Court Information

Ontario Court of Justice Old City Hall – Toronto

Between: Her Majesty the Queen — and — Nathaniel (Arnell) Sam

Before: Justice G.N. Sparrow

Heard: October 2, 3, 9 & 14, 2014; November 28, 2014; December 4, 2014; March 16 & 17, 2015; April 17 & 28, 2015

Ruling Released: May 28, 2015

Counsel:

• Phil Tsui, for the Crown
• Ashley Dresser, for the accused, Nathaniel (Arnell) Sam

SPARROW J.:

Charges and Application

[1] The accused is charged with possession of cocaine for the purpose of trafficking, possession of marijuana, possession of proceeds of crime and failing to comply with a recognizance, on December 20, 2013.

[2] He brings an application to have evidence of the possession of the illicit substances and proceeds of crime excluded from the trial on the basis of alleged breaches of sections 8, 9, and 10(b) of the Charter by members of the guns and gangs unit of the Toronto Police Service. He argues that the breaches are sufficiently serious and had enough impact to warrant exclusion according to the test in R. v. Grant, 2009 SCC 32.

Facts Regarding the Search Warrant

[3] It is not contested that police obtained a warrant to search two apartments at 10 Boultbee Avenue in Toronto, the home of Benvolio Valenski, between specific hours on December 20 and 23, 2013 for firearms, ammunition, cocaine, and related items. The warrant was obtained on the strength of information obtained from a confidential informant that Valenski was a drug dealer in possession of a firearm. The warrant did not authorize a search of his car.

Events in the Parking Lot

[4] Detective Balint and nine officers began surveillance of the Boultbee apartment building at 5:30 p.m. At 6:41 p.m. Valenski and a female, Mandisa Leonard, drove up; Valenski entered the lobby area for about seven minutes, then got back in the car and drove to a parking lot at Bay and Edward Streets. Valenski and Leonard met up with the accused and two unknown females outside a restaurant, Spring Rolls, in a mall across the street, and entered at 7:30 p.m.

[5] At 7:41 p.m. the accused and Valenski left the restaurant and went back to the car to talk and smoke; Valenski sat in the driver's seat, the accused in the passenger seat. At 7:45 p.m. Balint, who had not recognized the accused, ordered a takedown. Detective Constable Mark Tan arrested Valenski for possession of a firearm, and possession of cocaine for the purpose of trafficking; Balint removed the accused from his seat.

[6] Several of the officers and the accused testified about what occurred thereafter, which is not the subject of agreement between counsel.

Detective Balint's Testimony

[7] Balint testified that the officers had pulled their guns out, as they were concerned that Valenski had a gun. He told the accused that he was being detained, and asked his name; the accused said "Nathaniel Sam". Balint asked him if he was "Arnell Sam", who he knew from a previous drug investigation; the accused, who was being cooperative, said "yes".

[8] Balint testified that he asked the accused if he was breaching any condition of his release; the accused said "no." He stated that a warrant had been issued for the accused's arrest on that matter, and that he had not seen him since.

[9] Balint testified that he always asks a detainee for his name. He said that he detained the accused because although he was not a person of interest to the investigation, he was concerned that he could call someone at the Boultbee apartments and warn them that the police were coming, resulting in the destruction of evidence. He had this concern because the accused was with Valenski, had been with him in the restaurant, left before eating and talked with him in the car.

[10] He told the accused that he was being detained for this reason during the execution of a search warrant at Valenski's apartment, and read him his rights to counsel; the accused was cooperative, and said that he understood. The accused asked if he would be released after the warrant was executed; Balint said that it would be decided at the completion of the investigation and that he would possibly be released if no guns or drugs were found. The accused said he did not have to call a lawyer if he was going to be released. The standard caution regarding the right to silence was also read.

[11] Balint testified that he had a recollection that the accused had been arrested on the outstanding matters. He thought it was still before the courts; he assumed the accused was on bail, with "drug conditions".

[12] Balint testified that he then did a pat down search of the accused, who was wearing a puffy grey jacket, because he was concerned for officer safety as guns can easily be transferred between people. The coat was undone. Balint said he opened the jacket and saw a golf ball size package of marijuana wrapped in cellophane in an interior mesh pocket. Balint testified that he arrested the accused for possession for the purpose of trafficking marijuana and breach of recognizance, and again read him his right to counsel. All details were noted in his notebook. Balint asked if the accused wanted to call a lawyer "now"; the accused said "I guess I have to" and said the marijuana was just for personal use. Balint told him that he could call a lawyer at the station, following the execution of the warrant.

[13] Balint testified that Detective Constable Kim Harris, who was with him during the arrest, had little contact with the accused. Two uniform officers were called; they detained the three females in the restaurant and brought them to a cruiser in the parking lot. He said they were also detained because there were concerns they could jeopardize the investigation.

[14] Balint testified that he detailed Detective Constable Richard Haines to remain behind with the two males in his car, turned the marijuana over to him, and left for Boultbee at about 8:30 p.m. He arrived at Boultbee at about 8:45 p.m. He and other officers searched the two apartments and found nothing. At about 9:50 p.m. he called Haines, and asked him to search his car one more time as he thought an earlier search of the car by DC Tan had been rushed. Haines called him back at 9:55 p.m. and told him that a gun had been found between a seat and the console. Balint told Haines to rearrest them both for possession of the firearm.

[15] Balint closed up the apartment and returned to the parking lot, where Haines told him that cellphones, crack cocaine and cash had been located. Balint took photos of the scene, the car, the gun and other contraband, then left for the police station. He said that the two women other than Leonard were released as they had nothing to do with the vehicle. He confirmed that the accused was charged with possession of a firearm, possession for the purpose of trafficking both marijuana and cocaine, failing to comply with a recognizance and violating a prohibition order with respect to firearms and ammunition.

Cross-Examination of Detective Balint

[16] In cross-examination, Balint said that he had not read the search warrant or information to obtain, but had been told that Valenski was believed to have a gun, which could be moved easily from place to place or stashed in a car. He also said that he genuinely believes that a person named in a search warrant regarding a gun in a residence may carry that gun with him as it can be easily concealed and moved.

[17] He also explained in cross-examination that he was the officer-in-charge, with five officers on his team. Detective Stolf was also conducting surveillance with a team. He said that they did not execute the search warrant after Valenski proceeded to the restaurant because they prefer to have their target arrested before conducting a search, to help prevent destruction of evidence. He recalled telling the accused at the scene that he was "not concerned" about the marijuana and that it was probably "an amount for simple possession". He also said that he told Haines that the accused was under arrest when he turned him over to Haines.

[18] Balint also stated in cross-examination that he told Sam that he might be released at the scene on a Form 9 because he had not yet confirmed the existence of a recognizance. However, if a breach of the recognizance had been confirmed, he would have had him taken to the station, a more intrusive search would have been conducted and the cocaine and money would have been found. He said that he did not have a computer at the scene to confirm that a recognizance existed.

[19] When asked why he didn't advise Haines to try to get a uniform car to take the accused to the police station earlier, he said that the accused had to remain in detention until the search warrants were executed. He also said that they would not have released the accused when the apartments were secured because evidence could have been found tying the accused to the residence, even though he did not have any information about a connection. He said he would have looked "pretty stupid" if he had released the accused, then found identification with his name in the apartment. He said he was not concerned about holding the accused because he had been arrested for the marijuana. Regarding the females, he acknowledged that if evidence had been found connecting them to the offence after their release he could have issued a warrant, but he preferred to have "a bird in the hand". Balint acknowledged that in hindsight the two females other than Leonard might have been released at the scene.

[20] Balint did not note when he was given information about the terms of the accused's recognizance, or when the checks were done. He acknowledged that officers at the scene could have done a check but said that it wasn't a priority because the accused was arrested for the marijuana.

[21] In further cross-examination, Balint testified that detainees are never permitted to call counsel on scene on police phones, and that he would not have permitted the accused to call counsel on his own phone because it would have been difficult to confirm that he was actually calling his lawyer. If uncuffed the accused could have tried to tamper with evidence such as drugs. He said that perhaps he should have let the females call counsel, but that it was difficult to supervise them with the limited resources they had. He said that the only appropriate place for calls is the police station.

[22] Balint stated that Haines left for the station with Sam; Chou took Leonard. Balint repeated that he had difficulty in getting more uniform officers to the scene given that it was a very busy Friday night in the entertainment district.

[23] In re-examination, Balint repeated that he could not get an officer to take the accused to the station earlier as it was a busy Friday night, that he must know the name of detainee in order to check for outstanding recognizances and conditions in order to get a warrant later if needed, and that he cannot allow detainees to make calls in police cars without violating privacy concerns.

Detective Constable Haines' Testimony

[24] Detective Constable Haines testified that he arrested Valenski for possession of the firearm in the parking lot after the takedown, then held Valenski and the accused in the back of his car while the search warrants were executed. He also testified that he let the accused out of the car and uncuffed him at one point so that he could stretch his sore arm. At 9:50 p.m. he received a call from Balint asking him to do a thorough search of Valenski's car as an incident of his arrest. He did so, and found a small, loaded prohibited weapon between the console and passenger's seat. He informed Balint at 9:55 p.m.; pursuant to instructions he arrested both men for possession of the firearm, Valenski for a second time.

[25] Haines testified that he instructed PC Chou, one of the two uniform officers, to read them their rights to counsel. They both responded that they understood and wanted to call lawyer Adele Monaco. He removed the accused Sam from the car and performed a thorough pat down search, finding a plastic bag of cocaine in a pocket of the arm of the accused's jacket, $3715 in cash, and 2 cellphones in a front coat pocket. He advised the accused that he was under arrest for possession for the purpose of trafficking cocaine and possession of the proceeds of crime. The cocaine weighed 17.29 grams.

[26] Haines testified that Balint returned to the scene. The car was secured and photos were taken. He and DC Oliver, who had helped execute the search warrant, left for the station at 11:24 p.m. with the accused and arrived at 11:28 p.m. They proceeded with standard parading and booking; a "level 3" search was conducted. Valenski had been taken to the station by a uniform officer. He stated that he told the accused at the station that he was going to cut the draw strings from the jacket – a safety measure. The accused asked him not to do so as he "lived in" the jacket.

[27] Haines testified that he also arrested Leonard for possession of the firearm. PC Kim, the other uniform officer read her her rights to counsel. He said that they had to wait for transport vehicles to take the accused to the station as it was a hectic night.

[28] Haines testified that he called Ms. Monaco at 12:45 a.m. and left a message with a call taker who sent a page. A second call was made with no results. He advised the accused that the lawyer was not returning calls. The accused said he did not want to speak to another lawyer or duty counsel.

Cross-Examination of Detective Constable Haines

[29] In cross-examination Haines testified that when he took custody of the accused from Balint he understood that the accused had been arrested "for the marijuana" although he could not remember Balint's specific words. He noted that Balint gave him the bag of marijuana. When asked why he didn't call a uniform car to take the accused to the police station when Balint left for Boultbee, he said that Balint told him to "sit tight' until he called. He also testified that PC Chou read the accused his rights to counsel.

Detective Stolf's Testimony

[30] Detective Stolf, a member of the group that executed the search warrant testified that Valenski was not arrested and the search conducted when he was first seen in front of the apartment because people inside could have been alerted and could have destroyed evidence.

[31] Stolf proceeded to 52 Division directly after the search to begin "paperwork" regarding arrested parties. He testified that the drive from the scene to Boultbee took approximately 15 minutes, and that he was in the apartment at 10 p.m. when Balint told him about the arrest for the firearm.

Cross-Examination of Detective Stolf

[32] In cross-examination Stolf stated that Balint told him both men were arrested upon takedown in the parking lot, but then agreed that Balint told him one was arrested and one was detained following the takedown.

Detective Constable Matthew Oliver's Testimony

[33] Detective Constable Matthew Oliver, who also conducted the Boultbee search, testified that he arrived at the parking lot afterwards at 11:24 p.m. and arrived at the station with Haines and the accused at 11:28 p.m. The station was crowded. They entered at 11:40 p.m., and parading and paperwork were commenced. He confirmed Haines' testimony that the accused asked them not to cut the drawstring of the coat as he lived in it.

PC Chou's Testimony

[34] PC Chou testified that he was called to the parking lot at 8:21 p.m. He detained the three females in his car. He was informed of the finding of the gun, and read the accused his rights to counsel. He did not remember conducting any search of the accused, but said he would have noted any finding of cocaine. At 10:40 p.m. he drove Leonard to the station and released the other two females as directed by Balint.

Cross-Examination of PC Chou

[35] In cross-examination he denied finding cocaine in the jacket and asking the accused "what's this?"

Constable Bryan Magee's Testimony

[36] Constable Bryan Magee, the central note taker, testified that he arrived at the parking lot at 10:20 pm, after the search. He agreed in cross-examination that he noted that Balint detained the accused and read him rights to counsel after takedown, rather than noting that he was arrested. However, he said that he did not know when he was given the details of the takedown and said all details are not always noted.

Expert Witness Testimony

[37] Expert witness Detective Constable Stephen Douglas testified that the 17.29 grams of cocaine are worth between $3458 and $6916, a value which is a definite indication of the purpose of trafficking. He also testified that the carrying of the cell phones and the large amount of cash along with the cocaine also indicates the purpose of drug trafficking.

Accused's Testimony

[38] The accused testified that he took the bus to meet his girlfriend, two other women and Valenski for dinner downtown. As he started to smoke a marijuana cigarette in the parking lot across from the restaurant, Balint and other officers approached the car with guns. Balint grabbed his arm and pushed him out of the car while pointing the gun, started patting him down and asked his name. He responded "Nathaniel Sam". Balint asked "are you Arnell Sam?"; he said "yes" and Balint said "look who we got here guys, Arnell Sam".

[39] The accused testified that Balint cuffed him; he showed Balint the marijuana cigarette. Balint said he didn't care and threw the cigarette away. Balint said "aren't you wanted?". The accused responded "no". Balint called someone and asked if there was a warrant; he heard a woman respond "no". The accused said he was surprised, because he was on house arrest. However, Balint never asked if he was on bail with conditions. He said that he was before the courts on another matter, and that Balint said he knew the accused's name because he was in charge of that other matter. The accused recognized Balint's name from reviewing previous disclosure with counsel.

[40] The accused testified that Balint told him that he would be detained pending execution of the search warrant at Valenski's address.

[41] The accused testified that Balint pulled money out of his pocket, said "you have a lot of money", and put it back. He told Balint about the marijuana in the pocket. Balint said he didn't care.

[42] The accused testified that he was then placed in Haines' car. Haines told him that they would be released if nothing was found in the execution of the search warrant. Haines let him stretch his sore arm a few times.

[43] At one point Haines got a call. He left the car and Chou replaced him. The accused asked Chou if he could stretch. Chou grabbed his arm to help him exit and felt a lump in the pocket of the jacket sleeve and pulled out a baggie and said "what is this?" The accused said he didn't know.

[44] Haines returned and arrested both Valenski and him for possession of firearm. Balint returned, opened the car door and noticed the marijuana in the pocket of the accused's open jacket. The accused said he was not told he could call counsel at that point.

[45] He testified that Haines drove him to the station. He was strip searched and then taken to an interview room for almost two hours, then booked "on camera", then placed in a holding cell after his property was taken. He was told in the interview room that he could speak to his lawyer. He finally spoke to her while in the holding cell.

[46] He testified that when booked Haines reported that he was charged with the marijuana, the cocaine, the breach and proceeds of crime.

Cross-Examination of the Accused

[47] In cross-examination, the accused testified that Chou gave the cocaine to Haines. When asked if Chou gave him his rights to counsel he said he was "pretty sure it was Haines". He said that the cash was partly his from Ontario Works cheques; the rest had been given to him by his girlfriend to hold. The accused also testified that he did not know anything about the cocaine in the jacket, which belonged to his brother who had gone to jail.

[48] He also said that when Balint first approached him he told him that he had weed in a pocket; Balint said that he didn't care. He said that when Balint returned and found the marijuana he turned it over to Haines; Haines then escorted both accused to the station.

[49] He denied asking Haines, at the station not to cut the draw strings on his coat because he "lived in it", as Haines testified; instead he told him not to cut them because the coat was not his.

FINDINGS OF FACT

[50] Defence counsel submits that Detective Balint is not credible in his testimony that 1) he read the accused his rights to counsel upon detention; 2) he found the marijuana in the coat pocket during an initial pat down in the parking lot, and 3) he arrested the accused for possession for the purpose of trafficking marijuana and breach of recognizance at that time. These lies, she submits, were designed to cover up the fact that he orchestrated a lengthy illegal detention of Sam, and a breach of his section 10(b) rights. She argues that the court should accept the accused's testimony that Balint 1) only asked him if there was a warrant for his arrest, and did not mention a recognizance; 2) did not read him his right to counsel upon detention; and 3) found the marijuana during the search incidental to the arrest for the gun, not upon detention.

[51] She submits that I should find as a fact that the accused's rights to counsel were not read to him upon detention.

[52] In my view, as submitted by the Crown, Sam's testimony that Balint asked him if there was a warrant for his arrest outstanding made no sense; Balint testified that he knew that the accused had already been arrested with regards to one of his prior investigations – a fact confirmed by the accused's acknowledgment that he was on bail and knew Balint's name from disclosure. His testimony that Balint found a wad of money, $3715, simply commented that it was a lot and gave it back to him, strains credulity.

[53] I also note that the accused has a criminal record which includes a conviction for possession of proceeds of crime, a crime of dishonesty, which resulted in a suspended sentence in view of 62 days of pretrial custody and a forfeiture order.

[54] As also submitted by the Crown, if the accused's version of events is accepted, the Court would thereby be finding that at least three officers lied in their testimony – Balint, Haines and Chou. With respect to the finding of the marijuana during the initial pat down, Balint's testimony was unshaken. It was confirmed by Haines, who testified, and noted in his book that Balint passed him the marijuana after the initial detention. Haines stated that although he did not note that Balint told him that he had arrested the accused for possession of marijuana, he said that it was his understanding that an arrest had occurred. Magee's central notes do not mention the arrest, and Stolf at one point agreed that Balint told him at the scene that one man was arrested and another detained, rather than both being arrested; however, as submitted by the Crown, neither of them was present in the parking lot at that time and Magee testified that not all details are reflected in the central notes. I also note that the central notes were not put to Balint in cross-examination.

[55] Ultimately, I find that Balint and Haines were credible in their testimony about the finding of the marijuana and the arrest arising from the pat down search. I accept Balint's testimony that he saw the marijuana in the mesh pocket upon detention, and Haines confirmatory testimony summarized above. I also accept Balint's testimony that he read the accused his right to counsel upon detention and again upon arrest, and the testimony of Chou and Haines that the right to counsel was again read to him after the arrest for the firearm. Again, all were unshaken in their testimony in this regard.

[56] I also accept Balint's testimony that 1) the accused said that he wanted to speak to his lawyer, and that he was told that he could do so at the station, and 2) he also arrested the accused for breach of a recognizance. Although it is not clear when the terms of the recognizance were confirmed, Balint maintained that he thought that it included a term prohibiting use of drugs and that the matter was still before the courts.

[57] The fact that he did not make a timely request that an officer check the terms in order to support the arrest was perhaps sloppy, but does not undermine his credibility. Likewise, the fact that he told the accused that he might be released at the end of the investigation and that he said that he was not that concerned about the marijuana was unfortunate as it caused confusion. It shows that he was somewhat single mindedly focused on the search for the gun, but it does not undermine his credibility with regard to the series of events.

ANALYSIS

Charter Arguments

[58] Counsel agreed that the Charter arguments would be affected by the determination of facts, given the finding that Balint found the marijuana during the first search of the accused, arrested him and read him his right to counsel at that time, and that his rights were again read upon the finding of the firearm. The arguments remaining are as follows:

1. The initial detention in the parking lot was unfounded, and a breach of section 9 of the Charter;
2. Balint's asking of the accused's name was an invalid search, and therefore a breach of section 8 of the Charter;
3. The search of the vehicle was a breach of section 8; and
4. The delay in implementing the accused's right to counsel was a breach of section 10(b).
5. The evidence of the marijuana, the cocaine and the money should be excluded pursuant to section 24(2) of the Charter.

With respect to the initial detention – the few minutes between the police approach to the car, and the accused's arrest for the marijuana – the Crown argues that Balint's concern that the accused might be linked to the gun was valid. Defence counsel relies on Balint's testimony that the accused was not a person of interest, and that the fact that he had met up with Valenski for dinner in arguing that there was no articulable cause for detention.

Initial Detention – Section 9 Analysis

[59] In R. v. Mann (2004), SCC No. 49 at paragraph 45, the Supreme Court of Canada held that an investigative detention is lawful if there are reasonable grounds to suspect in all of the circumstances that someone is connected to a particular crime, and that such a detention is necessary. In my view, the initial investigative detention of the accused was reasonable; although he was not a person of interest, he had met up and gone to a car with a suspect who the police had reasonable and probable grounds to believe was in possession of a gun. Although the search warrant referred only to Valenski's apartments, and not his car, Balint explained that the gun could easily be carried and transferred. If Valenski had a gun on his person, or in the car, it is clearly possible that it could have been pulled out when he was confronted. That possibility gave police a valid reason to secure the scene, which logically required detaining anyone in the car who could have had access to the gun, or could have been harmed by it in a confrontational situation. Defence counsel has not persuaded the court that the initial detention was a breach of section 9.

Asking for Name – Section 8 Analysis

[60] It is my understanding that defence counsel concedes that if the investigative detention was valid, the asking of the accused's name was not a breach of section 8. Balint explained that he always asks a person's name during an investigative detention; the name is basic information used to make quick police checks or get further information for the investigation. In my view it is not necessary to review jurisprudence about the asking of a name in situations outside of a valid investigative detention; on the facts of this case the question did not constitute a breach.

Search of Vehicle – Section 8 Analysis

[61] With respect to the search of the vehicle, in my view it was a proper search incident to the arrest of Valenski. Although the warrant only covered his apartments, and although the second more thorough search occurred more than two hours after the initial detention, a search of a vehicle incident to arrest is not subject to any particular time limit: see R. v. Caslake (1998), 121 CCC (3rd) 97, SCC, at paragraphs 13 – 25. Given that the gun was not found in the apartment, the second search of the vehicle was reasonable.

Right to Counsel – Section 10(b) Analysis

[62] With respect to the section 10(b) argument, having found that the accused was read his right to counsel three times in the parking lot, there is clearly no breach of his right to be informed.

[63] With respect to the duty to implement, two time periods are relevant: 1) the time between the initial detention, at about 7:45 p.m., and the securing of the apartments for execution of the search warrant at about 8:45 p.m., approximately an hour, and 2) the time during which the warrant was being executed and the arresting of the accused for possession of the gun and possession of cocaine for the purpose of trafficking, at about 9:50 p.m. – approximately an hour and five or ten minutes. In my view, the time which passed between the second set of arrests in the parking lot, and the calling of counsel at the police station at 12:45 a.m. is irrelevant to the issue of whether a breach occurred; counsel seeks to have the evidence of the cocaine and the cash excluded, and I do not understand her to be arguing that any delay after it was found is part of the 10(b) breach. Rather, it should be considered as evidence of the context in which the events took place when considering exclusion under section 24(2).

[64] With respect to the first time period, I agree with the Crown's submission that the police had valid reason for not implementing the accused's 10(b) rights – they were concerned, as Balint testified, that if permitted to make a call before the apartment was secured he could alert someone to the upcoming search and prompt the destruction of evidence or compromise officer or public safety. Balint also explained that he would not permit an accused to use an officer's phone, and that he was concerned that the accused could have destroyed evidence contained on his own phone if allowed to use it.

[65] The case law on the issue of whether section 10(b) right can be lawfully suspended is well summarized by Code, J in R. v. Learning (2010), 2010 ONSC 3816, O.J. No. 3092 at paragraphs 71 to 73:

A line of authority has developed allowing the police to delay s.10(b) implementation duties when executing a search warrant. The root case is R. v. Strachan (1988), 46 C.C.C. (3d) 479 at 493-4 (S.C.C.). In that case, the police executed a search warrant at the accused's home. They were searching for drugs but they also knew that the accused had two registered handguns in the home. The accused was arrested, upon entry by the police into the home, and was advised of his s.10(b) rights. The accused immediately asked to exercise his rights by calling his lawyer. The police delayed the exercise of s.10(b) rights for almost two hours while they carried out the search, interviewed two other men who were on the premises and then took the accused to the police station. Dickson C.J.C. gave the majority judgment of the Court and held that some delay of s.10(b) rights was justified in the circumstances …

The facts of Strachan are far less compelling than in the case at bar as the police in that case were "clearly in control" of the house to be searched, and the people and the firearms in the house, within a relatively short period of time. Accordingly, the violation of s.10(b) began within a relatively short time, once the police were "clearly in control".

The principle in Strachan, that the police can delay the implementation of s.10(b) rights in cases where a search warrant is being executed and guns are believed to be on the premises, has been applied in a line of subsequent authority. These subsequent cases are closer to the facts of the case at bar as they involve arrests of the accused that take place away from the premises to be searched and before a warrant has been obtained or before other suspects have been arrested. Delays of over five hours in implementing s.10(b) rights were held to be justified in two cases and a delay of almost two hours was justified in a third case. See: R. v. Schultz (1991), 67 C.C.C. (3d) 360 (B.C.C.A.); R. v. James, [2001] Q.J. No. 5232 (C.A.); R. v. Kiloh (2003), 2003 BCSC 209, 57 W.C.B. (2d) 528 (B.C.S.C.).

Recently, in R. v. Taylor (2014) 2014 SCC 50, 2 SCR 495, the Supreme Court of Canada stated at paragraph 24:

The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

[66] In my view, the police in the case at bar acted reasonably in suspending the accused's right to speak to counsel until the apartment was secured – a period of approximately an hour. During the initial period in the parking lot the officers were conducting an investigative detention, arrests and pat downs; they then drove to the apartments, entered, and determined that no one was there. Their concerns that evidence could be destroyed, and presumably for officer safety upon entering the apartment where the gun was thought to be, was entirely justified. In short, any call by the accused could have compromised the authorized search for a gun and ammunition, with very harmful results. I also note that in R. v. Taylor, supra, at paragraph 27, the Supreme Court of Canada confirmed that persons under arrest have no right to use of a police cell phone.

[67] In my view, however, the suspension of the accused's right during the second period of time, approximately an hour and ten minutes following the securing of the apartment, was not justified within the meaning of Taylor, supra, Learning, supra, and the cases cited therein. The apartments were empty. The dangers referred to above were shown not to exist. At that point, in my view, the police had a duty to facilitate the accused's right to counsel by taking him to the police station which was only a four minute drive away. Even if he had to be booked, paraded and searched first the process could have gotten underway. Their failure to do so constitutes a breach of section 10(b).

[68] The problem of a shortage of available division officers will addressed below in the section 24(2) analysis.

SECTION 24(2) ANALYSIS

"Obtained in a Manner" Requirement

[69] Before the three step analysis pursuant to R. v. Grant, supra is engaged, the court must find that the evidence was "obtained in a manner" which violated the Charter: see R. v. Strachan (1988), 2 SCR 980 (SCC). It is clear that if the Charter breach is causally connected to the finding of the evidence – for instance a search revealing real evidence – it was "obtained in a manner" as defined in Strachan, supra.

[70] The Court, however, makes it clear that a temporal connection between the breach and the locating of evidence will also fill the "obtained in a manner" requirement if the evidence is found following the breach, but not too remotely in time from it: see paragraphs 43 – 47.

[71] The Court also states that the link is particularly clear if the breach and the finding of the evidence are one single transaction. In my view, the failure to implement the right to counsel once the apartments were secured, and the finding of the cocaine was not a single transaction – but the temporal connection is obviously strong. The hour in which the breach occurred ended with the search of the car and the finding of the gun and the cocaine – in other words, in a fairly short time frame. In my view the impugned evidence was found in a manner that violated the Charter.

Seriousness of the Breach

[72] With respect to the seriousness of the breach, the failure to implement the right to counsel is always of significant concern. As stated in the findings above, once the apartments were secured the accused could have been taken to the police station, a four minute drive away; even if parading and booking had been required, he would have been able to contact counsel on a more timely basis. The hour spent in the parking lot after the apartment was secured, before the gun was found was a period of denial of a right which is a cornerstone of the Charter.

[73] The Crown relies on the testimony of a few of the detectives about the difficulty in getting assistance from uniform officers on a busy Friday night in the entertainment district. It is believable that a problem existed; however, in my view the two females who met the accused, Valenski and Leonard at the restaurant could have been released, and one of the two officers with them detailed to take the accused to the station. Magee's notes make it clear that the women were released at the scene without charge after the gun and cocaine were found.

[74] It is not clear why Leonard was taken to the station at 10:40 p.m. and the accused not until 11:24 p.m., although Oliver testified that he did not return to the scene to accompany Haines to the station until 11:20 p.m. Although this period follows the valid arrest for serious offences, it is another period of delay which adds context to the facts of the breach. Once at the station, the accused could not speak to counsel until he was in the interview room; however, I am satisfied that on all of the evidence that the officers followed usual procedures there and did not cause an additional delay which exacerbated the breach.

[75] With respect to seriousness, however, it should be noted that as stated in the findings of fact above, Balint was focused almost single mindedly on finding the gun during the execution of the warrant; he did not appear to turn his mind to implementation of the accused's right to counsel.

[76] In Learning, supra, Code J. dealt with a somewhat similar one and a half hour delay in implementing the accused's section 10(b) rights as follows:

By this point, the police were in control of the house and of its occupants and D.C. Fougere had told counsel, in any event, that his client was under arrest and that the house was being searched. There was no further need to suspend s.10(b) rights at this point. I am satisfied that the last one and a half hours (from 4:13 p.m. to 5:46 p.m.) during which the accused's s.10(b) rights were suspended, was not justified. However, this was a minor violation of s.10(b) that had no consequences, given that the accused made no statements and provided no evidence during this one and a half hour period. Counsel did not seek to exclude evidence of the earlier utterances on the basis of this minor after-the-fact violation of s.10(b) of the Charter.

[77] The facts in Learning are, of course, different from the facts in the case at bar; a gun had already been located, the accused was in the station and his lawyer had been contacted. Nevertheless, the passage cited demonstrates that breaches of s 10(b), when an accused is held pending execution of a warrant, are not always considered to be serious.

[78] In my view, the breach by Balint was significant, but not flagrant. Although the accused was not uncomfortable in the parking lot – he was uncuffed and allowed to stretch – he wanted to speak to his lawyer, and his right was not facilitated largely because of Balint's single minded pursuit of the gun. Balint's focus on finding a lethal weapon is understandable, but his concern for implementation of the right to counsel was inadequate.

[79] As found above, he had validly arrested the accused for the marijuana; however, the fact that he also held the women and the accused after the apartment was secured, on the basis of hunches that they were connected to the gun provides context to his actions. I need not use the words "good faith" or "bad faith"; but in the words of the Supreme Court of Canada in Taylor, supra, the seriousness of the breach test "leans in favour of exclusion".

Impact of the Breach on the Accused's Rights

[80] With respect to the impact of the breach on the accused's section 10(b) right to implementation, however, it was in my view minor. As stated in Strachan, supra, at paragraph 44, it is generally a difficult and useless exercise to speculate on what advice could have been given during a period of suspension of a right. However, it is quite obvious in this case that even if the accused had been able to speak to counsel during or right after the execution of the warrant, she could not have provided any advice that would have precluded the finding of the gun in the car and the search of the jacket incident to arrest. He was validly under arrest for the marijuana before the gun was found, and the search of the jacket pursuant to the arrest for the gun was the natural consequence.

[81] The impact of the breach is also low, given that no evidence was elicited or conscripted from the accused during the breach. It was not nearly as significant as the impact in Taylor, supra, in which the accused was denied the right to get advice on consenting to blood tests in the hospital for medical purposes which eventually lead to a conviction for impaired driving causing bodily harm.

[82] In my view, the minimal impact of the breach weighs significantly in favour of inclusion.

Society's Interest in Adjudication on the Merits

[83] With respect to consideration of society's interest in adjudication of the case on its merits, it is obviously strong. The evidence is reliable – a significant quantity of money and cocaine found in the accused's jacket – and it is essential to the Crown's case. While 17.29 grams of cocaine is not the biggest quantity ever possessed for the purpose of trafficking, it is large and high in value, and the substance is pernicious. The amount of cash seized is unquestionably high.

Conclusion on Section 24(2)

[84] In my view, when the significant, but not flagrant breach is balanced against its low impact and society's interest in adjudication, exclusion of the evidence is not merited. Admission will not bring the administration of justice into disrepute.

[85] The evidence of the finding of the marijuana, the cocaine and the money will be admitted.

Released: May 28, 2015

Signed: "Justice G.N. Sparrow"