Her Majesty the Queen v. T.G.H.

[Indexed as: R. v. H. (T.G.)]

Ontario Reports

Court of Appeal for Ontario,

Doherty, van Rensburg and Benotto JJ.A.

June 12, 2014

120 O.R. (3d) 581 | 2014 ONCA 460

Case Summary

Charter of Rights and Freedoms — Right to counsel — Accused speaking to counsel following his arrest for sexual offences — Police obtaining and executing general warrant to view and photograph an intimate part of accused's body ten months after his release on bail — Accused detained when general warrant was executed — Second detention triggering s. 10(b) of Charter — Police violating s. 10(b) by failing to inform accused of his right to counsel and to give him opportunity to speak to counsel before warrant was executed — Seriousness of violation at lower end of spectrum — No causal connection existing between violation and obtaining of evidence — Evidence reliable and central to Crown's case — Admission of evidence of observations and photographs of accused's body not bringing administration of justice into disrepute — Canadian Charter of Rights and Freedoms, s. 10(b).

Charter of Rights and Freedoms — Search and seizure — Police obtaining general warrant authorizing them to view and photograph an intimate part of accused's body — Police not exceeding scope of warrant by requiring accused to spread his buttocks to expose area encompassed in search warrant — Accused's rights under s. 8 of Charter not violated — Canadian Charter of Rights and Freedoms, s. 8. [page582]

Criminal law — Sentence — Sexual offences — Accused repeatedly sexually assaulting his stepson over period of ten years and repeatedly inviting his stepdaughter to touch him for a sexual purpose — Sentences totalling eight years (less ten months' credit for pre-trial custody) affirmed on appeal.

The accused was convicted of repeatedly sexually assaulting his stepson and threatening to kill him, and repeatedly inviting his stepdaughter to touch him for a sexual purpose. The trial judge placed some significance on evidence that the accused had a skin tag over his anus. One of the complainants had described that skin tag to the police, who obtained a general warrant allowing them to view and photograph the accused's anus. The trial judge rejected the accused's arguments that his s. 10(b) rights under the Canadian Charter of Rights and Freedoms were violated by the officer's failure to advise him of his rights before the general warrant was executed and that the way in which the search was carried out exceeded the scope of the warrant, violating his s. 8 rights. The trial judge rejected the accused's Charter motions. The trial judge referred to the skin tag evidence as "damning". The accused appealed his conviction and his sentence of eight years' imprisonment, less a credit of ten months for pre-trial custody.

Held, the appeal should be dismissed.

The general warrant was sought based on information that one of the complainants told police about several months after the accused was arrested. The warrant was executed ten months after the accused had been arrested and the officer believed that she did not need to repeat the accused's rights under s. 10(b) of the Charter as he had been properly advised of his rights upon his arrest, and he had exercised them. The officer told the accused that he need not say anything to her. The police violated the accused's rights under s. 10(b) of the Charter by failing to inform him of his right to counsel and to allow him to exercise that right before the general warrant was executed. The accused was detained when he was picked up by police officers and taken to a hospital, where his anal area was viewed and photographed. While he spoke to counsel following his arrest ten months earlier, the two detentions were clearly so distinct in time, place and purpose that each triggered the requirements of s. 10(b). Moreover, the examination authorized by the general warrant was far from a routine procedure. The accused's lawyer, when advising him at the time of his arrest, could not have anticipated that the general warrant would be granted and could not, therefore, have advised the accused on the scope of the warrant and whether or not he had to comply with it.

The police did not exceed the scope of the general warrant when they asked the accused to spread his buttocks and expose his anal area. The warrant authorized the police to view and photograph the anal area. The authority to view a part of a person's body necessarily includes the authority to position that person so as to allow a full viewing. The accused's rights under s. 8 of the Charter were not violated.

The violation of s. 10(b) was at the less serious end of the spectrum. The officer who executed the warrant did not disregard the accused's right to counsel, but rather honestly believed that she was not required to inform him of his right to counsel as he had already spoken to a lawyer after his arrest and as she had a warrant. She advised the accused of his right to silence, and refrained from questioning him or doing anything, other than executing the warrant, that might incriminate him. She executed the warrant in a manner that respected fully the accused's s. 8 rights and afforded him the level of dignity and respect that the circumstances would allow. While the impact of the violation on the accused's [page583] ability to make an informed decision was significant, its significance was tempered by two factors: the police did not attempt to take advantage of the absence of legal advice by trying to elicit incriminating evidence from the accused in the form of admissions or other statements; and nothing in the record suggested that anything counsel might have said would have altered the course of the police conduct. Although the s. 10(b) breach and the gathering of the evidence were linked temporally, there was no causal link between the breach and obtaining the evidence. The evidence was obtained pursuant to a lawful search warrant. The evidence of the observations and photographs of the accused's anus was very reliable and central to the Crown's case. Admission of the evidence would not bring the administration of justice into disrepute.

In light of the lengthy time over which the offences occurred (ten years), the accused's egregious breach of trust and the very serious nature of the conduct involved, the sentence was within the appropriate range.

R. v. Debot, [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, 102 N.R. 161, J.E. 90-12, 37 O.A.C. 1, 52 C.C.C. (3d) 193, 73 C.R. (3d) 129, 45 C.R.R. 49, 8 W.C.B. (2d) 803; R. v. Sinclair, [2010] 2 S.C.R. 310, [2010] S.C.J. No. 35, 2010 SCC 35, 218 C.R.R. (2d) 1, 406 N.R. 1, 293 B.C.A.C. 36, 324 D.L.R. (4th) 385, 77 C.R. (6th) 203, 2010EXP-3245, J.E. 2010-1803, EYB 2010-180262, 259 C.C.C. (3d) 443, 90 W.C.B. (2d) 610, consd

R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124, apld

Other cases referred to

R. v. Amey, [2013] O.J. No. 3789, 2013 ONSC 5108 (S.C.J.); R. v. Borden, [1994] 3 S.C.R. 145, [1994] S.C.J. No. 82, 119 D.L.R. (4th) 74, 171 N.R. 1, J.E. 94-1577, 134 N.S.R. (2d) 321, 92 C.C.C. (3d) 404, 33 C.R. (4th) 147, 24 C.R.R. (2d) 51, 24 W.C.B. (2d) 580; R. v. Cornell, [2010] 2 S.C.R. 142, [2010] S.C.J. No. 31, 2010 SCC 31, 213 C.R.R. (2d) 187, 2010EXP-2444, J.E. 2010-1368, 29 Alta. L.R. (5th) 1, 258 C.C.C. (3d) 429, EYB 2010-177243, 323 D.L.R. (4th) 1, 404 N.R. 133, 76 C.R. (6th) 275, [2010] 10 W.W.R. 195, 487 A.R. 1; R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, 246 C.R.R. (2d) 213, 421 N.R. 112, 2011EXP-3108, J.E. 2011-1739, EYB 2011-196883, 87 C.R. (6th) 1, 276 C.C.C. (3d) 42, 342 D.L.R. (4th) 77, 97 W.C.B. (2d) 17; R. v. H.-G. (R.), [2005] J.Q. no 17665, 2005 QCCA 1160, J.E. 2006-15, EYB 2005-98346, 70 W.C.B. (2d) 142 (C.A.); R. v. MacMillan (2013), 114 O.R. (3d) 506, [2013] O.J. No. 727, 2013 ONCA 109, 296 C.C.C. (3d) 277, 277 C.R.R. (2d) 97, 302 O.A.C. 161, 43 M.V.R. (6th) 1, 1 C.R. (7th) 90, 105 W.C.B. (2d) 735; R. v. Manchulenko (2013), 116 O.R. (3d) 721, [2013] O.J. No. 3977, 2013 ONCA 543, 294 C.R.R. (2d) 130, 50 M.V.R. (6th) 69, 310 O.A.C. 103, 301 C.C.C. (3d) 182, 109 W.C.B. (2d) 36; R. v. Plaha, [2004] O.J. No. 3484, 189 O.A.C. 376, 188 C.C.C. (3d) 289, 24 C.R. (6th) 360, 123 C.R.R. (2d) 18 (C.A.); R. v. Pun, [2012] O.J. No. 4418, 2012 ONSC 5305, 266 C.R.R. (2d) 175 (S.C.J.); R. v. Strachan, [1988] 2 S.C.R. 980, [1988] S.C.J. No. 94, 56 D.L.R. (4th) 673, 90 N.R. 273, [1989] 1 W.W.R. 385, J.E. 89-119, 46 C.C.C. (3d) 479, 67 C.R. (3d) 87, 37 C.R.R. 335, 7 W.C.B. (2d) 44; R. v. Suberu, [2009] 2 S.C.R. 460, [2009] S.C.J. No. 33, 2009 SCC 33, 309 D.L.R. (4th) 114, 252 O.A.C. 340, 245 C.C.C. (3d) 112, EYB 2009-161620, J.E. 2009-1378, 66 C.R. (6th) 127, 193 C.R.R. (2d) 96, 390 N.R. 303; R. v. W. (D.), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, EYB 1991-67602, 12 W.C.B. (2d) 551 [page584]

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 8, 10(b), 24(2)

Criminal Code, R.S.C. 1985, c. C-46, ss. 487.01, 487.05, 487.07(4)

APPEAL by the accused from the convictions entered by Pedlar J., sitting without a jury, on January 23, 2013 and from the sentence imposed, [2013] O.J. No. 6148 (S.C.J.).

T.G.H., appearing in person.

David S. Rose, duty counsel.

Gillian Roberts, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: —

I

[1] The appellant was convicted of repeatedly sexually assaulting his stepson, R.W., over many years and threatening to kill him. He was also convicted of repeatedly inviting his stepdaughter, W.W., again over many years, to touch him for a sexual purpose. The appellant received sentences totalling eight years with ten months' credit for pre-trial custody, leaving a sentence of seven years, two months. The appellant appeals conviction and sentence.

II

[2] The facts can be stated briefly. The Crown's case depended largely on the testimony of R.W. and W.W., the two complainants.

[3] R.W., the appellant's stepson, described years of sexual abuse beginning when he was about six. The abuse included repeated oral sex, anal intercourse and mutual masturbation. The abusive conduct occurred in the family home, often while the appellant was watching pornography on television. R.W. told his mother about the abuse, but she did not believe him. The abuse continued until R.W. was about 14 years old, when he told another relative about the abuse. R.W. eventually went to the police several years later.

[4] W.W., the appellant's stepdaughter, also described prolonged sexual abuse at the hands of the appellant. She testified that beginning when she was about six, the appellant would ask her to "see your tits". He would also ask her to do the things that the women were doing on television. The appellant was watching pornography when he made these requests. By the time W.W. was about ten, she would do as the appellant asked and show him her [page585] breasts. He rewarded her with treats or other benefits. Sometimes, the appellant would masturbate while W.W. stood in front of him with her breasts exposed. She told her mother about the appellant's conduct, but her mother did not believe her. W.W. went to the police after her brother had done so.

[5] The appellant testified and denied the allegations. The defence called other witnesses to support parts of the appellant's testimony. Some of the defence evidence also supported parts of the Crown's case. For example, one witness confirmed that the appellant made comments about W.W.'s breasts.

[6] The trial judge reviewed the testimony at length. He believed the complainants and did not believe the appellant. He gave extensive reasons for those credibility findings. He also expressly applied the three-part reasonable doubt analysis described in R. v. W. (D.), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26.

[7] In making his findings, the trial judge placed some significance on the evidence describing a small flap of excess skin, referred to as a skin tag, that the appellant had over his anus. R.W. had described that skin tag to the police, who obtained a general warrant under s. 487.01 of the Criminal Code, R.S.C. 1985, c. C-46 allowing them to view and photograph the appellant's anus. That examination revealed a skin tag as described by R.W. That skin tag could only be seen when the appellant was bent over and his buttocks spread. The trial judge concluded that the only reasonable explanation for R.W.'s knowledge of the skin tag was that he had, as he testified, engaged in repeated anal sex and mutual oral sex with the appellant. The trial judge referred to the skin tag evidence as "damning".

III

A: Duty Counsel's Arguments

[8] The appellant represented himself on the appeal. He did, however, have the assistance of Mr. Rose, who appeared as duty counsel. Mr. Rose, in his helpful submissions, raised two grounds of appeal. Both arise out of the execution of the general warrant obtained under s. 487.01. That warrant authorized the named police officer and one other officer:

To view the anal area of [the appellant] . . . and subsequently photograph the anal area of [the appellant] if a flap of skin or scarring is observed over or around the anal area of [the appellant].

[9] Mr. Rose argues first that the police violated the appellant's constitutional right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms by failing to advise him of [page586] his right to counsel and to give him an opportunity to consult with counsel when they detained him for the purpose of executing the general warrant. Mr. Rose submits that the evidentiary product of the execution of the warrant, both the visual observations and the photographs, should have been excluded under s. 24(2) of the Charter.

[10] Mr. Rose's second argument arises out of the manner in which the warrant was executed. He submits that the police, by requiring the appellant to physically spread his buttocks to expose his anal area, went beyond the "viewing" and "photographing" allowed by the terms of the warrant. He submits that by exceeding the conduct permitted by the warrant, the police engaged in an unreasonable search that contravened s. 8 of the Charter. He argues that the observations made by the officer and the photographs should have been excluded under s. 24(2) of the Charter.[^1]

B: The Evidence

[11] The appellant was arrested in January 2011 on the charges relating to the abuse of his stepchildren. He was advised of his right to counsel and spoke with a lawyer. During his interview with the police, the appellant invoked his right to silence on occasion. The appellant was eventually released on bail.

[12] The police investigation continued. In May 2011, R.W. provided certain additional information to the police that led them to question the appellant about an alleged small skin flap on his anus. The appellant denied the existence of the skin flap and his wife confirmed his denial. In September 2011, the police received information that the appellant's wife had lied to them about the skin flap. They re-interviewed her and she again denied its existence.

[13] In October 2011, the police applied for and obtained a general warrant under s. 487.01. That section provides for a warrant to:

487.01(1) . . . do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person[.][page587]

[14] In addition to other requirements, a general warrant may be issued only where there is no other provision that would provide for a warrant or other authorization to do the thing authorized by the general warrant. That condition was met in this case.

[15] On October 12, 2011, Detective Constable Nadine Wilson, the officer in charge of the investigation, telephoned the appellant and told him that she would be at his home in about 20 minutes. She did not tell the appellant why she was coming to his home, but she did tell him that there were no additional charges.

[16] Detective Constable Wilson arrived at the appellant's home with Constable Murphy, a uniformed officer. He stayed in the vehicle while Detective Constable Wilson spoke to the appellant outside of his home. Detective Constable Wilson showed him a copy of the warrant, explained the contents, and told the appellant that he would be required to go with her and Constable Murphy to the local hospital for the execution of the warrant.

[17] Detective Constable Wilson told the appellant that he was not required to say anything to her. She did not, however, advise him of his right to consult with counsel. She testified that she understood that she was not required to do so because the appellant had been advised of his right to counsel when arrested ten months earlier in January. Detective Constable Wilson also indicated that she believed that she did not have to tell the appellant about his right to counsel because she had a warrant signed by a judge compelling the appellant's attendance at the hospital for the purpose of the execution of the warrant.

[18] The appellant testified that he asked to speak to his lawyer, but that the police ignored the request. The officers said no such request was made. Detective Constable Wilson indicated that had the appellant asked to speak with lawyer, she would have allowed him to do so. As the trial judge concluded that s. 10(b) was not engaged, he did not have to resolve this conflict in the evidence.

[19] At the hospital, Detective Constable Wilson explained the anticipated procedure to the appellant. She told him that he would need to spread his buttocks to expose his anus and suggested he could do so while bending over the bed or lying on the bed. The officer explained that she would not touch the appellant and that he could use his own hands to expose his anal area. The appellant complied with the officer's direction, bent over the bed and, using his hands, spread his buttocks to make his anal area visible.

[20] Detective Constable Wilson observed a small excess flap of skin on the right side of the appellant's anus. She took three photographs and then told the appellant to pull up his pants. [page588]

[21] The procedure at the hospital took about three minutes. After the procedure was completed, the police drove the appellant back to his home. According to Detective Constable Wilson, the appellant was given a copy of the warrant.

[22] The appellant was polite and co-operative throughout the process. The police were polite and treated the appellant with courtesy and respect.

IV

The Section 10(b) Issue

[23] Section 10(b) of the Charter provides:

10. Everyone has the right on arrest or detention

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

[24] A person who is arrested or detained by the police loses core components of the right to liberty. In addition, the detainee's ability to make a free and informed decision whether to speak with or comply with police requests and demands is compromised at a time when that decision may be crucial to the detainee's legal interests and future freedom. Section 10(b) counters this power imbalance by requiring that the police inform the detainee of the right to counsel "without delay" and, if the detainee chooses to exercise that right, by giving the detainee a reasonable opportunity to do so before questioning the detainee. In effect, s. 10(b) provides for the insertion of counsel for the detainee into the power imbalance created by the police detention: R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, at paras. 26-29; R. v. Suberu, [2009] 2 S.C.R. 460, [2009] S.C.J. No. 33, 2009 SCC 33, at paras. 37-40.

[25] Suberu explained the purpose of s. 10(b), at para. 40:

. . . the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees [to] regain their liberty, and guard against the risk of involuntary self-incrimination.

A: The trial judge's reasons

[26] It was common ground that the appellant was detained by the police from the time they took him from his home until his release after the warrant had been executed at the hospital. The trial judge concluded that while it would have been preferable for [page589] the police to advise the appellant of his right to counsel, they were not required to do so under the terms of s. 10(b). He said:

The accused knew his rights. The protection here is the accused would know their rights. That is the mischief. It is up to the accused to make an informed decision. This accused clearly stated under oath that he knew he did not have to say anything to the police. He knew he did not have any choice in terms of whether to go with them or not, which is true. The mischief just does not exist. The police would not have to wait while the defence challenged the warrant.

[27] I cannot agree with the trial judge's conclusion that the appellant's knowledge that he did not have to speak to the police was relevant to whether the police were obligated to advise him of his right to counsel under s. 10(b). That duty arises upon detention or arrest. An individual detainee's understanding of his rights cannot detract from the constitutional obligation placed on the police to inform that detainee of his right to counsel. While the individual detainee's knowledge of his rights may ultimately have some relevance to the admissibility of evidence under s. 24(2) if there is a breach of s. 10(b), it has no relevance to the threshold question of whether the police breached a detainee's rights under s. 10(b) by failing to inform the detainee of the right to counsel.

[28] In any event, the appellant's knowledge that he did not have to speak to the police was not the information that the appellant needed when he was detained for the purpose of executing the general warrant. As the majority observed in R. v. Sinclair, [2010] 2 S.C.R. 310, [2010] S.C.J. No. 35, 2010 SCC 35, at para. 24:

The purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation.

(Emphasis added)

[29] The appellant needed legal advice about his obligation to comply with the warrant and the extent of the police powers under the warrant. His knowledge that he did not have to speak to the police did not equip him to deal with the "legal situation" confronting him when the police arrived at his home with the general warrant.

[30] In holding that s. 10(b) was not engaged, the trial judge also referred to the "general rule" that the exercise of a search warrant does not have to be suspended pending the exercise of a detainee's right to counsel: see R. v. Debot, [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, at p. 1146 S.C.R.; R. v. Borden, [1994] 3 S.C.R. 145, [1994] S.C.J. No. 82, at pp. 162-63 S.C.R.

[31] Those cases do not hold that the police obligation to advise a detainee of the right to counsel is affected in any way by [page590] the purported execution of a search power, be it under the authority of a warrant or as an incident to arrest. Instead, those cases speak to the potential suspension of the second duty placed on the police by s. 10(b), which requires that the police give the detainee a reasonable opportunity to speak with counsel if the detainee makes that request. The cases hold that in some circumstances the obligation to provide a reasonable opportunity to speak to counsel may be suspended pending the execution of the search. Lamer J. drew this distinction in Debot, at p. 1146 S.C.R.:

Therefore immediately upon detention, the detainee does have the right to be informed of the right to retain and instruct counsel. However, the police are not obliged to suspend the search incident to arrest until the detainee has an opportunity to retain counsel.

[32] Thus, even if Debot applied here, it would not relieve the police of the obligation of advising the appellant of his right to counsel. At most, it would mean that the appellant was not entitled to speak to counsel prior to the execution of the general warrant.

[33] The rationale of Debot cannot, however, be transplanted into the very different circumstances that exist here. Debot was a case that involved a search as an incident of a lawful arrest. Obviously, there were very real practical difficulties with suspending that search pending consultation with counsel. Those difficulties do not exist here. There is no suggestion that the ability of the police to properly execute the warrant would have been hampered by both advising the appellant of his right to counsel and by giving him an opportunity to exercise that right prior to the execution of the warrant. In fact, Detective Constable Wilson testified that she would have allowed the appellant to speak to his lawyer before executing the warrant had he made that request.

B: The Crown's argument

[34] Ms. Roberts, for the Crown, with her customary efficiency, focused her submissions in support of the trial judge's ruling on s. 10(b) on a single argument. She submits that this case is governed by the principle set out in Sinclair. She submits that on a proper application of that principle, the police were not constitutionally obliged to advise the appellant of his right to counsel when they detained him for the purposes of executing the general warrant.

[35] The principle from Sinclair, relied on by Ms. Roberts, is concisely put, at para. 2: [page591]

We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of a right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are not closed.

(Emphasis added)

[36] Broadly speaking, Sinclair holds that in most cases, the police will be required to comply with s. 10(b) only once upon the detention or arrest of an individual. A second compliance with s. 10(b) will be necessary only where the circumstances are such that the purpose animating the right to counsel requires a repetition of the s. 10(b) rights. The court identified specific situations in which the obligation to reiterate the s. 10(b) rights has been recognized and stressed that "the categories are not closed".

[37] I do not think Sinclair supports the trial judge's holding that the police were not obliged to advise the appellant of his s. 10(b) rights. I come to that conclusion for two reasons. First, the principle enunciated in Sinclair assumes a single ongoing detention and speaks to situations in which the police are obliged to repeat the detainee's s. 10(b) rights in the course of that single detention. In my view, Sinclair has no application to a situation like this where the appellant was arrested, advised of his s. 10(b) rights as required, released, and then some ten months later detained for the purpose of executing the general warrant. The initial detention upon arrest in January 2011 and the subsequent detention for the purpose of executing the warrant in October 2011 were entirely distinct from each other and must be treated as such for the purposes of s. 10(b). The question raised on these facts is not whether the police were required to restate the appellant's s. 10(b) rights in the course of his detention, but rather whether they were required to comply with s. 10(b) when they detained the appellant for a second time many months after the initial detention.

[38] The fact that a person is subject to two discrete detentions may not always compel compliance with s. 10(b) in respect of both. There may be situations in which there are technically two detentions, but a single compliance with s. 10(b) is sufficient. I need not decide that issue. In this case, the two detentions [page592] were clearly so distinct in time, place and purpose that each triggered the requirements of s. 10(b).

[39] Even if I am wrong and the principle in Sinclair does apply, the appellant's detention in October 2011 for the purpose of executing the general warrant falls squarely within one category of cases that Sinclair recognizes as requiring a second compliance with s. 10(b). As Sinclair explains, at para. 50:

The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with information necessary to make a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary.

(Citation omitted; emphasis added)

[40] The examination authorized by the general warrant was about as far from a "routine procedure" as one could get. No one would suggest that the appellant's lawyer, when he was advising the appellant at the time of his arrest, could have anticipated an order in the terms of the general warrant and given the appellant the appropriate advice. It also is irrelevant that the appellant was required to comply with the warrant and that any advice he might have received from his lawyer would not have altered that reality. The appellant was entitled to legal advice even if that advice left him with few, if any, options other than compliance. The appellant was entitled to legal advice about the scope of the warrant and exactly what he had to do or, more importantly, not do, to comply with the warrant. In any event, and assuming the lawyer could do nothing other than tell the appellant to comply with the warrant, that advice could be important in that a reasonable detainee, in the appellant's position, might well refuse to allow the police to do what the warrant authorized. Without proper legal advice, a detainee might well refuse to co-operate and find himself in further difficulty with the law.

[41] There appears to be little case law applying the principle in Sinclair to investigative procedures akin to that contemplated by this general warrant. The limited authority, however, suggests that the procedure authorized by this general warrant does trigger the requirement that the police restate the rights guaranteed by s. 10(b): R. v. Amey, 2013 ONSC 5108 (S.C.J.), at para. 64; R. v. Pun, 2012 ONSC 5305 (S.C.J.), at para. 65. [page593]

[42] During their submissions, counsel also referred the court to the Criminal Code requirements with respect to DNA warrants issued under s. 487.05. Those warrants authorize the taking of certain bodily substances. Section 487.07(4) specifically requires that if the subject of the DNA warrant is a "young person", that "young person" has the right to consult with counsel and a parent and the further right to have counsel and a parent present when the warrant is executed.

[43] The rights created by s. 487.07(4) go beyond the constitutional rights in s. 10(b). I do not understand Ms. Roberts to argue that the limitation of those broad rights to "young persons" in s. 487.07(4) assists in determining the question raised on this appeal. Ms. Roberts, with her customary fairness, did advise the court that the police routinely advise all persons of their right to counsel before executing DNA warrants.

[44] In summary, the trial judge erred in holding that the police were not obliged to comply with the requirements of s. 10(b) when they detained the appellant for the purpose of executing the general warrant. The appellant should have been told that he had a right to counsel and, if he exercised that right, the police should have given him a reasonable opportunity to consult with counsel before executing the warrant. The principle in Sinclair has no application as there are two distinct detentions separated by several months. Even if Sinclair applies, the police demand that the appellant comply with the general warrant presented the appellant with a new fact situation in which he was in need of and, more importantly, constitutionally entitled to, legal advice. I will address the effect of the breach of the appellant's s. 10(b) rights on the admissibility of the evidence garnered by the execution of the warrant after I address the s. 8 argument.

V

The Section 8 Issue

[45] Section 8 of the Charter protects against unreasonable searches. Even where the search is authorized by a constitutionally sound law and/or judicial warrant, the search must be carried out in a reasonable manner to survive constitutional review: R. v. Cornell, [2010] 2 S.C.R. 142, [2010] S.C.J. No. 31, 2010 SCC 31, at para. 16.

[46] Mr. Rose submits that given the intrusive nature of the conduct authorized by the warrant, the warrant was quite properly tightly crafted to limit what the police could do. He submits that the warrant allowed the police to view the appellant's "anal area" and, if "a flap of skin or evidence of scarring is [page594] present", photograph that area. Mr. Rose submits that Detective Constable Wilson went beyond the very precise limits of the warrant when she required the appellant to spread his buttocks so she could get a clear view of his anal area. Mr. Rose argues that by exceeding the ambit of the warrant, the police acted unreasonably and rendered the search unconstitutional.

[47] The search authorized by the general warrant was invasive under any definition of that word. I see value in both carefully delineating the powers granted to the police in a warrant of this kind and narrowly construing those powers. There is, however, a difference between a narrow construction of the terms of a warrant and a reading that would effectively neuter the search authorized by the warrant. This warrant authorized the police to view and photograph the "anal area". An area cannot be viewed or photographed if it cannot be seen.

[48] Setting aside intrusive measures that could compromise bodily integrity and, therefore, exceed the scope of a general warrant, I regard the authority to view a part of a person's body as necessarily including positioning or bodily movements so as to allow a full viewing. For example, if the police were authorized to view the area under a person's arm for the presence of a tattoo, I have no doubt that the warrant would empower the police to require the subject to lift his arm. The requirement that the appellant spread his buttocks, while no doubt more embarrassing than lifting one's arm, is qualitatively no different for the purposes of assessing the reasonableness of the manner in which the police executed the warrant.

[49] There was no breach of s. 8.

VI

Should the Evidence be Excluded?

[50] The trial judge indicated that had he found a s. 10(b) breach, he would have admitted the evidence. However, as I have arrived at a different conclusion on s. 10(b), I will undertake my own s. 24(2) analysis: R. v. Manchulenko (2013), 116 O.R. (3d) 721, [2013] O.J. No. 3977, 2013 ONCA 543, 301 C.C.C. (3d) 182, at para. 94.

[51] Section 24(2) provides that:

24(2) Where . . . 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.

[52] The breach of the appellant's s. 10(b) rights was not causally connected to the evidence gathered during the execution of [page595] the general warrant. There is no suggestion that "but for" the breach of s. 10(b) the police would not have executed the warrant and obtained the photographs. There is, however, a clear temporal and transactional link between the breach, the execution of the warrant and the retrieval of the evidence. That connection is enough to bring the exclusionary power of s. 24(2) to bear on the evidence gathered in the execution of the general warrant: see R. v. Strachan, [1988] 2 S.C.R. 980, [1988] S.C.J. No. 94, at pp. 1000-1006 S.C.R.; R. v. Plaha, [2004] O.J. No. 3484, 188 C.C.C. (3d) 289 (C.A.), at paras. 44-45.

[53] After Grant, a court, in deciding whether the admission of evidence tainted by a Charter breach could bring the administration of justice into disrepute, must consider three avenues of inquiry:

• the seriousness of the Charter-infringing state conduct;
• the impact of the breach on the Charter-protected interests of the accused; and
• society's interest in an adjudication on the merits.

[54] Detective Constable Wilson's conduct and the reasons she acted as she did are central to the assessment of the seriousness of the Charter-infringing state conduct. Detective Constable Wilson did not disregard the appellant's right to counsel. She was aware of that right and had provided it to the appellant when she arrested him. She turned her mind to the appellant's right to counsel when she detained him for the purpose of executing the warrant. Detective Constable Wilson concluded that she was not required to advise the appellant of his right to counsel, in large measure because she had a warrant compelling the appellant to go with her to the hospital for the purposes of executing the warrant. She did not intend to take any other investigative steps while she had the appellant under detention.

[55] For the reasons outlined above, Detective Constable Wilson was wrong in thinking she was not required to advise the appellant of his right to counsel, although from a purely utilitarian perspective, her reasoning is understandable. It is also difficult to describe her view of the applicability of s. 10(b) as unreasonable given the paucity of case law and the view the trial judge ultimately took on the issue. However, a plain reading of the words of s. 10(b) in the face of the acknowledged detention of the appellant, and the absence of any impediment to the execution of the warrant had the appellant been advised of s. 10(b) rights, would, I think, convince the objective person, [page596] committed to the principles underlying s. 10(b), that the appellant was entitled to be advised of his right to counsel.

[56] Detective Constable Wilson's decision not to advise the appellant of his right to counsel must be placed in the context of the rest of her conduct. The breach of s. 10(b) is the only constitutional breach. Detective Constable Wilson was careful to advise the appellant of his right to silence. She refrained from questioning him or doing anything other than executing the warrant that might incriminate the appellant. In doing so, she clearly respected his constitutional right to silence.

[57] Detective Constable Wilson executed the warrant in a manner that respected fully the appellant's s. 8 rights and afforded him the level of dignity and respect that the circumstance would allow. Her treatment was far removed from anything deserving the descriptor "abusive", or capable of demonstrating bad faith or a disregard for the appellant's rights. I would place the seriousness of the Charter-infringing state conduct toward the less serious end of the spectrum. I find nothing in Detective Constable Wilson's conduct that would compel a court to disassociate itself from the evidentiary fruit of that conduct: Grant, at paras. 72-75.

[58] The second line of inquiry on the s. 24(2) analysis, the impact of the breach on the Charter-protected interests of the appellant, is straightforward. By not advising the appellant of the right to counsel, the police denied him the ability to make an informed choice whether to comply with the police demands. The ability to make that choice is a core component of both personal autonomy and security of the person.

[59] The impact of the s. 10(b) breach on the appellant's ability to make an informed decision was undoubtedly significant: Grant, at para. 137. Its significance is, however, tempered by two factors. First, the police did not attempt to take advantage of the absence of legal advice by attempting to elicit incriminating evidence from the appellant in the form of admissions or other statements. A breach of s. 10(b) becomes all the more significant where the police attempt to elicit incriminating statements from the detainee. This is because one of the fundamental reasons for requiring access to counsel is to ensure that the detainee is made aware of his right to silence and the protection against self-incrimination: Grant, at para. 136.

[60] Second, even if the appellant had been advised of his right to counsel and exercised that right, nothing in this record suggests that anything counsel may have said would have altered the course of the police conduct. The police would have taken the appellant to the hospital, executed the warrant as they were [page597] entitled to do and the photographs would have been taken. The absence of any causal connection between the breach of s. 10(b) and the obtaining of the challenged evidence leads me to conclude that the evidence would have been available even if the police had complied with s. 10(b). This diminishes, to some degree, the significance of the breach on the appellant's Charter-protected interests: R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, at paras. 69-74; R. v. MacMillan (2013), 114 O.R. (3d) 506, [2013] O.J. No. 727, 2013 ONCA 109, 296 C.C.C. (3d) 277, at paras. 67-72.

[61] The third inquiry directed by Grant, society's interest in an adjudication on the merits, strongly favours the admission of the evidence. The evidence, particularly the photographs, was very reliable and central to the Crown's case: Grant, at para. 81. From the public perspective, the exclusion of reliable, important evidence from the fact-finding process will always undermine, to some extent, confidence in the administration of justice.

[62] The negative impact on the administration of justice when reliable evidence is excluded is arguably particularly significant in cases involving allegations of historical sexual assaults. In many of those cases, there is little evidence independent of the complainant's allegations and the accused's denials. The outcome often turns on difficult credibility assessments. The availability of independent reliable evidence can be important to the maintenance of confidence in the administration of justice in this kind of case. To exclude that kind of evidence under s. 24(2) runs a real risk of bringing the administration of justice into disrepute.

[63] Taking all of the relevant factors into account and not intending to diminish in any way the significance of the s. 10(b) breach, I am satisfied that the Grant analysis favours the admission of the evidence of the observations made during the execution of the general warrant and the photographs taken by the police. That evidence was properly considered by the trial judge in arriving at his verdicts.

[64] Apart from the arguments made by Mr. Rose, I see no other issues relating to the convictions that require examination in these reasons.

VII

The Sentence Appeal

[65] The sentence appeal addresses the totality of the sentences. There is no need to examine the specific sentence imposed on each charge. [page598]

[66] The trial judge reviewed the principles of sentencing and the facts relevant to the determination of the appropriate sentences in this case. He quite properly stressed the lengthy period of time over which the offences occurred (ten years), the appellant's egregious abuse of his position of trust, and the very serious nature of the conduct involved, especially as it related to R.W. The trial judge was also alive to the jurisprudence of this court which loudly and clearly declares that denunciation must take precedence over other principles of sentencing in cases like this one.

[67] I see no error in principle in the trial judge's reasons. The sentence imposed is within the range of sentences appropriate to offences like this.

VIII

Conclusion

[68] I would dismiss the conviction appeal. I would grant leave to appeal sentence but would dismiss the sentence appeal.

Appeal dismissed.

[^1]: At trial, defence counsel argued that the examination of the appellant interfered with his bodily integrity and was, therefore, beyond the scope of a general warrant: see s. 487.01. The trial judge rejected that argument, relying on several authorities, including R. v. H.-G. (R.), [2005] J.Q. no 17665, 2005 QCCA 1160. The issue is not raised on appeal.