Court Information

Date: June 14, 2018

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

Her Majesty the Queen

-and-

Steven Villeneuve

Reasons for Judgment

Before: Duncan J.

Facts

[1] The defendant was charged with breach of recognizance, specifically that he breached a condition that he was to not be within Peel Region except to attend court. He was tried before me on May 2, 2018 and found guilty. At that time brief oral reasons were given with further reasons to follow. These are those reasons.

[2] The case was defended solely on Charter grounds.

[3] Around 11:30 PM on January 18, 2018, two Peel police officers, Poirier and Koufis, were at the bus loop area at the Westwood Mall in Brampton. They had just finished dealing with an intoxicated person, who was taken away in an ambulance, and were about to get into their police car to leave. At that point their attention was drawn to the defendant who was walking in the area where the buses drive. He was shouting. He stopped and then changed directions heading toward a group of people waiting for the buses. He continued to yell and was advancing toward the group "aggressively". He then reached behind his back into his waistband, a movement that the officers associated with possible possession of and reaching for a weapon. They moved toward the defendant shouting at him to put his hands where they could be seen. While there was some conflict between the officers, I accept Pourier's evidence that the defendant immediately complied and walked towards him. From a distance of about five meters Pourier told the defendant that he was being detained because of suspicion of having a firearm. Pourier conducted a pat down search during which the defendant spontaneously said "My name is Steven Villeneuve. I'm from Brantford. I'm breaching. I'm not supposed to be in Peel."

[4] No weapon was found in the pat down search. Koufis stood with the defendant while Pourier queried CPIC which confirmed that what the defendant had said was true. He was arrested for breach and read his rights to counsel at that point, being about 4 minutes after his initial detention.

Sections 8 and 9: Detention and Pat-Down Search

[5] It is first argued that there was a breach of section 9 in that there were insufficient grounds for an investigative detention and a breach of section 8 in that there was no basis for a pat down search. I disagree.

[6] This case is different than most cases of investigative detention in that here the police actually witness the conduct that leads to their intervention. I think the legal assessment of what occurred fits more comfortably within the more general Waterfield test than the more limited investigative detention rules. In Mann para 24 the Court said:

The test for whether a police officer has acted within his or her common law powers was first expressed by the English Court of Criminal Appeal in Waterfield, supra, at pp. 660-61. From the decision emerged a two-pronged analysis where the officer's conduct is prima facie an unlawful interference with an individual's liberty or property. In those situations, courts must first consider whether the police conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at common law. If this threshold is met, the analysis continues to consider secondly whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

[7] In my view the police were presented with the defendant acting in a strange manner, creating a commotion and being potentially threatening. It would be odd if the police were not entitled to take some steps in the circumstances. The steps they took here in my opinion were reasonable and justified. There was no arbitrary detention.

[8] With respect to the pat down search, there is no general power to search as incident to detention. However a non-intrusive pat down search is permissible if there are grounds to believe that the detainee may pose a danger. Mann para 43:

The importance of ensuring officer safety has been recognized in obiter by this Court in R. v. Mellenthin, [1992] 3 S.C.R. 615. Police officers face any number of risks everyday in the carrying out of their policing function, and are entitled to go about their work secure in the knowledge that risks are minimized to the greatest extent possible. As noted by L'Heureux-Dubé J. in Cloutier, supra, at p. 185, a frisk search is a "relatively non-intrusive procedure", the duration of which is "only a few seconds". Where an officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of the detained individual. The search must be grounded in objectively discernible facts to prevent "fishing expeditions" on the basis of irrelevant or discriminatory factors.

[9] It is self-evident, at least to me, that where police safety is concerned and the search itself is brief, minimally intrusive, and limited to weapons concerns, that the standard of what constitutes reasonable grounds to believe ought not to be high. Further, observations such as the waistband reach in this case, can support reasonable grounds even if they can support both benign and more sinister inference: Bush. It is my view that the pat down search in this case fell within the exception and was accordingly authorized by law.

Section 10(b) and Detention: Right to Counsel

[10] The law on the right to counsel in situations falling short of arrest has developed in two main factual contexts – the pedestrian investigative detention and the roadside sobriety check. The latter in my view is simply a particular type of investigative detention that has been specifically authorized by statute.

[11] In the roadside sobriety check situation, the Supreme Court of Canada was quick to recognize that the right to counsel was incompatible with the temporal and operational requirements of roadside breath testing. As a result, it was held that the right was suspended as a reasonable limit under section 1 of the Charter: Thomsen; Orbanski and Elias. However the Court has not granted the same dispensation with respect to pedestrian stops (Elshaw: Mann; Grant) though it left the door open slightly in Suberu (see para 45). As the law presently stands, a pedestrian who is "detained" must be given his right to counsel "without delay", meaning "immediately", subject to concerns for officer or public safety: (Suberu para 42).

[12] It would follow then that in this case the police were entitled for officer safety reasons to briefly delay providing the defendant with his right to counsel until after the pat-down search. However it would also follow that after that search, the defendant's right to counsel was infringed by failure of the police to inform him of that right during the period of about four minutes preceding his arrest.

Implementing the Right to Counsel on Detention

[13] But there are two components to the right to counsel – the informational and the implementational. Does the immediacy requirement apply to both? This question was not specifically addressed in the Grant trilogy (or since) though in Suberu the Court did say:

42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[14] While this might seem to end any debate, there are a few caveats. First, it must be recognized that when the Charter was enacted, in 1982, cell phones were not around and therefore it could not have been imagined that immediate access to counsel by a detainee on the street would even be possible. Accordingly, at least on an originalist interpretation, even if it was intended by the Charter's framers that street detainees be informed of their rights immediately, it could not have been intended that facilitation of that right occur immediately.

[15] Further, the issue in Suberu was whether there was an infringement of 10(b) by failing to inform the accused of his right to counsel on detention. (Para 18). The question of implementation was not before the Court for determination. Nor was it considered in the other cases, specifically Grant, decided the same day.

[16] But it was before the Court in the subsequent case of Taylor where, in the context of arrest, the Court qualified the immediacy requirement for facilitation: (paras 24, 28):

24 The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. 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.

28 But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a "right" to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity.

[17] Accordingly, with respect to implementation or facilitation of the right to counsel in the context of an arrest, "immediately" is qualified and extended to mean "as soon as practicable" or "at the first reasonable opportunity".

[18] What amounts to a "reasonable opportunity" is always a question of fact. It is noteworthy however that the Court in Taylor specifically rejected the suggestion that the police were obliged to offer the detainee a cell phone at the time and location of arrest and, more generally, were not critical of the usual practice described in the evidence of waiting until return to the police station before beginning efforts to contact counsel. Subsequent appellate decisions have suggested some categorical requirements for "a reasonable opportunity". For example in McConnell the Alberta Court of Appeal accepted that it was not just a matter of having a phone available – privacy and security were also required:

9 As was recognized in Taylor, there "may well be circumstances when it will not be possible to facilitate private access to a lawyer for a detained person receiving emergency medical treatment": para 31. As the Crown submits, mere "access to a phone" is not the issue, as there are a number of conditions and limitations in play:

(a) access must be in a place where privacy is possible, specifically where the police or other parties will not overhear any privileged communications;

(b) while the access must be private, it must also be sufficiently secure that the police can maintain control over the detained person;

(c) access must be in a place where the detained person has access to lawyers' telephone numbers, the number for Legal Aid, and other necessary information; and

(d) the telephone must be in a safe environment, as during the call the police officer must be separated to some extent from the detained person.

[19] While Taylor dealt with a case of detention via arrest, I can think of no reason why this same standard of "as soon as practicable" and "first reasonable opportunity" should not apply to other detentions, including pedestrian stops. Applying these standards to this case, in my view there was no reasonable opportunity to implement the rights to counsel in the brief period between detention and arrest. There was therefore no breach of the implementational component of 10(b) in this case.

Section 24(2): Exclusion/Admission of Evidence

[20] The sole Charter infringement established in this case is the failure to inform the defendant of his right to counsel during a short period in which he would have had no opportunity to exercise the right anyway. Following that period, he was arrested and properly informed – events that overtook and negated any significance to the earlier lack of information. No evidence was elicited in the interim.

[21] The impact of the infringement was therefore zero. It was brief and had no effect on the substantive right itself; the infringing police conduct was far from serious – an understandable failure to do something that, while required by law, is entirely counter-intuitive, and disruptive to a germinating investigation. Nothing favours exclusion in this case.

[22] For these reasons, all of the evidence was ruled admissible and the defendant was found guilty.

June 14, 2018

B. Duncan J.

Counsel:

• B. Funston for the defendant
• A. Nigro for the Crown