COURT OF APPEAL FOR ONTARIO DATE: 20210507 DOCKET: C66830

Miller, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Taylor Adam Griffith Appellant

Counsel: Marianne Salih, for the appellant Avene Derwa, for the respondent

Heard: October 28, 2020 by video conference

On appeal from the conviction entered on October 31, 2018 and the sentence imposed on January 11, 2019, with reasons reported at 2019 ONSC 358, by Justice Alfred J. O’Marra of the Superior Court of Justice.

Jamal J.A.:

A. Overview

[1] The appellant, Taylor Griffith, was convicted of offences related to the unlawful possession of a loaded semi-automatic handgun with a chambered round ready to fire and possession of crack and powder cocaine for the purpose of trafficking. He was sentenced to 6 years in prison and various ancillary orders, less credit for pre-sentence custody calculated at 22 months, requiring him to serve another 4 years and 2 months. He now appeals his conviction and seeks leave to appeal his sentence.

[2] The main issue on the conviction appeal is whether the trial judge erred in dismissing an application to exclude the evidence of the handgun and drugs found on the appellant when he was searched incident to arrest. The trial judge found the police had objectively reasonable grounds to arrest the appellant in all the circumstances, including their previous observations of hand-to-hand transactions of suspected drug trafficking. He also held — and the Crown conceded — that the police breached the appellant’s right to counsel under s. 10(b) of the Charter by delaying his access to counsel for several hours while they executed search warrants at his apartment and storage locker. At the same time, the trial judge ruled that the police had case-specific concerns for officer safety and evidence preservation that justified delaying access to counsel until the search warrants were executed. The trial judge declined to exclude the evidence under s. 24(2) of the Charter. He also declined to reduce the appellant’s sentence because of the s. 10(b) breach.

[3] For the reasons that follow, I would dismiss the conviction and sentence appeals. I agree with the trial judge that the police had objectively reasonable grounds to arrest the appellant and to search him incident to arrest. I also agree with the trial judge that the police breached s. 10(b) by delaying access to counsel, but as I explain below, I would find the breach to have been briefer than the trial judge found. The police were justified in delaying access to counsel while they executed the search warrants because of the case-specific concerns for officer safety that the trial judge himself found. This delay in accessing counsel therefore did not breach s. 10(b). However, the further unexplained delay in accessing counsel, of one hour and twenty minutes after the search warrants were executed, did breach s. 10(b). Despite this breach of s. 10(b) — which appears to have been unintentional and situation-specific rather than systemic — I would not exclude the evidence under s. 24(2) of the Charter. I also see no basis to interfere with the trial judge’s assessment that the s. 10(b) breach did not warrant a sentence reduction.

B. Background

[4] The police received information from a confidential informant that the appellant was selling drugs on Eglinton Avenue West in Toronto in an area known to have drug trafficking problems. A team of four plain-clothes officers from the Major Crime Unit of the Toronto Police Service — Detective Constables Quinlan, Mignardi, McCartney, and Pollard — placed the appellant under surveillance. The officers were trained and experienced in drug investigations and had seen many street-level drug deals. They followed and watched the appellant on October 10, 11, 21, and 24, 2017.

[5] The surveillance was challenging because the appellant jumped fences and habitually used alleyways rather than main streets. The officers perceived the appellant to be conscious of surveillance. D.C. Mignardi described his “head [as] always on a swivel”.

October 10

[6] On October 10, 2017, D.C.s Mignardi and McCartney followed the appellant as he left a library on Eglinton Avenue West carrying a satchel. He went down a laneway, over a fence, and used a key to enter an apartment building. The officers were familiar with the apartment building because they had received complaints that some tenants allowed drug users to consume drugs in their units and they had made several drug arrests there. The landlord had even given the police a key to the building because of concerns about drug trafficking. D.C.s Quinlan and Mignardi testified that they had been in the building “a lot”. D.C. Quinlan said he had conducted three or four drug investigations there that led to arrests.

October 11

[7] The next day, D.C. Quinlan went back to the building. He went to a third‑floor apartment that the confidential informant told the police that the appellant occupied and he saw the appellant leave the apartment.

October 21

[8] On October 21, 2017, D.C. Mignardi monitored the appellant as he sat on a park bench in a parkette. She was about 20 meters away from the appellant and out of sight. The appellant was talking on his cellphone. She saw two men approach him on bicycles and interact with him for about 30 seconds. She recognized them both as suspected drug users and had seen them in the area — one of them daily, panhandling. She knew one of them lived in a house full of drug users because she had been in the house twice and had seen him inside with crack pipes and drugs scattered around. At first, the men on bicycles had their hands in their pockets and then completed a hand-to-hand transaction with the appellant, lasting “like a second”, in which their fists were slightly clenched, their hands met, and there was “sort of a … swap”. It was not a fist-bump, but a “sort of handshake where the palms swiped together”. D.C. Mignardi saw no money or drugs and heard no conversation. The two men then rode away in the direction they had come, and the appellant immediately got up and walked away.

[9] D.C. Mignardi was convinced the two men had just bought drugs from the appellant. She had seen about 50 hand-to-hand drug transactions in her career. She had also just completed a drug-investigation training course the week before, including on what to look for in hand-to-hand transactions — it matched what she had just seen.

[10] D.C. Quinlan came to assist D.C. Mignardi at the parkette. He was about 100 metres away. He saw the two men on bicycles ride by. He knew one of them by name as a suspected drug user because he had seized a crack pipe from him once before and often saw him panhandling.

[11] D.C. Mignardi testified that she believed she now had grounds to arrest the appellant for drug possession and possession for the purpose of trafficking. The officers decided not to arrest the appellant that night, however, because they wanted to continue the investigation and planned to seek a search warrant. D.C. Mignardi testified that the police wanted to “see what [the appellant] was up to” and to learn “where he was keeping his product” and “if there was more product”.

[12] The police continued to follow the appellant that evening. He went into a laundromat and came out carrying a garbage bag of clothes. They then followed him to a storage locker, which he left empty-handed after less than 20 minutes.

October 24

[13] On October 24, 2017, D.C. Mignardi drafted two search warrant applications: one for the appellant’s apartment and one for the storage locker. The police planned to arrest him and then to execute the search warrants when they had him in custody.

[14] The officers tracked down the appellant in mid-afternoon and saw him enter a John Howard Society building. They decided to arrest him based on the hand-to-hand transactions they had seen three days earlier. They tried to locate him in the building but could not find him. They then saw him leave the building carrying a bag and followed him into a laneway. After a brief struggle in which the appellant tried to escape, D.C.s McCartney and Mignardi arrested the appellant at 3:55 p.m.

[15] During the struggle as the appellant was arrested, D.C. Mignardi saw a handgun in the waistband of his pants and seized it incident to arrest. It turned out to be a loaded semi-automatic handgun with a chambered round ready to fire and 11 more rounds in the magazine.

[16] The police also searched the appellant’s bag incident to arrest and found over an ounce of crack and powder cocaine, $440 in cash, and his identification.

[17] The officers called for a marked police cruiser so that the appellant could be videotaped as he was read his rights. He was placed in a marked cruiser at 4:00 p.m. At 4:03 p.m., the appellant was advised of his right to counsel, as recorded on the in-car camera. He was asked, “Do you want to call a lawyer now?” He replied, “Yes”, and told the officer the name of his lawyer.

[18] The appellant was then transported to the police station. At 4:25 p.m., as he was being processed, an officer reminded the appellant of his right to counsel. The appellant reiterated that he wanted to speak to the lawyer he had named. The officer told the appellant that the police would try to contact his lawyer.

[19] Meanwhile, the police executed the search warrants. They drove to the storage locker, which was about 15 minutes’ drive away, and searched it, beginning at 5:07 p.m. The search took just two minutes. They then took photographs and secured the scene. Next, they drove to the appellant’s apartment, and searched it from 5:50 p.m. until 6:20 p.m. They found nothing of consequence at either place. They then returned to the police station at 6:28 p.m.

[20] At 7:40 p.m. — three hours and forty-five minutes after the appellant’s arrest and an hour and twenty minutes after the search warrants had been executed — the appellant was allowed to speak to his lawyer. At no time did the police explain to the appellant the reason for the delay in accessing counsel.

C. The trial judge’s reasons

[21] At the start of trial, the trial judge dismissed an application to exclude the evidence of the gun and drugs seized incident to arrest: R. v. Griffith, 2018 ONSC 6471. The trial judge ruled: (1) the police had objectively reasonable grounds to arrest the appellant, and thus did not violate his right not to be detained arbitrarily under s. 9 of the Charter; (2) the warrantless search of the appellant was a lawful search incident to arrest, and thus did not breach his right against unreasonable search or seizure under s. 8 of the Charter; and (3) the delay in accessing counsel until after the search warrants were executed breached the appellant’s right to counsel under s. 10(b) of the Charter.

[22] The trial judge held, however, that the evidence should not be excluded under s. 24(2) of the Charter. He ruled: (1) the police conduct in delaying access to counsel and failing to inform the appellant of the reason for the delay, while not done in bad faith, was “serious misconduct” that favoured excluding the evidence; (2) the delay in accessing counsel “had minimal negative impact” on the appellant and there was “no causal or indeed temporal connection between the s. 10(b) breach and the evidence obtained”, which mitigated the impact of the breach on his Charter-protected interests; and (3) the evidence seized was reliable and crucial to the prosecution of very serious offences. Balancing the seriousness of the breach, the minimal negative impact on the appellant’s Charter-protected interests, and society’s interest in the adjudication of these offences on the merits, the trial judge ruled that the admission of this evidence would not bring the administration of justice into disrepute.

[23] On the admission of the evidence, the appellant was found guilty. He was sentenced to a global sentence of six years in prison: four years for possession of a loaded prohibited firearm; one year consecutive for possession of crack cocaine and powder cocaine for the purpose of trafficking; one year consecutive for breach of a firearms prohibition order; six months concurrent for breach of a probation order; and various ancillary orders. After pre-sentence custody credit calculated at 22 months, the appellant had 50 months left to serve.

D. Discussion

[24] I will address the following four issues:

1. Did the police lawfully arrest the appellant and search him incident to arrest?
2. Were the police justified in delaying the appellant’s access to counsel?
3. Should the evidence have been excluded under s. 24(2) of the Charter?
4. Did the trial judge err in his sentencing analysis?

Issue #1: Did the police lawfully arrest the appellant and search him incident to arrest?

(a) Overview

[25] The appellant’s first ground of appeal asserts that the trial judge erred in concluding that the police had lawful grounds to arrest him based on what D.C. Mignardi saw in the parkette. He claims that because the police did not have lawful grounds to arrest him without a warrant or search him incident to arrest, his arrest violated s. 9 of the Charter and the search and seizure violated s. 8 of the Charter. As I will elaborate, I do not accept this submission. In my view, the police had lawful grounds to arrest the appellant and to search him incident to arrest.

(b) The applicable principles

[26] Section 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, provides that a peace officer may arrest without warrant a person “who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence”.

[27] A lawful arrest requires the arresting police officer to have subjective reasonable and probable grounds to believe that an offence has been committed and those grounds must be justifiable from an objective viewpoint. The objective assessment depends on the totality of the circumstances relied on by the arresting officer, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable experience as the arresting officer: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 249-51; R. v. Lawes, 2007 ONCA 10, at para. 4; and R. v. Anang, 2016 ONCA 825, 367 C.R.R. (2d) 289, at para. 14.

[28] The existence of reasonable and probable grounds is founded on the trial judge’s factual findings. Although such factual findings attract appellate deference, whether the facts as found by the trial judge amount to reasonable and probable grounds is a question of law reviewable for correctness: R. v. Shepherd, [2009] 2 S.C.R. 527, 2009 SCC 35, at para. 20; Anang, at para. 13.

(c) Application to this case

[29] The appellant does not dispute that D.C. Mignardi had subjective reasonable and probable grounds to believe that an offence had been committed in the parkette. He claims, instead, that her subjective grounds were not justifiable from an objective viewpoint. He submits that her belief that she saw two drug transactions in the parkette rested on “unverifiable speculation”: she saw no drugs or money exchanged and nobody was investigated that night. He says that nothing the police had seen during their surveillance of him was incriminating: the appellant walking around alone his own neighbourhood and taking short cuts, sitting on a park bench alone, or briefly interacting with two men on bikes.

[30] I do not accept this submission. The appellant’s argument focuses on each factor in isolation and ignores the trial judge’s factual findings on the totality of the circumstances relied on by D.C. Mignardi. Such an approach is wrong in law: see Lawes, at para. 4. The relevant factual findings of the trial judge include D.C. Mignardi’s training and experience and her knowledge of the participants in the transactions, which informed his conclusion that she had objectively justifiable reasonable and probable grounds to believe that the appellant had committed an indictable offence. The trial judge found:

• D.C. Mignardi saw the three men engage in very brief hand-to-hand transactions, lasting less than 30 seconds, which did not appear to be a handshake or other greeting, with limited or no conversation. The trial judge summarized D.C. Mignardi’s evidence as being that the men extended “their arms with clenched fists as if holding something and then swiping or sliding their palms together”, which she believed based on her training and experience to be “exchanging money for drugs”. The two men on bikes immediately rode away in the same direction as they had come. The appellant walked off in the other direction.
• D.C. Mignardi had been involved in several drug surveillance investigations and had seen about 50 hand-to-hand drug transactions in her career. She and D.C. McCartney had relevant training.
• D.C. Mignardi had relevant knowledge about the three people she saw: (1) she and her colleagues had seen the appellant behave in a manner suggesting to them that he was conscious of police surveillance; (2) the appellant was linked to an apartment building that the police knew had drug issues, so much so the landlord had given the police a key to the building because of these concerns; and (3) she knew the two men on bikes as suspected drug users, and her colleague, D.C. Quinlan, knew one man by name as a suspected drug user.

[31] The appellant relies on R. v. Brown, 2012 ONCA 225, 286 C.C.C. (3d) 481, as he did at trial, to support his claim that D.C. Mignardi lacked objectively justifiable reasonable and probable grounds to arrest him. As the trial judge noted, however, the facts in Brown were “quite different” from this case. In Brown, two police officers were on general patrol in a police cruiser. They had no prior knowledge of either of the participants in a suspected drug transaction on a street corner. One officer — but not the other — saw the suspected seller, the accused, extend his arm as if to hand over some drugs, but the suspected buyer did not reciprocate and instead walked away abruptly. On these facts, this court concluded that the officer’s observations did not “provide any objective basis upon which to believe that the two persons were engaged in a drug transaction”: at para. 15.

[32] Here, however, the officers investigating the appellant had prior knowledge about him and the two suspected drug purchasers and they had had the appellant under surveillance for several days. On these facts, I see no error in the trial judge’s conclusion that D.C. Mignardi had reasonable and probable grounds to arrest the appellant without a warrant. A reasonable person standing in the shoes of D.C. Mignardi, with the same training and experience as her in investigating drug cases and seeing hand-to-hand transactions, and with the same knowledge of her surveillance of the appellant and what she had seen in the parkette, could in all the circumstances reasonably believe that drug transactions had occurred. The arrest was therefore lawful and the police did not breach s. 9 of the Charter.

[33] It follows from my conclusion that the appellant’s arrest was lawful that the search incident to that arrest was also lawful. The appellant does not argue otherwise. The police could search the appellant incident to arrest to locate and preserve evidence and to ensure the safety of the police, the public, and the appellant — particularly when D.C. Mignardi saw a handgun in the waistband of his pants as he was arrested: see Cloutier v. Langlois, [1990] 1 S.C.R. 158, at p. 186; R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83, at paras. 74-75; and R. v. Nolet, [2010] 1 S.C.R. 851, 2010 SCC 24, at para. 49. The police thus did not breach s. 8 of the Charter.

Issue #2: Were the police justified in delaying the appellant’s access to counsel?

(a) Overview

[34] The second issue is whether the police were justified in delaying the appellant’s access to counsel. As I will elaborate, both at trial and on appeal, the Crown conceded that the breach of s. 10(b) of the Charter lasted from when the appellant was arrested, at 3:55 p.m., to 7:40 p.m. — a delay of three hours and forty-five minutes, or one hour and twenty minutes after both search warrants had been executed at 6:20 p.m. At the same time, the Crown sought to uphold the trial judge’s factual finding that the police had case-specific concerns for officer safety and the preservation of evidence that justified them delaying access to counsel until after the searches were completed. The Crown appeared to view these case‑specific concerns as mitigating the overall seriousness of the breach. The appellant agreed with the Crown as to the duration of the s. 10(b) breach, but disagreed that there were any case-specific concerns for officer safety or the preservation of evidence that justified the delay in accessing counsel.

[35] I agree with the Crown that the trial judge could find on the evidence that the officers had case-specific concerns about officer safety that justified delaying access to counsel until they completed the searches. Based on that finding, however, I would hold that the initial delay until the completion of the searches at 6:20 p.m. did not infringe s. 10(b). The subsequent delay in implementing the right to counsel, from 6:20 p.m. until 7:40 p.m., did infringe s. 10(b).

(b) Applicable principles

[36] Section 10(b) of the Charter provides that everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right” (emphasis added).

[37] The jurisprudence has confirmed that s. 10(b) requires the police to inform a detainee of the right to speak to counsel immediately (an “informational” duty), and if that right is exercised, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel (an “implementational” duty): R. v. Suberu, [2009] 2 S.C.R. 460, 2009 SCC 33, at paras. 38, 42; R. v. Bartle, [1994] 3 S.C.R. 173, at pp. 191-92; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 25; and R. v. La, 2018 ONCA 830, 366 C.C.C. (3d) 351, at para. 38.

[38] Courts have recognized that specific circumstances, including concerns for police safety, public safety, or the preservation of evidence, may justify some delay in providing a detainee access to counsel: Suberu, at para. 42; Rover, at para. 26; and La, at para. 38. Such concerns must be case-specific rather than general concerns applicable to virtually any case: Rover, at para. 27; La, at paras. 39-40. As Doherty J.A. explained in Rover — decided almost a year after the execution of the warrants in this case — the police may delay access to counsel “only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel”: Rover, at para. 27. Even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel: Rover, at para. 27; La, at para. 40.

(c) Application to this case

[39] At trial, Crown counsel (not appellate counsel) conceded that the appellant’s “section 10(b) rights had been breached by a suspension of his rights until the execution of [the] search warrants”. The Crown argued that the police were justified in delaying the appellant’s s. 10(b) rights because of case-specific concerns for evidence preservation and police safety and submitted that the court should consider this in assessing the seriousness of the breach under s. 24(2). Defence counsel at trial (not appellate counsel) did not suggest a different analytical approach. Before this court, appellate Crown counsel adopted the same approach, stating in her factum that “the police decision to delay the appellant’s access to counsel until the search warrants were executed constituted a violation of s. 10(b)”. Counsel for the appellant agreed.

[40] The trial judge seems to have adopted the Crown’s approach. He found that the police had case-specific concerns that justified delaying the appellant’s right to counsel “in consideration of police/public safety and the preservation of evidence”. He summarized D.C. Quinlan’s testimony as being that there were “heightened concerns regarding police safety given the arrest involved an accused who possessed a loaded firearm, and they did not know if the apartment they were to search, where they suspected drugs to be present, was occupied by others”. The trial judge also found that “there was a concern about the possible destruction of evidence”. Later in his reasons, however, the trial judge ruled that the delay in accessing counsel constituted “serious misconduct”.

[41] In my view, the trial judge and the parties proceeded on the mistaken assumption that a justified delay in accessing counsel breaches s. 10(b). That is not the law. The correct approach is reflected by this court’s decisions in Rover and R. v. Leonard, 2020 ONCA 802. In Rover, Doherty J.A. took no issue with the analysis of the trial judge in that case that concerns for officer safety and evidence preservation could justify delaying access to counsel: at paras. 18, 26-27. He added, however, that the police must have case-specific evidence that the police turned their minds to the circumstances of the case before delaying access to counsel: at paras. 32-33. More recently, in Leonard, this court confirmed that a reasonable delay in accessing counsel justified by case-specific concerns for officer safety does not violate s. 10(b): at para. 15.

[42] Because the Crown’s concession of a breach of s. 10(b) arising from a justified delay in accessing counsel is an erroneous concession of law, this court is not bound by the concession and must analyze the situation according to what the law provides: R. v. Barabash, [2015] 2 S.C.R. 522, 2015 SCC 29, at para. 54; R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369, at para. 63.

[43] Applying the correct analytical framework, I now turn to consider whether the evidence supported the trial judge’s conclusion that the police had case-specific concerns for police safety and evidence preservation that justified delaying access to counsel.

[44] The appellant asserts that there was no case-specific evidence and the police merely followed a general practice of delaying access to counsel until the search warrant had been executed. He claims the concerns alleged by the police were of a general or non-specific nature applicable to virtually every search and therefore cannot justify suspending the constitutional right to counsel. He relies on D.C. Pollard’s evidence of the police’s “general practice” of delaying access to counsel until after the execution of a search warrant and D.C. Quinlan’s characterization of that practice as “just smart policing”. D.C. Quinlan also testified that it is “always better” from an officer-safety standpoint to have the target in custody before executing the search warrant. D.C. Mignardi similarly agreed with the suggestion that there is “always a risk” that the target could call someone to facilitate destroying evidence.

[45] This evidence must, however, be considered in the context of other evidence that confirmed the police had turned their minds to the specific circumstances of this case and had a reasonable basis for concluding that there were concerns for officer safety at a minimum. D.C. Mignardi testified that the police had just arrested the appellant with a loaded gun and “we didn’t want to put any of our – our lives in danger by going to a house where [the appellant is] able to phone whoever he wants when he’s at [the police station]”. She also testified that the team had “specifically consider[ed] safety issues when a decision was made to arrest [the appellant] before the execution of the search warrants so that his rights would be suspended until the search warrants [were] executed”. She noted that searches were to be conducted at two locations — the storage locker and the apartment — which raised particular safety concerns if the appellant could telephone somebody before both searches were completed. D.C. Quinlan similarly testified that the officer safety concerns were “heightened” by the firearm recovered from the appellant. He highlighted that this was not a large operation and included only four officers. Cumulatively, this testimony provided an evidentiary basis for the trial judge’s conclusion that the police had a reasonable basis to conclude that concerns for officer-safety justified delaying access to counsel until the searches were completed.

[46] Given this conclusion, I need not decide whether the police were justified in delaying access to counsel based on case-specific evidence-preservation concerns that rose beyond a general or non-specific nature applicable to virtually any search. The police-safety concerns alone justified their approach.

[47] To sum up, I conclude that the police did not breach s. 10(b) by delaying access to counsel until the searches were completed at 6:20 p.m., but they did do so from 6:20 p.m. to 7:40 p.m., when the appellant finally called his lawyer.

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

[48] The next issue is whether the trial judge erred in not excluding the evidence of the gun and drugs under s. 24(2) of the Charter.

[49] A trial judge’s decision to admit or exclude evidence under s. 24(2) of the Charter attracts appellate deference absent an error in principle, a failure to consider the proper factors, a palpable and overriding factual error, or an unreasonable determination: R. v. Just, 2020 ONCA 362, 388 C.C.C. (3d) 273, at para. 21; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64; La, at para. 37; and R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, at paras. 86, 127.

[50] Section 24(2) is triggered where evidence is “obtained in a manner” that violates an accused’s Charter rights. A s. 24(2) inquiry examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on the factors set out in the leading case of Grant: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the accused’s Charter-protected interests; and (iii) society’s interest in the adjudication of the case on the merits. The court’s task is to balance the assessments under these three inquiries “to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute”: Grant, at para. 71; R. v. Le, 2019 SCC 34, 434 D.L.R. (4th) 631, at paras. 139-142.

[51] Section 24(2) does not create an automatic exclusionary rule when evidence is obtained in a manner that infringes a Charter right. The accused bears the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute: R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 76; R. v. Lenhardt, 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11; and R. v. Fearon, [2014] 3 S.C.R. 621, 2014 SCC 77, at para. 89.

“Obtained in a manner”

[52] Courts have taken a “very broad reading” and “generous view” of the phrase “obtained in a manner” under s. 24(2), the threshold requirement of whether the admission of the evidence would bring the administration of justice into disrepute: Hobeika, at para. 77; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 101. The jurisprudence has accepted that courts should examine the “entire ‘chain of events’ between the accused and the police”: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; Pileggi, at para. 101; see also R. v. Wittwer, [2008] 2 S.C.R. 235, 2008 SCC 33, at para. 21; and Rover, at para. 35.

[53] Here, before this court, the parties accepted that the evidence was “obtained in a manner” that infringed the appellant’s Charter rights. The Crown did not dispute this, while the appellant submitted that there was a contextual and temporal connection between the s. 10(b) breach and the impugned evidence. The trial judge made no express finding on this point. His reasons appear to have accepted that this criterion was satisfied and then addressed whether the evidence should be admitted under the test in Grant.

[54] I pause here to note that when addressing the impact of the breach — the second Grant factor — the trial judge said that “there is no causal or indeed temporal connection between the s. 10(b) breach and the evidence obtained” (emphasis added). Similarly, in his sentencing reasons, the trial judge stated that “the firearm and drugs [were] not contextually, causally or [temporally] connected to the breach of delaying contact with counsel” (emphasis added). If these comments are read literally, there would have been no need to apply the Grant test because the threshold for applying s. 24(2) would not have been met.

[55] The trial judge may have misspoken when he said there was no temporal or contextual connection between the evidence and the s. 10(b) breach. If he did not misspeak, he was in error. Although the evidence was not causally connected to the breach of s. 10(b) because it was discovered before the breach, there was no basis to find that it was not temporally or contextually connected to the breach or that the connection was tenuous or remote. The discovery of the evidence and the s. 10(b) breach all arose from the same transaction — the appellant’s arrest: see Pino, at para. 73. The connection was temporal because the discovery of the evidence was relatively close in time to the s. 10(b) breach and part of the continuum of events arising from the appellant’s arrest: see Pino at para. 74. The connection was also contextual because the discovery of the evidence arose out of the same events flowing from the appellant’s arrest that led to the s. 10(b) breach: see Pino, at para. 74. Neither connection was tenuous or remote.

[56] I would therefore find that s. 24(2) of the Charter was engaged. I now turn to the three lines of inquiry under Grant.

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

[57] The first line of inquiry considers the seriousness of the police conduct that infringed the Charter and was connected to the discovery of the evidence. It asks whether the police engaged in misconduct from which the court should dissociate itself, such as where the departure from Charter standards was significant or where the police knew or should have known that their conduct breached the Charter; or rather whether the breach was merely of a technical nature or reflected an understandable mistake, in which case dissociation is much less of a concern: Grant, at paras. 72-74; R. v. Harrison, [2009] 2 S.C.R. 494, 2009 SCC 34, at para. 22; and R. v. McSweeney, 2020 ONCA 2, 384 C.C.C. (3d) 265, at para. 78.

[58] Courts should dissociate themselves from evidence obtained through a negligent breach of the Charter: Le, at para. 143; see also Grant, at para. 75. A systemic problem or pattern of Charter-infringing conduct is an aggravating factor that supports exclusion: Grant, at para. 75; Harrison, at para. 25.

[59] Here, the trial judge found that the police breached s. 10(b) by delaying access to counsel until after the execution of the warrants and then for another hour and twenty-minutes. He also considered the police conduct in failing to inform the appellant of the reason for the delay. He distinguished Rover because he found the delay in accessing counsel here was because of case-specific concerns for police safety and evidence preservation. He concluded that although the s. 10(b) breach and the failure to inform the appellant of the reason for the delay were “not done in bad faith”, they involved “serious misconduct, which in the analysis favours exclusion”.

[60] I agree with the trial judge’s final assessment that the s. 10(b) breach was serious, even though I would find the breach in accessing counsel as having been briefer than the trial judge found. I also agree that the police’s failure to inform the appellant of the reason for the delay in accessing counsel aggravated the s. 10(b) breach. This was a significant breach of established obligations under s. 10(b).

[61] I would add that the seriousness of the s. 10(b) breach arising from the one hour and twenty minutes of unjustified delay in accessing counsel must be understood in the particular context of this case. The police had already delayed access to counsel for two hours and twenty-five minutes to execute the warrants. Once the searches were completed, the police should have acted with particular urgency in providing the appellant access to counsel. Instead, they let him wait in his cell without access to counsel for another hour and twenty minutes.

[62] I acknowledge that the police took some steps to minimize the delay the appellant experienced by obtaining the search warrants before he was arrested. This factor was highlighted in Rover as mitigating the seriousness of the breach by helping to minimize the delay in accessing counsel: Rover, at para. 39.

[63] I also note that the delay in accessing counsel after the searches were completed was left largely unexplained. There is no evidence to permit a further finding — there is no evidence of a pattern of ignoring constitutional rights during detention, of a deliberate decision to do so, or any evidence of other constitutional breaches while the appellant was detained. This lack of evidence bears on whether the appellant has met his onus under s. 24(2) of establishing that the admission of the evidence would bring the administration of justice into disrepute: Hobeika, at para. 76; Lenhardt, at para. 12.

[64] The only evidence in the record pointing in any direction appears to suggest that the failure to provide access to counsel after execution of the search warrants was a fact-specific oversight, albeit a serious one. D.C. Mignardi testified that after executing the warrants she headed back to the station and “started working on the … case” by inputting information, such as the record of the arrest, in the police computer system. She explained that there is pressure to “make sure all your notes [are] in for disclosure purposes right away”. She did not speak to the appellant. At some point, she learned from another officer that the appellant wanted to contact his lawyer. At 7:40 p.m., she helped him to do so. She then returned to inputting information in the police computer system. She testified that the police did not set out to intentionally delay the appellant’s right to counsel and there was no advantage to the investigation or prosecution in doing so. She testified that she was trying to fulfill the appellant’s Charter rights, and specifically, his right to counsel.

[65] In mentioning this evidence, I should not be taken as suggesting that the police can delay access to counsel to input information in their computer system or that an officer’s assertion that they did not intend to breach constitutional rights is itself determinative. I simply highlight that the only evidence in the record appears to suggest that what happened here was a fact-specific oversight and not a systemic or intentional breach of the appellant’s s. 10(b) rights.

[66] Even if unintentional, what happened here reflected an unacceptably negligent approach to safeguarding the appellant’s s. 10(b) rights. The police conduct violated an established constitutional obligation. As this court has noted, “[t]he law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out”: R. v. Noel, 2019 ONCA 860, at para. 34. The officers’ collective negligence in failing to uphold the appellant’s s. 10(b) rights precludes a finding of good faith: see Le, at paras. 143, 147; Pileggi, at para. 119; and Hobeika, at para. 81.

[67] A serious breach of an established constitutional right supports exclusion of evidence under s. 24(2), even if the breach is not deliberate or systemic or part of a pattern of police misconduct: Harrison, at paras. 24-25; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44; and Hobeika, at para. 82. That principle applies here.

(ii) Impact of the breach on the appellant’s Charter-protected interests

[68] The second line of inquiry under s. 24(2) asks whether and to what extent the Charter breach “actually undermined the interests protected by the right infringed”: Grant, at para. 76; Le, at para. 151. This involves identifying the interests protected by the Charter rights and evaluating how seriously the Charter infringements impacted those interests. The more serious the impact on Charter-protected interests, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant, at paras. 76; Le, at para. 151.

[69] The s. 10(b) right to retain and instruct counsel without delay and to be informed of that right allows a detainee to obtain advice about how to exercise their rights relevant to their legal situation: R. v. Taylor, [2014] 2 S.C.R. 495, 2014 SCC 50, at para. 21; R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321, at para. 77. This helps ensure that a detainee’s choice to speak to the police is free and informed and guards against the risk of involuntary self-incrimination: Suberu, at para. 40; R. v. Sinclair, [2010] 2 S.C.R. 310, 2010 SCC 35, at para. 25; and Wong, at para. 77. As Doherty J.A. explained in Rover, the right to counsel is a “lifeline for detained persons” that provides detainees with both legal advice and psychological benefits by conveying to them that they are not at the mercy of the police while detained: at para. 45; see also Pileggi, at para. 123.

[70] Here, the trial judge found that the s. 10(b) breach had “minimal negative impact” on the appellant’s Charter-protected interests because he found no causal or temporal connection between the s. 10(b) breach and the evidence obtained. I agree there was no causal connection, but as I have explained, the trial judge either misspoke or erred in finding no temporal connection.

[71] In appropriate cases, the lack of a causal connection can mitigate the impact of the infringement: Grant, at para. 122; Rover, at para. 43; and Pileggi, at para. 120. I also note that the police did not try to elicit information from the appellant, thus avoiding an aggravating feature found in several other cases: see e.g., La, at paras. 47-48; McSweeney, at paras. 79-80; R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43, 1245; and R. v. Prosper, [1994] 3 S.C.R. 236, at pp. 280, 284.

[72] I also agree with the appellant that the trial judge erred in describing the impact of the breach of s. 10(b) on the appellant’s Charter-protected interests as “minimal”. The appellant was deprived of the “lifeline” of counsel without justification for an hour and twenty minutes, after he had already been deprived of access to counsel with justification for two hours and twenty-five minutes. He was also not told the reason for the delay. [1] This breach impacted the appellant’s Charter-protected interests, even if the police did not aggravate the breach by seeking to elicit information from him.

[73] The impact of the s. 10(b) breach on the appellant’s Charter-protected interests was nevertheless less significant than other cases in which evidence has been excluded under s. 24(2), such as:

• Rover, in which the accused was denied access to counsel for almost six hours, with no explanation as to why the police had refused him access to counsel and without an indication of when he might be allowed to do so, leading to “significant psychological pressure” being brought to bear on him: at paras. 44, 46;
• La, in which the accused was denied access to counsel for over eight and a half hours, during which time the police tried to obtain an incriminating statement from him: at paras. 7, 47-48; and
• Noel, in which the police did not even try to contact counsel on the accused’s behalf until three hours after his arrest and it was never confirmed that the accused actually spoke to counsel: at paras. 29, 31.

[74] The impact of the breach on the appellant’s Charter-protected interests was also comparable to, or less significant than, other cases in which evidence has been admitted under s. 24(2), such as:

• Hobeika, in which there was an unexplained failure to provide access to counsel for just over four hours: at para. 79;
• Pileggi, in which there was a three-hour delay in providing access to counsel, the breach was “unintentional and occurred largely due to a lack of communication between police officers”, and no one tried to elicit information from the accused, although the police made reasonable efforts early on to contact duty counsel and kept the accused apprised of their attempts to contact counsel on his behalf: at paras. 114, 117-18 and 124.

[75] Placing the impact of the s. 10(b) breach here along the continuum of s. 10(b) breaches in past cases, I would describe the impact of the s. 10(b) breach on the appellant’s Charter-protected interests as moderate.

(iii) Society’s interest in the adjudication of the case on the merits

[76] The last line of inquiry considers factors such as the reliability of the evidence and its importance to the Crown’s case. It 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; McSweeney, at para. 81. Reliable evidence critical to the Crown’s case will generally pull towards inclusion: Harrison, at paras. 33-34; McGuffie, at para. 62; and McSweeney, at para. 81.

[77] Here, the gun and drugs are reliable evidence and essential to the Crown’s case for what are extremely serious offences. The admission of this evidence would better serve the truth-seeking function of the criminal trial process than its exclusion. I therefore agree with the trial judge that society’s interest in the adjudication of the case on the merits favours the admission of this evidence.

Balancing the factors

[78] The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison, at para. 36. As Doherty J.A. recently noted in Hobeika, “[t]he nature of the s. 24(2) inquiry means, in some cases, different judges will reasonably arrive at different conclusions with respect to admissibility”: at para. 89.

[79] Here, I have concluded that the evidence was properly admitted under s. 24(2). I say this for several reasons. The breach of s. 10(b), although serious, appears to have been situation-specific and isolated, rather than institutional or systemic. It has not been established that the breach was deliberate or intentional. The breach only moderately impacted the appellant’s Charter-protected interests. The evidence, consisting of the loaded gun and drugs, was obtained through a lawful search incident to arrest and, because it was not causally related to the s. 10(b) breach, was not compromised by the breach of s. 10(b). In these circumstances, excluding the evidence would only punish the police — which is not the purpose of s. 24(2) — and would damage, rather than vindicate, the long‑term repute of the criminal justice system: Grant, at para. 70; Hobeika, at para. 90; and Pileggi, at para. 127. It would allow an apparently unintentional, situation-specific police-slip that had only a moderate impact on Charter-protected interests to lead to the acquittal of an armed and dangerous drug trafficker in a city already plagued by gun violence.

[80] Like the trial judge, I thus conclude that the admission of the evidence would not bring the administration of justice into disrepute.

[81] I would dismiss the conviction appeal.

Issue #4: Did the trial judge err in his sentencing analysis?

[82] Finally, the appellant submits that the trial judge erred by declining to reduce the sentence he imposed (6 years, less credit for pre-sentence custody calculated at 22 months) because of the s. 10(b) violations. The appellant was 22 years old when he committed the offences.

[83] An appellate court can interfere with a sentence in only two situations: (1) if the sentence is demonstrably unfit; or (2) if the sentencing judge made an error in principle that had an impact on the sentence: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26; R. v. Lacasse, [2015] 3 S.C.R. 1089, 2015 SCC 64, at paras. 11, 41 and 44; and R. v. Suter, [2018] 2 S.C.R. 496, 2018 SCC 34, at para. 24.

[84] The appellant does not argue that the sentence was demonstrably unfit. Instead, he submits that the trial judge’s refusal to reduce the sentence because of the s. 10(b) breach was an error in principle that justifies appellate intervention. As he did at first instance, the appellant relies on the Supreme Court of Canada’s decision in R. v. Nasogaluak, [2010] 1 S.C.R. 206, 2010 SCC 6, in support of his submission. That case upheld a sentence reduction for the offences of impaired driving and flight from the police when the police used excessive force in arresting the accused and breached his Charter rights during his arrest and detention. Here, by analogy, the appellant asserts that the s. 10(b) breach was contextually and temporally connected to his arrest and thus warranted a sentence reduction.

[85] I do not accept this submission.

[86] A sentencing judge crafting a fit sentence must consider all the circumstances of the offence and offender. This includes state misconduct, including a Charter breach, if it relates to the circumstances of the offence and the offender. When, however, the state misconduct does not relate to the circumstances of the offence or the offender, the accused cannot seek a remedy through the sentencing process: Nasogaluak, at paras. 3-4, 46-49; R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336, at paras. 150-54.

[87] Here, the trial judge considered Nasogaluak but determined that the circumstances of the s. 10(b) breach did not relate to the offences or the offender in a way that could be considered in sentencing. He held there was no additional harm or prejudice caused by the s. 10(b) breach that would act as a mitigating circumstance. He referred to his ruling on the Charter application that the discovery of the evidence was not causally connected to the breach, and thus did “not align with the offences or to the offender”. In support of that conclusion, he cited R. v. Glykis (1995), 24 O.R. (3d) 803 (C.A.), which also involved a s. 10(b) breach arising from a delay in accessing counsel. Dubin C.J.O. held that the s. 10(b) breach in that case should not reduce the sentence because it did not mitigate the seriousness of the offence or constitute a form of additional punishment or hardship for the accused.

[88] The trial judge’s conclusion that the s. 10(b) breach here did not warrant a sentence reduction attracts deference. His conclusion that the s. 10(b) breach did not relate to the circumstances of the offences or the offender to affect the appropriate sentence is reasonable. The breach of s. 10(b) did not alter the circumstances of the offences. Although the delay in accessing counsel no doubt had some effect on the appellant, there was no evidence about this. As a result, I see no error in principle warranting appellate intervention.

[89] I would therefore grant leave to appeal the sentence but dismiss the sentence appeal.

E. Conclusion

[90] I would dismiss the conviction appeal, allow leave to appeal the sentence, and dismiss the sentence appeal.

Released: May 7, 2021 “B.W.M.”

“M. Jamal J.A.”

“I agree. B.W. Miller J.A.”

“I agree. Coroza J.A.”

[1] Recent case law suggests that the failure of the police to inform an accused of the reasons for the delay in providing access to counsel, where such delay is justified, or to advise the accused when they might be allowed to speak to counsel, may constitute an independent breach of s. 10(b) of the Charter: see R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 45-46 (seeming to agree with the trial judge’s finding at 2016 ONSC 4795, at para. 70, that the police should have advised the accused that they were suspending his s. 10(b) right); R. v. Shang En Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78. However, since this appeal was not argued on this basis, I refrain from further comment.