Her Majesty the Queen v. Wong

[Indexed as: R. v. Wong]

Ontario Reports

Court of Appeal for Ontario,

Strathy C.J.O., Doherty and Gillese JJ.A.

September 30, 2015

127 O.R. (3d) 321 | 2015 ONCA 657

Case Summary

Charter of Rights and Freedoms — Right to counsel — Detention — Accused calling police to her apartment to report theft of her car — Officer detecting smell of marijuana and seeing signs of drug use — Officer telling accused that he could arrest but that he just needed to know what was going on — Officer questioning accused about drugs — Accused showing officer drugs which allegedly belonged to her boyfriend — Accused psychologically detained when officer told her that he could arrest her — Officer's failure to inform accused at that point of her right to counsel violating accused's rights under s. 10(b) of Charter — Violation serious and having significant impact on accused's Charter-protected interests — Seized evidence of large quantity of drugs and semi-automatic handgun with ammunition being reliable and essential to Crown's case — Admission of evidence bringing administration of justice into disrepute — Canadian Charter of Rights and Freedoms, s. 10(b).

The accused was convicted of a number of serious criminal offences. She called the police to her apartment to report the theft of her car. The investigating officer noticed a smell of marijuana and saw evidence of drug use in plain view. He told her that he could arrest her for possession of the drug paraphernalia, but that "right now" he just needed to know what was going on. He informed her that she was not required to speak to him. He continued to question her when she told him that the items belonged to her boyfriend. She opened a drawer containing bags of what the officer assumed was marijuana and led him to a duffle bag containing a powder that he assumed was a narcotic. The accused was arrested and informed for the first time of her right to counsel. A search warrant was obtained and executed and the police seized a large quantity of drugs, a semi-automatic handgun, ammunition and various pieces of identification. The accused applied unsuccessfully to exclude the evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. She appealed.

Held, the appeal should be allowed.

The accused was psychologically detained when the officer told her that he could arrest her and started to conduct a drug investigation. The officer should have immediately given the accused her right to counsel once she was detained. The officer instead encouraged her to incriminate herself by demonstrating her knowledge of the presence and location of the contraband, without informing her of her right to speak with a lawyer, which goes to the heart of the principles underlying s. 10(b). The physical evidence later located was derived as the result of the improperly obtained verbal and non-verbal statements following the s. 10(b) breach. The officer's evidence displayed a misunderstanding of the concept of detention and of his s. 10(b) obligations. He appeared to believe that as he accepted the accused's evidence that the drugs were not hers, he was not required to comply with s. 10(b). While he did not deliberately set out to violate the accused's Charter rights, his failure to appreciate his duties led to that result. The denial of the accused's s. 10(b) rights was not the result of a momentary isolated failure by the officer to provide those rights. The officer continued to [page322] question her and encouraged her to incriminate herself over a significant period of time. His failure to inform her of her right to counsel deprived her of the knowledge that the "co-operation" that the officer was requesting could expose her to serious criminal liability. The officer's comment that the accused could remain silent was made along with statements that clearly invited her to speak to him and tell him where the drugs were in order to avoid arrest. The violation had a significant impact on the accused's Charter-protected interests. There was no evidence that the officers would have sought a search warrant based solely on the smell of marijuana, the digital scales and the rolling papers. The seized evidence was reliable and essential to the Crown's case. On balance, admission of the evidence would bring the administration of justice into disrepute.

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. B. (S.) (2014), 121 O.R. (3d) 145, [2014] O.J. No. 3238, 2014 ONCA 527, 315 C.R.R. (2d) 104, 12 C.R. (7th) 387, 314 C.C.C. (3d) 117, 323 O.A.C. 234, 115 W.C.B. (2d) 114; R. v. Bergauer-Free, [2009] O.J. No. 3340, 2009 ONCA 610, 255 O.A.C. 233, 195 C.R.R. (2d) 194, 68 C.R. (6th) 362; R. v. Fearon, [2014] 3 S.C.R. 621, [2014] S.C.J. No. 77, 2014 SCC 77, 318 C.C.C. (3d) 182, 323 C.R.R. (2d) 307, 465 N.R. 205, 15 C.R. (7th) 221, 2014EXP-3908, J.E. 2014-2187, EYB 2014-245513, 326 O.A.C. 1, 385 D.L.R. (4th) 211, 118 W.C.B. (2d) 358; R. v. Harris (2007), 87 O.R. (3d) 214, [2007] O.J. No. 3185, 2007 ONCA 574, 228 O.A.C. 241, 225 C.C.C. (3d) 193, 49 C.R. (6th) 220, 51 M.V.R. (5th) 172, 163 C.R.R. (2d) 176, 75 W.C.B. (2d) 492; R. v. Kelsy, [2011] O.J. No. 4159, 2011 ONCA 605, 283 O.A.C. 201, 280 C.C.C. (3d) 456, 97 W.C.B. (2d) 268; R. v. Kesselring, 2000 CanLII 2457 (ON CA), [2000] O.J. No. 1436, 132 O.A.C. 41, 145 C.C.C. (3d) 119, 74 C.R.R. (2d) 286, 46 W.C.B. (2d) 133 (C.A.); R. v. Koczab, [2014] 1 S.C.R. 138, [2014] S.C.J. No. 9, 2014 SCC 9, 303 Man. R. (2d) 121, 367 D.L.R. (4th) 39, 309 C.C.C. (3d) 180, 453 N.R. 113, [2014] 4 W.W.R. 1, 111 W.C.B. (2d) 309, revg [2013] M.J. No. 160, 2013 MBCA 43, 367 D.L.R. (4th) 41, 294 Man. R. (2d) 24, 309 C.C.C. (3d) 183, [2013] 11 W.W.R. 260, 107 W.C.B. (2d) 361; R. v. MacDonald, [2012] O.J. No. 3210, 2012 ONCA 495, 263 C.R.R. (2d) 248, 294 O.A.C. 232, 94 C.R. (6th) 355, 102 W.C.B. (2d) 285; 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. Oickle, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 2000 SCC 38, 190 D.L.R. (4th) 257, 259 N.R. 227, J.E. 2000-1846, 187 N.S.R. (2d) 201, 147 C.C.C. (3d) 321, 36 C.R. (5th) 129, 47 W.C.B. (2d) 247; R. v. Peterson, [2013] M.J. No. 400, 2013 MBCA 104, 299 Man. R. (2d) 236, 304 C.C.C. (3d) 164, 8 C.R. (7th) 152, 297 C.R.R. (2d) 119, [2014] 4 W.W.R. 7, 110 W.C.B. (2d) 298; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, [1993] S.C.J. No. 97, 157 N.R. 321, [1993] 8 W.W.R. 287, J.E. 93-1673, 12 Alta. L.R. (3d) 305, 145 A.R. 104, 84 C.C.C. (3d) 203, 24 C.R. (4th) 47, 17 C.R.R. (2d) 297, 20 W.C.B. (2d) 591; 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; 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. Taylor, [2014] 2 S.C.R. 495, [2014] S.C.J. No. 50, 2014 SCC 50, 2014EXP-2257, J.E. 2014-1291, EYB 2014-239894, 62 M.V.R. (6th) 1, 314 C.R.R. (2d) 307, 12 C.R. (7th) 1, [2014] 8 W.W.R. 419, 374 D.L.R. (4th) 64, 311 C.C.C. (3d) 285, 460 N.R. 101, 98 Alta. L.R. (5th) 40, 572 A.R. 81, 114 W.C.B. (2d) 607; [page323] R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30, 18 D.L.R. (4th) 655, 59 N.R. 122, [1985] 4 W.W.R. 286, 38 Alta. L.R. (2d) 99, 40 Sask. R. 122, 18 C.C.C. (3d) 481, 45 C.R. (3d) 97, 13 C.R.R. 193, 32 M.V.R. 153, J.E. 85-551, 14 W.C.B. 190; R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, [1988] S.C.J. No. 31, 84 N.R. 347, J.E. 88-582, 27 O.A.C. 85, 40 C.C.C. (3d) 411, 63 C.R. (3d) 1, 32 C.R.R. 257, 4 M.V.R. (2d) 185, 4 W.C.B. (2d) 125

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 8, 9, 10, (b), 24, (2)

APPEAL by the accused from the convictions entered on March 17, 2012 by Mullins J. of the Superior Court of Justice, sitting with a jury.

Mark C. Halfyard and Breana Vandebeek, for appellant.

Jason Wakely, for respondent.

The judgment of the court was delivered by

[1] STRATHY C.J.O.: — The appellant called police to her apartment to report the theft of her car. The officer noticed a smell of marijuana and saw evidence of drug use in plain view. His questions led to the appellant disclosing evidence of her boyfriend's drug-related activities. Before the night was over, she was arrested for serious criminal offences after police found her boyfriend's stash of drugs. A search warrant executed early the next morning led to the discovery of additional drugs, a firearm, ammunition and unlawfully obtained credit cards. She was convicted and sentenced to four years and eight months in custody. Her boyfriend, who was tried with her, was also convicted and sentenced to six years in jail.

[2] This appeal is from the trial judge's dismissal of the appellant's applications to exclude the seized evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, as a result of breaches of ss. 8, 9 and 10(b) of the Charter, and her ruling that the Crown could introduce statements made by the appellant to police.

[3] The threshold issue is whether the appellant was detained and, if so, when that detention occurred. Flowing from that are the issues of whether she was arbitrarily detained, denied her right to counsel and subjected to an unreasonable search in violation of her Charter rights. If there were Charter breaches, the issue is whether the evidence should have been excluded pursuant to s. 24(2).

[4] For the reasons that follow, I would allow the appeal. The appellant was detained, her s. 10(b) rights were breached and she was conscripted to provide evidence against herself. The [page324] admission of the evidence on which her convictions were based would bring the administration of justice into disrepute.

A. Background

[5] The appellant, a 26-year-old university graduate, reported the theft of her car to York Regional Police. A police officer was dispatched to her apartment to obtain the information.

[6] The officer arrived just after 9:40 p.m. on June 12, 2009. He knocked on the apartment door and entered, after asking the appellant to secure her dog. He was in uniform, and wore a full equipment belt with a service revolver, a baton and handcuffs.

[7] The apartment was small, about 600 to 700 square feet. On entering the apartment, the officer noticed a faint smell of marijuana smoke. He asked whether there was a place they could talk, and the appellant led him to an island in the kitchen.

[8] The officer saw some "Zigzag" cigarette papers and a digital scale on the counter. He knew these might be drug related. He thought it odd that the appellant would invite him into her home when there was obvious evidence of marijuana use.

[9] As the discussion progressed, the officer asked for her insurance documents. When she said they had been in her car, he asked if she had any old invoices. She went to the den, a few feet away. The officer followed to help her look. He saw on the top of the desk, in plain view, two tin boxes with drug markings, rolling papers and metal screen filters that he knew were commonly used to smoke marijuana. The appellant retrieved some papers from a drawer in a filing cabinet under the desk.

[10] The officer testified that at this point he decided to "call" the appellant on the drug paraphernalia. He said to her:

I need to talk to you about something. I'm starting to see a lot of stuff around your apartment pertaining to marijuana and drug use. So, what's going on here?

[11] He testified that he told her she was not required to speak to him:

I also cautioned her that she didn't have to tell me anything, but I know that there is drugs and drug paraphernalia in the apartment. She was, in essence, in possession of these items and the paraphernalia, and that I could arrest her, but right now I just need to know what's going on here. So, I left it at that.

(Emphasis added)

[12] The officer testified he told her this to inform her that he was now investigating it as a drug call. When he told her this, she became fearful. [page325]

[13] The appellant told him that the items belonged to her boyfriend and that she was not involved with drugs. The officer testified he was prepared to believe this explanation, particularly because she had invited him into the apartment with evidence of drug use in plain view.

[14] He asked the appellant about the "Zigzag" papers on the kitchen table, to which she replied, ". . . what is that?" He then asked her about the scale, which she said was for baking. He pressed her, asking, "If that's for baking, can you show me where your chocolate chips, your flour, your slivered almonds, your raisins, where's all your baking stuff, your baking soda, baking powder et cetera?" He found it "curious" when she replied, "I'm out. I used it all."

[15] He then asked about the paraphernalia on the desk. He picked up one of the boxes, sniffed it, and said, "I smell marijuana. . . . What's up with this?" She repeated that it was her boyfriend's and that she did not know what it was. He testified he then said, "Well, okay, I can go with that. What else is here that's not yours, that's your boyfriend's."

[16] In response to this, the appellant pointed to a drawer under the desk and said, "He keeps stuff in there, it's his stuff." She opened the drawer, saying, "This is all his, I don't know about this stuff."

[17] The officer saw three bags of what he assumed was marijuana. He also saw some identity cards and passports. He reached in, seized the bags and put them on the kitchen counter.

[18] The officer testified that he again "cautioned" the appellant that she didn't need to speak to him, but it was turning into a drug investigation. She could possibly be charged, he said, but he was proceeding in good faith that she was not involved and her co-operation was appreciated. He testified that at this point he had grounds to arrest the appellant, but chose to continue to investigate.

[19] After calling for backup, the officer asked the appellant, "What else is here that is not yours?" She led him to the bedroom and pointed to a black duffle bag on the floor beside the bed. In response to his question about what it was, she said, "I have no idea, but I'm really scared. I just want to tell you that's his too and it's not mine." She told him that her boyfriend had left it in the apartment six months earlier. The officer opened the bag and saw about 15 packages containing a powder that he assumed was a narcotic.

[20] The officer acknowledged that he did not give the appellant a formal caution at any time. He said something to the effect of, "I believe you're not a bad person, so if you cooperate [page326] with me I'm sure you'll be fine, but if you lie to me and I find out, you'll be in trouble."

[21] Two detectives arrived on the scene shortly thereafter and the appellant was placed under arrest around 11:45 p.m. For the first time that evening, she was cautioned and informed of her right to counsel.

[22] An application for a search warrant was made on the information provided by the officer. As a result of the warrant, police seized additional drugs, drug paraphernalia, a firearm, ammunition and various pieces of identification.

B. The Trial Judge's Decision

[23] A blended voir dire was held on the defence application to exclude evidence pursuant to ss. 8, 9, 10 and 24(2) of the Charter and on the Crown application to admit the appellant's statements as voluntary.

[24] After considering R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, the trial judge held that a person is detained "where she submits or acquiesces in the deprivation of liberty and reasonably believes the choice to do otherwise does not exist". She found that psychological constraint could suffice where a reasonable person would not feel free to leave or would feel obliged to comply with a coercive demand. The analysis was objective and required an assessment of the perceived power imbalance in the context of the entire interaction. She reasoned that s. 9 does not require police to abstain from interacting with members of the public until they have specific grounds to connect them to the crime and public co-operation is important to effective law enforcement. Not every encounter requires a formal caution and instruction that the person is entitled to legal counsel.

[25] The trial judge found that the appellant's actions in opening the drawer and pointing to the duffle bag were not spontaneous. She was responding to the officer's words and actions.

[26] She went on to find, however,

I prefer and accept [the officer's] evidence that it was at Ms. Wong's initiative that the drawer she said was used by her boyfriend was opened. To be clear, I reject her evidence that she felt directed by the words or conduct of [the officer] to open that drawer. It follows that I do not find any element of compulsion of her by the words or conduct of [the officer].

[27] She found that the officer believed the appellant's statements that the drug paraphernalia belonged to her boyfriend and not to her, the officer did not purposefully prevent her from using her phone or moving about the apartment and the officer had a reasonable awareness of his legal obligations and conducted himself in good faith. [page327]

[28] The trial judge concluded that, on a balance of probabilities, the appellant had not been detained at any point before she revealed the contents of the drawer and identified the duffle bag. Therefore, her right to counsel was not violated.

[29] In addition, no search of the dwelling had occurred at that point, as the appellant voluntarily showed the officer property belonging to another person, in which she disclaimed any privacy interest. As a result, she was not subjected to an unreasonable search in fact or in law.

[30] In case she was wrong about there being no Charter breach, the trial judge conducted a brief s. 24(2) analysis. She observed that although the illegal search of a home would be one of the most serious intrusions on privacy, on balance the circumstances suggested the administration of justice would be brought into disrepute if the reliable evidence were excluded.

[31] The trial judge also found that the appellant's statements to the officer were voluntary and admissible. She considered R. v. Oickle, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 2000 SCC 38, and held the Crown had to establish beyond a reasonable doubt that the "will of the accused has not been overborne by things such as inducements, oppressive circumstances or the lack of an operating mind". In addition, there must be no police trickery that unfairly denied the right to silence. The appellant conceded there was no malfeasance by the investigating officer and there was no inducement given to her to speak. In these circumstances, the appellant spoke with an operating mind and was not under oppression.

C. Analysis

[32] I will address the issues in the following order:

(1) Was the appellant detained prior to her arrest and, if so, when?

(2) Were the appellant's s. 10(b) Charter rights to retain and instruct counsel breached?

(3) If there were Charter breaches, should the evidence seized have been excluded under s. 24(2) of the Charter?

[33] As I ultimately conclude that the evidence should have been excluded based on the s. 10(b) breach alone, it is unnecessary for me to address whether the state breached the appellant's ss. 8 and 9 rights under the Charter. For the same reason, it is unnecessary for me to address the appellant's alternative [page328] submission on voluntariness of the appellant's statements to the police officer.

(1) Was the appellant detained and, if so, when?

[34] The threshold question is whether the appellant was detained within the meaning of ss. 9 and 10 of the Charter before being asked questions that led to the discovery of the drugs and other contraband. As I will explain, I agree with the appellant that she was detained by that point.

[35] The appellant submits the trial judge failed to address the issue of psychological detention. Although she acknowledged the test is an objective one, she failed to apply the test and consider how a reasonable person would have responded to the officer's allegations of drug use.

[36] The Crown argues the appellant was not psychologically detained because (i) the officer made no "demand or direction" to her or otherwise restricted her liberty; (ii) he was not focusing suspicion on her but on her boyfriend; (iii) he cautioned her twice that she was not obliged to say anything; and (iv) she had the power to conclude the encounter at any time by asking the officer to leave her home.

[37] Throughout their initial interactions, the Crown submits, the officer believed he was speaking with a witness, not a suspect. "The fact that police ask pointed questions does not necessarily turn a person of interest into a detained suspect": R. v. Peterson, [2013] M.J. No. 400, 2013 MBCA 104, at para. 52. Alternatively, if a detention did crystallize prior to arrest, it did not occur until after the appellant opened her desk drawer revealing the marijuana.

[38] The appellant was not physically detained. She had no legal obligation to speak to the officer or to comply with his directions. The issue is whether there was a significant psychological restraint at the hands of the state. This depends on whether a reasonable person in her situation would conclude that she no longer had the freedom to choose whether or not to co-operate with the police: R. v. Suberu, [2009] 2 S.C.R. 460, [2009] S.C.J. No. 33, 2009 SCC 33, at para. 22.

[39] In Grant, the majority judgment referred to the observations of Le Dain J. in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30, at p. 644 S.C.R., to the effect that "[d]etention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist". [page329]

[40] The majority in Grant said, at para. 31, that this must be determined objectively, having regard to all the circumstances, including the conduct of the police:

[T]he focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.

[41] The court stated [at para. 44] that "psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply".

[42] The court identified a non-exhaustive list of circumstances to determine whether a reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, at para. 44:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

(Emphasis added)

[43] In my view, the trial judge erred in failing to apply the objective test in Grant. While she referred to Grant and Therens, she did not ask whether a reasonable person in the appellant's circumstances would conclude she had no choice but to comply with the request. As a result, she did not consider the dynamics of the interaction between the officer and the appellant through the lens of the considerations identified by the Supreme Court.

[44] It is therefore necessary to conduct that analysis.

[45] The circumstances giving rise to the encounter: The encounter began as a consensual one, initiated by the appellant. It soon shifted, however, into a drug-related investigation centred on her apartment. This would cause a reasonable person to believe that the officer was no longer addressing her as the victim of a car theft, but rather as a potential suspect in his drug investigation. [page330]

[46] The nature of the police conduct: The officer's conduct became increasingly authoritative. He demanded an explanation for the presence of the drug paraphernalia: "So what's going on here?" He challenged her explanation: If the scale was for baking, where were her supplies? He told her that she was in possession of the drug paraphernalia and that he could arrest her. As in Grant, the officer took control of the appellant and sought to obtain information from her.

[47] The characteristics and circumstances of the appellant: The appellant was an apparently naïve young woman. She was alone, in her small apartment, with a uniformed police officer who was undertaking a drug investigation. She told the officer she was frightened, as she undoubtedly was. As in Grant, the encounter, as it developed, was inherently intimidating.

[48] In my view, the appellant was detained when, in furtherance of his drug investigation, the officer told her that he could arrest her based on the possession of drug paraphernalia and asked her for an explanation. A reasonable person in the appellant's position, on being told that she could be arrested, would conclude that she was not free to go.

[49] The detention occurred before the appellant pointed out the drawer containing the three bags of marijuana and before she identified the duffle bag in the bedroom.

(2) Was there a breach of s. 10(b) of the Charter?

[50] I agree with the appellant that her s. 10(b) right to counsel was breached. Section 10(b) of the Charter requires a police officer to inform a detained person of her right to counsel "without delay". This phrase means "immediately": R. v. Suberu, at para. 41.

[51] The officer did not inform the appellant of her right to counsel when he began to question her for his drug investigation, or at any time before her arrest. He did inform her of her right to silence, a right closely related to the right to counsel. At the same time, however, he made it clear to the appellant that he was looking for her co-operation. He suggested that the best way out of her predicament was to provide an explanation for the drug-related paraphernalia and, later, to direct him to her boyfriend's contraband.

[52] The officer encouraged the appellant to incriminate herself by demonstrating knowledge of the presence and location of the contraband, without advising her of her right to speak to a lawyer. This goes to the very heart of the principle underlying s. 10(b). The appellant had a right to remain silent unless and until she made an informed decision to waive that right and to [page331] provide the requested information to the police: R. v. Harris (2007), 87 O.R. (3d) 214, [2007] O.J. No. 3185, 2007 ONCA 574, 225 C.C.C. (3d) 193, at para. 40. By failing to comply with s. 10(b), the officer prevented her from making that informed decision: see R. v. MacDonald, [2012] O.J. No. 3210, 2012 ONCA 495; R. v. Koczab, [2014] 1 S.C.R. 138, [2014] S.C.J. No. 9, 2014 SCC 9, adopting dissent [2013] M.J. No. 160, 2013 MBCA 43, 309 C.C.C. (3d) 183.

[53] In summary, I find that the appellant was detained and her s. 10(b) rights were breached. In the next section, I explain why, in my view, the evidence obtained as a result of the breach should have been excluded.

(3) Should the evidence have been excluded under s. 24(2) of the Charter?

[54] Although the trial judge found no breaches of the appellant's Charter rights, she nevertheless carried out a Grant analysis, concluding that on balance the administration of justice would be brought into disrepute if the reliable evidence were excluded.

[55] As I have found there were Charter breaches, no deference is owed to the trial judge's analysis. I will therefore conduct the s. 24(2) analysis afresh: see R. v. Manchulenko (2013), 116 O.R. (3d) 721, [2013] O.J. No. 3977, 2013 ONCA 543, at para. 94; Grant, at para. 129; R. v. Bergauer-Free, [2009] O.J. No. 3340, 2009 ONCA 610, 255 O.A.C. 233, at para. 4. The trial judge's findings of fact remain entitled to deference: R. v. Fearon, [2014] 3 S.C.R. 621, [2014] S.C.J. No. 77, 2014 SCC 77, at paras. 90, 184; R. v. Kelsy, [2011] O.J. No. 4159, 2011 ONCA 605, 283 O.A.C. 201, at para. 60.

[56] Section 24 of the Charter provides:

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

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

[57] The focus of the application of s. 24(2) is the effect of admitting the evidence on public confidence in the justice system, having regard to the following factors: [page332]

(a) the seriousness of the Charter-infringing state conduct;

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

(c) society's interest in the adjudication on the merits.

[58] This analysis applies to the appellant's statements to the officer, to her conduct in pointing out the location of the contraband and to the physical evidence discovered as a result of her verbal and non-verbal statements. These took place after she had been detained and before she had been informed of her right to counsel.

[59] The physical evidence is classified as "derivative evidence" as described by the Supreme Court in Grant, at paras. 116-28. As such, its admissibility is determined under the above framework, taking into account that it was obtained through an improperly obtained self-incriminating statement and its status as real evidence: Grant, at para. 123.

[60] I turn to the application of the Grant factors as they apply to the appellant's statements and the derivative evidence obtained through those statements.

(a) Seriousness of the Charter-infringing conduct

[61] I regard the Charter-infringing conduct in this case as serious. While it was not deliberate misconduct, it was a failure of the officer to appreciate the significance of the encounter, the appellant's Charter rights and his obligations in respect of those rights.

[62] The appellant conceded at trial that the officer did not engage in deliberate misconduct, indicative of either malice or malfeasance. I respectfully disagree, however, with the trial judge's conclusion that the officer had a reasonable awareness of his obligations on detention or arrest.

[63] In my view, the officer's evidence displays a misunderstanding of the concept of detention and of his s. 10(b) obligations. While he did not deliberately set out to violate the appellant's Charter rights, his failure to appreciate his duties led to that result.

[64] The officer knew or should have known that the appellant was in jeopardy and that if he found drugs as a result of his investigation she could have been found guilty of possession. Had the appellant been able to consult with counsel, she could have been informed of the consequences of speaking to the officer and of permitting the search to continue. [page333]

[65] While the officer appreciated that he had grounds to arrest the appellant based on the evidence of marijuana use, notwithstanding her disclaimer of any association with it, he continued to enlist her co-operation through promises that if she did so, she would be "fine". He knew, or ought to have known, that these promises were meaningless.

[66] The officer was determined to get to the bottom of the evidence of drug use that he stumbled across in his visit to the appellant's apartment. He approached his investigation on the basis that the appellant was not the owner of the drugs. He seems to have assumed that because he was prepared to make that assumption, he was not obliged to give the appellant her constitutional rights under s. 10(b). Even if the officer thought the appellant did not own the drugs, that belief is not the same as a good faith belief that he was not obliged to advise the appellant of her right to counsel. I would add that the trial judge's finding that the officer acted in good faith was made more in connection with her s. 8 analysis than s. 10(b).

[67] The Charter-impairing conduct at issue in this case took place just over a month before the Supreme Court of Canada released its decisions in Grant and Suberu. Those decisions addressed areas of law relevant to this appeal: Grant provided contextual factors for assessing psychological detention while Suberu clarified that the obligation to inform detainees of their right to counsel arose "immediately" upon detention, not after a "brief interlude". The respondent did not suggest, either at trial or on appeal, that any legal uncertainty at the time mitigated the seriousness of the officer's conduct. In my view, it does not.

[68] The officer's belief that the appellant was not psychologically detained was unreasonable under the standard that had existed since Therens and R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, [1988] S.C.J. No. 31. It should have been clear to him without the assistance of Grant that the appellant was psychologically detained the first time he told her he could arrest her. That was when he "called" her on the drug paraphernalia and told her he needed to know what was going on there. To borrow from the language of Therens, it should have been clear to him at that point that the appellant would have reasonably believed she had no choice but to submit to the deprivation of her liberty.

[69] In addition, the officer's conduct was inconsistent with the law on s. 10(b) at the time -- he never informed her of her right to counsel throughout their prolonged encounter -- and his evidence suggested he would not have benefitted from the clarity provided by Suberu. On cross-examination, two years [page334] later, he said he could not recall having been trained on the appropriate caution to be given in cases of detention. He agreed that if he encountered a situation of detention that very afternoon he would "pretty much have to wing it".

[70] The negative impact of the breach of s. 10(b) is not mitigated by the officer telling the appellant that she did not have to speak to him. Sometimes, an indication that the accused is not obliged to speak to the officer will mitigate the damage done by a failure to advise an accused of her rights under s. 10(b). Here, however, the officer's comment that the appellant could remain silent was made along with statements that clearly invited her to speak to him and tell him where the drugs were in order to avoid arrest: "I cautioned her that she didn't need to speak with me, but I would appreciate her ongoing cooperation."

[71] The officer effectively told the appellant that she could be silent, but that in exercising that option she might well lose her one chance to get out from under any responsibility for contraband the police might find. The officer's statement that the appellant did not have to speak to him was grossly misleading, because it failed to explain her jeopardy if she continued to comply with his requests and it held out the assurance that things would go better for her if she co-operated. This aggravates the breach, in my view.

[72] The officer also failed to provide her with the information that she most needed -- that she had a right to legal counsel and that anything she said could be used against her. By answering the officer's questions, the appellant went a long way toward putting herself in possession of the contraband.

[73] The denial of the appellant's s. 10(b) rights was not the result of a momentary isolated failure by the officer to provide those rights. This was not a case like Grant, in which the police asked a single question after detention, but before administering the s. 10(b) rights. Nor was this a case in which the officer was called upon to make a split-second decision in a tense and potentially dangerous situation. Here, the officer continued to question the appellant and encouraged her to incriminate herself over a significant period of time. Even after the appellant led the officer to three bags of marijuana, he still did not advise her of her right to counsel, but continued to invite her to identify more contraband in the apartment. She did exactly that.

[74] The officer failed to respect the appellant's rights because he did not understand them. His statements to her were inaccurate and misleading. His failure to inform her of her right to counsel deprived her of the knowledge that the "co-operation" he was requesting could expose her to serious criminal liability. [page335] "[I]gnorance of Charter standards must not be rewarded or encouraged": Grant, at para. 75.

[75] This factor favours exclusion.

(b) Impact on the appellant's Charter rights

[76] The impact of the breach on the appellant's rights points strongly in favour of exclusion of the evidence.

[77] The purpose of s. 10(b) is not simply to allow a detainee to be informed about her rights. It is also to enable her to obtain advice about how to exercise those rights: R. v. Taylor, [2014] 2 S.C.R. 495, [2014] S.C.J. No. 50, 2014 SCC 50, at para. 21. It is intended to guard against the risk of involuntary self-incrimination and to ensure that the detainee's choice to speak to police is free and informed: R. v. Suberu, at para. 40; R. v. Sinclair, [2010] 2 S.C.R. 310, [2010] S.C.J. No. 35, 2010 SCC 35, at para. 25.

[78] The breach deprived the appellant of her right to counsel at a time when, as in Grant, she was in immediate need of legal advice. The officer was able to do exactly what s. 10(b) is designed to prevent. He caused a detained person to incriminate herself as a result of an uninformed decision to speak and to co-operate with the police. The breach had a serious impact on the appellant's Charter-protected interest against self-incrimination.

[79] In determining the impact of the breach on the appellant's rights, it is appropriate to consider the "discoverability" of the evidence -- that is, whether the evidence was discoverable independent of the breach: Grant, at paras. 122, 125. If the evidence was independently discoverable, the impact of the breach on the accused's rights may be attenuated.

[80] In this case, however, I do not think discoverability has any impact. This is because it cannot be said with any confidence that the evidence would have been discovered independent of the breach: Grant, at para. 122.

[81] At the time of the appellant's detention, the officer had observed a smell of marijuana and paraphernalia associated with marijuana. He had none of the evidence that ultimately formed the core of the Crown's case. That core evidence was then either obtained in a manner that infringed s. 10(b) or, in the case of the search warrant evidence, relied on evidence so obtained. All the important evidence therefore falls under the purview of s. 24(2). It is not clear that the officer had grounds to obtain a warrant at that point or that he would have proceeded to do so had he not secured the appellant's co-operation.

[82] The officer acknowledged that before the drugs were discovered, he believed that there may have been recreational use [page336] of marijuana in the apartment. He acknowledged that recreational use of marijuana was commonplace in his experience and considered that he had discretion about the appropriate response. Depending on the circumstances, a warning might be given or charges might be laid. He did not, apparently, give any consideration to obtaining a warrant until after the three bags of marijuana were discovered in the desk.

[83] The trial judge did not resolve the issue of discoverability, although the Crown argued that evidence in plain view would have been sufficient to cause a warrant to issue, referring to R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, [1993] S.C.J. No. 97 and R. v. Kesselring, 2000 CanLII 2457 (ON CA), [2000] O.J. No. 1436, 145 C.C.C. (3d) 119 (C.A.). Both those cases involved marijuana cultivation.

[84] Although the Crown submits that a warrant could have been obtained based on the smell of marijuana and the paraphernalia, there is no evidence that the police would have sought a warrant based solely on the officer's observations. I am not prepared to assume that they would have done so, or that, had they applied, they would have obtained a warrant based only on that evidence.

(c) Society's interest in an adjudication on the merits

[85] This inquiry asks "whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion": Grant, at para. 79.

[86] The evidence seized included a semi-automatic handgun with ammunition, 11 kg of MDMA, significant quantities of marijuana and cocaine and documents evidencing credit card fraud. The evidence was plainly reliable and essential to the Crown's case -- factors that favour the admission of the evidence.

[87] The appellant concedes this. She submits, however, referring to this court's decision in R. v. B. (S.) (2014), 121 O.R. (3d) 145, [2014] O.J. No. 3238, 2014 ONCA 527, at para. 34, that the seriousness of the charges should not overwhelm the analysis. The driving factor in the s. 24(2) analysis is the long-term repute of the administration of justice. The seriousness of the offence is simply one of the factors to be considered.

(d) Balancing the Grant factors

[88] The police conduct in this case, while not deliberate, was unacceptable. To admit the evidence would be to condone ignorance of Charter standards and a casual approach to the protection of Charter values. [page337]

[89] The breach had a serious impact on the appellant's Charter rights. Admission of the evidence may, in the words of Grant, at para. 76, "signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen".

[90] Balanced against these considerations are the patent reliability of the evidence and its centrality to the Crown's case.

[91] In Grant, the majority described the s. 24(2) analysis as a "close case", notwithstanding the finding that the police conduct was neither deliberate nor egregious. In concluding the handgun was admissible, the court found that the balance was tipped in favour of admission because the officers were operating under considerable uncertainty about when an encounter becomes a detention. The court explained, at para. 133, that "[w]hile police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is".

[92] In this case, the officer did not know what the law was. He did not understand the circumstances giving rise to detention and he did not appreciate either his responsibilities or the appellant's rights. The appellant's rights were trammelled in his search for evidence. The administration of justice would be brought into disrepute by the admission of the evidence and, in my view, it should have been excluded.

D. Disposition

[93] For these reasons, I would allow the appeal and set aside the convictions. As there is no possibility of conviction without the evidence obtained as a result of the Charter breaches, I would direct acquittals on all counts.

Appeal allowed.

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