Court of Appeal for Ontario
Date: 2022-12-16 Docket: C69001
van Rensburg, Thorburn and George JJ.A.
BETWEEN
His Majesty the King Respondent
and
Lalendra Desilva Appellant
Counsel: Riaz Sayani, for the appellant Lalendra Desilva Scott Wheildon, for the respondent His Majesty the King
Heard: October 18, 2022
On appeal from the conviction entered on November 15, 2019 by Justice Beth Allen of the Superior Court of Justice, sitting without a jury, with reasons reported at 2019 ONSC 6555.
Thorburn J.A.:
Relief Sought
[1] Following an unsuccessful Charter application to exclude evidence, the appellant was convicted of four counts of possession of a controlled substance for the purpose of trafficking including 477.46 grams of cocaine, 655.60 grams of GHB, and 35.1 grams of alprazolam. He was also convicted of one count of possession of the proceeds of crime. The charge of failure to comply with a recognizance was withdrawn at trial. The appellant was sentenced to three and a half years’ custody. He appeals only his convictions.
[2] The appellant claims the trial judge:
- Erred in holding that there were reasonable and probable grounds to arrest him for breaching his bail conditions and that the subsequent searches incident to his arrest were lawful;
- Erred in failing to find that there was a breach of his right to counsel after she failed to take into account an approximately one-hour delay in putting him in contact with duty counsel after he was arrested, taken to the station and placed in a cell;
- Erred in holding that the officers’ post-arrest questioning of the appellant prior to giving him his rights to counsel only constituted a Charter right breach of “moderate seriousness”; and
- Erred in concluding that the evidence should not be excluded in accordance with section 24(2) of the Charter.
[3] In light of the appellant’s claim that his sections 8, 9 and 10(b) Charter rights were breached, he seeks an order excluding the evidence seized during the searches and that an acquittal be entered. In the alternative, he seeks an order vacating the convictions and ordering a new trial.
[4] For the reasons that follow, I would dismiss the appeal.
The Evidence
A. Description of the Registered Owner of the Vehicle
[5] In the early hours of July 8, 2018, Officers Armstrong and Langdon were on duty in a marked scout car, driving slowly along Wellington St. West in Toronto. Wellington is a one-way street.
[6] The officers received information about two males who might be in possession of a firearm, seen driving in the area in a dark-coloured Mercedes.
[7] At approximately 1:45 a.m., the officers saw a two-door, dark-coloured Mercedes, which they later learned belonged to the appellant. The windows in the appellant’s car were not tinted. Officer Armstrong also stated that while “it was dark out… there’s lots of artificial lighting.”
[8] Officer Armstrong searched the license plate and discovered that the registered owner of the vehicle was on bail with a condition requiring him not to be outside his surety’s residence without being in his surety’s “presence and direct company”. The appellant’s surety was a female. The CPIC search also provided a physical description of the registered owner.
B. The Police Officers’ Observations of the Appellant in the Vehicle
[9] Both officers saw the appellant in the driver’s seat.
[10] Officer Armstrong observed the appellant in the vehicle from a distance of “three to five feet away”. The appellant matched the description of the registered owner of the vehicle from the CPIC search. At the time he made his observation, Officer Armstrong was sitting in the passenger seat of the police cruiser looking into the appellant’s two-door vehicle as the police slowly drove past it.
[11] Moments later, the appellant parked his vehicle on the north side of Wellington St., a short distance east of the Thompson Hotel, which was both a nightclub and hotel. The police parked on the south side of Wellington St. across from the hotel.
[12] Officer Armstrong did not see the appellant exit the vehicle because at the time he was looking at his computer screen.
[13] Officer Langdon saw the appellant leave his vehicle from a “couple of car lengths away”. He confirmed that the appellant matched the description of the owner of the vehicle as set out in the CPIC search.
C. No One Else Was Observed in the Vehicle
[14] Neither officer observed anyone else get out of the two-door vehicle though neither could unequivocally say no one else was in the appellant’s vehicle.
[15] When asked whether he saw anyone else in the appellant’s vehicle, Officer Armstrong said “No, I didn’t”. He testified, “The only person I observed was Mr. Desilva driving in the motor vehicle.” He added that he “believe[d] that if there was somebody else in the vehicle, [he] would have been alerted” to her presence, but he could not say for certain.
[16] Similarly, when Officer Langdon was asked, “Did you see anyone else with him?”, he replied, “Not until he gets to the sidewalk”.
D. The Police Officers First Saw the Unknown Woman on the Sidewalk
[17] Officer Armstrong testified that when he first observed the appellant on the sidewalk, “there was a female to the right of his shoulder and they appeared to be walking together”. Officer Armstrong said they were “walking towards the hotel… in the same direction.”
[18] Similarly, Officer Langdon testified, “I didn’t see her exit the vehicle” and he did not observe the appellant with anyone else until “he end[ed] up meeting a female there” on the sidewalk.
E. The Appellant and the Unknown Woman Were Not Conversing
[19] Officer Langdon further testified, “I don’t even recall them having a conversation or anything. I just know they’re walking in the same direction somewhat close to one another.” Officer Armstrong was never asked whether he observed or heard any conversation or interaction between the appellant and the unknown woman.
F. The Officers Approached the Appellant
[20] The officers exited their police cruiser and crossed the street toward the appellant on the opposite side of the street.
[21] Officer Armstrong saw the appellant stop to speak with a “bouncer” or “door person” in front of the Thompson Hotel and “it appeared like they were having some kind of conversation”. He said that “[t]he female that [the appellant] was originally with outside the vehicle walking that short distance, was not in the area.” He added that he was “just looking at Mr. Desilva and then whatever else [his] eyesight [took] in.” By the time the officers reached the appellant, Officer Armstrong said he “d[idn’t] recall seeing her within that area of the Thompson Hotel.”
[22] Officer Langdon was not asked about whether he also observed the appellant’s interaction with the bouncer or door person. He was, however, able to give evidence on the unknown woman’s locations relative to the appellant during this time period. He said that, as the officers crossed the street, they called out the appellant’s name and the appellant slowed down, “looked over” and answered, “Yes”. At this point, the female “was already ahead of him a bit…. Maybe by 10 feet maybe.” He further testified, “So as we approached him, the lady started to continue walking west towards a -- there’s a club nearby. So she continued west on foot towards there.”
[23] Officer Langdon said he did not believe the woman was the appellant’s surety because “[a]s we’re approaching… she was distancing herself and continuing westbound.” When the officers “crossed the street … about to effect the arrest… and call[ed] out his name”, Officer Langdon placed the woman “[m]aybe 10 feet, 15 feet, continu[ing] westbound from him.”
G. The Appellant’s Arrest
[24] As soon as the officers reached the appellant, they arrested him for failing to comply with his bail conditions.
[25] When asked what grounds he believed he had to arrest the appellant, Officer Armstrong testified:
I believe that he’s not complying with his condition to be in his place of residence without his surety. It was late – it was 2:40 -- approximately 2:45 in the morning, he was in the area of -- there’s two nightclubs in that area as well as a hotel. He’s walking and he’s speaking with the bouncer at one of the clubs or the door person at Thompson Hotel. At the time I believed it was the bouncer of the club, I’m not 100 percent. The female that he was originally with outside of the vehicle walking that short distance was not in the area. [Note: The above time estimate was later corrected to be one hour earlier than indicated above.]
The fact that there was no female within the area as I was approaching Mr. Desilva, the environment where we were, and the fact that he matched the description of the CPIC printout and the scars, made the determination -- I made the determination I was going to place Mr. Desilva under arrest for failing to comply. [Emphasis added.]
[26] Officer Armstrong said he “would have spoken with her” if the woman had been present. Officer Armstrong, who had 20 years of policing experience, added he had never seen a surety take an accused on house arrest to a nightclub at 2:00 a.m.
[27] When Officer Langdon was asked what evidence, he had to eliminate the possibility that the unknown female was not the appellant’s surety, the following exchange took place:
Q. At that time, when you’re watching them walk and the decision has already been made to arrest Mr. Desilva, what evidence do you have to eliminate the possibility that that is not his surety?
A. Once approaching Mr. Desilva and the female just kept walking, now Mr. Desilva is standing there alone again not with his surety.
Q. Okay, So because you called out his name, he stopped, she walks 10 feet further therefore he’s no longer in her presence and therefore he’s arrestable?
A. No. She was already starting to, like, walk away from Mr. Desilva by the time we were approaching him.
Q. And you’re defining in this case that they were not walking with each other?
A. I guess once I saw the female to continue walking away from him, no. [Emphasis added.]
[28] When questioned on why he did not speak to the unknown woman, Officer Langdon explained, “That -- that did come to mind but by the time I could have done that, she had already gone away, like, she -- she wasn’t standing, like, waiting around. So by the time we actually arrested the driver, she wasn’t in the area to even speak with…”.
[29] The trial judge noted,
While it is not clear from the facts whether the woman saw the scout car or the police officers as they approached Mr. Desilva it is not unreasonable in the circumstances to infer that she did.
The police were not undercover. They were in a marked police car and in uniform. Further, the woman kept walking along Wellington St. away from Mr. Desilva. That then raises the question as to why the woman would walk away if she was the surety knowing Mr. Desilva would be in trouble for not being in her direct company. [Emphasis added.]
H. The Police Questioning and Searches of the Appellant’s Person and Vehicle
[30] Officer Armstrong then asked the appellant if the woman who was seen near him was his surety, and the appellant replied, “No, she’s inside.” Officer Armstrong asked her name, but the appellant did not answer. Officer Langdon also asked the appellant about the unknown woman to confirm his belief that the woman was not the appellant’s surety. The appellant said her name was “Julia”, which confirmed to the officer that she was not the surety.
[31] Shortly after his arrest, at approximately 2:04 a.m., the appellant was escorted to the police cruiser across the street, handcuffed, and advised of his right to counsel, but not his right to silence.
[32] When Officer Armstrong was examined about why he asked the appellant questions without first advising him of his right to silence, he said:
A. …He was kind of initiating the conversation as well.
Q. So, to be clear, your evidence is as long as you read the rights to counsel in the book and the person under [arrest] understands their rights to counsel, you are then free to ask some questions, no matter the question.
A. Yes. And if the person doesn’t want to answer the question, they don’t have to.
[33] A pat down search was subsequently conducted, and the appellant was found to be in possession of several baggies of cocaine, $7,060.00 in cash, and a cell phone. Officer Armstrong asked the appellant what the money was for, and he replied, “It’s for my lawyer”.
[34] The appellant was re-arrested for possession for the purpose of trafficking and possession of proceeds of crime.
[35] At 2:19 a.m., Officer Armstrong contacted his supervisor, and a decision was made to transport the appellant to the 14th Division.
[36] At 2:25 a.m., Officer Armstrong searched the appellant’s car and found a bag containing white powder he believed to be illicit drugs. His supervisor then arrived on the scene, and Officer Armstrong and Officer Langdon left for the station along with the appellant.
[37] A search of the appellant’s vehicle yielded 477.46 grams of cocaine, 219.65 grams of cannabis, 1.22 grams of hashish, 35.18 grams of alprazolam, 655.60 grams of GHB, and $2,120.
I. Delays in Providing Right to Counsel
[38] While at the scout car, the appellant was provided his right to counsel. He indicated that he wanted to speak to duty counsel, but he was not afforded an opportunity to do so.
[39] Officer Armstrong testified that the appellant was prevented from speaking with counsel because one of the appellant’s bail conditions prohibited him from possessing a cellphone, and he could not make the call from the police cruiser due to a lack of privacy as there were recording devices in the cruiser.
[40] While in the police cruiser, Officer Langdon questioned the appellant about the nature of the drugs. He testified he did so for safety reasons given the dangerous nature of fentanyl.
[41] The appellant was transported to the police station and arrived at 2:46 a.m. There were two vehicles ahead for booking and the appellant was not booked in at the station until 3:38 a.m. At 3:45 a.m., a level three strip search was completed, and the appellant was lodged in a cell at 3:55 a.m.
[42] The officers explained that typically an inmate receives a call from counsel after the booking and strip search. Neither officer could recall when the call to duty counsel was made in this case except to say that it had to be between 3:55 a.m., when the appellant was put into the cell, and 4:50 a.m., when counsel was on the phone waiting to speak with the appellant. At 4:55 a.m., the call was transferred to the appellant. The officers could not say who made the call to the duty counsel.
[43] There was a 55-minute gap between the time the appellant was left in a cell and the time duty counsel called to speak with the appellant. During this time, the officers were engaged in non-urgent tasks.
The Trial Judge’s Decision
[44] At trial, the appellant claimed his sections 8, 9, and 10(b) Charter rights were violated.
[45] The Crown conceded one violation of section 10(b) of the Charter flowing from the officers’ questioning of the appellant about his surety at the time of his initial arrest before he was notified of or given the opportunity to obtain legal counsel. As such, the Crown withdrew the fail to comply charge.
A. Reasonable Grounds to Arrest
[46] The trial judge held that the police had reasonable grounds to arrest the appellant for failure to comply with his recognizance and therefore there was no section 8 (right to be secure against unreasonable search or seizure) or section 9 (right not to be arbitrarily detained) Charter violation. She rejected the appellant’s assertion that since the officers did not know if the woman, he had been near was his surety, they lacked reasonable grounds to arrest. The trial judge found that at the time the appellant was arrested, the officers held a reasonable belief that the woman was not the appellant’s surety, and that he was therefore in violation of his recognizance.
[47] In challenging the trial judge’s holding, the appellant notes that the trial judge mistakenly found that the police asked the appellant about the woman before his arrest. She found:
Officer Armstrong indicated that he asked Mr. Desilva if the female he was with was his surety to which he responded, she was inside the nightclub. After Mr. Desilva made that statement to Officer Armstrong, he arrested Mr. Desilva in front of the hotel. [Emphasis added.]
[48] In fact, the questions about the woman followed the appellant’s arrest such that his response did not form part of the officers’ subjective belief that there were reasonable and probable grounds to arrest him.
B. Right to Counsel
[49] Aside from the Crown’s concession of one section 10(b) breach relating to the appellant’s post-arrest questioning about his surety, no other breach was conceded. The trial judge found no additional breaches arising from the delays in providing the appellant with access to counsel. She explained:
Mr. Desilva was not given an opportunity to speak to duty counsel until 4:55 a.m. The evidence is that Mr. Desilva was arrested at 2:04 a.m., arrived at the police station at 2:46 a.m. and was paraded at 3:38 a.m. but did not speak to counsel until 4:55 a.m., about 50 minutes after arriving at the station.
I accept the reasons the police gave for Mr. Desilva not being given the opportunity to speak to a lawyer at the scene. He was forbidden to use his cellphone by his bail conditions. There was no privacy to make the call in the scout car because of the recording devices. His Mercedes was under investigation so he could not make a call from his vehicle.
I also accept the officers' explanation for the 50 minutes' delay at the police station before Mr. Desilva could speak to a lawyer. It is reasonable that if there was a lineup in the sally port with other scout cars awaiting booking ahead of the officers who had custody of Mr. Desilva, a 50-minute delay was not unreasonable.
Under the circumstances, I find no violation of Mr. Desilva's right to be given access to counsel without delay.
[50] As the appellant points out, the trial judge’s reasons make no mention of the approximately one-hour period after the appellant had been paraded, strip searched and placed in a cell until he spoke with duty counsel.
C. The Section 24(2) Charter Analysis
[51] The trial judge declined to exclude the evidence pursuant to section 24(2) of the Charter. She first held there was a “moderately serious violation” of the appellant’s section 10(b) right arising from the post-arrest questioning. She stated as follows:
I do not agree that the breach [of the appellant’s rights under section 10(b)] was minor. Officer Armstrong did not appear to appreciate the inordinate power and influence a police officer has over a detainee when the officer asks questions seeking information. To say the detainee does not have to answer the questions if he does not want to is completely wrong-minded and ignores the fundamental obligations an officer has to tell a detainee he does not have to speak to the police and that he has a right to obtain legal advice before he decides whether he wants to speak to the police or not.
On the scale of seriousness, I do not find the breach to be on the egregious or very serious end of the spectrum. I find it to be a moderately serious violation. I do not find the conduct was the result of ill-will or bad faith. I think it was more in the nature of careless police practice, neglect to administer rights an officer of 20 years must have been familiar with, or if not, ought to have been familiar with. This being the case, I conclude the court should not be seen to condone this practice. This conduct must be soundly criticized. The court must dissociate itself from this practice.
[52] She went on to hold, however, that the impact of the conceded breach of the appellant’s section 10(b) right on his protected interest was less serious as no prejudicial statements were elicited.
It does not appear, despite the attempts to elicit information from Mr. Desilva, that he provided information that was seriously prejudicial to him. They asked him about his surety, and he told the police his surety was inside the nightclub. At some point, I believe after he was arrested, he mentioned the woman he was walking with was named Julia. Mr. Desilva did not say he was not with his surety. He did not mention the drugs and proceeds to the police. It appears he did not give an answer to Officer Langdon's question about what the proceeds were for.
[53] Third, she found that the crime that the appellant was charged with was serious and the evidence found was critical to the prosecution’s case. In view of the moderately serious breach, less serious impact on the interests protected, and the serious nature of the crime, she concluded that excluding the evidence would risk bringing the administration of justice into disrepute.
Analysis and Application of the Law
A. Standard of Review and Onus
[54] Deference is owed to the findings of fact made by the trial judge, absent palpable and overriding errors, but the ultimate question of whether there were reasonable grounds to arrest is a question of law reviewable on a standard of correctness: R v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 24; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.
[55] While ordinarily a claimant has the burden to prove that there has been an unlawful arrest, where the claimant has brought an overlapping challenge against the warrantless search incident to arrest, the Crown bears the burden to show that the predicate arrest was lawful: R. v. Gerson-Foster, 2019 ONCA 405, 437 C.R.R. (2d) 193, at para. 75. This is to avoid conflicting burdens on the same issue because warrantless searches are presumptively unlawful and the Crown ordinarily bears the burden to show their lawfulness: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 87.
B. Reasonable Grounds for Arrest and Incidental Searches
i. Applicable Legal Principles on Arrest Without a Warrant
[56] Section 495 of the Criminal Code requires an arresting officer to have a subjective belief that there are reasonable and probable grounds to arrest. That belief must also be objectively reasonable. It is clear, however, that police are not required to establish a prima facie case for conviction before making an arrest: R v. Storrey, [1990] 1 S.C.R. 241, at p. 251.
[57] There is no difference between “reasonable grounds” and “reasonable and probable grounds”: R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 5. The “reasonable grounds to believe” standard requires something more than a reasonable suspicion, but less than either “proof of beyond reasonable doubt” or the lesser standard in civil matters of “proof on the balance of probabilities”: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at p. 145; R. v. Spence, 2011 BCCA 280, 87 C.R. (6th) 242, at paras. 31, 33; and R. v. Ha, 2018 ABCA 233, 363 C.C.C. (3d) 523, at para. 70; see also, R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 114. The Supreme Court has also described the standard as one of “reasonable probability” or “reasonable belief”: Debot, at p. 1166.
[58] The key determination that a court must make is whether a reasonable person, with the same knowledge, training and experience as the arresting officer, would believe that reasonable grounds existed to make the arrest. In so doing, the court must look at the cumulative effect of the totality of the circumstances, bearing in mind any exigent circumstances: Storrey, at pp. 250-51; R. v. Beaver, 2022 SCC 54, at para. 72; R. v. Tim, 2022 SCC 12, at para. 24; Canary, at paras. 21-22 and 30; and R v. Amofa, 2011 ONCA 368, 85 C.R. (6th) 265, at para. 19.
[59] While the reasonable grounds requirement does not rise as high as a balance of probabilities or a prima facie case, mere hunches or intuition based on an officer’s experience are not sufficient: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 64, as cited in Beaver, at para. 72. As this court has held, the standard is satisfied at the point where credibly-based probability replaces suspicion: R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 25. The determination of whether objective grounds exist should be guided by common sense, flexibility, and practical everyday experience: MacKenzie, at para. 73; Canary, at para. 22.
[60] This assessment is made “at the time of the arrest”, bearing in mind that an arrest may be a dynamic process, not necessarily a discrete point, and information may be continuously gathered and processed up to the time that the detainee is arrested: Tim, at para. 24; Ha, at paras. 70, 75. The Charter protects citizens from police conduct, not imagination, and consequently, breaches are determined not based on what officers intend to do, but what they actually do: R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 48.
[61] The determination of whether there are reasonable grounds to believe an accused person has unlawfully ceased to be in the presence and direct company of his surety must be based on the totality of the circumstances, having regard to the purpose of a surety arrangement.
[62] An accused person on bail is “in the constructive custody of his/her sureties” and therefore, “the law contemplates some measure of physical control by the accused’s sureties (emphasis added)”: Gary T. Trotter, The Law of Bail in Canada, 3rd. ed. (Toronto: Thomson Reuters, 2017), at § 7:6. Sureties are legally required and authorized to exercise some measure of supervision over accused persons on bail to ensure that they abide by their conditions of release: The Law of Bail in Canada, at §§ 7:4-7:6. The requisite degree of control and supervision varies with the context. Where, as in the case at bar, an accused is on house arrest and required to reside in the surety’s residence or be accompanied by her at all times (except in medical emergencies), the expectation of control and supervision is more exacting: R. v. Smith, 2013 ONSC 1341, at para. 16.
ii. Applicable Legal Principles on Incidental Searches
[63] The ultimate question of whether there were reasonable grounds to arrest is reviewed on a standard of correctness: Canary, at para. 24.
[64] A valid search incidental to arrest must be: (a) lawful; (b) incidental to the arrest, in the sense that it is connected to the arrest, either as a means to discover and preserve evidence connected to the arrest, protect safety, or protect against escape; and (c) conducted reasonably: R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 37; Canary, at para. 33.
[65] The discovery of evidence in support of the arrest is one of the rationales for an incidental search: R v. Stillman, [1997] 1 S.C.R. 607, at para. 33.
iii. Application
[66] On appeal, the appellant challenges the reasonableness of the officers’ belief that they had grounds to effect an arrest.
[67] Looking objectively at the totality of the circumstances, I find that there were reasonable and probable grounds to arrest the appellant for failure to comply with his bail conditions, given the cumulative effect of the following facts:
a) The police received information about two males driving in the area in a dark-coloured Mercedes vehicle who might be in possession of a firearm; b) The police saw a dark-coloured Mercedes in the area; c) They looked up the license plate and it was registered to the appellant; d) They also learned that the appellant was on a recognizance for possession of narcotics for the purpose of trafficking; e) The appellant was legally required to remain in his surety’s home at all times unless in “the presence or direct company” of his surety (or in case of medical emergencies); f) Both officers saw the appellant in the vehicle. Officer Armstrong’s observations were made from three to five feet away as the police cruiser slowly passed the appellant’s vehicle. The vehicle did not have tinted windows and there was artificial lighting on the road. Officer Langdon later made his observation from a couple of car lengths away from the appellant; g) The appellant’s appearance matched the description in the CPIC search; h) Neither officer saw anyone else in or leave the two-door vehicle; i) The officers saw an unknown female near the appellant shortly after he exited his vehicle, but she walked forward about five to ten feet in front of him as they both walked toward the hotel. As the officers approached the appellant, Officer Armstrong saw the appellant stop to speak with a bouncer or doorman. When the officers called out to the appellant, while crossing the street, Officer Langdon said the woman continued walking westbound; and j) Both officers said that when Officer Armstrong apprehended the appellant, the appellant was “standing there alone” unaccompanied by anyone despite his bail condition requiring him to be in the “direct company” of his surety. Officer Langdon testified that the woman was about ten to fifteen feet ahead of the appellant.
[68] The appellant argues that the officers lacked objective grounds to arrest him because they did not have reasonable grounds to believe the unknown woman was not his surety. I reject this argument. Even if the unknown woman were the appellant’s surety (which she was not), the fact that neither officer saw her in or leave the two-door vehicle, neither observed any discussion between the woman and the appellant, they walked further and further apart from one another while walking in the same direction, and she walked away when the appellant stopped (to speak with the bouncer and/or when the officers called him), it was reasonable to conclude that, at the time of his arrest, the appellant was not in the woman’s direct company or supervision such that he was in breach of his recognizance.
[69] This case is unlike R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, advanced by the appellant. In that case, this court found that there were no objective grounds to believe that Mr. Dudhi was in breach of his bail condition not to use a cellphone unless it was registered with the police. When two officers spotted Mr. Dudhi with a cellphone, there was nothing that could help them decide whether his use of the cellphone was legal or not.
[70] Here by contrast, there were facts and objective indicia that provided the arresting officers with reasonable grounds to believe that the appellant was not in the direct company of the unknown woman and was thereby in violation of his bail condition. Officer Armstrong’s subjective experience that he had never seen a surety attend a nightclub with an accused person on bail at 2 a.m. was merely one of the many factors, detailed above, that informed the reasonable and probable grounds to arrest the appellant.
[71] A reasonable person, standing in the shoes of the arresting officer, and with the same knowledge, training and experience as that officer, would have believed that reasonable grounds existed to make the arrest because the appellant was not directly accompanied by his surety and was therefore in breach of his bail condition.
[72] The appellant’s claim that the incidental searches were unlawful solely hinges on the alleged unlawfulness of his arrest. The appellant has not advanced alternative grounds to challenge the lawfulness of the searches. I therefore find that the appellant’s sections 8 and 9 Charter rights were not breached. I would dismiss this ground of appeal.
C. Section 10(b) Charter Right to Counsel
i. Applicable Legal Principles
[73] The duty to inform a detained person of their right to counsel arises “immediately” upon arrest or detention. Police are under a positive duty to facilitate contact with counsel at the first reasonably available opportunity once the detainee requests to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 37-42; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24.
[74] There may, however, be practical impediments to the police’s ability to facilitate access to counsel. Delays must nevertheless be reasonably necessary: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 26-28.
[75] Determination of a section 10(b) breach is made on a case-by-case basis and with regard to whether the officers made an effort to facilitate access: Taylor, at para. 24.
ii. Application
[76] At trial, the Crown conceded a breach of the appellant’s section 10(b) right stemming from the police questioning after the appellant’s arrest. This was the only Charter breach found and considered by the trial judge.
[77] The appellant submits that the one-hour delay between the time the appellant was taken to the station, paraded, searched and placed in a cell and the time he spoke to duty counsel, constitutes another breach of his section 10(b) right to counsel. I agree. I note, however, that the appellant does not challenge the trial judge’s findings that the first two delays in providing access to counsel were reasonable.
[78] Officer Armstrong testified that before the appellant arrived at the police station, it was not feasible to provide the appellant with an opportunity to speak with duty counsel as (1) the investigation was still ongoing at the roadside; (2) the appellant would have lacked privacy to make a phone call from the scout car as there were microphones and cameras inside; and (3) the appellant was prohibited from using his own cellphone as part of his bail condition. The trial judge accepted the officer’s reasons for the first delay.
[79] The appellant arrived at the 14th Division at 2:46 a.m. There was then a delay in parading and booking the appellant, as there were other accused persons waiting to be booked. The Sergeant-in-Charge must attend the area to commence the booking process. The booking procedure ultimately took place at 3:38 a.m., and the appellant was subsequently lodged in his cell at 3:55 a.m. The trial judge also found this second delay to be reasonable and this finding is not challenged on appeal.
[80] However, the trial judge did not address the failure to facilitate access to counsel between 3:55 a.m. and 4:50 a.m. in her reasons. Nor did the officers explain why access to counsel could not reasonably have been provided until 4:55 a.m.
[81] At some point between 3:55 and 4:50 a.m. the police contacted duty counsel with a request to speak with the appellant. There is no record as to the time this request was made.
[82] Duty counsel called the station at 4:50 a.m. and the call was transferred to the appellant at 4:55 a.m.
[83] Neither officer could explain why the appellant was not provided with access to counsel until 4:55 a.m. Officer Armstrong testified that after parading a detainee, the booking process involves completing paperwork, and seeking approval for and conducting any further searches of the detainee. Both officers remembered tending to non-urgent tasks, such as general paperwork and photographing evidence, in the intervening hour.
[84] Having suspended the right to counsel prior to the appellant’s placement in the station cell for the reasons articulated above, it was incumbent upon the officers to facilitate access to counsel as soon as the circumstances reasonably permitted: Taylor, at para. 28; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 31-33.
[85] The failure to provide access to counsel at the time of arrest, during transportation to the police station and before the appellant was searched, was reasonable under the circumstances.
[86] However, this delay made it all the more important for the police to take all reasonable steps to facilitate the right to counsel as soon as reasonably practical thereafter. No good explanation was given for the additional one-hour delay while the officers engaged in non-essential tasks. I would therefore agree with the appellant that the roughly one-hour delay in providing the appellant with access to duty counsel between 3:55 and 4:50 a.m. constitutes a breach of the appellant’s section 10(b) Charter right to counsel.
[87] Nonetheless, there is no evidence that the police delayed access strategically or attempted to elicit inculpatory statements from the appellant during the delay. While this does not render the police conduct any less of a breach of the appellant’s section 10(b) right, it is a factor that may be considered in assessing the severity of the impact of the Charter breach on the appellant’s protected interests under section 24(2): see R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at paras. 95, 114-15.
D. The Section 24(2) Charter Analysis
[88] The appellant claims that the evidence gathered during the searches should be excluded, the convictions vacated, and an acquittal entered on all charges in view of the Charter breaches.
[89] In view of my conclusion that in addition to the breach of the appellant’s Charter right arising from the post-arrest questioning (which was conceded at trial and recognized by the trial judge), there was an additional breach of the appellant’s right to access counsel within a reasonable time, the section 24(2) of the Charter analysis must be conducted anew: R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 94.
i. Applicable Legal Principles
[90] Section 24(2) of the Charter is triggered where evidence is obtained in a manner that violates an accused’s Charter rights. The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 35, established a three-part inquiry to determine whether the admission of evidence would bring the administration of justice into disrepute such that the evidence should be excluded. The three-part test includes a review of: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.
[91] However, the Grant test does not provide for an automatic exclusionary rule. 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 thereby justifying its exclusion: Tim, at paras. 74-75; Beaver, at para. 117.
ii. Application
a. The Seriousness of the Charter-Infringing State Conduct
[92] The first line of inquiry considers the seriousness of the Charter-infringing state conduct that led to the discovery of the evidence. As noted by the trial judge, it is troubling that Officer Armstrong did not appear to appreciate the power and influence a police officer has over a detainee. A police officer of 20 years ought to have been familiar with proper practices. The case at bar is an act of carelessness and neglect by an experienced officer of his duty to administer important constitutional rights. It is also troubling that the officers took almost an hour to secure duty counsel for the appellant after he was placed in his cell. The officers did not note the time the request was made to duty counsel and there is no evidence of exigent circumstances that would have precluded the appellant’s access to counsel during the intervening hour. Appropriate measures should be taken to ensure proper training and protocols are in place to ensure that this practice does not continue. By eliciting statements from the appellant before providing his rights to counsel, and unjustifiably delaying his access to counsel, the officers contravened well-established constitutional requirements, exacerbating the seriousness of the misconduct: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44. The seriousness of this conduct strongly favours exclusion of the evidence.
[93] However, there was no evidence at trial that the Charter-infringing conduct was systemic. The Supreme Court of Canada has noted that “the absence of such a [systemic] problem is hardly a mitigating factor” but it “informs the court’s task of situating the officer’s mistake on a scale of culpability” and exclusion of the evidence to demonstrate the court’s dissociation from the misconduct may be less of a concern: Tim, at para. 88.
[94] The call to the duty counsel and a call back took place within 55 minutes. While this is not a trivial delay, especially considering that neither officer could justify the delay or determine when exactly the call to duty counsel was made, this delay also did not rise to “the extreme end of seriousness” as in cases that the appellant relied on, such as Pino, where the delay spanned five and a half hours, or Rover, where there was a six-hour delay. Nor was this 55 minute delay “wilful”, “deliberate” or done for any “strategic” or improper purpose, such as to elicit confession or incriminatory statement from the appellant: Grant, at para. 74; Tim, at paras. 82, 84; Keshavarz, at para. 105; and R. v. Do, 2019 ONCA 482, at para. 14.
[95] On the whole, I would situate the police conduct at the moderate to serious end of the scale.
b. The Impact on the Appellant’s Charter-Protected Interests
[96] Second, the court must consider the seriousness of the impact of the breach on the Charter-protected interests: Grant, at paras. 76-77; Tim, at para. 90.
[97] The breaches of the appellant’s section 10(b) right have no causal connection with the discovery of the evidence. The drugs and money found in the appellant’s pockets and car were found as a result of a valid search incident to a lawful arrest. As I have determined, the officers had reasonable grounds to arrest the appellant. Although not a threshold requirement, causal connection between the section 10(b) breach and the discovery of evidence is a factor to be considered under the second prong of the Grant test: Beaver, at para. 125; R v. Menghesa, 2022 ONCA 654, at para. 12; and Keshavarz, at para. 115.
[98] Furthermore, the information that was provided by the appellant as a result of the violation of his section 10(b) right was not seriously prejudicial. When Officers Armstrong and Langdon asked the appellant about his surety, he indicated that she was inside the nightclub. The Crown conceded that this questioning breached the appellant’s Charter right and withdrew the charge of fail to comply with recognizance. The impact of the first section 10(b) breach is therefore mitigated by the fact that the statements made by the appellant, although incriminating, were no longer of evidentiary value and were not sought to be admitted by the Crown: R. v. Peterkin, 2015 ONCA 8, 328 O.A.C. 321, at para. 79. Officer Langdon’s questions in the scout car about the possible fentanyl seized were appropriate inquiries for the safety of the occupants in the police car and not unlawful.
[99] Notably, no further evidence was elicited from the appellant during the one-hour delay between his cell placement and his call with the duty counsel. This attenuates the severity of the second section 10(b) breach.
[100] The section 10(b) right “is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: Suberu, at para. 40; R. v. Bartle, [1994] 3 S.C.R. 173, 118 D.L.R. (4th) 83, at p. 191. Additionally, this court has also recognized that the scope of the section 10(b) protection extends to detainees’ psychological security because access to counsel gives them “the sense that they are not entirely at the mercy of the police” during detention: Rover, at para. 45; R. v. Jarrett, 2021 ONCA 758, at para. 52.
[101] The appellant did not incriminate himself or volunteer any information at all during the delay, and there is no indication that he would have regained his liberty earlier had there been no delay in accessing counsel. In this respect, this case is comparable to the situation in Keshavarz where this court found that the impact of the breach was “not… particularly serious” considering that the one-hour delay in providing access to counsel did not engage the first two purposes underlying section 10(b) as outlined above: see Keshavarz, at paras. 103, 114. To the extent that the appellant’s psychological security was adversely affected, the delay was relatively brief and accordingly, the impact was minimal.
[102] Where there is no causal connection between the breach and the discovery of evidence, and the accused did not incriminate himself, this court has held that the impact of a section 10(b) breach is not sufficiently serious to warrant exclusion of the evidence: Keshavarz, at paras. 112-16. Thus, the second Grant factor favours admission.
c. Society’s Interest in the Adjudication of the Case on the Merits
[103] Third, there is strong societal interest in the adjudication of this case on its merits. While the public has “a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high”, the public also has “a heightened interest in seeing a determination on the merits where the offence charged is serious”: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 34.
[104] The appellant had on his person and in his vehicle a large quantity of dangerous and highly addictive drugs, including 477.46 grams of cocaine, 219.65 grams of marijuana, 1.22 grams of hashish, 35.1 grams of alprazolam, and 655.60 grams of GHB, ready to be sold, along with $7,060 cash. The appellant was en route to a nightclub on a weekend in a busy area of downtown Toronto while in possession of substances that spawn violence in public places and harm the community.
[105] Society has a strong interest in the prosecution of drug trafficking, particularly schedule 1 substances. Possession of illicit substances for the purpose of trafficking and possession of proceeds of crime are serious crimes. The evidence is real, reliable and virtually conclusive of guilt. Its exclusion would put an end to the prosecution. This factor weighs heavily towards admission of the evidence.
d. The Final Balancing
[106] The final step involves balancing the factors under the three lines of inquiry in Grant to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing is a qualitative, not mathematical, exercise: Tim, at para. 98; Beaver, at para. 117. While the first line of inquiry pushes toward exclusion, the second pulls towards inclusion, and the third also pulls toward inclusion.
[107] Balancing the three factors, I would conclude that the exclusion of the evidence risks bringing the administration of justice into disrepute. In some circumstances, “serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 141 (emphasis in original). However, this is not one of those circumstances. While the misconduct was serious, it was not sufficiently grave to justify exclusion in light of its minimal impact on the appellant’s interests.
[108] The public’s confidence in the administration of justice is best served through the admission of the evidence. It bears repeating, however, that appropriate measures must be taken to ensure proper training and protocols are in place to ensure that breaches of an accused’s well-established right to counsel, such as those present in this case, do not continue.
Conclusion
[109] For the above reasons, I would dismiss the appeal.
Released: December 16, 2022 “KMvR” “J.A. Thorburn J.A.” “I agree K. van Rensburg J.A.” “I agree J. George J.A.”
