CITATION: R. v. Matthew, 2021 ONCJ 335

DATE: June 15, 2021

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAYRON MATTHEW

Before Justice John North

Reasons for Judgment June 2, 2021[^1]

VOLUNTARINESS, SECTIONS 10(a), 10(b) & 24(2) OF THE CHARTER

A. Pancer............................................................... counsel for the Attorney General of Ontario

A. Elbaz.................................................. counsel for the Public Prosecution Service of Canada

M. Mirza........................................................................................... counsel for Jayron Matthew

NORTH J.:

INTRODUCTION

1. Jayron Matthew is charged with firearm and drug offences. The Crown seeks to introduce a statement allegedly made by Mr. Matthew to Officer Shawn McKenzie of the Toronto Police Service (TPS) on October 30, 2018.

2. The defence argues that the Crown has not established that Mr. Matthew made this statement. The defence also argues that if I conclude that Mr. Matthew made this statement, I should not be satisfied beyond a reasonable doubt that the statement was voluntary.

3. The defence further argues that Mr. Matthew’s rights under s. 10(a) and s. 10(b) of the Charter were violated.

4. Finally, the defence argues that, as a result of the Charter violations, the Court should exclude both the statement allegedly made by Mr. Matthew and all real evidence seized by the police during the execution of search warrants on October 30, 2018 pursuant to s. 24(2).

5. The Crown argues that Mr. Matthew made this statement and that it was voluntary. The Crown asserts that Mr. Matthew’s s. 10(a) and s. 10(b) rights were not violated. Finally, the Crown argues that if I were to conclude that Mr. Matthew’s Charter rights were infringed, no evidence should be excluded under s. 24(2).

6. The voluntariness voir dire and s. 10 Charter application were held, on consent, on a blended basis. The Crown called seven witnesses.

7. I am satisfied that Mr. Matthew made this statement. I am also satisfied beyond a reasonable doubt that the statement was voluntary.

8. I have concluded that Mr. Matthew’s s. 10(b) rights were violated by the police on one occasion.

9. During the course of other Charter applications that were brought on behalf of Mr. Matthew, the defence argued that Mr. Matthew’s rights under s. 7 and s. 8 of the Charter were violated. I found no other Charter violations. My reasons on the other Charter applications will be released separately.[^2]

10. I have concluded that the admission of the statement made by Mr. Matthew and the real evidence seized by the police would not bring the administration of justice into disrepute under s. 24(2) of the Charter.

EVIDENCE

11. In 2018, a confidential informant provided police with information that he or she knew a man involved in the drug trade who was in possession of a handgun. After receiving this information, police officers with the TPS Guns and Gangs Task Force commenced an investigation.

12. As part of this investigation, police sought Criminal Code search warrants for a basement apartment at 2535 Eglinton Avenue West, Toronto and a 2014 Honda Civic with an Ontario licence plate CFNL 349. In the Information to Obtain (ITO), Officer Adrian Duran (the affiant) asserted that there were reasonable grounds to believe that Mr. Matthew unlawfully possessed a firearm, contrary to s. 91 of the Criminal Code.

13. On October 29^th^, at approximately 10:35 p.m., Officer Duran was told that the search warrants had been granted. After Officer Duran obtained the search warrants, he drove to 2535 Eglinton Avenue West to meet with other members of his team.

14. Officer Liam Wauchope testified that at about 12:01 a.m. on October 30^th^, he saw the target 2014 Honda Civic turn into the laneway behind 2535 Eglinton Avenue West. Mr. Matthew was driving this car. Officer Wauchope notified the other officers over a police radio that the Honda Civic was approaching 2535 Eglinton Avenue West. Officer Wauchope directed the officers to box in the Honda Civic with their vehicles and arrest Mr. Matthew.

15. When Mr. Matthew parked the Honda Civic behind 2535 Eglinton Avenue West, officers moved their unmarked police vehicles and boxed in Mr. Matthew’s vehicle. Plainclothes officers quickly approached Mr. Matthew’s vehicle on foot. At least two of the officers took their handguns out.[^3] All of the officers were wearing body-armor vests, with the word “POLICE” in three to four-inch letters on the front and back of the vests.

16. Officer McKenzie testified that he and Officer Wauchope ran to the driver’s side door of the Honda Civic. Officer Wauchope testified that he ordered Mr. Matthew to get out of the car. Officer Wauchope said that Mr. Matthew “kind of had his hands up” and “he was kind of shocked about what was happening.” Constable McKenzie opened the front door on the driver’s side. Officer Wauchope removed Mr. Matthew from the vehicle, placed him on the ground and handcuffed him to the rear.[^4] Officers McKenzie and Wauchope testified that they verbally identified themselves as police officers. Both officers described Mr. Matthew as compliant.

17. Officer Wauchope testified that when Mr. Matthew was removed from the Honda Civic he had a cell phone in his hand and it was “still going.” Officer Scott Taylor testified that this cell phone fell to the ground when Mr. Matthew was removed from the car. Officers Taylor and McKenzie noticed that there was a “live line” on the cell phone. Officer Wauchope testified that he saw the word “Dad” on the cell phone screen.

18. Officer Taylor testified that after Mr. Matthew was arrested he went back to his police car to obtain the “search warrant package”.[^5] Officer Taylor was the designated central note taker for the team.

19. As Officers McKenzie and Wauchope were dealing with Mr. Matthew, an older man exited the basement apartment at 2535 Eglinton Avenue West and walked towards them. Officer McKenzie stayed with Mr. Matthew and Mr. Wauchope “intercepted” the older man, who was holding a cell phone. The older man confirmed that he was Mr. Matthew’s father. Officer Wauchope told Mr. Matthew’s father that his son had been arrested and that the police had a search warrant for the apartment.

20. Officer Taylor testified that he believes that he took custody of Mr. Matthew from Officer McKenzie. Officer McKenzie testified that he turned Mr. Matthew over to Officer Taylor.

21. Officer Duran testified that he was present when Mr. Matthew was arrested but was not involved in the arrest because “there were other officers ahead of me.”

22. Officer McKenzie testified that after Officer Taylor assumed custody of Mr. Matthew, he (Officer McKenzie) entered the apartment to “clear it” (to ensure that no one was inside). Officer McKenzie testified that, based on the central notes that were prepared by Officer Taylor, this occurred at 12:05 a.m.

23. Officer McKenzie described the basement apartment as a small one-bedroom unit. He could not recall whether any other officers entered the apartment when he cleared it. He said that the apartment was cleared very quickly.

24. Officer Duran testified that after Mr. Matthew was arrested, he entered the apartment to clear it. He said that there “would have been other officers there.” He recalled that Officer McKenzie was in the apartment at that time. Officer Duran said that it was possible that Officer Wauchope was also involved in clearing the unit. Officer Duran testified that he was not the first member of his team to enter the apartment. He could not say which officer entered first. Officer Duran said that Mr. Matthew’s father was still outside when he cleared the unit. Officer Duran testified that the unit was cleared very quickly.

25. Officer Wauchope testified that he escorted Mr. Matthew’s father into the apartment. According to Officer Wauchope this happened at approximately 12:05 a.m. Mr. Matthew’s father was asked to sit on a sofa in the living room. Officer Wauchope said that he checked the apartment and there were no other occupants inside. Officer Wauchope said that he “probably” walked into the apartment with another officer, but he could not recall who entered the apartment with him. Officer Wauchope said that it did not take long to clear the apartment. Officer Wauchope testified that Mr. Matthew was still outside when the apartment was cleared.

26. According to Officer Duran, he went outside after he cleared the apartment. He testified that he remained outside after that. Officer Duran said that he did not participate in the search of the apartment or the car. He explained that Officer Luczyk was going to search the car and other officers were going to search the small apartment. Officer Duran testified that he had no “interactions” with Mr. Matthew at 2535 Eglinton Avenue West.

27. Officer McKenzie testified that he could not recall whether Officer Duran was at the scene when the police entered the apartment.

28. Officer Taylor testified that at about 12:03 a.m., while he and Mr. Matthew were standing next to the Honda Civic, he read the following to Mr. Matthew[^6]:

“I’m arresting you for unauthorized possession of a firearm. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You have the right to free legal advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance, 1-800-265-0451. It’s the number that will put you in contact with a Legal Aid duty counsel lawyer for free advice right now. Do you understand?”

29. Officer Taylor testified that in response to this question Mr. Matthew replied, “Yes.” According to Officer Taylor, he then asked Mr. Matthew, “Do you wish to call a lawyer now?”, and Mr. Matthew replied:

“No need to. There’s nothing here.”

30. Officer Taylor testified that he then read the following caution (which he described as a “primary caution”) to Mr. Matthew and received the following response:

Q. “You are charged with an unauthorized possession of a firearm. You are not obliged to say anything in response to the charge. Whatever you say may be given in evidence. Do you understand?”

A. “I don’t want to say anything.”

31. According to Officer Taylor, he and Mr. Matthew entered the apartment at about 12:05 a.m. Officer Taylor testified that before he and Mr. Matthew entered the apartment, other officers went inside to clear the unit. Officer Taylor did not know which officers cleared the apartment. After entering the apartment, Officer Taylor told Mr. Matthew to sit on the sofa in the living room, next to his father.

32. Officer Taylor stayed in the living room area to watch over Mr. Matthew and his father. Officer Taylor agreed that Mr. Matthew’s father was detained. Mr. Matthew’s father was not advised of his right to counsel. According to Officer Taylor, he had “casual conversation” with Mr. Matthew’s father while they were inside the apartment. He asked Mr. Matthew’s father how long he had lived in the apartment. Officer Taylor also asked Mr. Matthew’s father for his date of birth and “things like that for the search warrant package.”

33. Officer McKenzie testified that after the apartment was cleared, he went outside to his vehicle and retrieved his camera, as it was his responsibility to take photographs of the residence and the Honda Civic. Officer McKenzie testified that he went back inside the apartment with the camera at about 12:11 a.m.

34. Officers McKenzie and Taylor testified that at about 12:11 a.m. Officer McKenzie began to take “entry photos” of the interior of the apartment.[^7] Timestamps embedded in the digital photographs show that Officer McKenzie took entry photos of the apartment from 12:11 a.m. to 12:14 a.m.

35. Officer Duran testified at 12:13 a.m. he called 12 Division to request uniformed officers to attend 2535 Eglinton Avenue West “for transport”. In his notes, he wrote, “Request for D12 Unit to attend and stand by.” When asked in cross-examination why he requested that uniformed officers attend and “stand by”, Officer Duran testified as follows:

“Because I anticipated that if anything was found, Mr. Matthew would be taken into custody, transported to 12 Division where he can facilitate his calls and get things going.”

36. In cross-examination, Officer Duran was asked whether Mr. Matthew would have been released if the police had not found a firearm or drugs during the execution of the search warrants. Officer Duran replied, “he could have been.” Officer Duran later said that if the police had not located a gun or illegal drugs, “Mr. Matthew would have been released unconditionally and we would have went out.”

37. At 12:14 a.m., two TPS uniformed officers received a radio request to attend 2535 Eglinton Avenue West. Officer Mary De Angelis testified that the request related to a “holding one radio call”, which means a person in custody. Officer De Angelis understood that the request related to “transport regarding criminal warrant.” Her partner, Officer Brian Davy, testified that at 12:14 a.m. they received a radio call in which they were told that “officers were holding an individual.”

38. According to Officers McKenzie and Taylor, at about 12:16 a.m., Officer McKenzie went outside to take entry photos of the Honda Civic. The time stamp embedded in the first digital photograph of the Honda Civic reveals that Officer McKenzie took the photograph at 12:16 a.m.

39. As previously stated, Officers McKenzie and Wauchope were responsible for searching the apartment. Officer Luczyk was responsible for searching the Honda Civic.

40. Officers McKenzie and Taylor initially testified that Officer McKenzie returned to the basement apartment at about 12:19 a.m. after he finished taking the entry photographs of the Honda Civic. During cross-examination, defence counsel put a number of photographs to Officer McKenzie that he had taken on October 30^th^. The last entry photograph of the Honda Civic taken by Officer McKenzie had a timestamp of 12:22 a.m. Officer McKenzie agreed that, based on the timestamps, he was outside the apartment at 12:22 a.m. Defence counsel asked how it was possible that Officer McKenzie could have been outside taking photographs of the car at the same time that, according to Officer McKenzie, Mr. Matthew made a statement to him while they were inside the apartment. Officer McKenzie responded as follows:

“Oh, it couldn’t occur at that time. I wrote up my notes from this, the central notes, the search warrant package. But clearly the photos and the timestamp on the photos are, are the best evidence, for the, rather than the time from the search warrant package.”

41. The statement allegedly made by Mr. Matthew occurred immediately following Officer McKenzie re-entering the apartment after completing the entry photographs of the Honda Civic. The exchange between Officer McKenzie and Mr. Matthew, as described by Officer McKenzie, is shown in bold in the paragraphs that follow.

42. Officer McKenzie testified that after he returned to the apartment he walked towards the bedroom to commence the search. To get to the bedroom, Officer McKenzie had to walk in front of the sofa where Mr. Matthew and his father were located. According to Officer McKenzie, as he walked past the sofa, Mr. Matthew shouted out to him:

‘Sir, sir, sir, all I have is ammunition in here.”

43. Officer McKenzie testified that he did not say anything to Mr. Matthew to elicit this statement. According to Officer McKenzie, he immediately stopped Mr. Matthew from speaking. Officer McKenzie testified that he pulled a card out from his wallet and read the following caution to Mr. Matthew:

“You’re under arrest for an unauthorized possession of a firearm. You’re not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. Do you understand?”

44. Officer McKenzie did not advise Mr. Matthew of his s. 10(b) rights.

45. Officer McKenzie testified that Mr. Matthew replied:

“Yes, I know. There’s only that, it’s not my Dad’s.”

46. Officer McKenzie testified that he then asked Mr. Matthew, “Where’s the ammo?” According to Officer McKenzie, Mr. Matthew responded as follows:

“In the bedroom, my Dad’s room. It’s in my black gym bag.”

47. Officer McKenzie testified that this was the “entirety of the conversation” with Mr. Matthew. Officer McKenzie also testified that this was “the entirety of my involvement with Mr. Matthew throughout, the, this investigation.”

48. Officer McKenzie rejected defence counsel’s suggestion that this conversation did not occur. He also denied defence counsel’s suggestion that “this conversation occurred with Officer Duran” and was “the result of Mr. Matthew being threatened for his father to be arrested.” [^8]

49. Officer Taylor testified that “shortly after 12:19 a.m.” he saw Officer McKenzie and Mr. Matthew in conversation. According to Officer Taylor, he was about 10 feet away from Mr. Matthew and Officer McKenzie. Constable Taylor did not make a note of the time that this conversation occurred.

50. Officer Taylor could not recall who initiated the conversation between Mr. Matthew and Officer McKenzie. Officer Taylor testified that:

“I’m not sure at what point the conversation occurred, but it was immediately upon Officer McKenzie re-entering the living room or the basement apartment after he searched – took photos of the vehicle, or if he already gone into the bedroom, but at one point they were in conversation and I observed, at one point, Officer McKenzie cautioned Mr. Matthew in regards to the conversation they were having.”

51. Officer Taylor testified that the caution provided to Mr. Matthew by Officer McKenzie involved “words to the effect of you’re not obligated to say anything but if you say anything it can be used in court.” He could not recall whether Officer McKenzie read the caution from a card. Officer Taylor described the conversation between Officer McKenzie and Mr. Matthew as “short”. Officer Taylor testified that during this conversation Mr. Matthew “described a black duffle back inside the bedroom which was behind him and it apparently contained ammunition.”

52. Officer Taylor made the following entry into his notes about the conversation:

“35 convo with T1. Secondary caution issued. T1 advised black duffle bag in bedroom has ammo.”

53. Officer Taylor explained that this note was “basically a summary of the conversation” and that he did not attempt record the conversation verbatim. He added that when the conversation occurred, he was “trying to do other things, catching up on my notes…”. Officer Taylor testified that it was Officer McKenzie’s responsibility, as the person directly involved in the conversation, to make detailed notes of what was said.

54. In cross-examination, Officer Taylor provided the following explanation for why, in his notes, he described the caution given by Officer McKenzie as a “secondary caution”:

“…I wrote it in as secondary caution meaning he was already cautioned once by me but Officer McKenzie then cautioned him about making a statement.”

55. Officer Taylor testified that Officer McKenzie actually provided Mr. Matthew with a “primary caution” and not a secondary caution. Officer Taylor testified that he understands that a “secondary caution” is:

“…when a witness or an accused may have, sorry, if an accused has any further interaction with a different officer then that officer can issue him a secondary caution that he doesn’t want anybody – he wants to make sure than any other officer hasn’t influenced this accused into making a statement.”

56. Officer McKenzie testified that he prepared his notes later that day (during his next shift). In his notes, Officer McKenzie also described the caution he provided to Mr. Matthew as a “secondary caution.” However, Officer McKenzie testified that he “just cautioned him.” Officer McKenzie testified that he had made a mistake in describing the caution as a “secondary caution.” In cross-examination, Officer McKenzie stated that he believes that he knows how this mistake occurred:

“It would have been those notes [the central notes prepared by Officer Taylor] that I wrote it up from. That’s probably why I got the term ‘secondary caution.’ And it was upon testifying I realized, and seeing the secondary caution on the paper that you had me pull out, that was in fact the caution, not the secondary caution.”

57. When defence counsel suggested to Officer McKenzie that the reason he wrote “secondary caution” in his notes was because he looked at the central notes and assumed that Mr. Matthew had already been arrested and cautioned, the officer responded, “I 100% disagree.”

58. Officer McKenzie testified that after Mr. Matthew made the statement, he (Officer McKenzie) “went straight to” a black gym bag that was at the foot of the bed in the bedroom. Officer McKenzie testified that he opened the black gym bag and inside found a white cloth bag, which contained two digital scales and ammunition (in a Ziplock bag). Officer McKenzie took photographs of the black gym bag and its contents.

59. The first photograph taken by Officer McKenzie inside the apartment (not including the entry photographs) had a timestamp of 12:24 a.m. – it was a photograph of the black gym bag.

60. Officer McKenzie testified that, based on the timestamps on the photographs, Mr. Matthew made the statement to him between 12:22 a.m. (when he took the last entry photograph of the Honda Civic) and 12:24 a.m. (when he took a photograph of the black gym bag and its contents).

61. According to Officer McKenzie, Officer Wauchope was in the bedroom when he found the black gym bag. Officer McKenzie testified that he did not know whether Officer Wauchope entered the bedroom before or after him.

62. Officer Taylor testified that immediately after the conversation between Officer McKenzie and Mr. Matthew, Officer McKenzie went to the bedroom. According to Officer Taylor, a short time later he was advised that Officer McKenzie had located a black duffle bag which contained multiple 9-millimeter rounds of ammunition. Officer Taylor did not make a note of the time that he was provided this information. Officer Taylor testified that he remained in the living room area with Mr. Matthew and Mr. Matthew’s father “the entire time.” Officer Taylor said that during this period he was “catching up with my central notes, I was making note of the conversation that Constable McKenzie had just had, and noting the information on the duffle bag.”

63. In cross-examination, Officer Taylor was asked why he did not re-arrest Mr. Matthew for an offence in relation to the ammunition found in the bedroom and reiterate his right to counsel. Officer Taylor replied that “[b]ecause there was no charge applicable at that point for just having ammunition.” He could not recall whether he knew, prior to the discovery of the ammunition, that Mr. Matthew was subject to a weapons prohibition order.

64. Officer Taylor was asked about a document entitled “search warrant exhibit chart”, in which he wrote a time of 00:05 (12:05 a.m.) next to the duffle bag (and contents) along with other items. Constable Taylor explained that the time “corresponds with the time we entered the basement apartment” and not when the duffle bag was found. Constable Taylor said that the search warrant was officially executed on the residence when the police entered the basement apartment.

65. At about 12:30 a.m., the two uniformed TPS officers (Officers De Angelis and Davy) arrived at 2535 Eglinton Avenue West. Officer Duran testified that when the uniformed officers arrived, he told them to stand by. Officers De Angelis and Davy testified that they were told by Officer Duran to “stand by for 10 minutes.” Officer Davy testified that it is not unusual for uniformed officers who have been requested by investigators to attend a scene to be told that that are to “stand by.” Officers De Angelis and Davy remained in their car and waited for further direction.

66. Officer Taylor testified that “about 10 minutes” after he received information about the contents of the black gym bag, he was advised that Constable Luczyk had located a loaded handgun, heroin and an unknown substance inside the Honda Civic. Officer Taylor did not make a note about when he received this information.

67. Officer McKenzie testified that at about 12:34 a.m. he was advised that Officer Luczyk located a handgun and a controlled substance inside the 2014 Honda Civic. Officer McKenzie went outside to take photographs of those items. The timestamp embedded in the first “post-entry” photograph taken by Officer McKenzie of the Honda Civic indicates that it was taken at 12:34 a.m. The timestamps on the photographs of the handgun and drugs found in the Honda Civic indicate that they were taken between 12:34 a.m. and 12:36 a.m.

68. Officer Duran testified that Officer Luczyk notified the other officers that “a loaded handgun, heroin and an unknown substance” had been located in the Honda Civic. Officer Duran did not state when the other officers were advised about this discovery.

69. Officer Taylor testified that at 12:38 a.m. he told Mr. Matthew that he’s “further charged with possession for the purpose of trafficking of a schedule I substance.” In his notes, Officer Taylor wrote “I advised T1 also under arrest P-for-the-P schedule I substance, heroin.”[^9]

70. Officer Taylor testified that he told Mr. Matthew that he was under arrest for possession of a schedule I substance for the purpose of trafficking because Mr. Matthew’s “jeopardy changed.”

71. According to Officer Taylor, he also cautioned Mr. Matthew.[^10] Officer Taylor testified that when he asked Mr. Matthew if he understood, Mr. Matthew replied, “Duty counsel, please.”

72. Officer Taylor testified that he did not advise Mr. Matthew of his right to counsel when he arrested him for possession of a schedule I substance for the purpose of trafficking because “he was already under arrest.”

73. Officer Taylor testified that, at the time, he understood that one of the seized substances was heroin and there was another substance that was “unknown at that point.” Defence counsel asked Officer Taylor whether he advised Mr. Matthew that he was also charged with possession of fentanyl for the purpose of trafficking. Officer Taylor testified that he did not do that. He explained that he believed that he found out the unknown substance was fentanyl “well after the …arrest date.” According to Officer Taylor, on October 30^th^. he “had no idea there was fentanyl.”

74. Officer Duran testified that at 12:40 a.m. he instructed Officers De Angelis and Davy to go into the apartment because “Mr. Matthew was now in custody and being charged and was ready to be transported to 12 [Division].” Officers De Angelis and Davy testified that at 12:40 a.m. Officer Duran told them that they were to transport one male who was in custody to 12 Division.

75. Officer Taylor testified that at 12:42 a.m. he was told that escort officers were on the scene to take Mr. Matthew to 12 Division. Officer Taylor testified he told the escort officers that Mr. Matthew was under arrest for unauthorized possession of a firearm and possession of a schedule I substance for the purpose of trafficking.

76. Officer Davy testified that Officer Taylor told him and Officer De Angelis that Mr. Matthew was under arrest for unauthorized possession of a firearm, possession of heroin and possession of heroin for the purpose of trafficking.

77. Officer Taylor testified that he believed he told the uniformed officers that Mr. Matthew had been advised of his rights to counsel and cautioned. Officers De Angelis and Davy testified that they were told by Officer Taylor that he advised Mr. Matthew of his s. 10(b) rights.

78. Officer Taylor could not recall whether he told the escort officers that Mr. Matthew had requested to speak to duty counsel. Officers De Angelis and Davy also could not recall whether Officer Taylor said that Mr. Matthew had asked to speak to a lawyer.

79. Officer Taylor testified that he turned Mr. Matthew over to Officers De Angelis and Davy at 12:45 a.m.

80. Officers De Angelis and Davy took Mr. Matthew to 12 Division. They did not advise Mr. Matthew of his right to counsel. They arrived at 12 Division at 12:55 a.m. They waited in the sallyport area until the booker and officer-in-charge of 12 Division were ready for them.

81. At 1:06 a.m., Mr. Matthew was paraded before a sergeant. At 1:10 a.m., Mr. Matthew was escorted to the CIB office and placed in Interview Room A. Officers Davy and McSteven conducted a Level Three search of Mr. Matthew. The Level Three search was completed at 1:15 a.m.

82. At 1:17 a.m., Mr. Matthew was taken to a washroom, at his request. He was moved back to Interview Room A at 1:19 a.m.

83. At 1:20 a.m., Officer De Angelis called duty counsel and left a message. Duty counsel returned the call at 1:49 a.m. The call from duty counsel was received by Officer MacSteven. Mr. Matthew was given the phone and, while in Interview Room A, had a private conversation with duty counsel. Officer MacSteven did not make a note of the length of this call.

84. Officer McKenzie testified that he continued to search the apartment from 12:34 a.m. to 1:12 a.m. He took exit photographs of the apartment at 1:12 a.m. The timestamps on the photographs indicate that the last photograph inside the apartment was taken at 1:12 a.m. and the last photograph of the Honda Civic was taken at 1:18 a.m.

85. At 1:27 a.m., Officer Taylor drove the Honda Civic to a secure parking lot at 12 Division where he turned the car back over to Officer Luczyk.

86. From about 1:40 a.m. to 1:50 a.m., the officers involved in the execution of the search warrants participated in a debriefing meeting at 12 Division. After that, the officers were assigned different tasks in relation to this case. Officer Taylor was “tasked with general property which were seized and also proceeds which were seized.”

87. Officer Wauchope said that sometime after 1:50 a.m. he or another member of his team took Mr. Matthew out of a cell and brought him into an interview room next to the office where his team was working. He did not make a note about this. However, he said that it was a “general thing that we do in regards to our investigations.” Officer Wauchope testified that his team does this in case the officers have “questions in regards to show cause information.” He also stated that they “debrief” an accused person who is in custody for the following purpose:

“Just to see if he has anything that would be helpful in regards to any investigation. If he knows anything in regards to firearms or drugs that he would want to talk to us about.”

88. Officer Wauchope could not recall how long Mr. Matthew was held in the interview room but testified that it was “probably a couple of hours I presume.” Officer Wauchope explained that his team usually keeps a person who has been arrested in an interview room until “all of the paperwork is done.” He testified that it was easier for the officers to keep Mr. Matthew in the interview room where they had immediate access to him so they could “have a conversation with him if needed.” According to Officer Wauchope, once an accused person is placed in a cell, officers have to ask the “booker” to unlock the doors to speak the accused. Officer Wauchope testified that he would not normally ask an accused person questions in the cells about “specific stuff” as other people could overhear the conversation.

89. Officer Wauchope testified he “debriefed” Mr. Matthew, but Mr. Matthew did not want to provide any information. In Officer Wauchope’s words, “nothing important came of getting him out of the cells.”

90. Officer Wauchope said that it is possible that Officer Duran went into the interview room at 12 Division to speak with Mr. Matthew, but he did not recall if that happened.

91. Officer Wauchope testified that Mr. Matthew was taken to a cell after the officers completed their paperwork. He testified that Mr. Matthew arrived at 12 Division before the police officers who were involved in the execution of the search warrant.

92. In cross-examination, Officer Duran said that it was “possible” that he moved Mr. Matthew from a cell into an interview room, but he did not recall. In response to defence counsel’s suggestion that he spoke to Mr. Matthew at length in an interview room (perhaps on two occasions that morning), Officer Duran responded, “I disagree. I don’t recall that.”

93. Officer Duran testified that he did not ask Mr. Matthew to provide information about other people who have guns and drugs to “lessen his charges.” Officer Duran acknowledged that it was possible another member of the Guns and Gangs Task Force “debriefed” Mr. Matthew.

94. In cross-examination, Officer McKenzie testified that he first learned that one of the substances found in the Honda Civic was fentanyl was when he received the certificates of analysis from Health Canada. Officer McKenzie prepared a property report while he was at 12 Division on October 30^th^.[^11] In this report, Officer McKenzie referred to the seized substances as heroin, “fentanyl purple” and phenacetin (a cutting agent). Officer McKenzie testified that when he prepared the report he did not “know” that one of the substances was fentanyl. He said that he made “an educated guess” based on the colour of the substance. After describing one of the seized substances as purple fentanyl in the property report, Officer McKenzie did not re-arrest Mr. Matthew for possession of fentanyl for the purpose of trafficking or re-advise him of his s. 10(b) rights. He did not instruct any other officer to do so.

DID MR. MATTHEW MAKE THE STATEMENT?

95. I will first deal with whether the Crown has established that Mr. Matthew made the statement attributed to him by Officer McKenzie.

96. Defence counsel argued that there were significant credibility and reliability issues with the evidence of the police officers. It was asserted that the testimony of the officers was inconsistent and not worthy of belief.

97. I do not agree. In my view, the cross-examination of the officers did not undermine their credibility or the reliability of their evidence and any inconsistencies were not significant.

98. In my view, the officers’ evidence of the circumstances surrounding Mr. Matthew’s initial arrest made sense.

99. I accept Officer Taylor’s testimony that shortly after Mr. Matthew was removed from the Honda Civic, Officer Taylor told Mr. Matthew that he was under arrest for unauthorized possession of a firearm, advised him of his right to counsel and cautioned him. I also accept Officer Taylor’s evidence that Mr. Matthew said that he did not wish to speak to counsel.

100. The fact that no other officer heard Officer Taylor arrest Mr. Matthew, advise him of his right to counsel or caution him does not undercut Officer Taylor’s account of what occurred. This was a dynamic situation. At the time, there were only a small number of officers at the scene. The apartment had to be cleared. Officer Wauchope was dealing with Mr. Matthew’s father. In these circumstances, the fact that no other officer heard this is not surprising.

101. I found no significant inconsistencies in the officers’ evidence regarding the initial entry by the police into the basement apartment, including the time it took to clear the unit. Officers McKenzie, Wauchope and Duran all testified that they cleared the apartment. Before the officers entered the apartment, they did not know how large it was. After they entered the apartment, the officers saw that it was a small one-bedroom unit.

102. Officer McKenzie testified that “it took no time at all to confirm that there was nobody else present.” I accept that this was done very quickly. I do not accept the suggestion made by defence counsel that one or more of the officers testified it took six minutes to clear the apartment. While Officer McKenzie responded “yes” to the question “in those six minutes [12:05 a.m. and 12:11 a.m.] you said that you cleared the residence?”, he did not testify that the only thing he did during that period was clear the house. During that time, he entered the apartment to clear it, left the apartment, went to his car, retrieved his camera, made sure that the camera was charged and returned to the apartment to take photographs.

103. I accept that each of these officers entered the apartment and satisfied themselves that there was no one else in the unit. In these circumstances, the fact that the officers could not recall all of the officers who cleared the apartment was not a significant factor in the assessment of their credibility or the reliability of their evidence.

104. I found Officer McKenzie to be a credible witness who provided reliable evidence. I accept his evidence that Mr. McKenzie initiated the conversation.

105. Officer McKenzie made his notes regarding the Mr. Matthew’s statement later that day. His memory was still fresh at the time. His conversation with Mr. Matthew was very brief and, given the circumstances and content, it would have been memorable. I believe Officer McKenzie’s testimony that Mr. Matthew made the alleged statement in the circumstances described by Officer McKenzie.

106. I accept Officer McKenzie’s explanation for how he mistakenly wrote in his notes that he provided Mr. Matthew with a “secondary caution.” I also accept Officer Taylor’s explanation for how he mistakenly described the caution provided by Officer McKenzie as a secondary caution. In my view, their explanations for how this mistake occurred made sense. I find that Officer McKenzie provided Mr. Matthew with the caution that he read in court.

107. In my view, the timestamps on the photographs support Officer McKenzie’s account of what happened. Officer McKenzie said that he took the last photograph of the Honda Civic, walked inside the apartment, had the conversation with Mr. Matthew, entered the bedroom, went directly to the black gym bag and took a photograph of the bag and its contents. The time stamp on the last entry photograph of the Honda Civic reveals that it was taken at 12:22 a.m. and the timestamp on the first photograph of the black gym bag shows that it was taken in the bedroom at 12:24 a.m. During re-examination, Crown counsel asked Officer McKenzie to repeat the conversation he had (including the caution he provided) with Mr. Matthew. It took Officer McKenzie 41 seconds to repeat the entire conversation.

108. Officer McKenzie relied on Officer Taylor’s central notes when he initially testified that he re-entered the apartment at 12:19 a.m. As I have already stated, a timestamp on one of the photographs shows that he was still outside at 12:22 a.m. In these circumstances, I do not view this as significant. It is possible that Officer Taylor simply erred when he made a note that Officer McKenzie re-entered the apartment time at 12:19 a.m. There was no evidence that Officer McKenzie and Officer Taylor, that evening, synchronized the internal clock on the camera and the clock on Officer Taylor’s phone.

109. The defence argues that it is implausible that Mr. Matthew would have made the statement to Officer McKenzie. I do not agree. While outside the apartment, Mr. Matthew told Officer Taylor that he did not need to speak to a lawyer and did not want to say anything. After that, Mr. Matthew sat on the sofa in the living room next to his father for about 20 minutes. When he made the statement to Officer McKenzie the officers were about to commence the search of the apartment. Officer McKenzie was walking towards the bedroom where the ammunition was located. In these circumstances, it is not implausible that Mr. Matthew, having had some time to think about the situation, and understanding that Officer McKenzie was about to find the ammunition in the bedroom, decided to protect his father by telling Officer McKenzie that the ammunition in the bedroom belonged to him.

110. I am satisfied, beyond a reasonable doubt, that Mr. Matthew made the statement to Officer McKenzie.

DID THE CROWN ESTABLISH BEYOND A REASONABLE DOUBT THAT THE STATEMENT WAS VOLUNTARY?

Legal Principles - Voluntariness

111. A statement by an accused to a person in authority is presumptively inadmissible at a criminal trial. That presumption can be rebutted by the Crown, if the Crown is able to establish, beyond a reasonable doubt, that the statement was given voluntarily: R. v. Oickle, 2000 SCC 38. There is no onus on an accused to establish that a statement was involuntary.

112. The Supreme Court has rejected fixed and narrow rules when assessing the voluntariness of statements: Oickle, supra, at para. 47. The analysis “must be a contextual one”: Oickle, supra, at para. 71. A court must consider all relevant factors when determining whether a statement is voluntary.[^12] These factors include:

• Threats, promises or inducements.

• Oppression.

• The lack of an operating mind.

• Police trickery.

113. An inducement will be improper when the inducement, by itself or in combination with other factors, is “strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”: Oickle, supra, at para. 57.

114. In R. v. Hobbins, 1982 CanLII 46 (SCC), [1982] 1 SCR 553, at pp. 556-557, Laskin C.J. noted that “[a]n atmosphere of oppression may be created in the circumstances surrounding the taking of a statement, although there be no inducement held out of hope of advantage or fear of prejudice, and absent any threats of violence or actual violence.”

115. A number of factors can give rise to an atmosphere of oppression, including depriving a suspect of food, water, clothing, sleep, medical attention, denying access to counsel and excessively aggressive questioning over a prolonged period of time: Oickle, supra, at para. 60.

116. The “presence of oppressive circumstances, standing alone, does not necessarily render a statement involuntary”: R. v. Zekarias, 2018 ONSC 4753, at para. 12. A statement will be rendered involuntary where:

“…the conduct of a police officer or the circumstances of the detention are so oppressive as to raise a doubt whether the accused was able to make an independent choice to speak to the police or remain silent”: R. v. Fernandes, 2016 ONCA 772, at para. 33. [Emphasis added.]

117. Oppressive circumstances that are not caused or created by the state will not invalidate a confession: Fernandes, supra, at para. 36; Zekarias, supra, at para. 11.

118. The absence of an appropriate police caution, while a relevant factor to be considered on the voluntariness inquiry, is not determinative of the question of voluntariness: R. v. Pearson, 2017 ONCA 389, at para. 19; R. v. Bottineau, 2011 ONCA 194, at para. 88.

119. The voluntariness of a statement could be undermined by a s. 10(b) violation: R. v. Mootoo, 2021 ONSC 2596, at para. 16.

Analysis

120. The defence argues that none of the officers on the scene during the execution of the search warrant “provided consistent accounts as to the circumstances surrounding what transpired outside the vehicle, what transpired inside the house and around taking the statement.” It is argued by the defence that “an officer’s inability to testify to all of the circumstances also makes it impossible for the prosecution to discharge the onus of proof of voluntariness.”

121. The defence also asserts that the evidence regarding the “accuracy of the recording of the actual statement” is relevant to the issue of whether the Crown can prove beyond a reasonable doubt that the statement is voluntary. I agree. However, a verbatim recording is “not an absolute requirement to demonstrate the voluntariness of a statement”: R. v. Jackman, 2016 ONCA 121, at para. 42.

122. I am satisfied that Officer McKenzie accurately recorded the statement made by Mr. Matthew in his notes (with the exception of the note which states he provided Mr. Matthew with a “secondary caution”). Mr. Matthew and Officer McKenzie had a short exchange. Given the content and length of the statement, Mr. Matthew’s statement would have been memorable to Officer McKenzie. This statement was fresh in Officer McKenzie’s mind when he recorded it in his notes later that day.

123. The fact that Officer Taylor did not write more than a summary of what was said by Officer McKenzie and Mr. Matthew does not undermine a finding that Officer McKenzie accurately described the statement made by Mr. Matthew. As Officer Taylor testified, he did not attempt to make verbatim notes of this conversation as “that’s for Constable McKenzie to record”. Officer Taylor’s evidence regarding Mr. Matthew’s statement was not inconsistent with Officer McKenzie’s account.

124. The defence takes the position that Mr. Matthew was not arrested, advised of his right to counsel or cautioned by Officer Taylor (or any other officer) immediately after Mr. Matthew was removed from the Honda Civic. The defence also asserts that Mr. Matthew was first told by police why he was arrested and advised of his rights to counsel at approximately 12:38 a.m. – which was a few minutes after police located a handgun and controlled substances in the 2014 Honda Civic.

125. I have already concluded that, shortly after Mr. Matthew was removed from the Honda Civic, Officer Taylor told him that he was under arrest for unauthorized possession of a firearm. I accept Officer Taylor’s evidence that, at that time, he also advised Mr. Matthew of his right to counsel and cautioned him.

126. I accept the testimony of the other officers (including Officer McKenzie and Officer Wauchope) regarding what occurred when they blocked in Mr. Matthew’s car and removed him from the vehicle. Their evidence on these matters was not undermined during cross-examination and it made sense.

127. I do not view any of the alleged inconsistencies in the testimony of the officers to be significant in the assessment of whether the evidence establishes, beyond a reasonable doubt, that the statement was voluntary.

128. Defence counsel suggests that the circumstances surrounding Mr. Matthew’s arrest and what occurred between his arrest and when he allegedly made the statement support the conclusion that the police created an atmosphere of oppression that rendered Mr. Matthew’s statement involuntary. I do not accept this argument. While Mr. Matthew did not testify on this application, it is reasonable to conclude that he was surprised and likely somewhat frightened when unmarked police cars converged to block his vehicle and a number of officers approached him with their guns drawn. It is also reasonable to conclude that it was, at the very least, disquieting to Mr. Matthew when he was taken to the ground and arrested. However, I am not satisfied that the conduct of the police was so oppressive to raise a doubt as to whether Mr. Matthew was able to make an independent choice, about 20 minutes later, to speak to the police or remain silent.

129. There was no evidence that the conditions of his detention were inhumane. He was not subjected to harsh or overbearing interrogation. He was not deprived of food, sleep or drink. There was no evidence that the police attempted to use non-existent evidence to convince Mr. Matthew to make a statement: Oickle, supra, at paras. 60-61.

130. Mr. Matthew initiated the conversation with Officer McKenzie after he had been advised of his right to counsel and cautioned. I found no basis to conclude that anything occurred between the time Mr. Matthew was initially arrested and when he made the statement to Officer McKenzie that could raise a reasonable doubt about Mr. Matthew’s ability to freely decide whether he would speak to the police or remain silent.

131. I am not left with a reasonable doubt that any of the officers threatened or offered an inducement to Mr. Matthew (or his father).

132. There is no evidence that Mr. Matthew was especially vulnerable as result of his background, special circumstances or situation. There is no basis to conclude that Mr. Matthew lacked the cognitive ability to understand what he was saying or that he was saying it to a police officer who could use it to his detriment. There is no evidence that Mr. Matthew suffered from a mental illness or that his decision making was impaired because he consumed alcohol or drugs. I am satisfied beyond a reasonable doubt that Mr. Matthew’s statement was the product of an operating mind.

133. A promise or a threat with respect to a third person could constitute an improper inducement: Oickle, supra, at para. 81. In this case, as I have already stated, it is reasonable to infer that Mr. Matthew made the statement because he was attempting to protect his father. That was his decision. He initiated this conversation. There is no evidence that the police made any threats or promises to Mr. Matthew or his father. The police did not make a quid pro quo offer to Mr. McKenzie or his father: Fernandes, supra, at para. 27. The police made no inducements to Mr. Matthew to make the statement. As Mr. Matthew’s motive was not generated by the police it is irrelevant: R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, cited with approval in Oickle, supra, at para. 57.

134. The was no evidence that the police engaged in any form of trickery.

135. To summarize, I am satisfied beyond a reasonable doubt that Mr. Matthew’s will to decide whether to speak to the police was not overborne by threats, promises, inducements, oppressive circumstances, police trickery or the lack of an operating mind.

136. The Crown has established beyond a reasonable doubt that the statement is voluntary.

137. I will now turn to the question of whether Mr. Matthew’s s.10(a) or 10(b) rights were infringed.

WERE MR. MATTHEW’S RIGHTS UNDER SECTIONS 10(a) AND/OR 10(b) OF THE CHARTER VIOLATED?

Legal Principles – Sections 10(a) and 10(b)

138. Section 10(a) of the Charter states that upon arrest or detention, a person has the right to “be informed promptly of the reasons therefor.” Section 10(a) requires police to promptly advise a detainee in clear and plain language of the reasons for the detention. One aspect of the right to be promptly advised of the reason for one’s detention “lies in its role as an adjunct to the right to counsel” as individuals can only exercise their s. 10(b) rights in a meaningful way if they know the extent of their jeopardy: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, at para. 31.

139. Section 10(a) does not require the police to tell a detainee “the technical charges they may ultimately face”: R. v. Roberts, 2018 ONCA 411, at para. 78. Instead, the police must provide a detainee with information that is “sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy”: Roberts, supra, at para. 78.

140. Section 10(b) of the Charter states that upon arrest or detention, a person has the right to “retain and instruct counsel without delay and to be informed of that right.” As Davies J. recently stated in Mootoo, supra, at para. 38:

“Section 10(b) of the Charter imposes two duties on the police. First, the police must inform the detainee of his right to retain and instruct counsel immediately after the arrest or detention. Second, if the detainee asks to speak to counsel, the police must provide him with an opportunity to speak to counsel at the first reasonably available opportunity: R. v. Suberu, 2009 SCC 33, at para. 38; R. v. Taylor, 2014 SCC 24, 2014 SCC, at para, 24.” [^13]

141. An accused person has the evidentiary burden, on a balance of probabilities, to establish that his or her rights under s. 10(a) or s. 10(b) were infringed: Oickle, supra, at para. 30.

Were Mr. Matthew’s Rights Under Sections 10(a) and 10(b) Infringed?

142. The defence argues that there were several violations of Mr. Matthew’s rights under s. 10(a) and s. 10(b) of the Charter.

143. First, the defence argues that Mr. Matthew’s s. 10(a) and (b) rights were violated at “takedown”, as Mr. Matthew was not told of the reason he was being detained or arrested and was not advised of his right to counsel. As I have already concluded, I accept Officer Taylor’s evidence that he told Mr. Matthew that he was under arrest for unauthorized possession of a weapon, advised Mr. Matthew of his right to counsel and cautioned him. Mr. Matthew told Officer Taylor that he did not need to speak to counsel. There was no s. 10(a) or 10(b) violation immediately following Mr. Matthew being removed from the Honda Civic.

144. Second, the defence argues that Mr. Matthew’s s. 10(a) and (b) rights were violated because the police failed to restate the right to counsel after Mr. Matthew’s jeopardy changed.

145. Third, the defence argues that Mr. Matthew’s s. 10(b) rights were infringed because the police failed to allow Mr. Matthew to speak to counsel at the first reasonable opportunity.

146. I will now address the second and third arguments advanced by the defence.

Were Mr. Matthew’s s. 10(a) & 10(b) Rights Violated Because the Police Did Not Restate His Right to Counsel After Mr. Matthew’s Jeopardy Changed?

Legal Principles – s. 10(b) and Jeopardy

147. The obligation on the police under s. 10(b) to tell a detained person that they have the right to speak with a lawyer is imposed “so a detained person can decide whether to exercise her right to counsel before any further interaction with the police”: R. v. Sawatsky, 1997 CanLII 511 (ON CA), [1997] O.J. 3561, at para. 26 (Ont. C.A.).

148. To make the “exercise of the right to counsel meaningful, the detained person must be in a position to make an informed decision as to whether to seek counsel’s assistance”: Sawatsky, supra, at para. 26. Section 10(b) requires that a detained person “at least know why she is detained and why the police wish to question her or involve her in some other investigative process”: Sawatsky, supra, at para. 26.

149. In R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, the Court concluded that a person can only exercise his “s. 10(b) right in a meaningful way if he knows the extent of his jeopardy.”

150. In this context, “jeopardy” includes “the detained person’s risk of self-incrimination”: Sawatsky, supra, at para. 28. That risk “cannot be measured without knowledge of the reason and the subject matter of the police inquires”: Sawatsky, supra, at para 28.

151. Where the risk to self-incrimination changes, the police must re-state the right to counsel so that a detainee can decide in the face of the new risk whether to exercise his or her right to counsel: Sawatsky, supra, at para. 30.

152. Not every change will require that the police reiterate s. 10(b) rights or provide a detainee with a second opportunity to consult counsel: R. v. Blake, 2015 ONCA 684, at para. 21; Zekarias, supra, at para. 43. The police must restate a detainee’s s. 10(b) rights where there is a change in the purpose of the investigation involving:

(i) a different and unrelated offence; or

(ii) a significantly more serious offence than that contemplated at the time when the detainee was initially advised of their s. 10(b) rights: Sawatsky, supra, at para. 31; Evans, supra, at para. 49; R. v. Guthrie, 2016 ONCA 466 at para. 11.

153. The police are required to reiterate the right to counsel even where it is the detainee who “initiates the shift in the investigation”: Sawatsky, supra, at para. 33.

154. In Sawatsky, supra, at para. 36, Doherty J.A. concluded that, given the purpose and importance of s. 10(b), “it is appropriate to decide close cases in favour of the reiteration of the s. 10(b) rights.”

Analysis

155. The defence argues that Mr. Matthew’s s. 10(b) rights were violated on three occasions because the police failed to reiterate his s. 10(b) rights when his jeopardy changed.

156. The first alleged breach occurred shortly after 12:22 a.m. on October 30^th^, when Mr. Matthew told Officer McKenzie about the ammunition in the black gym bag. Less than 20 minutes earlier, Mr. Matthew had been told by Officer Taylor that he was under arrest for unauthorized possession of a firearm, advised of his right to counsel and cautioned. At that time, Mr. Matthew told the officer that he had no need to call a lawyer.

157. In my view, when Officer McKenzie spoke to Mr. Matthew shortly after 12:22 a.m. he was not investigating an offence that was different and unrelated to the original offence for which Mr. Matthew was arrested. I do not believe that Officer McKenzie turned his mind to the possibility that, as a result of Mr. Matthew’s initiating a conversation about ammunition in the bedroom, he was investigating a different offence (s. 117.01 of the Criminal Code - possession of ammunition contrary to a s. 109 weapons prohibition order). In any event, even if he had turned his mind to that, in the circumstances of this case, I do not view an investigation into unlawful possession of ammunition to be different and unrelated to an investigation into unlawful possession of a firearm.

158. Further, in my view, Officer McKenzie was not investigating a significantly more serious offence than that which was contemplated when Mr. Matthew was initially advised of his right to counsel. One measure of the seriousness of an offence is the potential penalty imposed by Parliament: R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 OR (3d) 1, at para. 90 (OCA). The maximum sentence for a person found guilty of unauthorized possession of a firearm contrary to s. 91 of the Criminal Code is five years imprisonment. The maximum sentence for possession of a prohibited or restricted weapon knowing that one is not the holder of a licence or registration certificate, pursuant to s. 92 of the Criminal Code, is (in the case of a first offence) ten years imprisonment. The maximum sentence for a person found guilty of possession of ammunition while the person was subject to prohibition order made under the Criminal Code is ten years imprisonment, pursuant to s. 117.01.

159. In Guthrie, supra, at paras. 11-12, the Court of Appeal concluded that although aggravated assault and assault with a weapon (the offences the appellant in that case was charged with) are more serious offences than assault causing bodily harm (the offence that the appellant had been arrested for), “they are related offences and not significantly more serious as contemplated in Evans.” The maximum sentence for assault causing bodily harm is 10 years imprisonment. The maximum sentence for aggravated assault is 14 years.

160. In this case, the new offence was not “significantly more serious than the one contemplated” when Mr. Matthew was originally arrested and advised of his s. 10(b) rights.

161. I have concluded that Officer McKenzie was not required to restate the right to counsel to Mr. Matthew.

162. The second alleged breach occurred when the police found drugs and a handgun in the Honda Civic. Officer Taylor advised Mr. Matthew that he was arrested for (or would be charged with) possession of a schedule I substance for the purpose of trafficking.

163. After the police found the controlled substances in the Honda Civic, they were investigating a different and unrelated offence which was significantly more serious offence than was contemplated when they initially arrested Mr. Matthew. The maximum sentence for possession of a schedule I substance for the purpose of trafficking is life imprisonment.

164. In my view, the police were obligated to restate Mr. Matthew’s right to counsel after the controlled substances were found in the Honda Civic. The failure to reiterate the right to counsel violated Mr. Matthew’s s. 10(b) rights.

165. The third alleged breach occurred when the police had grounds to believe that one of the substances seized from the Honda Civic was fentanyl. After 4:00 a.m., Officer McKenzie took a closer look at the substances that were seized from the Honda Civic and prepared property reports. He described the unknown substance on the property report as “purple fentanyl”. This occurred after Mr. Matthew spoke to duty counsel. While I accept Officer McKenzie’s evidence that he did not “know” what that substance was until the police received the analyst’s report from Health Canada, when he prepared the property report he had a reasonable basis to believe that the substance was fentanyl. I also note that at about 6:00 a.m. on October 30^th^., an information was prepared with one of the counts alleging that Mr. Matthew was in possession of fentanyl for the purpose of trafficking.

166. When Mr. Matthew spoke to duty counsel at about 1:50 a.m. he knew that he had been arrested for unlawful possession of a firearm and possession of a schedule I substance (heroin) for the purpose of trafficking.

167. In my view, there was not a discrete change in the purpose of the investigation when Officer McKenzie formed reasonable grounds to believe that one of the seized substances was fentanyl. The police were not investigating a different and unrelated offence. The offence of possession of fentanyl for the purpose of trafficking is not significantly more serious than possession of heroin for the purpose of trafficking. Both are very serious offences. Heroin and fentanyl are both schedule I substances. The maximum sentence for possessing either of these substances for the purpose of trafficking is life imprisonment.

168. I have concluded that Mr. Matthew’s s. 10(b) rights were not violated when the police did not reiterate his right to counsel after concluding that there were reasonable grounds to believe one of the seized substances was fentanyl.

Were Mr. Matthew’s Section 10(b) Rights Violated Because the Police Did Not Allow Him to Speak To Counsel at the First Reasonable Opportunity?

Legal Principles – Delay in Facilitating Access to Counsel

169. The duty to facilitate access to a lawyer arises immediately upon a detainee’s request to speak to counsel: R. v. Taylor, 2014 SCC 50, [2014] 2 SCR 495, at para. 24. The implementational obligations are only triggered when a detainee expresses a desire to exercise their right to counsel: R. v. Willier 2010 SCC 37, [2010], 2 SCR 429, at para. 30; R. v. Fuller, 2012 ONCA 565, at para. 17; R. v. Luu, 2021 ONCA 311, at para. 23.

170. An arresting officer has a “constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity”: Taylor, supra, at para. 24. [Emphasis added.] Whether a delay in facilitating access to counsel is reasonable is a factual inquiry: Taylor, supra, at para. 24.

171. The onus is on the Crown to show “that a given delay was reasonable in the circumstances”: Taylor, supra, at para. 24. A justified delay in accessing counsel does not result in a s. 10(b) violation: R. v. Griffith, 2021 ONCA 302, at para. 41.

172. Section 10(b) requires that a detainee “will have access to a phone to exercise his right to counsel at the first reasonable opportunity”: Taylor, supra, at para. 28. [Emphasis in original.]

173. In Taylor, supra, at para. 32, the Court stated that, [t]he duty of the police is to provide access to counsel at the earliest practical opportunity.” [Emphasis added.] The practicalities of the situation must be considered as “they inform the reasonableness of the delay in facilitating the exercise of the right”: R. v. Patrick, 2017 BCCA 57, at para. 113; leave denied, [2017] SCCA 108; R. v. Larocque, 2018 ONSC 6475, at para. 41.

174. The police “are under no legal duty to provide their own cell phone to a detained person”: Taylor, supra, at para. 27. However, the police 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”: Taylor, supra, at para. 28.

Analysis

175. Mr. Matthew was advised of his right to counsel at about 12:03 a.m. He told Officer Taylor that he had no need to speak with a lawyer. After he was advised by Officer Taylor, at 12:38 a.m. that he was being arrested for (or charged with) possession of a schedule I substance for the purpose of trafficking, Mr. Matthew asked, for the first time, to speak with duty counsel. The police implementational duties were triggered at 12:38 a.m.

176. Mr. Matthew spoke to duty counsel at approximately 1:49 a.m.

177. The question is whether the seventy-one-minute delay between Mr. Matthew’s request to speak to duty counsel and Mr. Matthew speaking to duty counsel violated his s. 10(b) rights. It is my conclusion it did not. The police facilitated Mr. Matthew’s request to speak to duty counsel at the first reasonable opportunity.

178. All of the steps taken by the police between the time Mr. Matthew asked to speak to duty counsel and when a call was made by police to duty counsel were reasonably necessary and were completed with reasonable efficiency.

179. In considering whether the police provided Mr. Matthew with access to counsel at the earliest reasonable opportunity, it is important to remember that the police must ensure that a detainee can speak with counsel in private. It would not have been reasonably possible for Mr. Matthew to speak to duty counsel in private before he arrived at 12 Division.

180. In my view, the police took reasonable steps to minimize the delay in granting access to counsel. Seven minutes after Mr. Matthew told the police that he wanted to speak to counsel, he was taken by the uniformed officers to 12 Division. He arrived at 12 Division at 12:55 a.m. The uniformed officers and Mr. Matthew were required to wait in the sallyport about 11 minutes before the booker and the 12 Division officer-in-charge were available – which was not unusual. Mr. Matthew was paraded before the booking sergeant and the officer-in-charge at 1:06 a.m.

181. For safety reasons that were specific to this case, it was necessary for the police to conduct a Level Three search of Mr. Matthew. The question of whether a delay in facilitating access to counsel was reasonable must take into account reasonable concerns for officer and public safety: R. v. Suberu, 2009 SCC 33, [2009] 2 SCR 460, at para. 42; Patrick, supra, at para. 112.

182. In my view, the time taken to complete the booking process and the Level Three search in this case was reasonable: R. v. Lawson, 2017 ONSC 6807, at para. 76; R. v. Gibson, 2011 ONSC 3416, at para. 106. One minute after Mr. Matthew was returned to the interview room (after being taken to the washroom), Officer De Angelis called duty counsel and left a message. Duty counsel returned the message 29 minutes later and spoke to Mr. Matthew.

183. It is not unusual for there to be some delay in duty counsel returning a message left on behalf of a detainee, particularly in the middle of the night. In this case, there was no evidence that the police attempted to elicit evidence from Mr. Matthew during this period. In my view, it was not incumbent on the police to place a second call to duty counsel between 1:20 a.m. and 1:49 a.m.

184. I have concluded that the 29-minute delay by itself, or together with the rest of the delay from 12:38 a.m., was reasonable.

185. The Crown has discharged its burden to show that the delay was reasonable in this case.

SECTION 24(2) OF THE CHARTER

186. As I mentioned at the outset, the defence filed a number of Charter applications. I found one s. 10(b) violation.

“Obtained in a Manner”

187. Section 24(2) is triggered where evidence is “obtained in a manner” that infringes an accused’s Charter rights. Courts have taken a “generous view” of the phrase “obtained in a manner”: Griffith, supra, at para. 52. In considering this issue, a court must “examine the entire chain of events between the accused and the police”: R. v. Pino, 2016 ONCA 389, at para. 72. To trigger s. 24(2), the connection between the breach and the discovered evidence must not be “too tenuous or too remote”: Pino, supra, at para. 72. However, the connection may be “causal, temporal, or contextual, or any combination of these three connections”: Pino, supra, at para. 72.

188. In this case, the statement and real evidence were not causally connected to the s. 10(b) breach because the statement was made and the real evidence discovered by the police before the breach occurred. However, there was a temporal connection because the discovery of the evidence was close in time to the s. 10(b) violation: Griffith, supra, at para. 55; Pino, supra, at para. 74. There was also a contextual connection because the statement and discovery of the evidence arose out of the same events that resulted in the s. 10(b) violation: Griffith, supra, at para. 55; Pino, supra, at para. 74.

189. I have concluded that s. 24(2) is engaged.

190. Under s. 24(2) of the Charter, an accused has the onus to establish that, having regard to all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute: Griffith, supra, at para. 51.

191. I now turn to the three lines of inquiry, as set out in R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353.

(i) Seriousness of the Charter Infringing State Conduct

192. The first line of inquiry considers the seriousness of the state conduct that led to the Charter violation. When assessing seriousness, a court must situate conduct “on a scale of culpability”: R. v. Paterson, 2017 SCC 15, [2017] 1 SCR 202, at para. 43. This line of inquiry asks:

“…whether the police engaged in misconduct from which the court should dissociate itself, such as where the departure from Charter standards was significant or where the police knew or should have known that their conduct breached the Charter, or rather whether the breach was merely of a technical nature or reflected an understandable mistake, in which case dissociation is much less of a concern”: Griffith, supra, at para. 57.

193. A systemic problem or a pattern of Charter-infringing behaviour by the police will aggravate the seriousness of the conduct and supports exclusion: Griffith, supra, at para. 58.

194. Willful blindness, negligence and ignorance of Charter standards all support a finding that a violation is serious: R. v. Booth, 2019 ONCA 970, at para. 121.

195. In this case, Officer Taylor did not appreciate that he was obligated to restate Mr. Matthew’s right to counsel after the controlled substances were found in the Honda Civic.

196. In my view, the failure of Officer Taylor to advise Mr. Matthew of his rights to counsel was not a technical matter. Mr. Matthew’s jeopardy was significantly greater after the controlled substances were located by the police. The law is well-settled that, in these circumstances, a police officer is required to reiterate the right to counsel: Sawatsky, supra. Officer Taylor should have known that he was required to advise Mr. Matthew of his right to counsel when Mr. Matthew was arrested for possession of a schedule I substance for the purpose of trafficking. Officer Taylor’s failure to uphold Mr. Matthew’s s. 10(b) rights precludes a finding of good faith: Griffith, supra, at para. 58.

197. In assessing the first line of inquiry under s. 24(2), there are two other examples of police conduct in this case which should be considered.

198. First, Mr. Matthew’s father was detained by the police and he should have been advised of his right to counsel. The failure to advise Mr. Matthew’s father of his right to counsel reveals a certain casual attitude by the officers toward Charter values. While this conduct did not result in a violation of Mr. Matthew’s Charter rights, it is, in my view, relevant to the first line of inquiry: R. v. Cartwright and Patrick, 2017 ONSC 6858, at paras. 57-59; R. v. Sivarasah and Baregzay, 2017 ONSC 3597, at paras. 181-182; R. v. Robertson, 2019 BCCA 116, at paras. 52-62; R. v. Lauriente, 2010 BCCA 72, at paras. 23-34.

199. Second, Officer Duran did not include certain material facts in the ITO. The failure to include these material facts in the ITO was the result of Officer Duran’s carelessness. This is another example of a casual attitude toward Charter values by an officer who was involved in this case. While Officer Duran’s inattention to constitutional standards did not result in a s. 8 violation, in my view, it is relevant to the first line of the Grant inquiry. I will address Officer Duran’s carelessness in more detail in my reasons for judgment on the s. 8 application. Police officers seeking search warrants have an obligation to act with “diligence and integrity, taking care to discharge the special duties of candor and full disclosure that attach in ex parte proceedings”: R. v. Morelli, 2010 SCC 8, at para. 102. An incomplete recitation of known facts in an ITO can be a serious matter because it has the potential to effectively deprive a judicial officer of the ability to independently assess the sufficiency of the information to obtain: R. v. Rocha, 2012 ONCA 707, at para. 35.

200. If Officer Duran’s carelessness in preparing the ITO had resulted in the issuance of invalid search warrants, his conduct would have been situated even closer to the most serious side of the spectrum on the first line of the Grant inquiry: R. v. Dhillon, 2010 ONCA 582, at para. 51. However, as I have concluded, based on the ITO, as amplified on review, there were reasonable and probable grounds to believe that evidence of an offence would be found at 2535 Eglinton Avenue West and the 2014 Honda Civic.

201. In my view, the examples of police conduct mentioned above make the s. 10(b) violation more serious.

202. While the s. 10(b) violation was not deliberate, I would situate the s. 10(b) breach towards the serious end of the seriousness spectrum: Griffith, supra, at para. 67. It is sufficiently serious to favour exclusion of the evidence under s. 24(2).

(ii) Impact of the Breach on Mr. Matthew’s Charter-Protected Interests

203. The second line of inquiry requires an assessment of the impact of the breach on an accused’s Charter-protected interests. This inquiry calls for “an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”: Grant, supra, at para. 76. This requires a court to identify:

“…the interests protected by the Charter rights and evaluating how seriously the Charter infringements impacted those interests”: Griffith, supra, at para. 68.

204. The more serious the impact on Charter-protected interests, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant, at paras. 76; Griffith, supra, at para. 68.

205. The Court of Appeal recently described the interests protected by s. 10(b) as follows:

“The s. 10(b) right to retain and instruct counsel without delay and to be informed of that right allows a detainee to obtain advice about how to exercise their rights relevant to their legal situation: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21; R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321, at para. 77. This helps ensure that a detainee’s choice to speak to the police is free and informed and guards against the risk of involuntary self-incrimination: Suberu, at para. 40; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25; and Wong, at para. 77. As Doherty J.A. explained in Rover, the right to counsel is a “lifeline for detained persons” that provides detainees with both legal advice and psychological benefits by conveying to them that they are not at the mercy of the police while detained: at para. 45; see also Pileggi, at para. 123”: Griffith, supra, at para. 69.

206. In this case, there was no causal connection between the s. 10(b) breach and the police obtaining the statement or real evidence. This mitigates the impact of the breach on Mr. Matthew’s Charter-protected interests: R. v. Rover, 2018 ONCA 745, at para. 43; Griffith, supra, at para. 71; R. v. Miller, 2018 ONCA 942, at para. 21.

207. In assessing the impact on Mr. Matthew’s Charter-protected interests, it is also relevant that as soon as the police told him that he was under arrest (or being charged with) possession of a schedule I substance for the purpose of trafficking and cautioned him, Mr. Matthew responded, “Duty counsel, please.” After that, Mr. Matthew chose not to speak with the police. When Mr. Matthew was arrested for possession of a schedule I substance for the purpose of trafficking, he understood that he had a right to counsel and was under no obligation to speak to the police.

208. The police did not attempt to elicit evidence from Mr. Matthew during the period between the police finding the drugs and handgun in the car and Mr. Matthew speaking with duty counsel. The absence of that aggravating factor is a relevant consideration on the second line of inquiry: Griffith, supra, at para. 71.

209. In the circumstances of this case, I view the actual impact of the s. 10(b) infringement on Mr. Matthew’s Charter-protected interests as minimal.

(iii) Society’s Interest in the Adjudication of the Case on the Merits

210. The third line of inquiry considers society’s interest in an adjudication of the case on its merits. A court must consider “factors such as the reliability of the evidence and its importance to the Crown’s case”: Harrison, supra, at para. 33; Griffith, supra, at para. 76. Seriousness of the offence is a relevant consideration, but this is a factor that can cut both ways in the analysis.

211. In Griffith, supra, at para. 76, the Court described the third line of inquiry as follows:

“It asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion: Grant, at para. 79; McSweeney, at para. 81. Reliable evidence critical to the Crown’s case will generally pull towards inclusion: Harrison, at paras. 33-34; McGuffie, at para. 62; and McSweeney, at para. 81.”

212. In this case, the exclusion of the real evidence seized by the police during the execution of the search warrants would be fatal to the Crown’s case. The statement provided by Mr. Matthew is less essential to the Crown’s case, but it is still important evidence. Courts have “tended to exclude statements obtained in breach of the Charter”, but there is “no absolute rule of exclusion of Charter infringing statements under s. 24(2): Grant, supra, at para. 90.

213. While society has a compelling interest in an adjudication on the merits of prosecutions involving a loaded handgun there is “no special or categorical s. 24(2) rule when it comes to guns”: R. v. Coluccio, 2019 ONSC 4559, at para. 87; R. v. Bashir, 2012 ONCA 793, at para. 7.

214. The admission of the real evidence and Mr. Matthew’s statement would better serve the truth-seeking function of the criminal trial processes than its exclusion.

215. Society’s interest in the adjudication of the case on its merits favours the admission of the real evidence and the statement.

Overall Balancing of the Factors

216. The final step in the analysis requires a court to balance the three lines of inquiry to determine the “impact of the admission or exclusion of the evidence on the long-term repute of the administration of justice”: Griffith, supra, at para. 78.

217. The balancing required by this step “is a qualitative exercise, not capable of mathematical precision”: Harrison, supra, at para. 36.

218. In this case, the real evidence was obtained as a result of the execution of valid search warrants.

219. In assessing the impact of admission or exclusion of the evidence would have on the long-term interests of the administration of justice, I have taken into account Officer Duran’s carelessness when preparing the ITO and the failure of the police to advise Mr. Matthew’s father of his right to counsel.

220. As I have already stated, the actual impact of the s. 10(b) infringement on Mr. Matthew’s Charter-protected interests was minimal.

221. The statement was not the product of the police attempting to elicit evidence from Mr. Matthew – Mr. Matthew initiated the conversation with Officer McKenzie.

222. The real evidence and the statement were not causally related to the s. 10(b) breach. The police seized the real evidence and Mr. Matthew made the statement before the s. 10(b) breach.

223. After balancing all of the relevant factors, it is my view that the admission of the real evidence and the statement would not bring the administration of justice into disrepute.

CONCLUSION

224. The application to exclude the evidence is dismissed.

NORTH J.

CORRIGENDA

1. Paragraph 20 has been corrected to include the word “he” before the word “believes”.

2. Paragraph 163 has been corrected to include the words “for the purpose of trafficking”.

Released: June 15, 2021

[^1]: On June 15, 2021, I released a corrigendum to the reasons. The text of the original reasons has been corrected. The corrigendum is appended to this judgment. [^2]: On February 3, 2021 I released my reasons for dismissing a s. 11(b) application. [^3]: Officers Scott Taylor and Shawn McKenzie had their guns drawn. Officer Liam Wauchope testified that he was “not too sure” if he had his firearm out but said that he does not believe that he had his firearm in his hand when he took control of Mr. Matthew. [^4]: Officer Scott Taylor also testified that Officers Matthew and Wauchope removed Mr. Matthew from the car and put him on the ground. [^5]: The search warrant package contained materials that had been compiled or prepared by the police in advance of the execution of the search warrant. [^6]: From a document contained in the search warrant package. [^7]: The purpose of taking entry photos was to show the condition of the apartment and the Honda Civic before the officers commenced the search. [^8]: Officer Wauchope, in response to the suggestion by defence counsel that “there was quite a bit of interrogation” of Mr. Matthew by Officers Duran and McKenzie, responded, “that, I don’t know.” He said that while he was in the bedroom he did not hear any conversations that may have occurred in other areas of the apartment. [^9]: In cross-examination, Officer Taylor could not recall whether he told Mr. Matthew that he was under arrest for possession of a schedule I substance for the purpose of trafficking or that he will be charged (or “are charged”) with possession of a schedule I substance for the purpose of trafficking. [^10]: Reading the same caution that he had previously read to Mr. Matthew. [^11]: The property report was prepared sometime after the debriefing meeting which occurred ended at approximately 1:50 a.m. [^12]: See also R. v. Spencer, 2007 SCC 11, at para. 12. [^13]: The police must also refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity to exercise the right to counsel: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173, at p. 192.