Ontario Court of Justice

Date: 2019-11-01

Court File No.: Toronto 18-15003894

Between:

Her Majesty the Queen

Respondent

— AND —

LD

Applicant

Before: Justice Patrice F. Band

Ruling on Pre-Trial Charter Application: s. 10(b)

Counsel:

• Mr. E. Gilman and Ms. A. Webb, counsel for the Respondent PPSC
• Mr. C. Zeeh, counsel for the Applicant LD

BAND J.:

I. Background & Issues

[1] Arrest and Search Warrant Execution

On May 26, 2018, a five-person team of Toronto Drug Squad officers led by DC Bhogal executed three search warrants at locations associated with LD: his car and two residences (residence #1 and residence #2). DC Bhogal arrested LD near residence #1, where his car was also found. While LD was being arrested, he told DC Bhogal that he was a confidential informant and asked DC Bhogal to contact his handler. I will refer to this as the "CI issue" for ease of reference. DC Bhogal contacted that officer, who told him that he knew LD but that "nothing current was going on." After LD was advised of his right to counsel, DC Bhogal called for a uniform officer to attend and transport LD to the division. DC Bhogal instructed that officer to suspend LD's call to counsel until his (DC Bhogal's) return.

[2] Drugs and Currency Seized

After searching residence #1 and LD's car, the team set out for residence #2. Over 800 grams of powder cocaine and other drugs were found in a bedroom believed to be his at residence #2. 185 grams of powder cocaine and quantities of other drugs were found in the motor vehicle. $7,500 in Canadian currency was also seized. Nothing of interest was found at residence #1.

[3] Charter Application and Ruling

By way of a pre-trial application, LD argues that the police violated his ss. 8 and 10(b) Charter rights, and seeks the exclusion of all drugs and money seized, pursuant to s. 24(2). As I have already advised the parties, I have dismissed the s. 8 application, granted the s. 10(b) application and excluded the evidence pursuant to s. 24(2). My reasons concerning s. 8 will follow separately. These reasons relate only to ss. 10(b) and 24(2).

[4] The Section 10(b) Argument

The s. 10(b) argument is that, while LD was informed of his right to counsel upon arrest, the police failed to implement that right without delay. To the contrary, they deliberately held off for many hours while they executed the three warrants and travelled back to the police division. Thereafter, they continued to fail to implement LD's rights. LD did not speak to counsel until the following morning in bail court.

[5] Court's Findings

For reasons that I set out below, I find that the police violated LD's right to counsel by deliberately delaying it upon arrest and then failing to facilitate its implementation for a period totaling approximately 20 hours. I also find that the seized evidence was obtained in a manner that infringed or denied LD's right to counsel because it was temporally and contextually connected to that breach. I further find that, having regard to all the circumstances and despite the fact that the evidence is essential to the Crown's case, the breach was so serious as to lead to the conclusion that the admission of the evidence in these proceedings would bring the administration of justice into disrepute.

II. Section 10(b) of the Charter

(a) The Issues

The Crown acknowledges that LD invoked his right to counsel right away and never waived it. The main issues in dispute are (i) why DC Bhogal decided to delay LD's ability to speak to counsel and (ii) when, if at all, the police satisfied their obligation to facilitate LD's access to counsel.

LD argues that the CI issue was not and should not have been why DC Bhogal suspended LD's s. 10(b) right. Moreover, even though the investigation in this case preceded the Ontario Court of Appeal's decision in Rover, under the extant state of the law, the execution of search warrants could not justify the suspension of s. 10(b) rights; there was a strong body of case law to that effect from the higher courts.

The Crown argues that DC Bhogal's decision to suspend LD's access to counsel was justified by concerns about safety and preservation of evidence which were not the result of a general policy. These were further complicated by the CI issue. Thereafter, DC Bhogal made reasonable, if perhaps unsuccessful, efforts to facilitate LD's right to counsel. These factors, according to the Crown, distinguish this case from others like R. v. Soto, 2010 ONSC 1734, R. v. Liew and Yu, 2012 ONSC 1826, R. v. Pino, 2016 ONCA 389, R. v. Wu, 2017 ONSC 1003, R. v. Woo, 2017 ONSC 7655, R. v. Glatt, 2018 ONSC (Unreported – Toronto Region) and R. v. Rover, 2018 ONCA 745.

I heard from two witnesses on the application: DC Bhogal and LD. The following summary of the evidence will provide the context for the issues and my findings.

(i) Evidence about the reasons for the suspension of LD's rights

DC Bhogal

DC Bhogal has been a police officer since 2006 and a member of the Drug Squad for approximately four-and-a-half years. He and his team conducted surveillance on May 24 and 25. On May 24, they saw LD's car parked at residence #2. On May 25, they saw LD enter into residence #1 and later exit and walk to his car. Based on these observations and other investigation and information, DC Bhogal sought and obtained warrants for those locations. The warrants issued on May 26, and were valid from that date at 12:30 a.m. to May 28 at 11:59 p.m. Shortly after noon on May 26, the team assembled. Its goal was to locate and arrest LD, and to execute the warrants. Residences #1 and #2 are roughly 35 kms apart and it takes approximately 45 minutes to travel from one to the other. It takes approximately one hour to travel from residence #2 to the police division.

DC Bhogal arrested LD near residence #1 at 2:16 p.m. Another officer immediately advised LD of his right to counsel. Within minutes, LD told DC Bhogal that he was a CI and that he should call his handler. DC Bhogal did so and received no particular instructions. LD told him that he wanted to be released so he could work and continue to assist the police. According to DC Bhogal, LD repeatedly mentioned the CI issue. DC Bhogal told him he needed to speak to a lawyer before "going down [the CI] road." He told him not to talk about the CI issue in the police car because it would be captured by the in-car camera. He also told him that the two would speak at the station once LD had spoken to a lawyer; this appeared to "placate him" for a moment. He advised LD that he would have access to counsel "when the timing is right" because they would be executing search warrants. It was his impression that LD was more concerned about contacting his handler.

DC Bhogal discussed risks associated with search warrants. These include the fact that officers do not know who is going to be at the locations until they arrive. He was aware of instances in the past when there have been many people present or men arrived with firearms. While every warrant is different, quite often police "have to" suspend the arrestee's rights. The concern is that somehow the call to counsel will lead to information being disseminated to the wrong people. Destruction of evidence and officer safety are concerns in those instances.

Cross-examination on these points was instructive. DC Bhogal made the decision to suspend LD's rights during the arrest. He felt he had to suspend his calls until it was "safe to do so." He acknowledged that a "main reason" for this decision was that he had a five-person team tasked with executing three search warrants at two locations that were 45 minutes apart. He had not thought of executing the warrants before arresting LD, but would have done so if he had known LD was in one of the locations. He denied that there was a "general policy" in place regarding the suspension of the right to counsel pending the execution of search warrants and that manpower was the issue. "All cases are different." However, he explained that on this day, they only had five members as opposed to the normal seven. Five is the bare minimum and, "these days," it is "hard to have five." Five people are not enough to search a location and ensure officer safety. For the same reasons, searching two locations at the same time is "not an option." While they typically get other teams to assist them, it just was not possible that day. When pressed to acknowledge that there is a policy to suspend rights when manpower is low and there are multiple search warrants, DC Bhogal admitted that "it depends on the circumstances," including the level of the dealer and the number of locations to be searched. DC Bhogal also acknowledged that there was nothing about LD himself that gave rise to particular safety concerns. He had no known history of involvement with violence, gangs or firearms. That said, it is always possible that he had partners.

DC Bhogal did not record in his notes having told LD about suspending his right to counsel because of the search warrants.

LD

LD is 41 years old. He has completed most of a university degree in business administration. LD explained that he invoked his right to counsel upon arrest and did so again when he was being booked at the station. At first, he did not give the name of any particular lawyer, but he did so later. Around the time of his arrest, he told DC Bhogal that he was a CI and gave him the name of his handler. His handler had told him that if he ever had any issue with the police, to have them call him. He did as he was told. LD denied that he mentioned the CI issue repeatedly at the scene and was not aware that DC Bhogal contacted the handler at that time.

In cross-examination, LD acknowledged that he told DC Bhogal repeatedly that he wanted bail and that he hoped his handler would help with that; however, he did not think that was a realistic outcome. While he knew that his handler wanted to be "in the loop" and wanted him on the street, he did not believe this gave him a "get out of jail free card." His handler's involvement "couldn't hurt," but LD felt he had to follow the "system." He believed his handler was upset that he had retained counsel on his initial charges which, after all, remained outstanding. He wanted to speak to counsel and would have settled for any lawyer.

(ii) Evidence surrounding the implementation of LD's s. 10(b) rights

DC Bhogal

LD remained at the scene until approximately 3:16 p.m., when he was taken away by a transporting officer. He was cuffed and cooperative during that hour. DC Bhogal stood by the entire time. He did not facilitate access to counsel during that hour because of lack of privacy. DC Bhogal was concerned about LD's safety regarding the CI issue and wanted to protect him. He wanted to minimize the contact he had with others, including police officers, to try to contain the issue. As the Crown put it, DC Bhogal wanted to control the flow of information.

LD was taken away from the scene while the searches of his car and residence #1 were taking place. Police found a number of people in residence #1. There is no evidence as to what they did regarding these "found-ins". The searches were complete by 4:10 p.m. and the team drove to residence #2. They arrived shortly after 5:00 p.m. By 5:51 p.m., the search was complete. Shortly after 6:00 p.m., after completing the exit video, the team returned to the police station. DC Bhogal did not note his time of arrival, but estimated it at approximately 7:09 p.m.

He went to the cells to speak with LD. Because these are open cells where others can hear what is being said, DC Bhogal took LD to an interview room. LD was adamant concerning his handler and obtaining bail. He also wanted to speak to counsel and provided a name to DC Bhogal: Dominic Basile. DC Bhogal looked up Mr. Basile's number and left a voicemail message for him at 7:54 p.m. asking that he call back and to ask to speak to him (DC Bhogal).

From 7:57 to 8:11 p.m., DC Bhogal met with the team to debrief. Aware that Mr. Basile had not returned his call, DC Bhogal removed LD from the cells again and spoke to him in the interview room. He believed that he then obtained Mr. Basile's cell phone number from the internet. He then left messages at both numbers.

Between 8:11 and 10:35 p.m., DC Bhogal "twigged" to the fact that counsel had not called back and he "asked around." At 10:35 p.m., DC Bhogal left a message with duty counsel. Then, he met again with LD and advised him that he had done so. At 10:54 p.m., duty counsel called the station. The private booth was occupied so DC Bhogal asked duty counsel to call back in 30 minutes.

Close to midnight, DC Bhogal took LD to the interview room. Based on that discussion, he believed that LD had spoken to duty counsel. LD did not say he had not spoken to counsel. At 12:12 a.m., DC Bhogal let LD call his mother. He would not have done that unless he believed that LD had spoken to counsel. The police log calls that prisoners make and receive in a "Prisoner Phone Calls Record." The one pertaining to LD (Exhibit 2) does not contain an entry indicating that duty counsel called back again or that LD spoke to counsel. DC Bhogal had not received a second call from duty counsel. If the call had come in to another officer, that officer would have been responsible to log it. Sometimes that is not done contemporaneously.

Again, cross-examination was instructive. DC Bhogal explained that it was "very dangerous" for LD to be talking about the CI issue. He explained that to him at the scene and told him to stop talking about it until he spoke to counsel. Once LD arrived at the station, he was placed in the open cells where others – officers and detainees – would be able to hear him if he spoke. DC Bhogal would never speak to an arrestee in the cells because they are not private. That is why he uses the interview room.

DC Bhogal was asked why he did not attempt to minimize the suspension of LD's rights once residence #2 was secure (at 5:03 p.m.) or, at the latest, once the search was complete (at 5:51 p.m.). He responded that people could still "show up" at the scene even once it was secure and that he wanted to restrict LD's contact with others to protect him because of the CI issue. He knew that it would take at least 45 minutes to travel back to the station.

DC Bhogal acknowledged that it was possible that LD had given him Mr. Basile's cell number and that his recollection of finding it online was inaccurate. He explained that as far as he was aware, all calls had gone through him. He made no notes about telling LD that Mr. Basile had not called back and that duty counsel had been called on his behalf. Also, he could not recall whether he spoke to LD about duty counsel and his wish to call his mother in the cells or in the interview room but later corrected himself and confirmed that it had taken place in the interview room between 11:40 p.m. and 12:30 a.m. Between 10:54 and 11:40 p.m., DC Bhogal did not receive any calls from a lawyer for LD. Prior to entering the room, he assumed that LD had spoken to duty counsel because of the "timeline". He also believes he asked LD if he had spoken to duty counsel during that interview, but did not recall the exact words. He made no entry in his notes about that exchange or his belief that such a call had taken place.

If LD was moved from his cell to another location in the station, it would have been with DC Bhogal and it would have been logged in a document called a "Prisoner Management Report." While that report was not filed as an exhibit, DC Bhogal was cross-examined about it and confirmed that it did not indicate that LD had been moved from the cells to the telephone booth to speak with duty counsel.

LD

For purposes of these reasons, I will focus on LD's evidence concerning the implementation of his right to counsel only insofar as it conflicts with DC Bhogal's. LD recalled meeting with DC Bhogal in the interview room only twice. He recalled having an initial discussion about counsel in the interview room and requesting to speak with Mr. Basile. Later, he had another discussion concerning Mr. Basile when he was given access to his cell phone to retrieve Mr. Basile's cell phone number; that is how DC Bhogal obtained it. Still later, a different officer had come to the cells to tell him that duty counsel had called. On the way to speak to duty counsel, he was told that there would be a delay and he was returned to the cells. He was not in the interview room again until the time he spoke with DC Bhogal about calling his mother. During that conversation, the two did not talk about duty counsel.

In cross-examination, LD agreed that he told DC Bhogal repeatedly that he wanted bail and that he did not ask DC Bhogal to put him in touch with counsel when they met the second time in the interview room. He said at that point it did not occur to him as he was "in shock" because of everything. He was worried about his mother, who lived at residence #2 and their elderly dog, as no one was home during the search. Since there was nothing to do in the cells, he had tried to sleep. He did not speak to a lawyer until his arrival at bail court on May 27.

(b) Applicable Legal Principles

In Wu, supra, at paras. 75-78, Justice Di Luca provides a useful and comprehensive summary of the state of the law regarding s. 10(b) of the Charter at the time of this investigation:

75 Section 10(b) of the Charter guarantees that upon arrest or detention every person shall have the right to retain and instruct counsel without delay. The rationale for the right was discussed by the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33, at para 42:

[T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

76 The right to counsel is broken down into informational and implementational components. The informational component requires that the police advise the detainee of his or her right to retain and instruct counsel without delay and that the detainee be advised of the existence of Legal Aid and duty counsel. The implementational component requires that the police provide a detainee with a reasonable opportunity to exercise the right to counsel and that the police refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity to exercise the right to counsel: see R. v. Bartle, (1994), 92 C.C.C. (3d) 289 at 301 (S.C.C.).

77 The case law has recognized that the implementational duties can be delayed in circumstances of urgency or danger. The genesis of the authority to delay the implementational component of the right to counsel is found in R. v. Strachan at para 34, where Chief Justice Dickson 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.

78 The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Effectively, the right to counsel should not be suspended unless exigent circumstances exist: see R. v. Bartle, at p. 19; R. v. Suberu, at para. 42; and R. v. Learning, 2010 ONSC 3816 at para. 75.

b. There is no closed list of scenarios where a delay or suspension of the right to counsel is justified. However, the following general categories emerge from the case law:

i. Cases where there are safety concerns for the police, see R. v. Grant, 2015 ONSC 1646 at para. 107, R. v. J.J., 2010 ONSC 735 at paras 276-8, and R. v. Learning, at para. 75;

ii. Cases where there are safety concerns for the public, see R. v. Thind, 2011 ONSC 2054 at paras. 113-15 and 122;

iii. Cases where there are safety concerns for the accused, see R. v. Strehl at para. 4;

iv. Cases where there are medical concerns, see R. v. Willier, 2010 SCC 37 at para. 8 and R. v. Taylor, 2014 SCC 50 at para. 31;

v. Cases where there is a risk of destruction of evidence and/or an impact on an ongoing investigation, see R. v. Rover, 2016 ONSC 4795 at para. 66 and 70, R. v. Kiloh, 2003 BCSC 209 at para. 15 and 38, and R. v. Salmon, 2012 ONSC 1553 at para. 92; and,

vi. Cases where practical considerations such as lack of privacy, the need for an interpreter or an arrest at a location that has no telephone access justify some period of delay, see R. v. J.(K.W.), 2012 NWTCA 3 at para. 29-30, and R. v. Khairi, 2012 ONSC 5549.

c. The right to counsel cannot be suspended simply on the basis that a search warrant is pending, see R. v. Soto, 2010 ONSC 1734 at para. 69, and R. v. Liew and Yu, 2012 ONSC 1826 at para.70.

d. A general or bald assertion of "officer safety" or "destruction of evidence" concerns will not justify a suspension of the right to counsel, see R. v. Patterson, 2006 BCCA 24 at para 41-42, and R. v. Proulx, 2016 ONCJ 352 at para.47.

e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.

f. The suspension of the right must be only for so long as is reasonably necessary, see: R. v. Mazza, 2016 ONSC 5581, at para. 83. In this regard, the police should be vigilant to ensure that once the decision has been made to suspend the right to counsel, steps are taken to review the matter on a continual basis. The suspension is not meant to be permanent or convenient. The police must still comply with the implementational component as soon as circumstances reasonably permit. A decision to suspend rights that is initially justifiable may no longer be justified if the police subsequently fail to take adequate steps to ensure that the suspension is as limited as is required in the circumstances.

g. The longer the delay, the greater the need for justification. The right to counsel must be given "without delay." The case law addressing the length of time the right to counsel has been suspended has examined periods of time as short as several minutes up to an extreme example of a suspension of the right to counsel for a period of approximately 26 hours; see Blakely v. Parker. In the latter case, the police were executing a warrant to seize multiple firearms from a known violent family and the target of the search was known to be part of a criminal organization that was willing to confront and shoot police.

h. The suspension of the right to counsel must be communicated to the detainee, see: R. v. Rover, 2016 ONSC 4795 at para. 70.

The principles set out in the last of these numbered paragraphs was confirmed by Doherty J.A. in Rover, supra, at para. 28.

(c) Arguments of the parties

Argument of LD

LD acknowledges that in extraordinary cases, police can suspend the right to counsel where they have case-specific and legitimate grounds to do so. Those grounds cannot be generic or simply a matter of police convenience. Even when such grounds exist, police must ensure that any delay is minimized and documented properly. He also argues the police cannot knowingly sacrifice Charter rights because of a lack of resources. In this case, LD argues that DC Bhogal's decision to suspend his rights was not justified by concerns about safety, destruction of evidence or the CI issue and that, thereafter, the police failed in their implementational obligations. He also adds that an arrestee's preoccupation with being released is not inconsistent with the desire to speak to counsel. Police should not let the former eclipse the latter.

Argument of the Crown

The Crown presents a number of alternative arguments. First, DC Bhogal's decision to suspend LD's rights for the five-and-a-half hours from arrest to DC Bhogal's arrival at the station was justified by concerns about officer safety and preservation of evidence. This was a dynamic investigation involving three search locations (and even possibly more depending on the way things might have proceeded, since it is known that drug dealers often have a number of "stash houses"). The Crown adds that concerns about LD's own safety owing to the CI issue constituted a "further complication." In support of this argument, the Crown points to the fact that Rover was not yet "the law of the land" and that, in any event, DC Bhogal testified that the suspension of rights pending the execution of search warrants was not a matter of general policy. In those circumstances, Rover allows for a finding that no breach was occasioned. The Crown cites Learning, supra, as an example of a justified suspension of the right to counsel for approximately six hours. In the alternative, the Crown argues that the period at issue can be carved up. The clock stopped ticking at 7:54 p.m., when DC Bhogal returned to the division and began making efforts to connect LD with duty counsel. From that point forward, the police were diligent; perfection is not the standard. In the second alternative, the Crown argues that the clock stopped ticking when DC Bhogal understood that LD had spoken to counsel because of what LD told him in the interview room. The Crown acknowledges, but does not advance, a third alternative: LD did not speak to counsel at all while in police custody and LD did not cause or contribute to DC Bhogal's belief that he had; this constitutes a breach of s. 10(b), even if the initial suspension was justified.

(d) Findings of fact and analysis

I find that DC Bhogal's decision to delay LD's rights was not motivated by concerns for his safety owing to the CI issue. In my view, this is the only reasonable inference that can be drawn from the evidence. In particular, it is consistent with DC Bhogal's testimony that a "main reason" for his decision was the fact that his five-person team had to search three different locations that were 45 minutes apart. It is also consistent with what DC Bhogal told LD at the scene: that he would speak to counsel when the "timing was right" (because of the search warrants).

While it may be that the CI issue caused DC Bhogal some concerns, I am persuaded that it did not contribute to his decision to suspend LD's rights. The Crown's submissions in this regard are belied by the evidence. The fundamental premise underlying that argument is that the danger LD was in had to be contained. This cannot be denied; R. v. Leipert, [1987] 1 S.C.R. 281 and common sense tell us as much. But if DC Bhogal's decision had truly been informed by the "very dangerous" situation LD was in, then he would not have sent LD to the division to be placed in open cells for hours – especially after his efforts to "placate" LD at the scene had only been successful "for a moment." Likewise, DC Bhogal said that LD needed to speak to a lawyer "before going down that [the CI issue] road." Again, that is beyond dispute. But if DC Bhogal had honestly held that belief at the time, he would have given it priority out of concern for LD's safety and security. Instead, he decided to delay LD's access to counsel until "the timing was right." Finally, on this point, one would think that DC Bhogal would have been anxious to call the division to trigger the implementation of LD's rights as soon as residence #2 had been contained or, at the latest, when that search was complete. Instead, he waited until he returned to the station an hour later. It bears mentioning that LD's preoccupation with bail or the CI issue were additional reasons to provide him with rapid access to counsel, not justifications for delaying it.

I further find that DC Bhogal's decision was not motivated by case-specific concerns about officer safety or the preservation of evidence. DC Bhogal knew that there was nothing about LD or his offending that gave rise to specific concerns for officer safety or the destruction of evidence. Unlike the facts in Learning, this case did not involve firearms and there were no dangerous criminals found in or associated with any of the locations. DC Bhogal's concerns in that regard ran no deeper than the simple fact that warrants come with potential risks. It also bears mentioning that I heard no evidence about what was done to contain the people who had been found in residence #1. Had there been real concerns about what might later transpire at residence #2, one would have expected to hear that the team had taken additional precautions with those people.

Accepting, for the sake of argument, that there was no general policy to suspend Charter rights pending search warrants at the time, I find that DC Bhogal's decision was the result of a lack of reasonable forethought in the face resource-related constraints that were known to him. DC Bhogal was the affiant and the officer who sought the warrant. That warrant was valid for 48 hours. As is clear from the unredacted ITO (regarding which I must exercise discretion) DC Bhogal had a great deal of information about LD. He also knew that five members of his team could not search more than one location at a time and that help was not available on May 26. As "road boss", the decision to execute the warrants and arrest LD on that day was entirely his. In these circumstances, his decision to suspend LD's rights was virtually predetermined.

I find that the violation of LD's right to counsel began within minutes of his arrest and persisted until he was taken to bail court the following morning, approximately 20 hours after his arrest. The Crown conceded that LD was a credible witness. I agree. I believed LD that he did not speak to a lawyer until he arrived at bail court the following morning. I also believed him that the topic of counsel did not come up in the interview room shortly before DC Bhogal allowed LD to call his mother. These conclusions are also supported by (1) DC Bhogal's lack of notes regarding that discussion and (2) the absence of an entry in the Prisoner Phone Calls Record or Prisoner Management Report indicating that LD had spoken to counsel or been removed from his cell to do so. To be clear, I do not believe that LD contributed to DC Bhogal's stated understanding in that regard. If he held that understanding, he came to it himself because of the "timeline."

I have considered the Crown's argument that the clock might have stopped at certain times, notably when DC Bhogal began to make efforts on LD's behalf, but I find that such an approach would be artificial in this case. First, it ignores the fact that DC Bhogal waited until his return to the station to contact duty counsel. Second, DC Bhogal allowed an unreasonably long period to pass between calls to duty counsel. Third, even though DC Bhogal had every call come through to him, he did not monitor the situation carefully. Fourth, DC Bhogal's failure to take proper notes on this topic is highly problematic and gives rise to questions about his reliability in that regard. In sum, DC Bhogal let LD and his rights fall through the cracks.

III. Section 24(2) of the Charter

(a) Obtained in a manner…

Whether the evidence was obtained in a manner that infringed or denied any of LD's rights is a pre-condition to a remedy under s. 24(2) of the Charter. This threshold issue was not the subject of much debate in this case. This is likely because the alleged breaches of s. 8 and 10(b) took place before or during the searches and, in the case of the former, a causal connection would have been clear.

I am required to consider the entire chain of events. The breach began almost immediately upon arrest before any of the searches had started; it lasted unabated throughout the searches and it persisted thereafter. In my view, this constitutes the same transaction or course of conduct. The connection is neither tenuous nor remote. I find that despite the lack of a causal connection, the seizures were contextually and temporally woven into the breach. See R. v. Pino, [2016] ONCA 389.

(b) The Grant inquiry – applicable legal principles

Section 24(2) of the Charter allows a court to exclude evidence where admitting it would bring the administration of justice into disrepute. I must consider three factors: (1) the seriousness of the violation; (2) the impact of the violation on the accused's Charter-protected interests; and (3) society's interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, at para. 71. The focus must be on the long-term and prospective effect of a remedy or lack of remedy. In Grant, at paras. 68-70, the Supreme Court explained these concepts.

The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

(c) The Grant inquiry – position of the parties

Argument of LD

LD argues that the evidence should be excluded even though it is real evidence that is central to the Crown's case. The breach of LD's right to counsel for approximately 20 hours reflects serious police misconduct and disinterest in Charter rights. He also argues that the impact on his rights was significant, citing Rover, supra, among others.

Argument of the Crown

The Crown argues that the police conduct at issue in this case does not warrant exclusion. The seriousness of the s. 10(b) breach, if found, is abated by the fact that, according to DC Bhogal, there was no routine practice in place, the police did not try to obtain a statement from LD and no evidence was obtained as a direct result. While not perfect, the police made diligent efforts to put LD in contact with counsel. The Crown also argues that "Rover was not the law of the land" when this investigation took place.

The Crown adds that LD's rights were not affected. This was not his first time in police custody and, unlike the accused in Pino, supra, he was knowledgeable about the process. He was not, or did not feel like he was, "at the mercy of the state."

(d) The Grant inquiry – analysis and balancing

Seriousness of the breach

Even though there was no causal connection between the breach and the gathering of evidence, the Charter-infringing conduct in this case was very serious and strongly favours exclusion. It was neither technical nor minor. It was deliberate and lasting. For approximately 20 hours (his entire time in police custody), LD was not allowed access to counsel. This was due to DC Bhogal's initial decision to suspend LD's Charter rights for no valid reason. The seriousness of the breach was compounded by a number of factors. DC Bhogal knew that, as a CI intent on talking about his status, LD was in a "very dangerous" position and needed legal advice. Contrary to the Crown's submission, DC Bhogal's efforts were not sustained; he let significant periods lapse while he was doing other things including traveling from residence #2 and performing other duties at the division. The sense that DC Bhogal gave LD about when he would be able to exercise his right to counsel – "when the timing is right" – was vague and uninformative. Also, DC Bhogal's note-taking and record-keeping regarding LD's right to counsel and times were poor and incomplete. This paints a picture of an officer who deliberately prioritized police concerns over the Charter rights of an especially vulnerable person from the outset and who, upon his return, remained insufficiently interested in implementing them.

It is true that this investigation preceded the Court of Appeal's decision in Rover and that, in that case, the existence of a routine practice of suspending the right to counsel was a central factor. But as Schreck J. wrote in Woo, supra, at para. 101, "the caselaw respecting the narrow circumstances in which s. 10(b) can be justifiably suspended [was] very clear" in 2017. That body of caselaw included concerns about policies and routine practices. Moreover, the absence of an aggravating factor such as a policy is relevant, but it does not serve to neutralize the concerns that exist in this case.

I would add this. I am prepared to accept DC Bhogal's evidence that there was no general policy of suspension at the time, and that "every case is different." However, those pronouncements only go so far when one considers them in the context of his evidence as a whole. A fair reading of his evidence suggests that it is common for Drug Squad teams to be short-staffed and unable to execute more than one warrant at a time. Since the existence of warrants to search multiple locations is among the factors that cause officers to decide to suspend Charter rights, it is difficult to see such a result as anything other than systemic in those cases. It merely moves the source of the problem from one place – policy or routine – to another – lack of resources and planning. This can also aggravate a Charter breach: see Glatt, supra, at pp. 22-23.

Impact of the breach on Charter-protected interests

The impact of the breach on LD's Charter-protected interests was significant and also strongly favours exclusion. In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at para. 40, the Supreme Court of Canada explained that the right to counsel exists to

ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy.

Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

In Pino, supra, at para. 105, Laskin J.A. gave the following description of the situation of an arrestee whose right to counsel is suspended for hours.

Being forced to sit alone in a jail cell for over five hours after her arrest without access to counsel undermined the very interests s. 10(b) seeks to protect: correct information about the right to counsel and the immediate ability to consult with a lawyer. Ms. Pino was vulnerable and she needed counsel, not just for legal advice, but as a lifeline to the outside world.

In Rover, supra, at para. 45, Doherty J.A. referred once again to the right to counsel as a "lifeline" through which

detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

These excerpts describe the position LD was in. True, he had been in police custody before. But that is not the point. The Crown's submission completely ignores the fact that this time, LD was in a particularly vulnerable position because he was a CI. He was also very concerned about getting bail. At the outset, he had been given only a vague sense of when he would be able to speak to counsel and thereafter remained at the mercy of the police who, for a series of reasons, let him slip through the cracks for a period totaling approximately 20 hours. In addition to the other concerns, the psychological value of access to counsel in these circumstances is clear, even for an arrestee with prior experience with the criminal justice system.

Society's interest in adjudication on the merits

The evidence in this case involves significant quantities of hard and dangerous drugs. While I have not heard the entire case, the evidence is reliable and it would appear that the Crown's case is very strong. Without it, the Crown's case is gutted. The charges are also serious, and convictions would lead to a significant term of imprisonment. However, I must caution myself that the seriousness of the charges ought not to take on a disproportionate significance; moreover, it can "cut both ways": see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 34; Grant, supra, at para. 84; and R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 at para. 55. Nonetheless, this factor favours admission.

Balancing

The balancing exercise does not lend itself to mathematical precision. The question is whether, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. I find that it would. The Charter-infringing conduct in this case was very serious. It was deliberate and long-lasting. When viewed in its entirety, it evinced a lack of interest in Charter rights. Far from being explained by any uncertainty in the law, it was inconsistent with clear authorities. It left LD in a very vulnerable position for an extraordinary length of time and had a significant impact on his rights. On balance, these factors clearly outweigh society's interest in the truth-seeking function of a trial on the merits.

Released: November 1, 2019

Justice Patrice F. Band