Court File and Parties

Ontario Court of Justice

Date: 2017-07-20

Court File No.: Newmarket 17-04015

Between:

Her Majesty the Queen

— And —

John Moore, David Abbott

Before: Justice David S. Rose

Heard on: July 10 – 12, 2017

Reasons for Judgment released on: July 20, 2017

Counsel

Mr. J. Arvizu — counsel for the PPSC

Mr. P. Genua — counsel for the accused John Moore

Mr. M. McKee — counsel for accused David Abbott

Reasons for Judgment

David S. Rose J.:

Jurisdiction and Preliminary Matters

[1] Mr. Moore and Mr. Abbott are both charged with Trafficking in Fentanyl. Mr. Moore is charged alone with possession of Fentanyl for the purpose of trafficking. At the outset Mr. Genua argued that I had no jurisdiction to deal with this case because the offences are both alleged to have occurred in Toronto, and this trial is being heard in Newmarket, some 60 km to the north of Toronto. I dismissed that Motion for oral reasons and without calling on Mr. Arvizu.

[2] Both Messrs. Moore and Abbott brought Pre-Trial Motions alleging violations under the Charter of Rights and Freedoms which were heard in advance of the trial proper. This ruling covers those Motions. Additionally, the Crown seeks to have utterances of Mr. Abbott and Mr. Moore proven to be voluntary. This ruling covers that too.

Evidence

[3] DC Matthew Wyatt testified as the Officer in Charge of this case. He received information in January of 2016 about the sale of heroin in Georgina by an individual named Matthew Danbrook. That lead to an investigation called "Project 8–track".

[4] On January 18 DC Wyatt and this team had set up on a house in Georgina and saw a vehicle belonging to Mr. Danbrook arrive at the residence. It then left. They followed it and saw the car stop after a short period of time. They observed what looked to them as the driver snorting drugs off a card. They arrested the driver Mr. Danbrook and seized a post card, a wet nap and some cash. They later found some straws in the driver's side front seat and some marijuana in the trunk. These were sent off for analysis and turned out to be inconclusive for the presence of heroin.

[5] On January 18 the police were also granted judicial authorization to install a tracking device on Mr. Danbrook's car, a Black 2002 Pontiac Grand Am. The car was returned to him, along with the seized cash on January 28, and from that point the police had the ability to covertly track the movements of the Pontiac. Once Mr. Danbrook picked up the Grand Am that day the police physically surveilled the car as it drove south bound on Highway 404 ending up at 268 Pharmacy Avenue in Toronto. Wyatt was able to track the car from the police station using the tracking device. He gave updates to the surveillance team on the road.

[6] On January 28, Mr. Danbrook was accompanied by David Abbott on the trip. Mr Wyatt explained that both Mr. Danbrook and Mr. Abbott went into 263 Pharmacy Avenue. He didn't know how long the visit lasted. DC Wyatt testified that the tracking device had the Grand Am leaving 263 Pharmacy that day and going to an address on the Danforth Avenue which was linked to the Outlaws Motor Cycle Club, where it stopped briefly, before going back to Mr. Danbrook's residence at 68 Riveredge Road in Georgina. DC Wyatt testified that he believed that Mr. Danbrook lived there with David Abbot, and Mr. Abbott's daughter.

[7] On January 29 DC Wyatt reviewed the live tracking data for the Grand Am. It moved from 68 Riveredge and proceeded south bound on Highway 404 to 263 Pharmacy. Wyatt testified that he wasn't sure who was driving the car on that trip. The car returned ultimately returned north via Highway 404, but not before first getting off the 404 and getting back on again. DC Wyatt took this to be a counter surveillance move.

[8] The Grand Am was stopped by the police on Woodbine Avenue and it turned out that Matthew Danbrook was the driver. Candace Abbott was the passenger. Ms. Abbott is the daughter of Mr. Abbott and the partner of Mr. Danbrook. The police believed that they were in possession of controlled substances so they arrested both. Ms. Abbott turned out to have some marijuana on her but initial searches turned up nothing more. The Grand Am was again seized and a search warrant authorized another search. Nothing was found in the Grand Am.

[9] A cell phone was seized from Candace Abbot on January 29, and the police obtained a search warrant to search it. They compared messages on it to time of the two trips to 263 Pharmacy on January 28 and January 29. From that the police determined that the person being met at 263 Pharmacy was someone named "Sweets". This was from text messages which spoke of meetings at that time. One of them said "Go to 11 left". The cell phone search revealed a phone number for Sweets, and Wyatt testified that he never found a phone connected with that number.

[10] DC Wyatt took the text messages and called his counterparts in Toronto. He received information from PC Seeband of Toronto Police Service that "Sweets" was John Moore who lived at 263 Pharmacy. Seeband told PC Wyatt that a search warrant had been executed at Mr. Moore's apartment recently but no drugs were found. Mr. Moore apparently had a large Rottweiler.

[11] Wyatt followed up his conversation with PC Seeband by speaking with another TPS officer, DC Altobello on 19 February. From that conversation he learned that "Sweets" stores his drugs in a nearby apartment. He also followed up with a conversation with another TPS officer on March 8 DC Harris. From that he found out that Mr. Moore was police technique conscious. He also received a 7 page LEIP report from TPS which outlined the execution of a search warrant by TPS on December 23, 2015 at unit 1415 – 263 Pharmacy Avenue Toronto. Notably, TPS found no drugs in the apartment and Mr. Moore was released unconditionally. Page 6 of the LEIP report said, "There was also a large Rottweiler inside the unit, however: he was rather friendly. Officers conducted a search of the unit with negative results for any drugs, however; there was a large quantity of cash located within the unit".

[12] DC Wyatt testified to being puzzled that no drugs were seized on January 29. He received information on February 25 that Mr. Danbrook had disposed of the drugs after his arrest. He then reviewed the in-car camera footage from the police car used to transport him after his arrest. He saw something which caught his attention during Mr. Danbrook's confinement in the back seat. He had the car brought back into the station and then did a detailed examination of the back seat. He found a white powder substance secreted in the back seat. He suspected it to be heroin, and ultimately it tested as just that.

[13] No charges were laid against Mr. Danbrook because of perceived problems with continuity of the seized substance. About 6 persons had been in the back seat of the car since Mr. Danbrook's arrest.

[14] The Tracking Device on the Grand Am was still live and it showed, in DC Wyatt's testimony that the car was going to 263 Pharmacy Avenue several times:

• 23 Feb – 23 minutes
• 24 Feb – 30 minutes
• 25 Feb – half an hour
• 27 Feb. – not long, maybe 3 minutes
• 29 Feb – about 20 minutes
• 11 March
• 13 March

[15] The Grand Am went to other locations, there was a location on the Queensway in Toronto, and another on the Danforth that came out in evidence.

[16] Wyatt testified that 263 Pharmacy is a high rise apartment building, and he had no evidence about which apartment the occupants of Mr. Danbrook's car went into on each of these occasions.

[17] On March 15 the Grand Am was again tracked driving to 263 Pharmacy Avenue arriving there at 2:43 pm. The surveillance team watched this, and saw David Abbott exit the car and go into 263 Pharmacy Avenue. DC Wyatt made the decision to arrest Mr. Abbott after he left the building. He described his grounds to arrest Mr. Abbott as being:

• the counter surveillance techniques of the Grand Am;
• the initial information about Danbrook;
• the previous TPS investigation;
• the live tracking data 20 x which had Mr. Danbrook's car visiting 263 Pharmacy He qualified that somewhat by saying that he specifically noted 9 – 10 times;
• text messages from Jan 28/29;
• police seizure of (suspected) heroin in car previously occupied by Mr. Danbrook.

[18] Mr. Abbott was indeed arrested as he left the building, and was about to get into the passenger side front seat of the Grand Am. Wyatt testified that Mr. Abbott may have sat down before he was arrested. He was arrested for Possession for the Purpose of trafficking. DC Lumley was there with Wyatt assisting. Lumley searched Mr. Abbott incidental to arrest. Just under 15 grams of a white powdery substance was found on him.

[19] Mr. Abbott had a cell phone when he was arrested. Cst. Wyatt testified that it was open and unlocked when it was seized from him. He put the cell phone on the top of the car. It had text messages on the screen which he could read. They said "im here …One half an o".

[20] The driver of the car which Mr. Abbott was getting into was Candace Abbott. At that point Cst. Wyatt saw a male walk out of 263 Pharmacy with his hoodie up, walking a Rottweiler. Wyatt was about 60 meters away. After he saw the man Wyatt walked toward the man and said "John?", and the man said yes. Wyatt asked him if he was John Moore and he turned around and said yes. Wyatt recognized Mr. Moore from the police pictures of Mr. Moore he had seen previously and then arrested him at 3pm. He testified that he then gave his Rights to Counsel and primary Caution. He said that the reason for the arrest was the information he had, the cell phone messages and the totality of information he had to date. Cst. Wyatt described the scene as dynamic. He didn't expect to encounter Mr. Moore near to the scene of Mr. Abbott's arrest. Wyatt testified that it was about a minute or two after Mr. Moore was arrested that he started to speak with him.

[21] In short order Det. Stribel and Burd arrived to assist Cst. Wyatt.

[22] Mr. Moore was concerned about his dog. So were the police. Det. Stribel testified that he did not know that the dog was friendly and was cautious at the beginning. All officers testified that Mr. Moore turned out to be quite cooperative. He said they could look in the apartment if they wanted. They would not find drugs there. He asked the police to put his dog in his apartment and gave them the key. Wyatt and Stribel went up to unit 1415, entered using the key, and put the dog in the bathroom. Wyatt and Stribel differed on who put the dog in the bathroom, but they both gave evidence that they left the apartment immediately without looking around. Det. Stribel was clear in his evidence that, even if Mr. Moore gave his permission to search apartment 1415, they were going to get a search warrant before entering for that purpose.

[23] Cst. Wyatt testified that Mr. Moore never asked to speak with a lawyer while he was at the scene of the arrest. There turned out to be a miscommunication between the officers at scene at 263 Pharmacy and YRP dispatch with the result that there was a lengthy delay between the arrest of Mr. Abbott and Mr. Moore and their transport to the police station for processing.

[24] Det. Burd asked Wyatt if he had read RTC to Mr. Moore and Wyatt said that he did.

[25] When Mr. Moore did ultimately arrive at the police station he declined a lawyer at 6:48. Later on, at 1:30 am on March 16, Mr. Moore asked to speak with his lawyer Paul Genua. Cst. Wyatt testified that that happened when he was serving documents on Mr. Moore. Cst. Wyatt said that he called Mr. Genua but never received a reply and never told him that he could speak with Duty Counsel if his own lawyer wasn't available. He disagreed that he never told Mr. Moore that he had his Rights to Counsel. He disagreed that he never asked him if he went by the name of Sweets.

[26] Cst. Wyatt testified that his grounds to arrest Mr. Moore were:

• the countersurveillance techniques of the Grand Am;
• the arrest of Candace Abbot gave the name of Sweets as a contact at 263 Pharmacy on January 28 and 29, and the inference that a drug transaction was occurring on those days;
• the previous TPS investigation revealed that a Rottweiler was in Apartment 1415 with Mr. Moore;
• Dave Abbott had drugs with him as he left 263 Pharmacy;
• The text messages on Mr. Abbot at the time of his arrest were with Sweets and asked if he was there and referred to half an O.
• Information from Toronto Police which lead them to Sweets and the name John Moore;
• the initial information;
• the live tracking Data which had the Grand Am going to 263 Pharmacy about 20 times.
• the seizure of heroin from the police car in which Mr. Danbrook was in custody on January 29.

[27] Officer Stribel testified. On March 15, 2016 he reported for duty at 12:30 and was the Detective in charge of a working project which ended up going to 263 Pharmacy Avenue. He went there with his team, arriving at 2:40pm. They set up surveillance there. The team saw Mr. Abbott come out of the apartment building, and go to the passenger side of a vehicle. He was arrested immediately for Possession for the Purposes of Trafficking. DC Lumley took custody of him. By then it was 2:54. The driver of the car was Candace Wyatt, and Stribel told her to turn off the car. She was turned over to DC Watson, who was there as part of the team.

[28] While he was at the scene of Mr. Abbott's arrest, DC Wyatt saw Mr. Moore across the parking lot.

[29] Det. Stribel testified about Mr. Moore's dog. He had concerns about it. At the time that Mr. Moore told the officers that the dog was friendly. That happened when Mr. Moore was being read his rights to counsel and caution. Det. Stribel testified that Mr. Moore verbally confirmed that he has a nickname "Sweets" and that he lives in apartment 1415 at that address. This was verbal.

[30] According to Det. Stribel Mr. Moore was concerned about his dog, and asked if someone could take care of him. He wanted the dog to be put in his apartment. He denied that he was a drug dealer, but according to Stribel, Mr. Moore gave them permission to go into the apartment. Stribel told them that the police were going to search his apartment after getting a search warrant.

[31] Det. Stribel said that Mr. Moore gave Det. Burd, who was also present, the key to the apartment. Stribel and Burd went up to the apartment with Mr. Moore's dog, unlocked the door and put the dog in the bathroom. Stribel remembered flushing the toilet so that the dog had access to some water.

[32] Stribel testified that there was a mix up at the scene regarding transportation of Mr. Moore. He expected police cars to be there immediately to transport, but they didn't show up for at least an hour.

[33] Det. Cst. Burd testified that on March 15 he was working as a plainclothes officer on Project 8 – Track. He was partnered with Cst. Wyatt. A surveillance team that day had tracked the Black Grand Am to 263 Pharmacy at 2:35pm. Burd saw Mr. Abbott go into the building and Candace Abbott remain in the driver's seat of the Pontiac. Shortly thereafter he saw Mr. Abbott leave the building and get back in the car. Burd said that things happened fast. Very quickly Mr. Abbott was arrested by Cst. Wyatt who was assisted by Det. Lumley. Det. Burd saw Lumley search Mr. Abbott and find a half ounce of a substance in Mr. Abbott's leather jacket. He heard Det. Wyatt say something and leave to go to where Wyatt was now located. Wyatt was with John Moore, and Det. Burd went there. He asked Mr. Moore if he was Sweets and he said yes, but my name is John Moore. Burd testified that he asked Cst. Wyatt if he had given RTC. Det. Stribel, by that point, was standing with a dog. He couldn't remember exactly how it unfolded but Mr. Moore asked if his dog could be put in an apartment. Burd went up with Stribel to put the dog in the bathroom in the apartment.

[34] Det. Murray Silvester also testified. He was part of the team at 263 Pharmacy that afternoon. He was present when DC Wyatt apprehended Mr. Moore. He saw the arrest but did not hear the Rights to Counsel and Caution. In his evidence he was not concerned with that. He was assisting as a back up officer. He said that Mr. Moore never asked to speak to a lawyer.

[35] Mr. Moore testified in support of his Applications under ss. 10(a) and (b) of the Charter. He admitted to a lengthy criminal record going back to 2003. I would summarize it as having the following entries:

2003 Assault — Suspended Sentence and Probation

2004 Mischief Under, Fail to Comply with Probation — Suspended Sentence and Probation

2005

• i. Possession of Schedule 1 Substance For the Purpose of Trafficking
• ii. Obstruct Peace Officer
• iii. Possession of Proceeds of Crime — i. – iii. 30 days jail on each consecutive plus probation
• iv. Assault
• v. Fail to Comply with Recognizance — iv – v 30 days concurrent

2006

• i. Possession of Firearm — 80 days & 153 days Pre-Sentence Custody
• ii. Possession of Prohibited Firearm with Ammunition — 80 days concurrent
• iii. Delivery of Restricted Weapon — 80 days concurrent
• iv. Possession of Scheduled Substance — 7 days concurrent

2011

• i. Possession of Substance for Purpose Of Trafficking x2
• ii. Trafficking in Scheduled Substance x3 — 2 years concurrent on each (i and ii) & 10 months pre-sentence custody
• iii. Fail to Appear
• iv. Fail to Comply with Recognizance — 30 days concurrent on each iii. And iv.

2012 Obstruct Peace Officer — 30 days concurrent to sentence being Served

2013 Possession of Schedule II Substance — 1 day

[36] Mr. Moore testified that on March 15, 2016 he went outside of his apartment for a walk with his dog. He noticed some commotion as he left the building. He said that he heard his name being called, and saw 2 – 3 people coming toward him. He was surprised. Someone asked him if he was John Moore and he said that he was. With that he was arrested and handcuffed. The issue of the dog came up quickly, and he told the officers that they should not be afraid of the dog. With that one of the officers took the leash.

[37] Mr. Moore described the situation and the time that followed as casual. He was wondering what was going on and was never told. Nor did he ask. He said he had been standing around for about 15 – 20 minutes while the police stood around talking among themselves. The police searched him and took the key to his apartment. He sat on a piece of concrete watching things.

[38] He testified that Officer Burd was talking to him about his dog. He said that Burd casually tried to get him to say he was Sweets. As the time was getting on they talked about what to do with the dog. Mr. Moore testified that he was fine with the idea that the dog be put back in the apartment. He gave them the apartment number and two officers left to put the dog back in the apartment. He testified that he didn't think they would look around the apartment, because that would be illegal. He still didn't ask what was going on. In his evidence, it isn't worth it to bother the police, because it wouldn't make any difference.

[39] After a period of time he became cold and the police put him in a van with the heat on and, at one point, the radio. He was still cuffed to the rear. Up to this point Mr. Moore says that he was never told why he was under arrest, and never given his rights to counsel.

[40] After still more time a uniformed officer in a squad car appeared and told him that he was transporting him to a police station. That officer gave him his Rights to Counsel. Mr. Moore wasn't 100% sure if that uniformed officer told him he would be charged. It was at the point that he was turned over for transportation that one of the non-uniformed officers on scene told him that his apartment would be searched. Mr. Moore testified that in his mind he thought that might happen. With that he became worried a little bit. He was never told about Mr. Abbott's arrest up to that point. He testified that he still had no need to call a lawyer. His biggest worry at that point was his dog.

[41] Mr. Moore testified that he was told about his Rights to Counsel when he was booked into the police station. He said that at that point he had no reason to speak with a lawyer. He would have called if there was a reason.

[42] Mr. Moore testified that the first time he was told he would be charged with a drug offence was at 1:30 in the morning by Det. Wyatt. He is pretty sure that he told him that the wanted to speak with Mr. Genua. He gave Officer Wyatt his aunt's name too.

[43] The police ultimately obtained a search warrant for unit 1415 – 263 Pharmacy Avenue at about 9:20pm on March 15, 2016. It was filed as part of the Motion. It is agreed, for purposes of this Motion that when the police executed the search warrant they found the following: packaging material; $2636.00 in money; a digital scale; two plastic bags with certificates of health analysis attached both for fentanyl and caffeine; a cell phone for the number 647 767-7474; a Canada Post document with the name John Moore; a Black cell phone and a letter from Canada Revenue Agency addressed to John Moore at 1415 – 263 Pharmacy Avenue.

[44] It is also agreed, for purposes of this Motion, that when Mr. Abbott was arrested the police found on him the following: 14.98g of Powdered Fentanyl, and an LG Cellphone.

[45] It is conceded by Mr. Genua that the Crown has proven that Mr. Moore's utterances were voluntary. That is a fair concession given the evidence that I heard.

Credibility Analysis

[46] Mr. Moore's Charter Application turns largely on credibility issues. On his evidence he was never given the Informational component of s. 10(b) until he was loaded into the YRP police car by a uniformed officer transporting him to the 3 District station in Keswick. He testified that he was arrested at the beginning by Det. Wyatt but never told the reason, which all agree is a violation of his rights under s. 10(a) of the Charter. In contrast, the Police evidence was that Mr. Moore was told about the reason for his arrest and given his rights to counsel right when he was first arrested and handcuffed. On their evidence there would be no s. 10(b) violation until Mr. Moore asked to speak to a lawyer much later, at 1:30 am.

[47] As regards Mr. Moore, I would not find his evidence reliable on the balance of the Charter Applications. First, I have difficulty with his evidence that he waited for apparently over an hour in what he described as a casual setting. Casual meant, on his evidence, a fairly significant police event at that location with many people standing around. Other than Mr. Abbott, there was no evidence that anyone other than Mr. Moore was in custody namely sitting around an apartment building parking lot in handcuffs in the company of the police. That would have been apparent from the scene at 263 Pharmacy Avenue that afternoon. The casual description of the event is at odds with what was, by all accounts, transpiring.

[48] Second, Mr. Moore testified that he left his residence to walk his dog. About 20 minutes after he was arrested there was, he agreed, a discussion about his dog being put back in his apartment. He agreed to let Officers Stribel and Burd do this. At that point his evening had taken a different direction. His agreement to let the officers take his dog back to the apartment is inconsistent with his evidence that being handcuffed was nothing unusual. It would have been clear that his plan for the afternoon, namely walking his dog, was no longer happening. His evidence that he still thought nothing of the event such that he didn't need to ask the police about why he was being arrested makes no sense.

[49] Third, Mr. Moore agreed in his evidence that he was given his rights to counsel when he departed 263 Pharmacy in a police car. His evidence that he didn't need to contact a lawyer because there was no need is unbelievable. By that point he was being driven far away from his home – and his testimony confirmed that he was going so far away that they passed an airport. When he got to the police station he was again advised of Rights to Counsel and chose not to exercise them because, again, there was no need. This makes no sense to me. He was by then booked into a police station far away from his home. Taken in handcuffs. The situation was staring him in the face that this was no longer casual.

[50] Fourth, his evidence that he had a sense that the police were going to search his apartment, but that he was never told that by the police is too convenient to be believed. If it were true he would have appreciated that this was not casual encounter.

[51] Fifth, at times his evidence was non-responsive to questioning. I considered whether this was because of witness nerves, but I rejected it. In his second last answer he talked about the 'normal thing to do' when in police custody and requiring legal advice. That brought the question from Mr. Arvizu that the normal thing to do would be to call a lawyer. His answer to that seemingly simple question went on for over 3 minutes. His answer to the last question posed by Mr. Arvizu was so long as to be unresponsive. I find it to be indicative of evasiveness because Mr. Moore wanted to have it both ways. On one hand he wanted to say that he knew about needing to call a lawyer, and on the other hand maintaining that despite the situation which he himself described as "craziness", he didn't need to call a lawyer. His explanation made no sense in the end.

[52] Sixthly, Mr. Moore has 2 criminal convictions for obstruction of police. I find these to be past examples of Mr. Moore's dishonesty in the context of criminal investigation.

[53] Mr. Genua asks me to find that Mr. Moore's past experience with the police ie his criminal record, means that his version of the events is more believable. Normally an arrestee's experience in criminal law does not alter the constitutional landscape. The Charter treats all equally. It matters not whether the arrestee is unsophisticated or has an advanced degree in criminal law. The informational component to s. 10(b) must be read, and implementation of that duty effected if requested. But I was asked to find that, because of Mr. Moore's experience, his version is more likely. I would approach this argument with some caution. Mr. Moore did indeed give evidence that from his experience if he wasn't told the reason of his arrest or given Rights to Counsel there was no need to ask the police why he was arrested and handcuffed, because his experience with criminal justice told him that asking the police doesn't matter and only makes things worse. That is another frailty in his evidence. Mr. Moore's own testimony confirmed that the police were assisting him in at least two ways. First, they took his dog back to his apartment, and second they put him in a warm van when he got cold. Whatever his experience may have been, he agreed that the police were responding to his needs in ways which were more onerous than answering a simple question like "why am I here".

[54] For these reasons I therefore reject Mr. Moore's evidence that he was not read his rights to counsel and cautioned when he was arrested. I accept Officer Wyatt's evidence that he read Mr. Moore his rights to counsel and gave him a primary caution. I find as a fact that Mr. Moore was never asked if he wanted to speak to a lawyer, but neither did he request one.

[55] I also find that Mr. Moore's evidence that he requested contact with Mr. Genua at 1:30am on March 16, 2016 is correct. I find that Officer Wyatt placed a call to Mr. Genua and, as a courtesy, another one to Mr. Moore's aunt. There is no evidence that officer Wyatt, or anyone else told Mr. Moore that contact with Genua could not be obtained. There is no evidence that a follow up discussion with Mr. Moore took place.

The Rights to Counsel Issue

[56] It is axiomatic that an arrestee is afforded rights to counsel under s. 10(b) of the Charter. There is an informational component which mandatory upon each arrest, see R. v. Prosper, [1994] 3 S.C.R. 236, R. v. Bartle, [1994] 3 S.C.R. 173. This extends to being informed of the reasons for arrest under s. 10(a) see R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689. Implementation of rights to counsel is only engaged once the arrestee makes such a request. If the person doesn't ask to speak to a lawyer after being advised of that right, the police have no further obligation to facilitate contact see R. v. Owens, 2015 ONCA 652 at par. 27. I find that Mr. Moore was given his rights to counsel when he was arrested for trafficking at 3pm and then again when he was transported in custody later. He was also given his rights to counsel again when he was booked into the police station at 6:48 pm. At no time did he ever invoke his rights to counsel. There is no s. 10(b) Charter breach in the facts up to that point.

[57] Mr. Moore did, by his evidence and Cst. Wyatt's, ask for a lawyer at 1:30 am on March 16, when he asked to be put in contact Mr. Genua. Wyatt left a message for Mr. Genua. When no call was returned to Mr. Moore, there is no evidence that any follow up was done either with Mr. Moore or any other lawyer. In R. v. Traicheff, 2010 ONCA 851, the court approved the following statement:

Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer's name and another telephone number where he could be reached.

The intermediate step, namely going back to the detainee and asking what further steps he or she would like to take was never done in this case. I have no evidence that Mr. Moore ever spoke with a lawyer after 1:30am. As a result I find that Mr. Moore's rights under s. 10(b) were violated from 1:30 am onwards.

The s. 9 Argument

[58] The grounds for arrest of Mr. Abbott and Mr. Moore overlap.

[59] By the time that Mr. Abbott was arrested the Project 8 – Track team had the following information:

• i. the arrest of Candace Abbott on January 29 which gave the name of Sweets as a contact at 263 Pharmacy, and the inference that a drug transaction was occurring on those days, namely January 28 and 29;
• ii. information from Toronto Police which lead them to Sweets and the name John Moore. This included the LEIP report which disclosed the seizure of a large amount of currency from apartment 1415 – 263 Pharmacy Avenue in December 2015;
• iii. the initial information;
• iv. the live tracking Data on Mr. Danbrook's Black Grand Am which lead them to 263 Pharmacy about 20 times.
• v. the countersurveillance techniques of the Black Grand Am;
• vi. the seizure of what the police believed to be heroin from the rear seat of the police car in which Mr. Danbrook was confined on January 29.

[60] When Mr. Moore left 263 Pharmacy Avenue, the police could add the following to their grounds to arrest him:

• Mr. Abbott had a half ounce of a controlled substance in his jacket when he was arrested.
• Mr. Moore had a Rottweiler with him.
• The text messages on Mr. Abbot at the time of his arrest were with Sweets and asked if he was there and referred to half an O.

[61] A police officer may arrest a person who has committed an indictable offence without a warrant under s. 495(1)(a) of the Criminal Code. In order to make a lawful arrest the officer must have reasonable and probable grounds. The test for reasonable and probable grounds to arrest is not in dispute. The police must have a subjective belief that such grounds exist but those grounds must be justified objectively, from the viewpoint of a reasonable person standing in the shoes of the officer, see R. v. Storrey, [1990] 1 S.C.R. 241, R. v. MacKenzie, 2013 SCC 50. Compelling credible information is required to furnish the objective grounds. It is not a mathematical formula, but rather a qualitative standard grounded in a common sense, non-technical approach see R. v. Campbell, 2010 ONCA 588, R. v. Ward, 2012 ONCA 660. The objective assessment includes the dynamics in which the officer was acting, see R. v. Lawes, 2007 ONCA 10.

[62] In this case there is no dispute that Cst. Wyatt subjectively had grounds to arrest both Mr. Abbott and Mr. Moore, the real issue is whether those grounds were objectively reasonable.

[63] Putting together the grounds for arrest, Wyatt had compelling information that Mr. Danbrook was a drug dealer. This came not just from information and a text message about Sweets on January 29 but also a seizure of a powder in the police car Mr. Danbrook was confined in after his arrest. I would not over-emphasize the weight to be placed on the heroin ultimately found in the back seat of the police car. While many persons had been in the car since Mr. Danbrook at the same time it was believed to be heroin. That belief was objectively reasonable. It is an unusual thing to find secreted in the back of a police car. While I agree that the police car seizure did not give the them reasonable and probable grounds to arrest Mr. Danbrook it did tie him to a place where few had been and heroin had been found. The back seat of a police car is obviously not a public place. The police car search tied Mr. Danbrook to a heroin seizure, even if loosely. It is entitled to some confirmatory weight when considered against the theory that Mr. Danbrook was a heroin dealer. Mr. Danbrook had a car which was going to an apartment building in Toronto from the Keswick area. The times of the visits were precise. Objectively the police could tie Mr. Danbrook to a car which was going to a specific address many times. It was also going to other places, but objectively 263 Pharmacy was an apartment building, not a mall or stadium.

[64] Objectively the police could infer that Mr. Danbrook's car was frequently visiting someone named Sweets, and travelling some distance to do that. The TPS information bolstered the case being built by the Project 8- track team by including information that Sweets lived at apartment 1415 and that on December 23, 2015, less than 3 months previously, the Toronto police found a large quantity of cash in that apartment. No drugs were found, but a large quantity of cash may contribute to reasonable and probable grounds of criminal conduct, see R. v. Nolet, 2010 SCC 24 at par. 48. When the Grand Am again went to 263 Pharmacy on March 15, they had reasonable and probable grounds to believe that the occupants of the car were involved in trafficking drugs out of that building. It follows that the arrest of whomever came out of the building to enter the car was similarly grounded. It turned out to be Mr. Abbott, who was connected with Mr. Danbrook by virtue of his daughter, who happened to be the driver. I have no difficulty in making this finding. Mr. Abbott was lawfully arrested and the search of his person was properly incidental to his arrest. I therefore dismiss his ss. 8 and 9 arguments.

[65] Defence does not contest the voluntariness of the utterances. This is a fair concession. I would have no difficulty in finding that the utterances by Mr. Moore were voluntary.

[66] As regards Mr. Moore, once Mr. Abbott was arrested and found with a package the police believed to be heroin and a cell phone which had recent text messages to Sweets in plain view which referred to "half an O", they had ample grounds to arrest Mr. Moore. By then their theory that Mr. Moore, "Sweets", was selling heroin to Mr. Danbrook's associates was confirmed. The arrest of Mr. Moore was lawful.

Remedy

[67] I have found that Mr. Moore's rights under s. 10(b) of the Charter were violated when no further steps were taken once contact with Mr. Genua could not be made at 1:30 am on March 16, 2016. No other Constitutional Infringements were established. What remedy, if any, under s. 24(2) should follow from this violation of Mr. Moore's rights?

[68] As an initial stage in the analysis Mr. Moore seeks excision of various paragraphs of the Information to Obtain the search warrant issued at 9:20pm on March 15, 2016 to search his apartment. There is no causal connection between the search warrant and the Charter Breach. Because the Charter violation occurred some 4 hours after the search warrant was signed, the Charter violation does not precede the seizure of the evidence. But that does not end the matter. It is unnecessary to establish a strict causal analysis. The connection may be "… temporal, contextual causal, or a combination of the three" see R. v. Wittwer, 2008 SCC 33, R. v. Plaha, 189 OAC 376. As DeLuca J. recently put it in R. v. Wu, 2017 ONSC 1003:

This generous and purposive approach to the consideration of the "obtained in a manner" component of s. 24(2) was more recently affirmed by the Court of Appeal in R. v. Pino, 2016 ONCA 389, where Laskin J.A. 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 the court can discern a causal, temporal or contextual connection that is not too tenuous or remote.

[69] Turning to the three part test. I would describe the seriousness of the state conduct as between serious and minimal. Obtaining legal advice upon detention is crucial, and follow up with arrestees whose counsel of choice cannot be reached was established, at least as far back as 2010 when the Court of Appeal ruled on Traicheff (supra). What mitigates the seriousness in this case is that Cst. Wyatt made the call to Mr. Genua. Implementation was not complete. It is not a minimal oversight. That said, the police conduct, on Mr. Moore's own evidence, was not disrespectful at any point. They put his dog in his apartment, and gave him a warm place to sit while awaiting transport. I have found that Rights to Counsel were given at the scene. The search of Mr. Moore's apartment occurred after they entered it with Mr. Moore's permission and left immediately so that entry could be made with a search warrant. Whether a plain view search could have been made solely on Mr. Moore's request to put the dog in unit 1415 was argued by counsel. It is unnecessary to decide the point. The police waited until a search warrant could be obtained and the evidence at trial was uncontradicted that no plain view was made. There is an abundance of evidence that the Project 8 – track team otherwise complied with Charter obligations. The first factor on balance pulls modestly in favour of admission of the evidence.

[70] Mr. Moore had been advised of his Rights to counsel three times by 1:30 am and had never invoked them. By 1:30 all that remained from his part was to appear for a show cause hearing. There is no evidence that Mr. Genua ever called back after 1:30. Given Mr. Moore's disinterest in invoking access to a lawyer for several hours and what remained before he would be appearing in Court later that day, ie nothing, I find that the impact on his Charter Protected Interests to be minimal. The second factor pulls toward admission of the evidence.

[71] Society always has an interest in criminal trials being heard on their merits. The question is by how much? In this case the charge against Mr. Moore is trafficking in an opioid for which, there is no dispute, Canada is facing an opioid epidemic. In this case I would find that society has a very great interest in a trial on the merits and the third factor strongly pulls towards admission of the evidence.

[72] Putting all three factors together, a balancing exercise of all three factors leads to the conclusion that there will be nothing exercised from the Search Warrant Information to Obtain and no evidence will be excluded from the trial.

Released: July 20, 2017

Signed: Justice David S. Rose