Court of Appeal for Ontario

Date: 2025-07-11
Docket: COA-23-CR-0499

Coram: Nordheimer, Madsen and Pomerance JJ.A.

Between:
His Majesty the King (Respondent)
and
Brian Thompson (Appellant)

Appearances:
Sandra Kimberg, for the appellant
Jennifer Lynch, for the respondent

Heard: 2025-02-14

On appeal from the ruling on a pre-trial Charter application by Justice William S. Chalmers of the Superior Court of Justice, dated June 21, 2022, and the conviction entered on January 12, 2023.

Pomerance J.A.:

Introduction

[1] This case raises various issues, among them the relationship between the right to counsel and the police power to strip search incident to arrest. In R. v. Sinclair, 2010 SCC 35, the Supreme Court of Canada ruled that a single consultation with counsel will usually suffice to fulfill the purpose of s. 10(b) of the Canadian Charter of Rights and Freedoms, but there are exceptions. The court identified three situations in which a detainee should be given another opportunity to speak with a lawyer, stressing that the list was non-exhaustive.

[2] The list should be augmented to include situations in which a detainee is going to be strip searched incident to arrest. Given the highly invasive nature of strip searches, the right to reconsult is, in that context, necessary to fulfill the purpose of s. 10(b) of the Charter.

[3] The appellant was strip searched following his arrest for drug offences, but not until about eight hours after police found the evidence at issue. The motion judge found that the strip search violated s. 8 of the Charter, because the police did not have sufficient grounds. He did not, however, find any violations of the appellant’s rights under s. 10(b) of the Charter arising out of his initial detention. Having found only a single breach, carried out in good faith well after the evidence was discovered, the motion judge admitted the evidence under s. 24(2) of the Charter.

[4] The motion judge ought to have found two additional violations of the Charter, both arising under s. 10(b). The first flowed from a 20-minute delay between the time of the appellant’s arrest and the time he was informed of his right to counsel. The second arose from the failure of the police to provide the appellant another opportunity to call counsel before the strip search. Having found two additional violations, it is necessary to conduct the s. 24(2) analysis afresh. Having done so, I conclude that the evidence was properly admitted at trial. I would therefore dismiss the appeal.

[5] I will explain the bases for the s. 10(b) violations in the reasons that follow, along with the analysis under s. 24(2).

A. Background and Evidence

[6] On December 31, 2018, Canada Border Services intercepted a package containing 331 grams of heroin destined for a residential building in Etobicoke. The RCMP decided to conduct a controlled delivery, removing all but a one-gram control sample of the heroin and placing an intrusion alarm in the package.

[7] On January 8, 2019, an undercover officer delivered the package to the unit. A woman opened the door and received the package. Shortly afterward, the appellant entered the unit.

[8] At 12:55 p.m., the package was opened and the intrusion alarm went off. Police forcibly entered the unit. Three people were inside. Police saw the appellant exiting a bathroom, entering a bedroom, and trying to escape through the bedroom window. A knife lay next to the package on the bedroom floor. Two cellphones were in the bathtub. The police applied for and obtained a search warrant for the unit and seized the package, knife, and cellphones.

[9] At approximately 1:10 p.m., Constable Sirbu arrested the appellant and took him into the hallway for a pat-down search incident to arrest. The pat-down search took about 10 minutes. Constable Sirbu testified that the appellant seemed nervous and kept trying to look around. He was concerned that the appellant might try to flee or start a confrontation.

[10] After the pat-down search, Constable Sirbu and another officer, Constable Johal, took the appellant to the ground floor and placed him in a police car at 1:28 p.m. At approximately 1:30 p.m., Constable Johal read the appellant his right to counsel and cautioned him. Police then drove the appellant to the RCMP detachment at Pearson airport, where they arrived at 1:51 p.m. The appellant spoke with duty counsel at 2:26 p.m., and gave a statement to police afterward.

[11] Later in the day, the RCMP transferred the appellant to a Toronto Police Services (“TPS”) station for lodging. At the station, the TPS sergeant in charge, Sergeant Young, decided it was necessary to strip search the appellant to ensure that he did not have contraband that he could consume or pass on to someone else. The two RCMP officers who delivered the appellant to TPS conducted the strip search in a private room. They asked the appellant to remove his clothes one item at a time and did not touch him. He was asked to bend over and spread the cheeks of his buttocks. He was also asked to lift his genitals. The search was audio- but not video-recorded. It took five minutes and did not yield any evidence.

[12] The appellant was charged with four trafficking-related offences. He applied to have the package, cellphones, and his police statement excluded from evidence, alleging breaches of his ss. 8 and 10(b) rights. The motion judge admitted the evidence, and the jury found the appellant guilty of importing heroin, possessing it for the purposes of trafficking, and conspiracy to import it. He was sentenced to a custodial term of five years and four months.

[13] The appellant raises three issues on appeal:

1. Did the motion judge err by concluding that there was no breach of s. 10(b) of the Charter due to the failure of police to advise the appellant of his right to counsel for 20 minutes following his arrest?
2. Did the police infringe the appellant’s s. 10(b) rights by not giving him an opportunity to speak to counsel again before strip searching him?
3. Did the motion judge err by concluding that the evidence should not be excluded under s. 24(2) of the Charter?

B. Issue 1: The Delay

[14] Section 10(b) of the Charter guarantees that everyone arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right: R. v. Suberu, 2009 SCC 33, para 42.

[15] The motion judge correctly noted that s. 10(b) requires police to inform detainees of their right to counsel “immediately”, subject only to concerns about officer or public safety. He went on, however, to find that there was a safety concern in this case that warranted a 20-minute delay before the appellant was told of his right to counsel. He reasoned as follows:

It is my view that the approximately 20-minute delay in providing the right to counsel was justified and reasonable in the circumstances. The apartment unit and the hallway were not secure areas. There were doors to other units on the floor that could be opened at any time. I find that Constable Sirbu had valid concerns that [the appellant] may try to escape or initiate a confrontation while in the hallway. Within a relatively short time of the arrest, [the appellant] was moved to the ground floor and into a police car where he was read his right to counsel. The police car was a safe and secure environment which provided privacy to [the appellant]. [The appellant] spoke with duty counsel within 90 minutes of his arrest. [The appellant] was interviewed only after he spoke with duty counsel.

Safety is a valid reason to delay providing the right to counsel: R. v. Suberu, at para. 42. Once the safety and security issues were dealt with and [the appellant] was placed in the police car, he was read his right to counsel. There was no attempt to elicit information from [the appellant] before he was told of his right to counsel. I am satisfied that the delay in providing the right to counsel was relatively short. The delay was not the product of improper police protocol or a systemic failure, but instead was situation-specific: R. v. Hobeika, 2020 ONCA 750, at para 88. I conclude that there was no breach of [the appellant’s] s. 10(b) Charter rights.

[16] The appellant argues that the motion judge erred in finding that the 20-minute delay was Charter-compliant. I agree.

[17] We are dealing here with the informational duties imposed by s. 10(b); the requirement that police advise the detainee of the right to retain and instruct counsel without delay. This is usually not a complicated or time-consuming process. Most officers carry a card containing the prescribed language, and it takes but a few moments to convey this information to a detainee.

[18] Therefore, it will be rare for informational obligations to present operational challenges for police. Implementation of the s. 10(b) right by providing access to a telephone may well have to await a controlled environment, so that police can control who is being called, and ensure appropriate privacy. By way of contrast, information about the detainee’s rights can usually be conveyed in short order, at the scene of the arrest, at the same time that the reason for the arrest or detention is explained.

[19] It is no accident that the Charter language of “without delay” has been judicially interpreted to mean “immediately”. As Suberu explains, at para. 40, “the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy”.

[20] The right to counsel is meant to help detainees “regain their liberty[] and guard against the risk of involuntary self-incrimination”: Suberu, at para. 40. These concerns are at play the moment a detention begins. It is then that the detainee is cast in a situation of vulnerability relative to the state. If s. 10(b) is to achieve its purpose of mitigating legal disadvantage and legal jeopardy, detainees must be informed of their rights as soon as the detention arises: R. v. Davis, 2023 ONCA 227, para 41.

[21] This is not to say that informational obligations can never be delayed. Circumstances may be sufficiently dynamic, uncertain, or chaotic to justify waiting until the detainee is in a police cruiser or another controlled location before advising them of the right to counsel. However, barriers to access or “exceptional circumstances” that justify briefly suspending the exercise of the right cannot be assumed. They must be proved: R. v. Brunelle, 2024 SCC 3, para 83. They were not proved in this case.

[22] The officers testified that it was not practicable to inform the appellant of his right to counsel in the hallway of the building in which he was arrested. It was their evidence that doors could open at any time and that the appellant appeared nervous. The motion judge found that the officers had valid concerns, but the ultimate question is whether, in these circumstances, those concerns and the resulting delay were reasonable.

[23] Whatever the stated concerns, they did not prevent the officers from remaining in the hallway for 10-15 minutes. During this period, the appellant was handcuffed and under the control of an experienced RCMP officer, who was accompanied by at least two other officers. While in the hallway, the arresting officer asked the appellant various questions. According to Constable Sirbu, the appellant was cooperative and there was some level of control. When Constable Johal eventually read the appellant his rights, it took but a few minutes. It is difficult to see how taking a few moments to tell the appellant of his right to counsel would have compromised the safety or security of the officers or the public.

[24] If the hallway was indeed an awkward place for conveying the appellant’s rights, there was an alternative. The appellant had been arrested in the apartment unit, and that unit had been cleared. The apartment was more controlled than the hallway, because it had no doors leading into other units. If there was exigency, it was the result of the officers’ choice to migrate to the hallway. When it comes to the suspension of constitutional rights, police cannot rely on exigency of their own making: R. v. Silveira, para 53.

[25] Police similarly failed to advise the appellant of his rights as they left the hallway and travelled in the elevator from the fourth floor of the building to ground level. It was not until 1:28 p.m. that the police placed the appellant in the back of the police vehicle, and they did not read him his rights until 1:30 p.m., some 20 minutes after the arrest. The motion judge characterized the delay as “short”, but measured against the standard of immediacy, it was far longer than was justified: R. v. Mian, 2014 SCC 54, para 80.

[26] The evidence permits the inference that the delay was orchestrated for training purposes. Police had determined in advance that a new officer, who was being trained, would read the appellant his right to counsel. They had also determined that the cruiser was the most comfortable environment for the officer in training. Police must be entitled to train in real world situations, but Charter rights do not yield to the comfort level of a trainee, nor to opportunities for officer training.

[27] The motion judge did not make an explicit finding about training, though he found that the delay was “situation-specific” and “not the product of improper police protocol or a systemic failure”. Whether or not training was the reason for the delay, the appellant was entitled to be told of his right to counsel at the scene of the arrest, rather than 20 minutes later when placed in the cruiser.

[28] Finally, the motion judge considered the fact that police did not seek to elicit evidence from the appellant during the 20-minute delay. That reflects compliance with the implementational obligations imposed by s. 10(b), but does not negate the informational breach.

[29] For these reasons, I conclude that the motion judge erred in finding that the delay in advising the appellant of his right to counsel did not violate s. 10(b) of the Charter.

C. Issue 2: Reconsultation

[30] The appellant argues that the police were obligated to provide him with a fresh opportunity to consult with counsel before he was strip searched. The appellant says that given the inherently invasive nature of a strip search, it should carry with it a right to reconsult counsel. This argument was advanced in the court below, but was not ultimately addressed by the motion judge in his Charter ruling.

[31] The appellant has again raised this issue on appeal. I am persuaded that given the purpose of the right to counsel, and the inherently invasive nature of strip searches, a suspect about to be strip searched incident to arrest should have an additional opportunity to speak with a lawyer. In support of this proposition, I will begin by examining the ruling in Sinclair and subsequent s. 10(b) cases. I will then turn to the purpose of s. 10(b), the nature of strip searches, and conclude by examining why the right to reconsult arises and is important within this context.

(1) The Ruling in Sinclair

[32] In Sinclair and its companion cases, the Supreme Court held that as a general rule, s. 10(b) entitles a detainee to one opportunity to consult counsel. But like most rules, this one has exceptions. The majority acknowledged that the purpose of s. 10(b) may require a right to reconsult counsel, either because new non-routine procedures are being employed by police, or because there is reason to believe that the original consultation did not achieve its intended purpose. The majority identified three categories that will normally trigger a right to reconsult:

1. New procedures involving the detainee;
2. A change in the jeopardy facing the detainee; or
3. Reason to question the detainee’s understanding of their s. 10(b) right.

[33] These circumstances will generate a right to reconsult when they are “objectively observable”: Sinclair, at para. 55.

[34] While identifying only three categories of exception, the majority stressed that the list of categories was “not closed”, thus signalling that it might be supplemented in future cases: Sinclair, at para. 49.

[35] How does one determine whether a category should be added to the list? As reflected in the following passages from the majority decision, the critical question is whether a reconsultation with counsel is necessary to fulfill the purpose of s. 10(b):

The categories are not closed. However, additions to them should be developed only where necessary to ensure that s. 10(b) has achieved its purpose.

The cases thus far offer examples of situations where the right of another consultation arises. However, the categories are not closed. Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation.

The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(b) to ensure that the detainee’s decision to cooperate with the police or not is informed as well as free. Our colleague’s proposed test does not, in our respectful view, capture the circumstances in which additional advice may be required.

We conclude that the principles and case-law do not support the view that a request, without more, is sufficient to retrigger the s. 10(b) right to counsel and to be advised thereof. What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not. Police tactics short of such a change may result in the Crown being unable to prove beyond a reasonable doubt that a subsequent statement was voluntary, rendering it inadmissible. But it does not follow that the procedural rights granted by s. 10(b) have been breached. [Emphases added.]

[36] Thus, the scope of the right to reconsult counsel is determined by reference to the purpose of s. 10(b). The purposive approach has long been a mainstay of constitutional jurisprudence in Canada. In the recent case of John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6, the Chief Justice remarked upon the Supreme Court’s “consistent direction that judges must interpret the Charter in a generous, rather than a formalistic, manner that gives effect to the purpose of the right in question”: at para. 6.

[37] While the purposive approach dictates a generous interpretation of Charter rights, it does not exclusively favour the claimant’s interests. Rather, the ultimate objective is to strike a balance between competing individual and state interests. This is reflected in the standard of reasonableness, which calls for consideration of both sides of the constitutional equation: the rights of the individual to be let alone, to walk away, or to remain silent; balanced against the societal interest in effective detection, investigation, and prosecution of crime.

[38] The reasonableness standard governs police compliance with s. 10(b) of the Charter: R. v. Manninen, at p. 1241. Police must provide a detainee with a reasonable opportunity to exercise the right to counsel. What is reasonable will depend on a number of case-specific factors, relating to both the needs of the detainee and the broader needs of society. The right to counsel is not absolute. A detainee is expected to be diligent in the exercise of their rights, failing which the police obligation to hold off will be suspended. A detainee may not be at liberty to insist on the right to counsel of choice when duty counsel is available. And, as Sinclair holds, a detainee may not halt a police interview at will merely by asking for another opportunity to speak to a lawyer.

[39] The need for balance was at the heart of Sinclair. The majority rejected a model that would permit an unfettered right to reconsult counsel, reasoning that it “would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone”: at para. 63. As the majority put it, “[t]he purpose of the right to counsel is not to permit suspects, particularly sophisticated and assertive ones, to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or for whatever reasons, made impossible to obtain”: Sinclair, at para. 58, quoting R. v. Smith, at p. 385.

[40] In opting for a more restrictive approach, the majority considered (1) that the detainee is usually a valuable source of information for investigating officers; (2) that the detainee should not be empowered to halt an interview at will simply by asking for a lawyer; and (3) that the ultimate power in the interview room resides with the detainee, because he or she can remain silent. These considerations led the court to find that, generally speaking, a single consultation with counsel will suffice to achieve the purpose of the s. 10(b) right.

[41] Guided by Sinclair and its progeny, I suggest that if a new category of circumstance is to be added to the non-exhaustive list, the court must entertain two questions. First, is providing an opportunity to reconsult necessary to fulfil the purposes of s. 10(b)? Second, does providing an opportunity to reconsult strike a proper balance between individual rights and societal interests?

(2) The Purpose of Section 10(b)

[42] It has long been understood that the right to counsel aims to ensure that a detainee understands their rights—chief among them the right to silence—and is aware of how to exercise them during encounters with the police. To stop there, however, is to adopt an impoverished view of s. 10(b).

[43] Courts have increasingly recognized the psychological benefits that flow from a consultation with counsel. Detention is inherently coercive. It renders a person vulnerable to the exercise of state power and in a position of legal jeopardy. Consultation with an independent legal professional can assure the detainee that they are not isolated from the outside world. It can help mitigate the power imbalance inherent in police-citizen interactions by reducing the stress and uncertainty inherent in police detention.

[44] Courts have used the term “lifeline” to compendiously describe these psychological benefits of speaking to counsel. This term—coined by Doherty J.A. in R. v. Rover, 2018 ONCA 745—has been adopted in various authorities, including more recent Supreme Court decisions. For example, in R. v. Dussault, 2022 SCC 16, at para 56, the court approvingly quoted Doherty J.A.’s description of the right to counsel “as a lifeline through which detained persons obtain legal advice and the sense that they are not entirely at the mercy of the police while detained”.

[45] In R. v. Lafrance, 2022 SCC 32, the court set out a more detailed exposition of how the right to counsel can help reduce the perception of vulnerability that detainees invariably experience. The court stressed the need for detained persons to receive “legal advice regarding the particular situation they are facing, conveyed in a manner that they understand”: Lafrance, at para. 76, quoting Sinclair, at para. 32. Brown J. described as “uncontroversial” the proposition that s. 10(b)’s purpose is “to mitigate the imbalance between the individual and the state”: para. 78. As he put it, the issue in Sinclair “was not whether s. 10(b)’s purpose is to cure that power imbalance, but how it does so”: Lafrance, at para. 78.

[46] This court has continued to recognize the psychological importance of counsel as a lifeline to detainees. As Paciocco J.A. put it, “informational rights are not provided solely as a means of enjoying implementational rights”: Davis, at para. 41. Instead, they provide detained persons with “the immediate assurance that they are not entirely at the mercy of the police”, and “are entitled to a lifeline to the outside world through which they can learn whether they are lawfully detained, and of their legal rights and obligations relating both to their liberty and the investigation”: Davis, at para. 41. Other appellate courts have taken a similar approach: see, e.g., R. v. Provencher, 2025 QCCA 505, at paras. 112-13.

[47] Finally, the right to counsel does not only benefit those who are detained by police. There is a broader societal interest in promoting the interests protected by s. 10(b). “Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law”: R. v. McGuffie, 2016 ONCA 365, at para. 80.

(3) The Nature of Strip Searches

[48] Close to 25 years ago, the Supreme Court set out a comprehensive framework for assessing the constitutional validity of strip searches conducted incident to arrest. The court defined a strip search as involving “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments”: R. v. Golden, 2001 SCC 83, at para. 47. This, the court held, can be “humiliating, embarrassing and degrading”: Golden, at para. 89. Endorsing this court’s reasons in R. v. Flintoff, the court affirmed that “[s]trip-searching is one of the most intrusive manners of searching and also one of the most extreme exercises of police power”: Golden, at para. 89.

[49] The court described, in evocative terms, the impact of strip searches on detainees. As the court put it, at para. 90:

Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. The adjectives used by individuals to describe their experience of being strip searched give some sense of how a strip search, even one that is carried out in a reasonable manner, can affect detainees: “humiliating”, “degrading”, “demeaning”, “upsetting”, and “devastating”. Some commentators have gone as far as to describe strip searches as “visual rape”. Women and minorities in particular may have a real fear of strip searches and may experience such a search as equivalent to a sexual assault. The psychological effects of strip searches may also be particularly traumatic for individuals who have previously been subject to abuse. Routine strip searches may also be distasteful and difficult for the police officers conducting them.

[50] The potential to perceive a strip search as the equivalent of a sexual assault is a possible source of distress for many detainees, but is of particular concern for those who have experienced sexual victimization. A strip search may be seen as particularly intrusive by Indigenous or racialized detainees who have, through historical encounters, developed a fear or distrust of police. See R. v. Le, 2019 SCC 34, at paras. 89-97. While not mentioned in Golden, one might infer that a strip search can heighten anxiety in those who are transgender, gender diverse, or non-binary.

[51] Since Golden, the Supreme Court has affirmed the uniquely invasive nature of strip searches. For example, in R. v. Fearon, 2014 SCC 77, the court used strip searches as a yardstick for measuring the intrusiveness of a cell phone search. Cell phone searches can be intrusive, but the court observed that they are “completely different from the seizure of bodily samples in [R. v. Stillman] and the strip search in Golden”, characterizing the latter as “invariably and inherently very great invasions of privacy” and “a significant affront to human dignity”: Fearon, at para. 55.

[52] So too in Vancouver (City) v. Ward, 2010 SCC 27, where the court affirmed an award of Charter damages for an unjustified strip search. McLachlin C.J. explained that “[s]trip searches are inherently humiliating and degrading regardless of the manner in which they are carried out and thus constitute significant injury to an individual’s intangible interests”: Ward, at para. 64.

[53] This court has similarly held that strip searches “are demeaning no matter the circumstances”, and that “even the most sensitively conducted strip search is a highly intrusive, humiliating, degrading and traumatic experience”: R. v. Black, 2022 ONCA 628, at para. 38, citing R. v. Pilon, 2018 ONCA 959, at para. 15.

[54] It is difficult to quarrel with these observations. Within the hierarchy of interests protected by s. 8 of the Charter, bodily searches rank among the most intrusive. The removal of clothing and inspection of the body, including intimate areas of the body, falls at the most serious end of the invasiveness spectrum. The impact of a strip search goes beyond the physical. It has the potential to induce anxiety, uncertainty, distress, and embarrassment. And as noted in Fearon, it has the potential to undermine human dignity.

[55] This is not to say that strip searches should never occur. To the contrary, where police have the requisite grounds, and comply with the requisite standards, the search will be authorized by law. The police must be empowered to search for evidence that they believe on reasonable grounds to be hidden on a detainee’s person. They must also be empowered to search for items that might be used to harm the detainee or others. The point is that even when properly authorized, a strip search can have a significant impact on a detainee.

[56] To summarize:

1. Strip searches must not be carried out routinely, given the level of intrusion and invasion associated with the procedure.
2. A strip search has the potential to exacerbate the power imbalance that exists between detainee and police by requiring a detainee to assume the vulnerable position of being unclothed;
3. A strip search may be perceived by some as the equivalent of a sexual assault and can cause psychological distress, particularly in those who have experienced a history of sexual violence;
4. A strip search may have an increased impact on persons with special vulnerabilities and those who are gender diverse or non-binary.
5. A strip search may be particularly intrusive for Indigenous and racialized individuals who perceive racial targeting by police; and
6. While the negative effects of a strip search can be minimized by the way in which they are carried out, “even the most sensitively conducted strip search is highly intrusive”: Golden, at para. 83.

[57] Because of these unique considerations, s. 8 of the Charter requires specialized grounds before police may conduct a strip search. And as I explain below, these same considerations require that a person about to be strip searched receive another opportunity to consult counsel.

(4) Sinclair Meets Golden

[58] The foregoing discussed, in sequence, the purpose of s. 10(b) of the Charter and the nature of the strip search process. That discussion sets the stage for considering how the two interact with one another. What happens when one reads Sinclair with Golden? The answer, I suggest, is clear. The list in Sinclair must be augmented to confer a right to reconsult before a strip search incident to arrest. This is necessary to fulfill the purpose of s. 10(b) of the Charter and strikes a proper balance between competing interests.

[59] In Sinclair, the court recognized that some non-routine procedures will confer a right to reconsult. As the court put it when discussing “new procedures involving the detainee”, at para. 50:

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

[60] A strip search is, or at least should be, non-routine. However, it differs from the procedures alluded to in the above passage. Line-ups and polygraphs require the detainee’s consent. Where consent is required, the right to counsel is triggered to assist the detainee in deciding whether or not to accede to the police request. The same is true of police requests for phone passwords, “because as a practical matter, the police would not be able to access the cell phone without obtaining the password from the [detainee]”: R. v. Azonwanna, 2020 ONSC 5416, at para. 161.

[61] Consent is not the issue when it comes to strip searches. When police have proper grounds, a strip search does not technically require consent. It does not follow, however, that s. 10(b) is of no value here. Consent is only part of the equation. As long ago as 1989, the Supreme Court observed that the right to counsel is not just about deciding whether to consent. In R. v. Debot, Wilson J. commented that counsel’s role is broader than just advising a suspect of their options. Rather, as she put it, “counsel can provide reassurance and advice to a person who may be subjected to a highly invasive procedure”: Debot, at p. 1174. A strip search clearly meets this description.

[62] In R. v. Simmons, the court addressed the role of the right to counsel in connection with a strip search at the border. The statute provided that a detainee could seek review of a decision to strip search, and that was one reason to insist on the right to counsel in this context. However, it was not the only reason. The court observed, at pp. 530-31, that counsel could have addressed the detainee’s uncertainty, and could have assured her that the police were lawfully entitled to insist that she remove her clothing:

It is clear from the foregoing that the right to counsel has an important impact on the execution of the search. Had the appellant been informed of her right to counsel at the point she was detained, and she availed herself of that right, the appellant would have had the benefit of legal advice. Counsel could have dispelled the appellant's uncertainty surrounding the search procedure by explaining the content of ss. 143 and 144 and assuring the appellant of the officers' right to insist she remove her clothing. Counsel could also have ensured that the statutory standard of reasonable cause to suppose had been satisfied and assured the appellant that there were proper grounds to warrant a search. In my view, the denial of the appellant's right to counsel cannot avoid having an impact on the reasonableness of the subsequent search of the appellant.

[63] The British Columbia Court of Appeal relied on Simmons in R. v. Carpenter, 2001 BCCA 31, to conclude that the failure to provide the right to counsel before a strip search at the border violated s. 10(b). The court opined, at para. 35, that “given the extremely invasive nature of a strip search, an accused must be well advised of their rights and choices” by consulting with counsel, who “could assist in outlining the search procedure and could assure the accused of the officers’ right to insist that she or he remove their clothing”.

[64] Thus, the right to reconsult is not diminished merely because consent may not be required for a strip search. There are other sound reasons to find that a strip search revives the right to consult with counsel.

[65] From a behavioural perspective, it may be important for a detainee to understand that despite the intrusiveness of a strip search, he or she continues to enjoy, and can continue to exercise, the right to silence. It may also be important for the detainee to know that refusal to comply with a strip search can result in a more intrusive procedure. A strip search does not require consent, but may well require cooperation. As the Supreme Court has explained, “if it appears during the course of a strip search that the detainee is concealing a weapon or evidence inside a body cavity, and the detainee refuses to co-operate, then in order to obtain the object in question the police officer must likely exceed the realm of the strip search and enter the realm of the body cavity search”: Golden, at para. 87.

[66] There are other reasons why the right to counsel is important even in circumstances where withholding consent is not, legally speaking, an option. A detainee who has a chance to speak to counsel may elect to disclose the presence of hidden contraband, which could obviate the need to conduct a strip search: McGuffie, at para. 81. That, in turn, may help ensure that any contraband is extracted with minimal health risks: R. v. Tonkin, 2020 ONSC 5206, at para. 32.

[67] Beyond practical advice about the exercise of rights, counsel can provide psychological assurance to a detainee about to experience a strip search. Borrowing from the language in Ward, at para. 64, counsel can mitigate the potential “injury to an individual’s intangible interests”. The psychological value of the right to counsel has its own intangible quality that “should not be underestimated”, and is no less important merely because it is difficult to measure or quantify: Rover, at para. 45. Access to counsel in advance of a strip search can help assure the detainee that the police are legitimately entitled to engage in this conduct, and that it is not intended to humiliate or sexualize them. Counsel might assure the detainee that the search is, by law, presumptively required to be carried out by an officer of the same sex, among other safeguards. These are just a few examples.

[68] There is another reason why the right to counsel should be revisited before a strip search: the advice obtained during an initial consultation may not have contemplated a strip search on the forensic horizon. Because strip searches are non-routine, counsel may not anticipate the possibility during an initial call. In this way, strip searches stand in contrast to more conventional and routine procedures, such as photographing and fingerprinting, which are more likely to be within the contemplation of counsel when advising an arrestee about whether to cooperate with the police. When this is so, the detainee’s initial legal advice may be rendered inadequate.

[69] In Lafrance, at para. 79, the court commented that individual vulnerabilities, coupled with developments in the police investigation, may “render[] a detainee’s initial legal advice inadequate, impairing his or her ability to make an informed choice about whether to cooperate with the police”. In those situations, Sinclair requires an additional consultation “to even the playing field”.

[70] Of course, not every non-routine post-arrest procedure will trigger a right to reconsult counsel. What sets strip searches apart is that they are both non-routine and highly invasive. It is important that the detainee have access to advice that is tailored to the looming strip search, even if they have already consulted with counsel. A detainee who waived the original right to consult with counsel may reconsider their position when faced with the prospect of removing their clothing for a bodily search.

[71] Finally, the right to reconsult counsel might incidentally help reduce the number of unauthorized or improperly conducted strip searches by injecting a pause into the process. Knowing that a lawyer has been consulted, police might be more inclined to follow proper procedures. They might view their grounds to search with a more critical eye and reconsider when grounds are uncertain. Once a strip search has been carried out, the impact on the detainee cannot be undone. Recognizing a right to reconsult could help to achieve the constitutional objective of preventing unjustified intrusions before they occur.

(5) The Balance of Competing Interests

[72] Having found that a right to reconsultation is necessary to achieve the purpose of s. 10(b), I will now turn to the question of whether such a right strikes an appropriate balance between competing individual and state interests. I conclude that it does. In Sinclair, the majority adopted a restrictive approach to reduce the ability of a detainee to thwart legitimate law enforcement objectives. The court was concerned that if the right to reconsult were broader, a detainee could use it as a sword, rather than a shield. The detainee could ask to re-consult with counsel to halt an interview, avoid answering pointed questions, or otherwise obstruct the questioning process. For that reason, the majority in Sinclair held that the right to reconsult would only arise in designated, objectively discernable circumstances.

[73] Recognizing a right to reconsult in advance of a strip search does no violence to the balance Sinclair struck. Offering a right to counsel before a strip search will not generally empower a detainee to derail an interview by insisting on speaking to a lawyer on a whim. The triggering event—the decision to strip search—will be objectively discernable. Police will have control over the timing of the decision to strip search, just as they have control over the timing of questioning. It will be open to them to conduct the process in a manner that does not interfere with other investigative processes. If the decision to strip search arises during the course of an interview, an interruption will be appropriate to facilitate a right to reconsult counsel. However, that does not give the detainee the tools to manipulate or obfuscate the interview itself.

[74] Thus, conferring a right to reconsult in advance of a strip search maintains the balance struck by Sinclair and its progeny. The call to counsel can serve a number of tangible and intangible benefits for the detainee, while imposing a relatively minimal burden on police investigators.

(6) Some Final Observations

[75] I will offer some final observations before turning to the circumstances of this case.

[76] First, implementing this right to reconsultation will depend on the prevailing circumstances. The extent to which a detainee is entitled to counsel of choice, the length of time that police must hold off, the need to preserve evidence, and the impact of exigency will call for case-specific and fact-dependent determinations.

[77] Second, since the events in this case, the TPS has amended its policy to provide a renewed right to counsel before a strip search. While a positive development, I attach no significance to the change in that service’s policy. The constitutional issue is governed by legal principle, not police policy.

[78] Third, the principles set out above apply where a strip search is being conducted incident to arrest, to search for weapons or evidence. They may not apply as categorically when a strip search is used to prevent contraband from entering a custodial setting. In Golden, the court distinguished between strip searches incident to arrest, and strip searches aimed at maintaining the safety and security of jails. The court noted that in contrast to searches incident to arrest, there is a “greater need to ensure that [detainees entering the prison population] are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment”: Golden, at para. 96. The court went on to find that in the case of short-term detentions, “legitimate concerns” about detainees concealing weapons must be addressed on a case-by-case basis: Golden, at paras. 96-97.

[79] Finally, the appellant relies on McGuffie, where Doherty J.A. criticized police for failing to provide a right to consult counsel before subjecting the appellant to a strip search. However, McGuffie is not directly on point, because the detainee in that case had never been given an opportunity to consult with counsel once he was detained. He was clearly entitled to that opportunity, not just because of the strip search, but because he had never received it. McGuffie is obviously highly persuasive authority, but it does not speak to the issue of re-consultation with counsel as it arises in this case.

(7) Application to this Case

[80] After his arrest in the apartment hallway, and upon leaving the building, the appellant was transported to the RCMP police detachment at Pearson airport, where he arrived at 1:51 p.m. He spoke with duty counsel at 2:26 p.m. and gave a statement to police at the RCMP detachment. It was not until several hours later, after 9:00 p.m., that the appellant was transferred to a TPS station for overnight lodging in a single cell. It was only then that an officer decided to strip search him.

[81] The stated reason for the search was that the officer was looking for evidence, based on the appellant’s conduct at the time of his arrest. While the appellant was being booked, Sgt. Young learned that he had tried to jump from a balcony and that he was charged with importing drugs. Sgt. Young testified that the appellant was cooperative and compliant. When it came to the level of search that should be carried out before lodging the appellant in cells, Sgt. Young decided on a strip search. He testified that he considered the seriousness of the charges and the fact that the appellant had tried to jump off the fourth-floor balcony. The officer said that this gave rise to the possibility that the appellant might have drugs in his possession.

[82] By this time, the appellant had already been subject to two searches: one incident to arrest, and another before being lodged in the cells at Pearson airport.

[83] As the motion judge concluded, the decision to strip search was without justification. The appellant had given no indication that he had drugs on his person. He was to be placed in a cell on his own, as opposed to entering a custodial population. The indicia the officer considered did not justify the intrusion inherent in a strip search.

[84] Applying the analysis above, it follows that the appellant ought to have been given another opportunity to consult counsel before the strip search. We do not know whether the appellant would have availed himself of this opportunity, but that is not the point. The circumstances of his detention had changed. He was going to be subject to a highly invasive, non-routine procedure. He was entitled to know that he could speak to a lawyer again before being required to remove his clothing.

[85] Courts are not to speculate on the nature of the legal advice that a detainee receives during contact with counsel. Accepting that caveat, I suggest that the appellant’s original consultation with duty counsel, some six and a half hours before the strip search, was unlikely to address that particular exigency. The appellant had been given no reason to believe that he would be strip searched. Nor would the RCMP have been in a position to predict the conduct of another officer from another police service. This was a change in circumstance, involving a highly invasive procedure, which would not have been contemplated at the time of the appellant’s original consultation with duty counsel.

[86] In these circumstances, the failure to provide the appellant another opportunity to speak with a lawyer violated his rights under s. 10(b) of the Charter.

D. Issue 3: Section 24(2)

[87] The appellant sought to exclude the evidence seized from the apartment—the package of heroin and the cell phones found in the bathtub—as well as the statement he made to the RCMP. The motion judge ruled that the evidence was admissible under s. 24(2) of the Charter. While I agree with the motion judge’s ultimate conclusion, I do so for different reasons. I begin by examining whether the evidence was obtained in a manner that violated the Charter. I then turn to each branch of the analysis articulated in R. v. Grant, 2009 SCC 32.

(1) Obtained in a Manner

[88] The threshold question is whether the evidence was “obtained in a manner” that violated the Charter. It is well established that an affirmative answer does not require a causal link between the violation and the discovery of evidence. A temporal or contextual nexus between the events suffices: R. v. Mack, 2014 SCC 58, at para. 38. In some cases, the link is too tenuous or remote to meet the “obtained in a manner” threshold: see, e.g., R. v. Goldhart. However, where the evidence and the breach are part of a single investigative transaction on a contextual or temporal basis, the “obtained in a manner” requirement will be readily satisfied, even without a causal link.

[89] The motion judge found only one violation of the Charter: the unauthorized strip search. He was satisfied that a sufficient nexus existed between it and the evidence obtained some hours earlier. As he put it:

Here, the [strip search] search took place on the same day as the arrest. From the moment the police entered the premises to the time the [appellant] was left at 51 Division, the [appellant] was in the care of the RCMP. He was arrested, processed and interviewed. He was transferred to 51 Division for lodging. The search was part of the same continuous chain of events and interactions between the [appellant] and the police. I am satisfied that the connection between the collection of evidence and the [strip search] is not too tenuous or remote.

[90] I agree with this conclusion. It becomes even stronger when one factors the additional Charter breaches into the equation. I have concluded that the police conduct gave rise to two additional violations of the Charter, one arising from the 20-minute delay in advising the appellant of his rights, and the other arising from the failure to provide an opportunity to reconsult with counsel before the strip search. The s. 10(b) violations, together with the strip search, serve as constitutional bookends. The events relevant to the s. 24(2) analysis began with the 20-minute delay in advising the appellant of his right to counsel and ended with the violations attendant upon the strip search. Several hours passed before the appellant was strip searched, but there was an unbroken period of detention during that time. The TPS officer who directed the strip search relied on information about what took place during the initial arrest, and the search was carried out by officers from the RCMP, the police service that had effected the arrest. These events wove a single tapestry of investigative activity. It is therefore of little consequence that the strip search occurred after the evidence was obtained: see, e.g., R. v. Pino, 2016 ONCA 389; Flintoff.

(2) The Grant Factors

[91] At issue in this case is the admissibility of three categories of evidence: the package containing the drugs, the cell phones seized from the bathtub, and the statement the appellant gave to the police. The motion judge concluded that all of that evidence should be admitted. He noted that the package and cell phones were seized under a warrant obtained by police after entering the apartment unit. The appellant only made the statement at issue after speaking with duty counsel.

[92] The motion judge balanced the factors in Grant and summarized his conclusion as follows:

In balancing the Grant factors, I note that the s. 8 breach had a serious impact on the [appellant]. This factor favours exclusion. On the other hand, I am satisfied that the search was not systemic. In ordering the search, I find that Sergeant Young was motivated by safety issues. The search was carried out in a reasonable and respectful manner. No evidence was obtained on the [strip search]. I also note that the evidence is reliable and was lawfully obtained pursuant to a warrant. The evidence is essential to the Crown’s case.

[93] A motion judge’s determination under s. 24(2) is generally entitled to appellate deference. That deference, however, is suspended when an appellate court disagrees with the motion judge on the nature and scope of the Charter violations at issue: Le, at para. 91; R. v. Beaver, 2022 SCC 54, at para. 118. Because I have found two additional Charter breaches, I must consider s. 24(2) afresh.

(a) The Seriousness of the Charter-Infringing Conduct

[94] The first branch of the Grant test inquires into the seriousness of the Charter-infringing conduct. The motion judge’s analysis focused on the s. 8 violation flowing from the strip search. He found that the seriousness of the breach was at the lower end, even though the strip search was an inherently invasive procedure, because he concluded that the officer acted in good faith. The strip search was not part of systemic or institutional abuse. It was also conducted in a reasonable and respectful manner. It took place in a private room, was not videotaped, and took five minutes. The officers did not touch the appellant during the search.

[95] I accept the motion judge’s finding that the officer who directed the strip search acted in what he perceived to be a lawful manner. I also accept that the search was brief. However, I am not persuaded that the circumstances yield a finding of good faith.

[96] It has long been the law that a strip search requires specialized grounds above and beyond the grounds for arrest. Those grounds were conspicuously absent in this case—as the motion judge found, there was “no evidence” to support such an intrusive search. The decision to strip search was based on the nature of the charges, and the fact that the appellant had tried to escape the scene of the arrest. The first of these is a generic factor that offers no justification. The second is of similarly little significance. The fact that a detainee seeks to evade arrest says nothing about whether they have concealed drugs on their person.

[97] In Golden, the Supreme Court pointedly stated that “the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search”: at para. 94. Instead, the police must establish that they have “reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest”: at para. 98. In this case, the decision to strip search was entirely unjustified.

[98] The officer’s stated grounds become even weaker when one considers that the appellant was searched twice earlier, and had been in the RCMP’s custody for several hours. The officer knew that the appellant was not entering the general population or sharing his cell with another detainee. The officers who conducted the search may have believed that the search was lawful, but they ought to have known that it was not.

[99] In these circumstances, it cannot be said that the police acted in good faith. The Charter does not place a premium on ignorance. An officer’s belief that their actions are lawful only goes so far, particularly when the procedure is highly intrusive and the law in question has been settled for over two decades.

[100] This case is similar to Le in that respect. As in Le, the circumstances of this case “did not take the police into uncharted legal waters or otherwise raise a novel issue about the constitutionality of their actions”: Le, at para. 149. Just like detention and warrantless entry of residences, strip searches are “governed by settled jurisprudence” from the Supreme Court (Le, at para. 149), and police are “rightly expected to know what the law is”: Grant, at para. 133; R. v. Tim, 2022 SCC 12, at para. 30. So, like Le, this case concerns “serious police misconduct” which “weighs heavily in favour of a finding that the admission of the resulting evidence would bring the administration of justice into disrepute:” Le, at para. 150.

[101] The seriousness of the Charter-infringing conduct increases when one considers the additional breaches. As it relates to the 20-minute delay in advising the appellant of his right to counsel, the explanation offered by the police again rings hollow. The officers claimed that it was unsafe to inform the appellant of his rights in the hallway. Yet they remained in the hallway and asked the appellant various questions for several minutes. The police either knew or ought to have known that they were obligated to immediately advise the appellant of his right to counsel. I refrain from making a finding of bad faith, but similarly refrain from making a positive finding of good faith. “Good faith cannot be claimed if the Charter breach arises from a police officer’s negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards”: Tim, at para. 85.

[102] The subtext of the events suggested that the police delayed discharging their informational obligations so that a trainee could advise the appellant of his rights in a more comfortable environment. The motion judge did not make a finding in this regard. Suffice it to say that if this were the reason for the delay, it would make the breach more serious.

[103] Finally, I must consider the fact that the appellant was not given a chance to reconsult counsel before the strip search. I do not attach any fault to police for failing to provide that opportunity. The law did not, at that time, require them to do so. The police are not to be held to a level of prescience. They should not be faulted for failing to anticipate a judicial alteration of their constitutional obligations under the Charter.

[104] In sum, I find that the first branch of the test pulls strongly toward exclusion of the evidence.

(b) The Impact on the Accused’s Charter-Protected Interests

[105] The motion judge found that the second stage of the Grant test favoured exclusion of the evidence, given the highly intrusive and degrading nature of strip searches. He correctly found that the strip search significantly impacted the appellant’s s. 8-protected interests. The appellant was made to remove his clothing, to bend over, to spread the cheeks of his buttocks, and to lift his genitals. When dealing with a s. 8 breach, the second stage of the Grant inquiry “focuses on the protected interests of privacy, and more broadly, human dignity”: R. v. Zacharias, 2023 SCC 30, at para. 70, quoting Grant, at para. 78. Compelling someone to remove their clothing and expose their private parts in front of strangers is a profound intrusion on those interests.

[106] It is true that the strip search did not lead to the discovery of any evidence. It did not take place until several hours after the evidence had been collected, so there is no causal link between it and the evidence against the appellant. The absence of a causal link will sometimes weigh in favour of admitting the evidence: Beaver, at para. 125. But causation, or the absence of causation, is not necessarily dispositive. When a serious breach involves a highly invasive procedure, it may call for exclusion even though it did not yield the evidence the Crown sought to introduce at trial. I will return to this consideration when conducting the final balancing under s. 24(2).

[107] I would add to the equation the violations of s. 10(b) of the Charter. The delay in informing the appellant of his rights did not yield evidence, but it was not insignificant. The appellant was entitled to know his rights immediately upon arrest, for the reasons discussed above. He remained with the officers in the hallway for some time, as they engaged him in conversation without telling him that he would be permitted to contact counsel. The failure to advise him of his rights, while conversing about other matters, could well have left him with the impression that those rights did not exist or were not important. The appellant was eventually advised of his rights and given an opportunity to speak with duty counsel before making his statement to police. However, that does not immunize the statement from exclusion, given the temporally proximate violation of s. 10(b).

[108] Finally, the failure to permit the appellant to reconsult with counsel has a similar effect. The police subjected him to a highly invasive procedure without offering him an opportunity to receive reassurance and advice from a lawyer. The initial advice that he received many hours earlier would likely not have anticipated a strip search. He was entitled to the advice and psychological assurance that a call to counsel could provide. We cannot know whether he would have exercised a right to reconsult, but he was impacted by the inability to make that choice.

[109] The second branch of the test therefore also favours exclusion. The intrusion associated with the strip search was itself a highly significant, yet unnecessary, interference with the appellant’s privacy. The additional violations of s. 10(b) diminished the appellant’s rights and deserve appropriate recognition in the s. 24(2) analysis, even though they did not result in the discovery of evidence. The impact of these several breaches must be considered cumulatively under this branch of the Grant test: Zacharias, at paras. 56, 114.

[110] These cumulative breaches had a significant impact on the appellant’s Charter-protected interests. Yet the analysis must also recognize that the breaches were not causally linked to the discovery of the evidence. For that reason, I conclude that the second branch of the test points moderately, rather than strongly, toward exclusion.

(c) Society’s Interest in Adjudication on the Merits

[111] I agree with the motion judge’s conclusion that the third branch of the test favours admission. That conclusion holds even when the additional violations are factored into the equation. The evidence of the drugs and cell phones are reliable, pre-existing, and critical to the prosecution’s case. While statements are usually of a different character, the statement in this case was made only after the appellant had exercised his right to counsel. The offences are serious, involving a trafficking quantity of a dangerous controlled substance. Society’s interest in the effective prosecution of crime favours admitting the evidence.

(d) Balancing the Grant Factors

[112] This takes me to the final stage, which involves balancing the Grant factors. The first two branches favour exclusion, the first more strongly than the second. But it is the cumulative weight of the first two lines of inquiry, not their average, that must be balanced against the third: Lafrance, at para. 90. And “when the two first lines, taken together, make a strong case for exclusion”, the third “will seldom tip the scale in favour of admissibility”: Lafrance, at para. 90; Beaver, at para. 134.

[113] However, this rule is also subject to exception. Jamal J. acknowledged in Beaver that the cumulative weight of the first two lines of inquiry may be overwhelmed by a compelling public interest in admitting the evidence. In those circumstances, the administration of justice will not be brought into disrepute by its admission.

[114] In assessing the public interest, it is important not to focus exclusively on the seriousness of the offence. As Grant and R. v. Harrison, 2009 SCC 34, acknowledge, this factor cuts both ways. Society has a heightened interest in seeing more serious offences prosecuted on their merits—but it also has a heightened interest in seeing that police take care to comply with constitutional standards when the stakes are at their highest: Grant, at para. 84; Harrison, at para. 34.

[115] Nor should the analysis devolve into a comparison between the seriousness of the offence and the seriousness of the Charter violations. That is a false dichotomy. The s. 24(2) inquiry is not a contest between the misdeeds of the police and the accused: Harrison, at para. 41. Rather, the inquiry commands a holistic approach that considers all of the relevant circumstances.

[116] How then does the balancing manifest in this case? Is the public interest in admitting the evidence so compelling as to overcome the cumulative weight of the first two branches of the test?

[117] On the one hand, the Charter violations were serious. An unauthorized strip search is, by its very nature, a serious affront to privacy, liberty, and dignity. The delay in advising the appellant of his right to counsel had less of an impact, but still deprived him of his right to immediate reassurance that he would be given an opportunity to speak to a lawyer, and that he would have a lifeline to the outside world.

[118] The breaches were not intentional or deliberate, but they did disclose an unacceptable ignorance of longstanding, important constitutional principles. “Even where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct”: R. v. Paterson, 2017 SCC 15, at para. 44. The police conduct here epitomizes “clear violations of well-established rules governing state conduct”.

[119] On the other hand, these are serious offences involving the importation of a dangerous and addictive substance into Canada. And although the police violated the appellant’s rights, they also took active steps to comply with the Charter. They sought and received judicial authorization to seize the evidence from the apartment. The effect of the delay in informing the appellant of his right to counsel was mitigated by his consultation with duty counsel before speaking with police. While I declined to make a finding of good faith, it also cannot be said that the police acted in bad faith. Nor could they have anticipated a right to reconsult counsel before a strip search.

[120] One must add to the mix the absence of a causal nexus between the violations and the discovery of the evidence. This is not necessarily dispositive. This court has excluded evidence that was discovered prior to, and independently of, Charter violations: Pino, at paras. 48, 77. In Flintoff, Finlayson J.A. excluded the results of a breathalyzer test based on a strip search conducted some time later. As he explained, “[e]ven with the absence of a causal connection, a court faced with a flagrant and intrusive violation of s. 8 of the Charter must give … adequate recognition to the intrinsic harm that is caused by a violation of a Charter right or freedom, apart from its bearing on the obtaining of evidence”: Flintoff, at para. 30, quoting R. v. Therens, at p. 649.

[121] These cases demonstrate that the absence of a causal nexus is significant, but not dispositive. A poisoned tree can contaminate the forest, even if it does not bear fruit.

[122] I nonetheless conclude that this is one of the rare cases, alluded to in Beaver, where the public interest in admission outweighs the first two branches of the test. The primary evidence against the appellant, the package of heroin, was seized under a presumptively valid warrant. The police did not simply gather evidence or passively receive it. They took active steps to obtain prior judicial authorization. This is precisely the type of conduct that the Charter seeks to encourage. I further note that while the warrant was obtained by the RCMP, the most serious breach of the Charter—the strip search—was directed by an officer of a different police service. Therefore, this is not a case in which the court must denounce a pattern of breaches undertaken by a single officer or police agency. Finally, the statement was made only after there had been full compliance with s.10(b). It was not tethered to the initial delay in advising the appellant of his rights.

[123] In the final analysis, the public interest in admitting the evidence is sufficiently cogent and compelling, and the nexus between the violations and the evidence sufficiently attenuated, that the admission of the evidence would not bring the administration of justice into disrepute. As the Supreme Court said in Grant, “[t]he court must ask whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial”: at para. 82, quoting R. v. Kitaitchik. In this case, it would.

[124] Therefore, while I have concluded that the motion judge should have found two additional violations of the Charter, the analysis of those additional breaches would not change the outcome of the case. I would therefore dismiss the appeal.

Released: July 11, 2025

“R. Pomerance J.A.”
“I agree. I.V.B. Nordheimer J.A.”
“I agree. L. Madsen J.A.”