Court Information

Ontario Court of Justice

Date: June 28, 2017

Between:

Her Majesty the Queen

— AND —

Thang Mach

Before: Justice P. Downes

Heard on: April 3, 4 and May 18, 2017

Reasons for Judgment: June 28, 2017

Counsel

For the Crown: A. Shachter

For Mr. Mach: L. R. Shemesh

Judgment

P. Downes J.:

1. INTRODUCTION

[1] Thang Mach and Chieu Pham were jointly charged with possession for the purpose of trafficking in MDMA and marijuana and possession of currency obtained by crime. After a two day trial, Mr. Pham was found not guilty on all counts. These reasons address the charges in relation to Mr. Mach.

[2] Mr. Mach brought an application under s. 24(2) of the Charter to exclude the evidence seized both from his person incident to arrest or detention and from what the Crown alleges was his apartment pursuant to a Controlled Drugs and Substances Act (CDSA) search warrant. While the application alleges breaches of sections 8, 9 and 10(b), it became clear that the primary complaint was with respect to the failure of the police to implement Mr. Mach's expressed desire to speak to counsel at any point between the time of his detention and the time he was brought to court for a bail hearing the following morning.

[3] For the reasons that follow, I find that Mr. Mach's section 8 and 10(b) rights were violated. I am also satisfied that all of the evidence seized should be excluded under s. 24(2). As a result, the Crown is unable to prove these charges beyond a reasonable doubt and Mr. Mach must be found not guilty.

2. SUMMARY OF THE EVIDENCE

[4] On November 19, 2015 members of the Toronto police guns and gangs task force executed eight search warrants as part of Project Knightrider, an investigation into narcotics trafficking, possession of illegal firearms, and illegal gambling within the Greater Toronto Area. Two of those searches are relevant here.

[5] At approximately 6:30 p.m. warrants were executed more or less simultaneously at two locations within close proximity to each other. The first was a second floor apartment in a strip mall at 2135 Jane Street, unit number 1 in Toronto. The second was in the same strip plaza at a pool hall which was also alleged to be an illegal "gambling den."

[6] When the Emergency Task Force and other officers entered the pool hall there were numerous people inside. One male was quickly arrested (not Mr. Mach) while the rest were ordered to the floor and told that they were all being detained while police searched for drugs. Det. Balint told the occupants as a group that they were being detained and asked, "does anybody wish to talk to a lawyer?" He said that everyone was cooperative.

[7] The police proceeded to seat all of the occupants along the wall and one by one Det. Cst. Doyle obtained their identification, providing that information back to someone at the police station to run checks for any outstanding warrants or other concerns relating to any of the individuals. Once completed the individuals were allowed to leave, the first one doing so at 8:26 p.m.

[8] Mr. Mach was one of the individuals detained. He testified on the Charter voir dire that a female officer seized his bag and searched it without his consent. Mr. Mach had advised the police of his address but could not recall the unit number. The female officer provided the unit number from a piece of identification recovered from his bag.

[9] Meanwhile, at the apartment, police had entered and found what turned out to be MDMA on the floor of the living room, as well as some marijuana in the kitchen fridge and some pills. Various documents were also found and in one bedroom there was a locked safe.

[10] At some point, Det. Balint communicated to Det. Cst. Doyle that drugs had been found in the apartment. Det. Cst. Doyle recognized the address of the apartment as the same one given by Mr. Mach at the pool hall.

[11] Just before 8 p.m. Det. Balint arrested Mr. Mach for possession of the drugs found in the apartment. Mr. Mach was handcuffed and read his rights to counsel, telling the police that he wanted to speak to a lawyer. No officer did anything to put him in touch with a lawyer. Instead, Mr. Mach was taken, handcuffed, to the apartment and to the back bedroom where the safe was located. The officers asked him to help open the safe, and eventually he did. His expired passport, a YMCA card and a health card both in Mr. Mach's name, and a quantity of drugs in a plastic bag were inside the safe.

[12] Shortly after that Mr. Mach was taken to the police station. He was detained overnight and taken to court for a bail hearing the following morning. The only evidence about what happened to Mr. Mach at the police station was his unchallenged testimony that he was never provided with any opportunity to speak to a lawyer that night.

[13] The following items seized from the apartment and from Mr. Mach are relevant to his identification as an occupant of the apartment:

From the safe in bedroom 3

• YMCA card in Mr. Mach's name
• Health card in Mr. Mach's name
• Cancelled passport in Mr. Mach's name

From a plastic shopping bag on top of the nightstand in bedroom 3

• 2005 tax return in the name of Thang Mach with an address of 415 Driftwood Avenue in Toronto
• 2007 T-D Bank document in the name of Thang Mach with an address of 4 Park Vista Drive, apartment 710, in Toronto
• April 2012 Canada Revenue Agency document in the name of Thang Mach with an address of Driftwood Avenue in Toronto
• May 2012 Canada Revenue Agency Act Notice of Assessment (no address)
• MPAC statement in the name of Thang Mach with an address of 4 Park Vista Drive, unit 710, in Toronto
• Ontario Sales Tax Transition Benefit form in the name of Thang Mach with an address of 415 Driftwood Avenue

On a night table next to the bed in bedroom 3

• June 26th, 2015 Aviva insurance documents in a brown envelope in the name of Thang Mach with an address of 2135 Jane Street, unit 1
• Centric Health Medical Assessment form & Claims Adjustment form

On a glass table next to the safe in bedroom 3

• May 12th, 2015 Toronto Hydroelectric system bill in the name of Thang Mach with an address of 2135 Jane Street, apartment 1

On the kitchen table

• September 10th, 2015 letter from Taylor, Zarek, Grossman Law firm to Mr. Thang Mach at 2135 Jane Street, unit 1
• November 11th, 2015 Aviva insurance document in the name of Thang Mach with an address of 2135 Jane Street, unit 1

On a shelf in the living room

• 2009 tax return in the name of Thang Mach with an address of 415 Driftwood Avenue
• Ministry of Health and Long-term Care document in the name of Thang Mach with an address of 2135 Jane Street, unit 1, North York hand written in the patient name and address section

On a chair in the living room

• 2008, 2010, and 2011 tax returns in the name of Thang Mach with an address of 415 Driftwood

From Mr. Mach's bag

• Ontario Health card in the name of Thang Mach
• Hospital card in the name of Thang Mach with an address of 2135 Jane St.
• Keys to the apartment
• Aviva Insurance documents in the name of Thang Mach

[14] The Crown conceded by way of an agreed fact that "there's no evidence that Mr. Mach spoke to duty counsel or a private lawyer" and reiterated in his oral submissions that, "the Crown is not in a position to provide evidence that Mach retained his rights to counsel [sic]."

[15] Mr. Mach testified on the Charter voir dire. He described the police entering the pool hall and telling everyone to get on the floor. He was ordered to identify himself to the police and he recalled his bag being searched by an officer who retrieved a piece of identification without his consent.

[16] Mr. Mach said that when he was arrested he did not recall being told that he could call a lawyer, but he asked to speak to his lawyer, John Christie, and was told that he would need to attend the apartment first and that he could speak to his lawyer, "later, later."

[17] Mr. Mach described being taken into a bedroom of the apartment, where the police demanded that he open the safe located inside the room. The Police swore at him and demanded, "what's the fucking password." He said that an officer charged towards him and that another was pushing him from behind. He told the police the code for the safe because he was fearful that the police were going to hit him or beat him.

[18] Mr. Mach testified that he never spoke to a lawyer until he went to bail court "a few days later."

[19] The Crown's cross-examination of Mr. Mach occupied some six pages of transcript, during which Mr. Mach testified that the experience in the pool hall was stressful but not scary; that he did not think his memory was affected by what happened; and that he spoke to a lawyer at court the following morning. Most of Mr. Mach's account in-chief about what happened went unchallenged by the Crown.

3. ISSUES & ANALYSIS

[20] Broadly framed, there are two issues in this trial: first, were Mr. Mach's Charter rights violated, and if so, what if any evidence should be excluded as a result of any violation? And second, is there sufficient evidence to establish beyond a reasonable doubt that Mr. Mach was in possession of the drugs found in the apartment?

[21] In light of my conclusion on the Charter application, I need not address the second issue.

a. SECTION 9

[22] There can be no issue that Mr. Mach, along with 20 other individuals, was detained by police at the pool hall for close to 90 minutes before he was arrested.

[23] Det. Balint, who was in charge of the pool hall operation, testified that upon entry everyone inside was "secured and advised of their detention…I have a CDSA search warrant for the location. Everybody is secured and detained. I advise everybody all at once in a group that everybody is detained right now."

[24] There was one person of interest who was identified and removed. Everyone else was held, monitored and identified while the warrant was being executed. As Det. Balint explained, "at that point in time I just want to make sure prior to search everybody is safe, secure somewhat, and I advised that, and why they're there and what's happening."

[25] An individual may be detained for investigative purposes if the police are acting in the exercise of their duty and the detention is justified as reasonably necessary in the totality of the circumstances. I am satisfied that Mr. Mach's initial detention at the outset of the police entry into the pool hall was lawful. In my view, the police were justified in temporarily detaining the individuals inside the pool hall pending the execution of the warrant at a location where, by virtue of that warrant, they necessarily had reasonable grounds to believe illegal drugs were located and being trafficked. This is consistent with their obligation to ensure the safety of the public and their right to execute the warrant without undue interference.

[26] In my view, the initial detention of Mr. Mach and the others in the pool hall was a lawful exercise of the police power to detain persons in the course of a criminal investigation.

[27] Once the premises had been secured, were the police required to permit everyone present to leave, absent a particularized basis to suspect that any of them were involved in criminal activity? In R. v. McGuffie, Doherty J.A. held that "The duration and nature of a detention justified as an investigative detention must be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs."

[28] None of the individuals in the pool hall was permitted to leave until police had verified their identification and run them through database checks. Det. Cst. Doyle testified that he believed any one of the individuals detained "could be" involved in drug dealing. For that reason, Det. Cst. Doyle wanted to identify everyone present to determine whether or not they were involved in "drug dealing, or they were a target, or they were part of the investigation somehow."

[29] I am prepared to accept that the police were entitled to investigatively detain the individuals in the pool hall, including Mr. Mach, on the basis that they were present at a location where drugs were found. While I have serious concerns about the length of time Mr. Mach was detained before being dealt with, on the facts of this case I am not satisfied that the detention in the pool hall was arbitrary or unlawful.

b. SECTION 8

[30] In the course of their detention inside the pool hall, each individual, including Mr. Mach, was asked by Det. Cst. Doyle for identification and to give him an identification document if they had any. As Det. Cst. Doyle testified, this was not a request, it was a demand. As far as he was concerned, as the officer seeking that information from each individual, they did not have a choice about providing it:

Q. And I'm going to suggest to you that this is not a request for people to give information, you're demanding their information before they are to be released.

A. Correct.

Q. Right? They don't have a choice.

A. Right.

Q. Okay. And that includes phone number?

A. I asked them for the phone number and I don't recall anyone declining. It wouldn't have – they're not forced to give me their phone number but I ask every single person. I don't...

Q. Well, are they forced to give you their name?

A. Yes.

[31] Det. Cst. Doyle testified that his practice with respect to each individual was to ask whether they had any identification and if they did to produce it. He remembered seeing Mr. Mach's address before he was arrested. Mr. Mach testified that his bag was searched by a female officer after he gave his name and address but could not remember his apartment number. Det. Cst. Doyle testified that it was possible he "grabbed" Mr. Mach's identification out of his bag. In any event, upon seeing his identification and the address on it, Det. Cst. Doyle advised Det. Balint because he recognized it as a location where a warrant was being executed. It was then that Mr. Mach was arrested.

[32] I am satisfied Mr. Mach's bag was searched prior to his arrest. The evidence was clear that it was only on the basis of the identification found in his bag that his address was determined. It was not until that happened that Det. Cst. Doyle made the link between Mr. Mach and the apartment being searched and advised Det. Balint.

[33] Since the search of Mr. Mach's bag occurred as part of his investigative detention and prior to his arrest, the Crown must be able to justify that search in accordance with the police power to search pursuant to an investigative detention. That power is rooted in concerns for officer and public safety. In the course of an investigative detention, police may take reasonable steps to protect their safety and the safety of the public. Therefore, the search power is much more limited than a search incident to arrest. The search must be related to articulable safety concerns.

[34] In my view, the search of Mr. Mach's bag in order to ascertain his identity was not justified incident to an investigative detention. That search had no nexus to a concern for officer or public safety. While a pat-down search may have been justified to ensure that there were no weapons immediately available to Mr. Mach, the search of his bag was done for the exclusive purpose of obtaining his identification. Det. Balint testified that Mr. Mach's bag had been taken from him at the outset since "for safety purposes, any bag and, and whatnot, for everybody's safety, are going to be placed near where that person was but not within reaching distance while we were tending to everybody and searching that premises."

[35] There were no safety concerns with respect to the bag at the time it was searched pursuant to an investigative detention. The search of Mr. Mach's bag was a breach of his section 8 Charter rights.

c. SECTION 10(b)

[36] The guarantee of the right to counsel in s. 10(b) of the Charter imposes three obligations on the police – the first is informational and the second and third are implementational.

[37] If a detainee chooses to exercise her s. 10(b) right by contacting a lawyer, the police must provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) and must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). Where an opportunity to consult counsel is requested, the police are under a duty to assist in the implementation of that contact as "the detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so." And the police are then under a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel.

[38] The rights created by s. 10(b) are engaged immediately upon detention, subject only to legitimate concerns for officer or public safety. Although an urgent or dangerous situation may justify a delay in facilitating contact with counsel, the Court has explained that: "[b]arriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel."

[39] In R. v. Strachan, Chief Justice Dickson discussed the authority to delay the implementational component and found that a two-hour delay was justified in a case where police were executing a search warrant at home where guns might be present. He explained:

The combination of an arrest in the accused's home, the presence of two unknown people, and the knowledge that two restricted weapons were in the apartment, was a potentially volatile situation. It is true that the accused had the proper registration permits for the weapons, but, notwithstanding, the possibility of their use was a serious matter for a police officer to consider while taking a person into custody. In my opinion, Constable Bisceglia was justified in preventing any new factors from entering the situation until some of the unknowns had been clarified. Thus I would say that the violation of s. 10(b) did not occur when Constable Bisceglia initially prevented the appellant from telephoning his counsel. But once the accused had been arrested, the weapons located, and the other two people had left, the police were clearly in control and there was no reason why they should not have allowed the appellant to telephone a lawyer. I would hold that the denial of counsel began at that point.

[40] In my view a similar dynamic is in play here. While I accept that the police were not obliged to provide the right to counsel immediately upon their entry to the pool hall, by the time they got around to demanding Mr. Mach's identification almost 90 minutes later, he should have been told by Det. Cst. Doyle that he had a right to speak to his lawyer and, if he invoked that right, he should have been afforded an opportunity to contact counsel without delay.

[41] Det. Balint's blanket inquiry upon entering the pool hall to everyone present asking if they wanted to speak to a lawyer fell far short of meeting the s. 10(b) obligation. There was no suggestion of the presence of any weapons or of any imminent danger requiring a lengthy suspension of the s. 10(b) right beyond the initial securing of the premises.

[42] I find that Mr. Mach's s. 10(b) rights were violated by the failure to afford him his right to counsel while he was under investigative detention and in particular before requiring him to identify himself.

[43] Mr. Mach's s. 10(b) rights were further eroded after he was arrested. Once a detainee asserts his s. 10(b) Charter right, "the police cannot, in any way, compel the detainee or accused person to make a decision or to participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a real opportunity to exercise that right." Det. Balint acknowledged that when he placed Mr. Mach under arrest in the pool hall and read him his right to counsel, Mr. Mach stated that he wanted to talk to a lawyer. Det. Balint took no steps to give effect to Mr. Mach's request. Instead, he handcuffed Mr. Mach and took him to the apartment. Once at the apartment, Mr. Mach was co-opted into helping the police open the safe.

[44] As the Supreme Court of Canada said in R. v. Sinclair, the right to silence in s. 7 and the right to counsel in s. 10(b) work together "to ensure that a suspect is able to make a choice to speak to the police investigators that is both free and informed." Section 10(b) aims to realize this purpose by ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations. As Lamer C.J. wrote in R. v. Bartle:

This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty.

[45] The Crown conceded by way of an agreed fact that "there's no evidence that Mr. Mach spoke to duty counsel or a private lawyer" and reiterated in his oral submissions that, "the Crown is not in a position to provide evidence that Mach retained his rights to counsel [sic]."

[46] Mr. Mach testified that he was never given access to counsel. He was cross-examined on the issue of his rights to counsel. In light of the Crown's position on this issue, it is worth reproducing the entirety of the Crown's cross-examination on the issue:

Q. You dealt with a lot of different police officers that night, Mr. Mach?

A. Yes.

Q. And you told us that you told them that you wanted to speak to a lawyer, John Christie?

A. Yes.

Q. And you're telling us that despite you telling all these different police officers that you want to speak to John Christie that no one once gave you – told you that you had the right to speak to a lawyer?

A. They say, "You wait."

Q. Okay, so they told you you could speak to a lawyer but you had to wait?

A. Wait. So they took me up to the stairs and then I talked to the black police male and then just say, "Wait."

Q. But you asked...

MR. MACH: I asked the police...

MR. INTERPRETER: I asked the police...

MR. MACH: ..."I need just talk to my lawyer."

MR. INTERPRETER: "I need to talk"...

MR. MACH: "John Christie."

MR. INTERPRETER: ..."to my lawyer John Christie."

Q. Right. And your evidence, as I understand it, is they told you you would be able to talk to your lawyer later?

A. So at first they say later but then they didn't connect me to the lawyer.

Q. I understand. Ultimately, you never did get a chance to speak to a lawyer, right?

A. No.

Q. But, in any event, they told you you could later?

A. No, they just say, "Later."

Q. Presumably you spoke to a lawyer, a duty counsel lawyer at court the next morning.

A. Yes.

[47] The Crown submitted that the s. 10(b) violation had not been established. As Mr. Shachter put it, "it is the defence onus to prove this and that your honour has to make a decision whether you believe all some or none of Mr. Mach's testimony and if you don't believe, if it's ambiguous, if you don't believe him, if you believe, if you find him not credible then it's, the whole situation is ambiguous and you wouldn't exclude evidence on the basis of an ambiguous…"

[48] The Crown says I should reject Mr. Mach's evidence that he did not speak to counsel, and in the absence of any positive evidence that he did speak to counsel, find that Mr. Mach has not discharged his burden of establishing the 10(b) violation on a balance of probabilities. In his written submissions Crown counsel submitted that Mr. Mach's evidence was incredible:

His evidence was contrived and seemed tailored to fit the result he seeks. For example, the prospect that not one of the number of officers he dealt with that evening read him his rights to counsel defies belief, and runs contrary to the evidence of more than one officer who testified on the voir dire. Further, his evidence was uncorroborated by any reliable source, though such evidence would be available for him to tender. For this reason, whether the Applicant spoke with John Christie that night is ambiguous and no 10(b) breach should be found.

[49] While it is true that Mr. Mach testified at one point that he was never read his rights to counsel by the officer who arrested him, it is also clear from his evidence that he was repeatedly asking to be put in touch with his lawyer. None of the police officers took issue with that fact.

[50] The Crown submitted that Mr. Mach has not discharged his onus to show that he did not speak to counsel because his evidence was unbelievable and because he failed to call evidence to corroborate his claim.

[51] Mr. Shachter is correct that it is Mr. Mach's onus to demonstrate a s. 10(b) breach. But where an accused has testified, unchallenged, that he was not put in touch with counsel, there is surely at least a tactical burden on the Crown to call evidence to show that he was. After all, it is the Crown who has access to every police officer, every note, every video and every record in relation to Mr. Mach's time in custody and his dealings with the authorities. In the face of the Crown's concession that it could tender no evidence that any police officer had taken any steps to implement Mr. Mach's asserted right to counsel is, Mr. Shachter's submission in this regard is, to put it mildly, disappointing.

[52] As Doherty J.A. put it in McGuffie, "the purpose animating s. 10(b) applied with full force in this case." Mr. Mach was unquestionably under the control of the police and subjected to a search of his possessions and at the very least a request to assist the police in obtaining evidence against him, both of which yielded seriously incriminating evidence.

[53] The Crown said that it would "not be relying on the evidence that Mr. Mach knew the code to the safe and that he, his physical assisting the police officers in opening the safe and his knowledge of the code to the safe." The Crown's position misses the point. Mr. Mach was not to know that at the time, and until the Crown announced its intention in court, Mr. Mach was faced with the highly incriminating evidence of his ability to open the safe. It would be difficult to imagine a more compelling piece of evidence that he owned and was in possession of the contents of the safe, and it is precisely why Mr. Mach needed legal advice at that point, a request he made repeatedly to the officers present and which each of them conspicuously ignored.

[54] Despite uncontradicted evidence from both Mr. Mach and the police that he repeatedly asked to speak to a lawyer, there is no evidence that he did so or that the police took any steps after his arrest to facilitate his access to counsel at any point that evening. On all of the evidence, there is, in my view, no other reasonable conclusion than that Mr. Mach's s. 10(b) rights were violated. His evidence on the issue was unchallenged by the Crown in cross-examination on this point. I see no basis to reject it.

d. SECTION 24(2)

[55] The Crown conceded that if Mr. Mach's 10(b) rights were breached, by its very nature, the breach would be serious. In addition, the Crown conceded that if a breach was found to have occurred prior to Mr. Mach's participation in opening the safe, then the items found in the safe should be excluded under section 24(2). I agree with that concession. The question is whether the rest of the evidence seized from Mr. Mach and from the apartment should also be excluded.

i. "Obtained in a Manner"

[56] Section 24(2) of the Charter permits exclusion of evidence where that evidence was "obtained in a manner" that infringed or denied any rights guaranteed by the Charter. While the "obtained in a manner" component of the s. 24(2) analysis is usually established where there is a causal connection between the evidence seized and the Charter right violated, that is not always the case.

[57] The Supreme Court of Canada has held that a "purposive and generous approach" must be taken to the issue of the connection between the Charter breach and the impugned evidence. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement.

[58] The Crown submitted that aside from the evidence in the safe, the evidence from the apartment was not "obtained in a manner" that infringed Mr. Mach's Charter rights. Since the evidence was obtained pursuant to a CDSA search warrant, and most of it was found prior to Mr. Mach's arrest, its seizure is not contextually linked to any of the breaches and as such falls outside of the s. 24(2) ambit.

[59] In R. v. Pino, Laskin J.A., following Strachan, directed the courts to consider the entire "chain of events" between the accused and the police to assess whether the evidence seized and the Charter breach are part of the same transaction or course of conduct. As long as there is a causal, temporal or contextual connection that is not too tenuous or remote, then the evidence may be subject to s. 24(2) remedy.

[60] In my view all of the evidence seized from Mr. Mach and the apartment satisfies the s. 24(2) threshold. The identification of Mr. Mach as being associated with the apartment as a result of the unlawful search of his bag and the failure to afford him the ability to speak to a lawyer before he was co-opted into assisting the police with their search are all temporally and contextually connected with the search of his apartment.

[61] The searches at the apartment and the pool hall were carried out simultaneously as part of a single project and a following a single briefing of all officers involved. While it is true that there is not a strict causal connection between the seizing of that evidence and the breach of his Charter rights, I am satisfied that the temporal and contextual connection is sufficient that the evidence can be captured under s. 24(2).

ii. Grant Analysis

[62] After Grant, a court, in deciding whether the admission of evidence tainted by a Charter breach could bring the administration of justice into disrepute, must consider three avenues of inquiry:

• The seriousness of the Charter-infringing state conduct
• The impact of the breach on the Charter-protected interests of the accused
• Society's interest in an adjudication on the merits

[63] The analysis must be rooted in a long-term, forward-looking and societal perspective, assessing each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

The Seriousness of the Breach

[64] This aspect of the inquiry involves an evaluation of the seriousness or gravity of the state conduct that led to the breaches. I agree with the Crown's concession that the breaches of Mr. Mach's Charter rights were serious. The nature of the state conduct in this case militates in favour of exclusion. The search of Mr. Mach's bag incident to his investigative detention was a clear violation of well-established limits on the scope of permissible searches in that context.

[65] The s. 10(b) breaches, particularly the failure to take any steps to implement Mr. Mach's expressed desire to speak to counsel – something known by almost every officer he dealt with – were egregious and prolonged. The breach of s. 10(b) was blatant and unexplained in an area of law that is not complex or unsettled.

[66] Neither the s. 8 nor the s. 10(b) breaches were minor or inadvertent. There were no extenuating circumstances to explain or attenuate the seriousness of the officers' conduct. Overall, the police conduct in this case demonstrated a disregard for well-established Charter rights.

[67] Each officer who came into contact with Mr. Mach either failed to ensure his right to counsel was respected or assumed that it was someone else's responsibility. Det. Cst. Askin, for example, assumed that Det. Cst. Miles had addressed the issue of right to counsel. He said that he was not responsible for "looking after" Mr. Mach.

[68] Det. Cst. Miles and Det. Balint were present when Mr. Mach was read his s. 10(b) rights and heard him express a desire to speak to a lawyer. Neither did anything to facilitate contact with counsel. Instead, Det. Cst. Miles told Mr. Mach that there was a safe in the bedroom and asked him if he would open it. After Mr. Mach had assisted the police with the safe he was turned over to Officer Grewal for transport to the station. Det. Cst. Miles told Officer Grewal that Mr. Mach wanted to speak to a lawyer. There is no evidence that Officer Grewal did anything to satisfy that request.

[69] Det. Cst. Doyle assumed that Det. Balint would facilitate access to counsel at the police station.

[70] Det. Stolf, who was in charge of the search team at the apartment, said that he "would entrust that Officer Miles, taking custody of a party under arrest, would a) ensure that he had been given his rights, or b) ensure that he, himself, gave him his rights and/or properly cautioned him."

[71] Simply put, on the record before me, none of these officers turned their mind to the basic implementational requirements of the right to counsel.

[72] This branch of the Grant analysis strongly favours exclusion.

Impact of the Breach on the Charter Protected Interests

[73] The second line of inquiry requires an examination of the extent to which the Charter breach actually interfered with or undermined the interests protected by the right infringed. The impact of a breach may range from "fleeting and technical" to "profoundly intrusive." The more serious the impact, the greater the risk that admission of the evidence will bring the administration of justice into disrepute by "signalling to the public that the high-sounding nature of the rights is belied by their feeble evidentiary impact in proceedings against the person whose rights have been trampled."

[74] The impact on Mr. Mach's Charter rights was direct and substantial in two ways. First, in a real and practical sense, the breach of his right to privacy led directly to his arrest and detention. Absent the unlawful search of his bag in the pool hall, police would not have connected him to the search at the apartment that evening. He would not have been arrested, at least not that night, he would not have been co-opted into assisting the police in their search, and he would not have spent that night in the cells without access to counsel.

[75] Second, by not ensuring that Mr. Mach was put in touch with counsel, the police denied him the ability to make an informed choice whether to comply with the police demands. The ability to make that choice is a core component of both personal autonomy and security of the person.

[76] Had he been afforded the opportunity to speak to counsel either at the time of his investigative detention or after his arrest, Mr. Mach could have asserted his right to silence and his right not to assist the police either by identifying himself in the pool hall or by helping them to open the safe at the apartment.

[77] While the question of the discoverability of the evidence does not play the prominent role it used to, it is nevertheless still relevant to the assessment of the real impact of the breaches. The more likely that the evidence would have been obtained without the Charter-infringing state conduct, the lesser may be the impact of that Charter-infringing conduct on the underlying interests protected by the Charter right. The converse is also true.

[78] Here, it is clear that at least with respect to the evidence seized from the apartment, it was discoverable by virtue of the search warrant, regardless of the breaches of Mr. Mach's Charter rights.

[79] Nevertheless, Mr. Mach's Charter protected right to privacy, silence and against self-incrimination were directly and seriously impacted by both the s. 8 and the s. 10(b) violations. This branch of the test also strongly favours exclusion.

Society's Interest in an Adjudication on the Merits

[80] The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where, as here, the evidence is reliable and critical to the Crown's case. That said, where the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. That is this case.

Balancing

[81] This was a case in which the police failed to respect basic and long-standing Charter rights. The Crown could offer no evidence that, in the face of repeated requests by Mr. Mach to speak to his lawyer, he was ever given an opportunity to do so from the moment he was detained in the pool hall until he was taken to bail court some 15 hours later. Mr. Mach's liberty and privacy interests were directly impacted and there is nothing in the record that explains or justifies the police conduct.

[82] The only serious question on the s. 24(2) analysis is whether the evidence from the apartment that was found outside the safe should be admitted because it was seized pursuant to a lawful search warrant and without Mr. Mach's assistance. In my view the seriousness of the Charter breaches and the lack of respect for fundamental Charter rights in this case warrant exclusion of all of the evidence. I am satisfied that on the whole of the evidence, admitting it would, having regard to all the circumstances, bring the administration of justice into disrepute.

4. CONCLUSION

[83] Exclusion of all the evidence seized from Mr. Mach and the apartment means that the Crown is deprived of the pivotal evidence against Mr. Mach in a serious drug prosecution. But that is the quid pro quo of the community's commitment to protecting the Charter rights of all individuals. Without the seized evidence the Crown cannot prove that Mach was in possession of any of the drugs or proceeds.

[84] Mr. Mach's Charter application is allowed. The evidence seized from him and from the apartment is excluded and he is found not guilty on all counts.

P. Downes J.

June 28, 2017