the vehicle, sir?” The audio of the BWC came on before Mr. Swaby exited the Mazda. As he exited, Officer Tyutyunnik asked him, “So what’s going on?” and the audio continued from that point onward. When asked whether he felt that the police were detaining him at that point, Mr. Swaby stated, “No, in my mind there was no thought police were detaining me.”

[78] Officer Malley muted his BWC for the majority of the time that he was on scene. During that period, he was having a personal conversation with one of the paramedics. There was, however, a period of two minutes and fifteen seconds when he was on mute and engaged in a conversation with Officers Tyutyunnik and Mutlu. Mr. Swaby was detained at the time. The officers were not able to testify as to the exact details of their conversation, but it was clearly about Mr. Swaby. Almost immediately after the conversation, Officer Tyutyunnik approached Mr. Swaby and arrested him for impaired operation of a vehicle.

[79] Although Officer Malley’s BWC was on mute, the video was still running. Mr. Swaby is seen off to one side and Officer Di Tommaso is holding on to him. Officer Di Tommaso’s BWC was unmuted. It is therefore possible to hear some of the conversation of the three officers, but not at all clearly. This is certainly not a replacement for the other officers’ audio, but it does inform the viewer as to what was going on at that time and is consistent with the officers’ testimony. There was no conversation between the three officers and Mr. Swaby during this time.

[80] I see no prejudice arising from the muting of the three officers’ BWC during this conversation as there is no allegation that Mr. Swaby’s s.8 or s.9 Charter rights were breached. Officer Tyutyunnik’s grounds for arrest are not in question. Thus, his thought process or any advice he may have received during his conversation with the other officers is not relevant.

[81] Officer Mutlu muted his BWC for just over 42 minutes. However, his role in the investigation was much more limited. He had very little contact with Mr. Swaby. Most of the time he was sitting alone, looking at a computer screen and making notes. None of his interactions with Mr. Swaby were muted.

[82] Officer Di Tommaso’s BWC was unmuted for almost the entire time that he was on scene. He was muted for 10 minutes at one point but he basically had no more involvement in the investigation by that point.

[83] Officer Carder had no involvement with Mr. Swaby. Her only role was to search the Mazda, document its contents, and seize any contraband. Her search is clearly visible on her BWC. She was not engaging in an audio search.

[84] Officer Carder was able to explain in detail what was going on during the search when her BWC was muted. She had some muted conversations but was able to summarize to whom she was speaking and for what purpose. I note that the defence is not challenging the grounds for the search. There were clearly grounds. The relevance of any muted conversations during the search would appear to be minimal.

[85] Officer Carder testified that she had some “investigative conversations” with her colleagues when her BWC was muted. While it cannot be said that she was discussing a legitimate investigative technique, I note that all of the officers were of the view that when they were not dealing with a member of the public and they were speaking to each other, that that was an investigative reason to mute.

[86] In summary, no prejudice has been established from the absence of audio for the first 30 seconds after the officers activated their BWC nor from the times that the officers muted their BWCs during their investigation. At no point did the officers mute their BWCs while in the presence of Mr. Swaby.

[87] I also find no prejudice resulting from Officer Malley’s failure to activate his BWC until 9:34 a.m., which resulted in his BWC not capturing what Officer Malley says he saw at that point – namely, Mr. Swaby stuffing an object down his waistband. Officer Malley provided an explanation for his failure to turn his BWC on at that time: in his mind, he and Officer Di Tommaso were more or less on standby to see if the 52 Division officers required their assistance.

[88] The failure to capture what Officer Malley says he saw is not “lost” evidence. The recording never existed. However, the court does have Officer Malley’s description of what he saw – his description, which was quite detailed, was recorded on Officer Tyutyunnik’s BWC almost immediately after the event. Officer Malley was not cross-examined about the accuracy of his observations. The credibility and reliability of his observations were not questioned. Although Officer Malley’s observations formed the grounds for Mr. Swaby’s investigative detention, there is no s. 8 or s. 9 Charter application before the court. I find that there is no prejudice arising from the absence of a BWC video recording of the incident in question.

[89] As Mr. Swaby has not established on the balance of probabilities that any prejudice resulted from the muting or the late turning on of the officers’ BWCs, I find that there was no violation of his s. 7 Charter rights.

Issue: Whether Mr. Swaby’s Sections 10(a) and 10(b) Charter rights were breached

[90] Sections 10(a) and 10(b) of the Charter state:

Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefore; and

(b) to retain and instruct counsel without delay and to be informed without delay of that right.

[91] Section 10 Charter rights are triggered at the moment of detention. There are two types of detention – investigative detention and arrest.

[92] The Crown takes the position that Mr. Swaby was not detained until he was handcuffed at the back of the Mazda. He based this submission on Mr. Swaby’s evidence that Mr. Swaby opened his car door on his own volition after Officer Tyutyunnik knocked on it. The Crown also relies on the decision in R. v. Armstrong, 2023 ONSC 3154, to suggest that an accused’s 10(b) rights are briefly suspended during a Highway Traffic Act, R.S.O. 1990, c. H.8, or a Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 stop. In that case, Justice Verner stated that “[a]lthough it is clear that [the applicant] was detained as soon as he was stopped, it is acceptable that s. 10(b) rights are legally suspended for Highway Traffic Act stops”: at para. 59. Crown counsel concedes that after Mr. Swaby was handcuffed and frisk searched, he ought to have been advised of his s. 10(a) and s. 10(b) Charter rights. As he was not advised of those rights following the search, the Crown concedes that Mr. Swaby’s ss. 10(a) and (b) rights were breached.

[93] Following the frisk search, Officer Di Tommaso told Mr. Swaby that he was under investigative detention, that he could not go anywhere, that anything he said could be used against him, and that the BWC was recording everything that he said. However, Officer Di Tomasso did not advise Mr. Swaby of his rights to counsel.

[94] Officer Di Tommaso did ask Mr. Swaby, “You want to speak to a lawyer?” Mr. Swaby answered, “Yeah.” Officer Di Tommaso then asked him, “Do you have your own lawyer?” Mr. Swaby replied, “Yeah.” Officer Di Tommaso then asked if he knew the lawyer’s name. Again, Mr. Swaby replied, “Yeah.” Officer Di Tommaso then stated, “Okay, good.” Officer Di Tomasso did not ask him for the lawyer’s name although, as it turned out, Mr. Swaby only knew the lawyer’s first name, “Cosmo.” He did not know Cosmo’s telephone number, but was apparently able to obtain it through his cousin, Jonathan.

[95] Officer Di Tommaso acknowledged that he ought to have asked Mr. Swaby for his lawyer’s name and, if he provided the name, he ought to have passed it on to the 52 Division officers. Although Officer Di Tomasso, as a 14 Division officer, did not anticipate that he would be involved in implementing Mr. Swaby’s access to counsel, which would probably be done at 52 Division, he did not advise either Officer Tyutyunnik or Officer Mutlu that Mr. Swaby had indicated that he had his own lawyer.

[96] Defence counsel submits that Mr. Swaby was detained sometime after he got out of the Mazda and before he was handcuffed. Were it not for the decision in Armstrong, suggesting that an accused’s s.10(b) rights can be briefly suspended during a Highway Traffic Act or Cannabis Control Act stop, I agree. Although Mr. Swaby may have initially felt that he was not being detained when he got out of his car, the dynamics of the situation changed quicky: he was directed where to go, “to stay there now,” and, by the time he reached the back of the Mazda, there were four police officers around him. Looked at objectively, it is reasonable to conclude that Mr. Swaby was detained before he was handcuffed.

[97] Crown counsel noted that there was only a very brief time that elapsed between Mr. Swaby exiting the Mazda and Officer Tyutyunnik telling him to stay at the rear of the vehicle.

[98] Defence counsel submits that the transcript of Officer Tyutyunnik advising Mr. Swaby that he was under arrest for impaired operation shows that Mr. Swaby did not understand what he was being charged with. I disagree. Mr. Swaby had difficulty understanding what Officer Tyutyunnik was saying and interrupted the officer a few times. However, when Officer Di Tommaso clarified for him that he was charged with impaired operation, Mr. Swaby clearly understood, stating, “Oh, impaired. I’m not impaired.” When Officer Tyutyunnik told him that he appeared to be impaired, Mr. Swaby responded, “So where’s the test?” There is no doubt that Mr. Swaby understood that he was under arrest for impaired operation of a vehicle. There was no s.10(a) Charter breach at this time.

[99] Mr. Swaby was well aware of his right to speak to a lawyer – when Officer Tyutyunnik was reading his rights to counsel and at a point when Mr. Swaby was still unclear as to what he was being charged with, he interrupted the officer and asked him, “How are you reading rights before telling me what I’m being charged with?” Mr. Swaby also had prior involvement with the criminal justice system through which he would have learned of his rights to counsel, although that fact does not alleviate or diminish the arresting officers’ duty to advise him of those rights upon his arrest.

[100] Defence counsel submits that Mr. Swaby’s s. 10(a) rights were breached when Officer Tyutyunnik advised him while they were waiting in the sally-port outside the Traffic Services Unit that he was also being charged with drug trafficking, which was not the correct charge. However, I note that during the booking process and before Mr. Swaby spoke to duty counsel, Staff Sergeant Lentsch and Officer Tyutyunnik corrected this mistake and told Mr. Swaby that the charge he was facing was possession of drugs for the purpose of trafficking. I find that this error did not constitute a s. 10(a) Charter breach.

[101] One of the purposes behind s. 10(a) is to allow detainees to have an informed, enlightened conversation with counsel. In this case, the error was corrected before Mr. Swaby spoke to duty counsel. Even if it had not been corrected, there would have been no Charter breach since the extent of a detainee’s jeopardy is very similar whether the charge is possession for the purpose of trafficking or drug trafficking: see R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 444, at para. 78.

[102] Defence counsel submits that Mr. Swaby’s s. 10(a) Charter rights were breached because he was not advised of the specific drugs that he was being charged with. I find that failure to identify the drugs did not constitute a s. 10(a) breach. In coming to this conclusion, I adopt the reasoning in R. v. Rideout, 2017 NLTD(G) 32. The accused in that case was not told of the date of the offences nor the specific drugs involved. After reviewing the Supreme Court of Canada decisions in R. v. Smith, [1991] 1 S.C.R. 714 and R. v. Evans, [1991] 1 S.C.R. 869, the trial judge, at para. 60 concluded as follows:

While Mr. Rideout was not told the date of the offence or specific drugs involved, I am satisfied based on the guidance provided in Smith and Evans that Mr. Rideout was reasonably aware of the jeopardy he faced. He reasonably knew that he was under arrest for the possession of illegal drugs for the purpose of trafficking. It is not necessary that he be given all the factual details of the case against him, or the precise charge he faced.

[103] The court ultimately found that there was no s. 10(a) breach in these circumstances. The same conclusion was made by the court in R. v. Sarfield, 2012 ONSC 5625, where the accused was not advised of the specific drugs that he was alleged to have trafficked. In finding that this did not result in a s. 10(a) breach, Justice Kane, at para. 40, stated:

Based on the above passages in Smith, supra, the applicant, under s. 10(a), upon arrest need not be advised as to each and every element of the precise charges, nor be made aware of all the factual details of the case. Information required under s. 10(a) is not, and must not, be converted by analogy into the Crown’s subsequent disclosure obligation. The arresting officer cannot be expected under s. 10(a) to read the current investigation report so as to communicate all details as to what are the specific drugs, with whom and when. What the applicant seeks is the start of a slippery slope.

[104] Defence counsel submits that Mr. Swaby’s s.10(a) rights were breached because he was not told if there was more than one charge. In my view, the reasoning in Rideout and Sarfield also applies with respect to this issue. What must be borne in mind is the purpose of s. 10(a) – that is, whether Mr. Swaby understood the extent of his jeopardy such that his conversation with counsel was a productive one, and whether he understood the reason for his detention so as to determine whether to submit to the arrest. The information provided to Mr. Swaby was such that those purposes were accomplished. As a result, the fact that Mr. Swaby was not advised of the number of charges he was facing does not give rise to a s.10(a) violation.

[105] Defence counsel alleges that the police breached Mr. Swaby’s s. 10(b) rights in that they failed to make sufficient efforts to put him in contact with counsel of his choice. Mr. Swaby spoke to duty counsel at 11:50 a.m.

[106] In R. v. Willier, [2010] 2 S.C.R. 429, 2010 SCC 37, at para. 35, the court stated that although an accused has the right to speak to counsel of their choice, they must be reasonably diligent in seeking to contact counsel of choice. The booking video shows that Mr. Swaby was not reasonably diligent in that regard.

[107] Staff Sergeant Lentsch was extremely clear during his dealings with Mr. Swaby that he had the ability, if he wished, to contact any member of his family or circle of friends, or a member of the clergy or anyone else in order to get the telephone number of a lawyer. Mr. Swaby testified that he knew his cousin Jonathan’s number by heart, and was considering calling him in order to get the number of the lawyer “Cosmo.” Jonathan had introduced him to Cosmo. Mr. Swaby did not know Cosmo’s last name.

[108] Mr. Swaby acknowledged during his testimony and also told Sergeant Lentsch that he was hesitant to call Jonathan because he did not want to wake him up. In the end, he decided not to call Jonathan. That was Mr. Swaby’s choice.

[109] Mr. Swaby also testified that he wanted to get out of the booking hall as soon as possible. It is apparent that getting the booking process over quickly was a priority for him.

[110] In the end, when Staff Sergeant Lentsch approached Mr. Swaby and asked him, “What do you want to do?”, Mr. Swaby stated, “I want to speak to duty counsel.” Mr. Swaby did not express any dissatisfaction with the advice he received at the time. Nor did he make any inculpatory statements to the police.

[111] During his testimony, Mr. Swaby indicated that he felt pressured or coerced into speaking to duty counsel because Staff Sergeant Lentsch seemed to be frustrated. However, that assertion is not supported by the evidence. Staff Sergeant Lentsch was very friendly throughout his interactions with Mr. Swaby. He went out of his way to tell Mr. Swaby that he could contact other parties in order to get the number for a lawyer. He also told him, “I recommend that everyone who is arrested contact a lawyer.” I also note that it was never suggested to Staff Sergeant Lentsch in cross-examination that he was frustrated with Mr. Swaby, which raises the issue in Browne v. Dunn (1893), 6 R. 67 (U.K. H.L.), and the weight to be placed on Mr. Swaby’s allegation that the Staff Sergeant was frustrated or impatient with him.

[112] Having carefully reviewed the booking video, as well as the testimony of Staff Sergeant Lentsch, Mr. Swaby, and Officers Tyutyunnik and Mutlu, I find that this was not a case where the accused was “funnelled” or “steered” to duty counsel.

[113] Mr. Swaby also spoke of having been told by Officer Mutlu back at the scene that he would be released on a promise to appear, which somehow undermined his decision to speak to duty counsel. Officer Mutlu was never asked if he told Mr. Swaby that he would be released on a promise to appear, which again raises a Browne v. Dunn issue. If Officer Mutlu did tell Mr. Swaby he would be released on a promise to appear, it would have been before he was charged with the additional drug offences. The reliability of Mr. Swaby’s memory in regard to events that day, including what Officer Mutlu did or did not tell him is suspect, given Mr. Swaby’s testimony that he has no recollection of actually speaking to duty counsel. When asked, “Is it possible that you did in fact speak with duty counsel and you just don’t remember it?” Mr. Swaby stated, “Yes, it’s possible.”

[114] Mr. Swaby alleges that there was unreasonable delay in implementing his constitutional right to consult with counsel by virtue of the 45 minute delay at Traffic Services. Staff Sergeant Lentsch testified that it was most likely a problem with the G-O number, which is the police identifier number. He testified that it was probably not “pushed through” properly into the booking hall, or was a technological problem with the computer program. The delay was not attributable to the absence of a booker, as the booker is seen in the video. In all of the circumstances, the Staff Sergeant’s explanation for the delay appears to be a reasonable one, that is, it was the result of a computer glitch. I note that Mr. Swaby’s s. 10(b) interests were not affected or undermined in any meaningful way by the delay, as the police did not elicit any incriminating evidence from him during that period of time. I find that the 45 minute delay did not constitute a breach of Mr. Swaby’s s. 10(b) rights.

Conclusion: Sections 10(a) and 10(b) of the Charter

[115] I have found that there was no violation of Mr. Swaby’s s. 7 Charter rights as a result of the muting of the BWC’s. However, there was a violation of Mr. Swaby’s s. 10(a) and s. 10(b) Charter rights.

[116] Section 10(a) of the Charter guarantees a person who has been arrested or detained to be informed promptly of the reasons for the arrest or detention.

[117] Section 10(b) of the Charter guarantees a person who has been arrested or detained the right to retain and instruct counsel “without delay” and to be informed of that right. In R. v. Suberu, [2009] 2 S.C.R. 460, 2009 SCC 33, at para. 41, the Supreme Court of Canada made it clear that this means that “the police must immediately inform them of the right to counsel as soon as the detention arises”: at para. 41.

[118] In this case, Mr. Swaby exited the Mazda at 9:33 a.m. and was detained shortly after he exited the vehicle. He was handcuffed at 9:34 a.m. but the detention of Mr. Swaby occurred some seconds before that. As noted earlier, Mr. Swaby may have initially felt that he was not being detained when he stepped out of the vehicle, but the dynamics of the situation changed quickly as he was directed to stand behind the Mazda, asked “So what’s going on?”, was told to “stay here”, asked where he was coming from and where he was going, asked whether he had something in his pocket, and then asked, “Do you mind if I see?”

[119] At 9:36 a.m, Officer Di Tommaso told him that he was under investigative detention, that he was not allowed to go anywhere, that anything he said could be used against him in court, and informed him that the BWC was recording everything he said. He made inquiries as to whether Mr. Swaby had his own lawyer, but he did not give him his rights to counsel.

[120] At 9:40 a.m., Officer Tyutyunnik advised Mr. Swaby that he was under arrest for “impaired operation” and gave him his rights to counsel at that time.

[121] The Crown concedes that Mr. Swaby’s s. 10(a) and s. 10(b) Charter rights were violated.

Section 24(2) Analysis

[122] Section 24(2) states:

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. [Emphasis added.]

[123] There is no causal connection whatsoever between any s. 10(a) or s. 10(b) breach and the evidence that was seized. This is not a case where Mr. Swaby provided an incriminating statement. There is nothing that Mr. Swaby said or did that led to the seizure of the evidence. Rather, the police had grounds to search and arrest Mr. Swaby, and to search his vehicle and seize the drugs and other items contained in it.

[124] There is a temporal connection based on the fact that the two events – Mr. Swaby’s arrest and the seizure of the evidence in the Mazda – happened at approximately the same time. But the arrest of Mr. Swaby and the search of the vehicle were conducted by different sets of officers. Officer Carder arrived on scene to conduct an inventory search of the Mazda as it had to be towed in light of the fact that Mr. Swaby was going to be taken to Traffic Services for testing. The minivan was in a live lane of traffic. Almost immediately after opening the door of the vehicle, Officer Carder discovered the drugs that are now evidence in this case. The purpose of her search then changed from an inventory search to gathering evidence in a criminal case.

[125] The temporal and contextual connections are sufficient to proceed with the Grant analysis, but are not as strong as in other cases. I note that the Court of Appeal in R. v. Lenhardt, 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11, stated that the absence of a causal connection is a factor weighing against exclusion.

The Grant Lines of Inquiry

(a) The Seriousness of the Charter-Infringing State Conduct

[126] The first line of inquiry requires the court to situate the seriousness of the Charter-infringing state conduct in issue on a continuum between minor, technical or inadvertent breaches on one end and wilful or reckless disregard of Charter rights on the other. The closer the conduct lies to the more serious end of the continuum, the greater the need for the court to dissociate itself from it: R. v. Grant, 2009 SCC 32, at paras. 72-74.

[127] In terms of the ss. 10(a) and 10(b) breaches, I take into account that the investigation took place at an extremely busy intersection and the officers were dealing with a fluid situation. The Mazda was stopped in a dangerous place. The BWCs show that there was a lot of traffic at the time, as well as many pedestrians. Thus, the direction given to Mr. Swaby to stay at the back of his vehicle was understandable as there was no other safe place for him to be while outside his vehicle. The actions taken by the officers were taken in good faith, taking into account their level of experience. Officer Tyutyunnik had only been an officer for six months, and this was the first time that he had arrested an individual for impaired driving.

[128] There is no evidence of bad faith on the part of the officers. There is no evidence of a pattern of abuse or systemic abuse. The officers were also searching for the item that Officer Malley observed. They did not know what it was or where it went. And there was a lot to contend with in terms of where these events were taking place, which somewhat lessens the seriousness of the breaches.

[129] I find that the first prong of the analysis moderately weighs in favour of exclusion because of the lack of aggravating factors and the presence of moderate mitigating factors given the police conduct at the roadside.

(b) Impact of the Breaches on Mr. Swaby’s Charter-Protected Interests

[130] The second line of inquiry requires the court to consider the extent to which the breaches “actually undermined the interests protected by the right infringed”: Grant, at para. 76. This requires the court to identify the interests protected by the Charter right in question and to then examine how seriously they were affected: Grant, at para. 77.

[131] In terms of the s. 10(b) breach, the fact that Mr. Swaby was not advised of his rights to counsel is somewhat modified by the fact that he knew his rights to counsel, and he agreed that the detention was very brief. Officer Tyutyunnik returned very shortly afterwards and advised him of his rights. The fact that Mr. Swaby was aware of his rights to counsel does not alleviate the police of their obligation, but it does factor into the impact of the Charter violation on Mr. Swaby. In addition, Mr. Swaby was informed just before he was handcuffed that the police had observed him with an item and that he had put it in his waistband – Officer Tyutyunnik asked him, “You have something in your pocket? Do you mind if I see?” And Officer Malley is heard saying, “He just stuffed it in the front of his waistband.” Mr. Swaby would have known why he was handcuffed and then searched. This moderates the s. 10(a) breach. During the period of detention, which was very short, Mr. Swaby was not asked any questions by the officers.

[132] As noted earlier, there is no causal connection between the 10(b) breach and the evidence, which weighs against exclusion: see R v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561. Had there been no s. 10(b) breach, nothing would have changed for Mr. Swaby. Mr. Swaby was never questioned, the evidence was discoverable, and there was no causal connection.

(c) Society’s Interest in an Adjudication of the Case on its Merits

[133] Factors relevant to society’s interest in an adjudication of the case on the merits include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue.

[134] The third prong of the Grant analysis strongly weighs in favour of inclusion because society has a very high degree of interest in adjudicating cases like these on the merits, given the deadly nature of the drugs.

The Final Balancing

[135] The first prong weighs moderately at best in favour of exclusion. The second prong does not weigh in favour of exclusion. The third prong weighs strongly in favour of inclusion. In the end, I find that the evidence ought to be included.

[136] The motions to exclude the drugs and money as evidence pursuant to s. 24(2) of the Charter are accordingly dismissed.

Garton J. Released: July 15, 2024